In re Reil's Estate

Decision Date09 November 1949
Docket Number7570
Citation70 Idaho 64,211 P.2d 407
CourtIdaho Supreme Court
PartiesIn re REIL'S ESTATE

Cox Ware & Stellmon, Lewiston, for appellants.

It is unreasonable and unjust to interpret Section 14-103 to mean that children of a deceased brother or sister could share in the estate if there was another living brother or sister, but could not share if there was no such brother or sister living and no sound reason can support such an interpretation. In re Jepson's Estate, 1917, 174 Cal. 684, 164 P. 1 at 2.

Descent and distribution are controlled by statute and authority from other jurisdictions are not controlling. McComas v Amos, 1868, 29 Md. 120; Hously v. Laster, 1940, 176 Tenn. 174, 140 S.W.2d 146.

David L. Bazelon, Assistant Attorney General, Washington District of Columbia, John A. Carver, Sr., United States Attorney for the District of Idaho, and Paul S. Boyd, Assistant United States Attorney for the District of Idaho, Boise, James L Morrison and Robert B. McKay, Washington. District of Columbia, for the Attorney General of the United States, as successor to the Alien Property Custodian, Washington District of Columbia.

Where a resident of Idaho died intestate as to property in Idaho and was survived by neither issue, husband, wife, father, mother, brother, nor sister, Subdivision 5 of Section 14-103, I.C.A. requires the per capita distribution of that property among his surviving nephews and nieces as "the next of kin in equal degree" I.C.A., § 14-103. I.C.A., § 14-115. State v. Omaechevviaria, 27 Idaho 797, 152 P. 280. affirmed Omaecheviarria v. State of Idaho, 246 U.S. 343, 38 S.Ct. 323, 62 L.Ed. 763; Boise Street Car Co. v. Ada County, 50 Idaho 304, 296 P. 1019; Intermountain Title Guaranty Co. v. Egbert, 52 Idaho 402, 16 P.2d 390; Hendrix v. Gold Ridge Mines, Inc., 56 Idaho 326, 54 P.2d 254; Girard v. Defenbach, 61 Idaho 702, 106 P.2d 1010.

Common law rules are not relevant to the distribution of this estate; but, if they were, the result would be the same. I.C.A., §§ 14-102, 14-103, 73-116; Broward v. Broward, 96 Fla. 131, 117 So. 691; Knapp v. Windsor, 6 Cush., Mass. 156; Staubitz v. Lambert, 71 Minn. 11, 73 N.W. 511; Douglas v. Cameron, 47 Neb. 358, 66 N.W. 430.

Ray E. Durham, Lewiston, for Henry Reil, Administrator of Estate of Fred Reil, deceased, Lewiston, Idaho, for respondents.

Taylor, Justice. Holden, C. J., and Givens, Porter and Keeton, JJ., concur.

OPINION

Taylor, Justice.

The question presented by this appeal is whether, under our statute, nieces and nephews of an intestate inherit per stirpes or per capita. That is whether they take as representatives of their deceased parents, or in their own right as "next of kin." The facts are stipulated. Fred Reil died intestate August 29, 1944, leaving neither issue, wife, father, mother, brother nor sister. He left surviving fourteen nieces and nephews, children of two brothers and two sisters. Ten of these heirs, sons and daughters of one of the brothers and one of the sisters, reside in Germany. The Attorney General of the United States is claiming their share of the estate as successor to the Alien Property Custodian, and contends that the estate should be divided equally among the fourteen survivors, under the provisions of subsection 5, section 14-103, I.C. Four of the heirs, one a descendant of the other brother and three descendants of the other sister, reside in the United States. These contend the estate should be divided into four equal parts, one for each of the four brothers and sisters of the intestate, and that they as the representatives of one of the brothers and one of the sisters should take two-fourths, and that subsection 3, section 14-103, I.C., is the applicable provision of the statute. It is conceded that if one or more of decedent's brothers or sisters had survived him, then the nieces and nephews would take by right of representation under subsection 3. In this case, the brothers and sisters of intestate having all predeceased him, do the nieces and nephews take under subsection 3, per stirpes, or under subsection 5, per capita? The probate court ordered a per stirpes distribution. On appeal the district court reversed the probate court and entered judgment providing for distribution per capita. This appeal is from that judgment.

Two of the fourteen have died since the death of the intestate. It is agreed that their shares descend to their children as representatives.

Subsections 3 and 5 of section 14-103, I.C. are as follows:

"3. If there be neither issue, husband, wife, father nor mother, then in equal shares to the brothers and sisters of the decedent, and to the children of any deceased brother or sister by right of representation."

