Preston v. Cole

• Decision Date: 16 March 1888
• Citation: 64 N.H. 459,13 A. 788
• Parties: PRESTON v. COLE et al.
• Court: New Hampshire Supreme Court

13 A. 788

64 N.H. 459

PRESTON

v. COLE et al.

Supreme Court of New Hampshire. Hillsborough.

March 16, 1888.

Appeal from probate court, Hillsborough county.

Probate appeal from a decree of distribution of the personal estate of Abby P. Brown, deceased, intestate. The heirs at law of the intestate are eleven nephews and nieces and one grand-niece. They are descendants of five brothers and sisters of the intestate, all deceased. One of the appellants is the only child of a brother of the deceased, and the other the only child of a sister. Three of the heirs are children of another sister, four of a brother, two of another brother, and one of the child of the deceased daughter of the last-named brother. The probate court decreed the estate to be distributed in equal shares among the 12 heirs. The reasons of appeal are (1) because the estate was divided in 12 equal parts, and an equal share decreed to each of the nephews and nieces, and to the grand-niece; (2) because one-fifth of the estate was not decreed to each of the appellants.

William A. Preston, for administrator. Burnham & Brown, for appellants.

SMITH, J. The distributees of the personal estate of the intestate are eleven nephews and nieces, children of five deceased brothers and sisters of the intestate, and one grand-niece, child of the deceased daughter of one of the deceased brothers. Gen. Laws, c. 203, § 1; Laws 1883, c. 72. The single question is whether the 12 claimants take per capita, or per stirpes, and if per stirpes, whether the roots or principals are the five deceased brothers and sisters, or their 12 children. When the claimants all stand related to the intestate in equal degree they take per capita, representation not being necessary to prevent the exclusion of those in a remoter degree; but when they stand in unequal degrees, representation is necessary. Nichols v. Shepard, 63 N. H 391. The brothers and sisters of the intestate all being dead, their represent atives in equal degree, to-wit, their children, become themselves principals, and stand next in degree to the intestate in their own right, and not by right of representation. 2 Bl. Comm. 217, 218. They take by inheritance from the intestate, the remoter ancestor. They inherit nothing from the nearer ancestors, the brothers and sisters of the intestate, because the estate never became theirs. Sedgwick v. Minot, 6 Allen, 171, 174. If the mother of the grand-niece were living, she, with the 11 nephews and nieces who...