Overton v. Heckathorn

Citation95 S.E. 82
Decision Date12 February 1918
Docket Number(No. 3428.)
CourtSupreme Court of West Virginia
PartiesOVERTON. v. HECKATHORN et al.

(Syllabus by the Court.)

Appeal from Circuit Court, Ritchie County.

Bill of conformity filed 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, both of Parkersburg, for appellants.

Smith D. Turner, of Parkersburg, for appellee.

POFFENBARGER, P. 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, of which less than $15,000 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 (sees. 3901, 3903, 3909), 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 thedead brother are two sons, a daughter, and three grandchildren, issue of a dead son. Those of one of the dead sisters are Vida May Heckathorn and Ralph T. Heckathorn, her grandchildren. Those of the other are three sons, two daughters, and two grandchildren, 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 Cutnbert, the brother, are allowed four-elevenths, and those of Catherine Hadley, the other sister, six-elevenths. These appellants 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, section 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 section 1 (sec. 3901) 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."

Section 3 (see. 3903) provides as follows:

"When the children of the intestate, or his mother, brothers and sisters, or his grandmother, uncle and aunts, or any of his female lineal ancestors, living with the children-of his deceased lineal ancestors, male and 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 their deceased parents; but whenever those entitled to partition are all in the same degree of kindred to the intestate, they shall take per capita or by persons."

The decree construes and applies the statute, in exact accord with the construction and earlier one received at the hands of the court in Davis v. Rowe, 6 Rand. (Va.) 355, the decision in which would be as authoritative here as if it had been rendered by this court, under the same statute and upon a like state of facts. When it was rendered, the Code of 1819 governed, and the law of descents, and distributions was verbally altered in"lS49, by the insertion of a clause in section 3 of chapter 123 of the Code of 1849, at the...

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