Overton v. Heckathorn.

• Decision Date: 01 February 1918
• Court: West Virginia Supreme Court
• Parties: J. E. Overton, Adm'r. v. Vida May Heckathorn et al.

81 W.Va. 640

J. E. Overton, Adm'r.

v.Vida May Heckathorn et al.

Supreme Court of Appeals of West Virginia.

Submitted February 1, 19-18. Decided February 12, 1918.

1. Statutes Intent Antecedent Laws.

Intention plainly expressed by terms used in a statute passed by the legislature, with intent to make it the comprehensive and exclusive rule of law as to its subject matter and a complete substitute for the previous law of that subject, whether statutory, common or civil, is not restrained or limited by the antecedent law, even though it may seem to have prescribed a more equitable rule than that found in such terms, (p. 643).

2. Descent and Distribution Nieces and Nephews Division

Statute.

Under the provisions of sees. 1, 3 and 9 of ch. 78 of the Code, the estate of a deceased person, leaving surviving him only nieces and nephews and grand-nieces and nephews, collateral relations of the whole blood, is divided into a number of shares equal to the whole number of nieces and nephews living and represented by the issue of those dead, one of which goes to each, of those living and one to each class of the descendants of those dead, the latter for equal division among the members of such class, (p. 642).

3. Same Class Statute.

In the prescription of the basis of distribution, sees. 1 and 3 of said chapter do not go beyond classes of persons having living representatives. They take the nearest class having one or more living representatives, and, if some of that class are dead, their descendants take the shares their ancestors would have received, had they survived the intestate, (p. 642).

Appeal from Circuit Court, Ritchie County.

Suit by J. E. Overton, administrator of the estate of R. B. Cuthbert, opposed by Vida May' Heckathorn and others and James A. Cuthbert and others. From the decree, Vida May Heckathorn and others appeal.

Affirmed.

Chas. M. Showalter and Reese Blizzard, for appellants. Smith D. Turner, for appellee.

poeeenbarger, president:

The decree brought up by this appeal was made and entered on a bill of conformity filed by the administrator of R. B. Cuthbert, for advice and instruction as to the distribution of an estate appraised at more than $77,000.00, of which less than $15,000.00 was personal property. Its value no doubt greatly exceeds the appraisement.

The controversy among the heirs, necessitating resort to a court of equity, by the administrator, grows out of a difference of opinion respecting the interpretation of sections 1, 3 and 9 of chapter 78 of the Code, the statute of descents and distributions. All of the heirs are collateral, the descendants of a brother and two sisters who predeceased the intestate whose estate is involved. The descendants of the dead brother are two sons, a daughter and three grand-children, issue of a dead son. Those of one of the dead sisters are Vida May Heckathorn and Ralph T. Heckathorn, her grand-children. Those of the other are. three sons, two daughters and two grand-children, issue of a dead daughter. Only the Heckathorn heirs, descendants of Elizabeth Young, a sister, complain of the decree, which allows them only one-eleventh of the estate, while the descendants of George Cuthbert, the brother, are allowed four-elevenths and those of Catherine Hadley, the other sister, six-elevenths. These appelants claim the estate should have been divided into three parts, to correspond with the number of the original collateral kin standing in nearest relation to the decedent, one brother and two sisters, and one of the shares allotted to them. All of these having predeceased the plaintiff's intestate, the court took, as the basis of distribution, the nearest class of collateral kindred, having living representatives, nieces and nephews, of whom eight were living and three had died, leaving issue.

With exceptions not important here, sec. 9 of the statute disposes of the personal estate of a deceased person, after payment of funeral expenses, administration charges and debts, to and among the same persons, and in the same proportion, as real estate is given. By sec, 1, the real estate goes "1. To his children and their descendants. 2. If there be no child, nor the descendants of any child, then to his father. 3. If there be no father, then to his mother, brothers and sisters, and their descendants." Sec, 3 provides as follows: "When the children of the intestate, or his mother, brothers and sisters, or his grandmother, uncles and aunts, or any of his female lineal ancestors, living with the children of his deceased lineal ancestors, male or female, in the same degree, come into the partition, they shall take per capita or by person; and where, a part of them being dead and a part living, the issue of those dead have right to partition, such issue shall take per stirpes, or by stocks, that is to say, the shares of thein deceased parents; but whenever those entitled...