Prendergast v. Anthony

• Decision Date: 01 January 1853
• Parties: PRENDERGAST, ADM'R, v. ANTHONY.
• Court: Texas Supreme Court

11 Tex. 165

PRENDERGAST, ADM'R,

v.ANTHONY.

Supreme Court of Texas.

1853.

The Act of March 17th, 1842 (Hart. Dig., Art. 591), had the effect to give the whole estate of an intestate without issue, in all cases, to the sole surviving parent, to the exclusion of brothers and sisters of the deceased.

Appeal from Brazos. Nancy R. Collins died intestate in 1845, leaving her mother, Mary Anthony, and several brothers and sisters surviving; and the question was, whether the mother, to the exclusion of the brothers and sisters, was entitled to the whole of the estate of the deceased, which the latter derived from her grandfather.

D. M. Prendergast, for appellant. I. In giving a construction to the Act of March 17th, 1842, the Court will look to the previous legislation on the same subject, the object had in view by the Legislature, and the evil intended to be remedied. “The real intention of the Legislature, when accurately ascertained, will always prevail over the literal sense of terms.” “Several Acts in pari materia, and relating to the same subject, are to be taken together, and compared, in the construction of them.” (1 Kent Com., 461, 463; 2 Pet. R., 662.)

With these general principles in view, what is the construction proper to be given to the Act of March 17th, 1842? Does it alter or change the 4th Section of the Act of January 28th, 1840?

The mode of descent and distribution prescribed by the 7th and 8th Sections of the Act of 1840, differed from and formed an exception to the general provisions contained in the 4th Section of the same Act; and it was evidently the intention of the Legislature, by the Act of March 17th, 1842, simply to remove the restrictions placed upon the particular estates referred to in said 7th and 8th Sections, and to place them, for the purposes of partition and distribution, within the provisions of the 4th Section. If such were not the intention of the Legislature, it may be asked in what other possible sense the 7th and 8th Sections could be “controlled and governed by the provisions of the 4th.”

Nor is it believed that the latter part of the Act of 17th March, 1842, was designed by the Legislature to be inconsistent with this understanding of the preceding portion of the Act. It seems to have been designed merely as a more positive and unequivocal expression of the legislative will, that “the surviving parent, or parents should not be excluded (from an interest in the inheritance), no matter in what manner the estate may have been acquired by the intestate.”

“Though two statutes be seemingly repugnant, yet, if there is no clause of non obstante, in the latter, they shall, if possible, have such construction that the latter may not repeal the former by implication.” (6 Porter, Ala. R., 231.) To give to the Act of March 17th, 1842, a different construction, and such as is contended for by the appellees, would involve the absurdity of first enacting that the 7th and 8th Sections of the Act of January 28th, 1840, shall be controlled and governed by the provisions of the 4th Section, and at the same time and in the same sentence establishing an entirely different order of descent from that prescribed by said 4th Section. Such a construction would make the latter portion of the Act, which contains but one Section, repeal the former, and would amount to a virtual repeal, by implication, of said 4th Section.

The Court will not, most assuredly, place a construction on the Act that would produce such a radical change in the law of descents and distributions, unless such were plainly the intention of the Legislature. “A case, out of the mischief intended to be remedied by a statute, shall be construed to be out of the purview, though it be within the words, of the statute.” (6 Porter's R., 119; 6 Bac. Abr., 373.) The general expressions used in the Act will be controlled and limited by the legislative intention, as derived from the whole purview of the Act. (9 Bac. Abr., 247.)

As it is a well-settled rule that where there is a discrepancy between two statutes, such construction shall be given to them, that both may stand, if possible, so a fortiori should an Act be so construed as to be consistent with itself, and not permit one part of it to nullify another.

II. But, even admitting that the latter portion of the Act of 17th March, 1842, was intended to modify or alter the rule of descents prescribed by the 4th Section of the Act of January 28th, 1840, it cannot, it is conceived, with any show of reason, be construed to embrace anything more than the particular estates referred to in the 7th and 8th Sections of the Act of 1840; that is, estates derived from one of the parents of the deceased. Every expression in the Act has reference to said 7th and 8th Sections. In no portion of the Act is there a clause to which a more extended operation can be given. The property in question in this case was derived from the grandfather of the intestate, and not from one of the parents, and consequently would not be in any manner affected by the Act, under either construction.

H. J. Jewett, for appellee.

HEMPHILL, CH. J.

Nancy R. Collins died intestate, in the year 1845, leaving her mother, Mary Anthony, and several brothers and sisters surviving; and the question is, whether the mother, to the exclusion of the brothers and sisters, is entitled to the whole of the estate of the deceased.

The appellant, in a very ingenious argument, has contended that the estate should be...