"5. If the decedent leave neither issue, husband, wife, father, mother, brother nor sister, the estate must go to the next of kin in equal degree, excepting that when there are two or more collateral kindred in equal degree, but claiming through different ancestors, those who claim through the nearest ancestor must be preferred to those claiming through an ancestor more remote."

It is appellant's position that the right of representation given to the children of any deceased brother or sister by the last clause of subsection 3 should be held to apply in all cases of inheritance by nieces and nephews even though there is no survivor among the brothers and sisters of the intestate. They cite: In re Jepson's Estate, 174 Cal. 684, 164 P. 1; McComas v. Amos, 29 Md. 120; Housley v. Laster, 176 Tenn. 174, 140 S.W.2d 146; Central Hanover Bank & Trust Co. v. Helme, 121 N.J.Eq. 406, 190 A. 53 at page 60; Claude v. Schutt, 211 Iowa 117, 233 N.W. 41, 78 A.L.R. 1375; In re Healy's Estate, 176 Cal. 244, 168 P. 124; Iglehart v. Holt, 12 App.D.C. 68; and In re Yonk's Estate, Utah, 204 P.2d 452. In the Jepson case the deceased left a surviving widow and nieces and nephews. It was held that under an amendment of the California statute the nieces and nephews were entitled to share with the surviving widow. Prior to the amendment the widow took all. Ingram's Estate, 78 Cal. 586, 21 P. 435, 12 Am.St.Rep. 80. In this earlier case the decedent left a surviving husband and the issue of a deceased sister. The California court held that the entire estate went to the husband under what was then subsection 5 of the California statute, and that their subsection 2, which is comparable to our subsection 3, applies only in cases where there is a surviving brother or sister. In the Jepson case the court complained of the injustice of the rule in the Ingram case, because it excluded children of a deceased brother or sister where there was no surviving brother or sister, but permitted them to share where there was such survivor. The reasoning is not applicable here, however, because of the provisions of subsection 4 of our statute, which is as follows:

"4. If the decedent leave a surviving husband or wife and neither issue, father nor mother, the whole estate goes to the surviving husband or wife."

Under this provision the surviving husband or wife would inherit the entire estate whether there was a surviving brother or sister or not.

In McComas v. Amos, supra, it was held that under the Maryland statute, which provided that children of brothers and sisters "shall stand in the place" of his or their parents, nieces and nephews inherit per stirpes. The same Maryland statute was similarly applied and followed in Iglehart v. Holt, supra. We have no similar statutory provision. In Housley v. Laster, supra, the Tennessee court held that nieces and nephews take per stirpes. But the Tennessee statute expressly classes children of brothers and sisters as their representatives.

Central Hanover Bank & Trust Co. v. Helme, supra, is a will case. It is cited in support of the proposition that where there is doubt the courts award to issue per stirpes. The court was concerned with the meaning of the word "issue" as used by the testator. It is also to be noted that the case does not involve inheritance by collaterals, but deals with bequests and legacies to lineal descendants. Inheritance by lineal descendants is provided for by subdivision 2 of our statute. Claude v. Schutt, supra, also involving the construction of a will, dealt with lineal descendants and not collaterals. In re Healy's Estate, supra, is another will case in which the testator gave bequests to grandnieces and grandnephews "by right of representation." It was held that the distribution should be made per stirpes.

In re Yonk's Estate, supra, is a recent Utah decision. The intestate left as his sole heirs 24 nieces and nephews, sons and daughters of five brothers and sisters. The court held that the Utah statute requires distribution per stirpes in such case. The statute, both before and after the amendment of 1933, is set out in the opinion. Like the California statute the Utah law requires the surviving spouse to share with brothers and sisters of the decedent. In other respects, the original Utah act as to collaterals was the same as ours. Their subsection 6 (which, before the amendment, was the same as our 5) as amended provides:

"(6) If the decedent leaves neither issue, husband, wife, father, mother, brother nor sister, nor children or grandchildren of any deceased brother or sister, the estate must go to the next kin in equal degree, * * *." U.C.A.1943, 101 -- 4 -- 5(6)

As to the effect of the amendment the court said :

"The revision of subsection (6) further assists in determining the legislative intent. Prior to the revision, a strict interpretation of the section would require that nieces and nephews be considered as inheriting under the provisions of this section. The early provision extended preference no further than surviving issue,...

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6 cases
  • Weber's Estate v. Christensen
    • United States
    • Idaho Supreme Court
    • July 2, 1959
    ...of I.C. § 14-403, sub-section 5, instead of sub-section 3. We have heretofore determined in the case of In re Reil's Estate, 70 Idaho 64, 211 P.2d 407, 410, 19 A.L.R.2d 186, as to who are the heirs under the provisions of I.C. § 14-103, sub-section 5. We quote from such case as 'Moreover, t......
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