Rose v. Blewett

• Decision Date: 01 April 1957
• Citation: 202 Tenn. 153,303 S.W.2d 709,6 McCanless 153
• Parties: , 202 Tenn. 153 Stacy ROSE et al. v. S. J. (Sam) BLEWETT et al.
• Court: Tennessee Supreme Court

Page 709

303 S.W.2d 709

6 McCanless 153, 202 Tenn. 153

Stacy ROSE et al. v. S. J. (Sam) BLEWETT et al.

Supreme Court of Tennessee.

April 1, 1957.

Rehearing Denied June 7, 1957.

John W. Loch, and Canale, Glankler, Montedonico, Boone & Loch, Memphis, Wm. Alfred Rose, Robert R. Reid, Jr., and White, Bradley, Arant, All & Rose, Birmingham, Ala., of counsel, for appellants.

J. L. Jones, Pulaski, for appellees.

TOMLINSON, Justice.

When S. Clifton Rose died intestate he was the owner of considerable real estate acquired during his life. It is located in Memphis and in Giles County. He left surviving him no issue, brother, sister, descendant thereof, nor parent.

Intestate's nearest blood relatives on his father's side are five first cousins, related to intestate in the 4th degree, computed according to the civil law, and two second cousins, related to him in the 5th degree, these two being the children of, and representing, a deceased first cousin. These seven were complainants in this case. The common ancestor of complainants and intestate was the intestate's paternal grandfather, Solon Eldridge Rose.

Intestate's nearest blood relatives on his mother's side are three third cousins, related to him in the 6th degree. These three were the defendants to the bill. The ancestor common to them and intestate was Thomas Martin, the maternal great-great-grandfather of intestate.

The controversy between complainants and defendants is with reference to the disposition of this realty. That disposition is controlled by Code Section 31-101, subsection (2)(c), reading as follows:

'(2) * * * If the estate was acquired by the intestate, and he died without issue, his land shall be inherited--[there being no brother, or sister or descendant thereof surviving him]

'(c) If both parents be dead, in equal moieties by the heirs of the father and mother in equal degree, or representing those in equal degree of relationship to the intestate, but if such heirs or those they represent do not stand in equal degree of relationship to the intestate, then the heirs nearest in blood or representing those who are nearest in blood to the intestate, shall take in preference to others more remote.'

The complainants insist that this code section passes all this realty to them because they, the closest blood relatives of intestate on the father's side, are closer such relatives of intestate than the closest on the side of intestate's mother.

The defendants insist that this code section passes a one-half undivided interest in all this land to such group of heirs of the father as are the closest relatives of the intestate on his father's side, or representing one who, had he or she been living, would have been a member of such group, and that the remaining one-half undivided interest in this realty passes to the group of closest relatives who are heirs of his mother, notwithstanding the fact that they are not as close blood relatives at the group of equal degree, or the representative of such, on the side of intestate's father.

The Chancellor sustained the contention of the defendants. Complainants appealed to this Court, the facts being stipulated.

The disagreement between the parties arises from their contrary construction of the last part of sub-section (2)(c) reading as follows:

'but if such heirs or those they represent do not stand in equal degree of relationship to the intestate, then the heirs nearest in blood or representing those who are nearest in blood to the intestate, shall take in preference to others more remote.'

This code section is a part of Chapter 171, Acts of 1841-1842.

The first decision of this Court relevant here is Beaumont v. Irwin, decided in 1854, and reported in 34 Tenn. 291. The Court says there, at page 299, that 'this cause involves the construction of the acts of 1842, Chapter 169, Section 1.' The importance of the decision is such that quotations therefrom will be rather full. The Court quoted the statute which it construed as follows:

'The statute enacts 'that where any person shall die seized of any lands, tenements, or hereditaments, or any right thereto, or entitled to any interest therein, not having legally disposed of the same by last will or testament, and having no issue, or brothers or sisters, or issue of brothers or sisters, his or her estate shall descend in equal moieties, in fee-simple, to his or her father and mother, to hold as tenants in common or, if either be dead, then to the surviving parent; and if both be dead, then the estate shall descend, in equal moieties, to the heirs of the father and the heirs of the mother.'

'The first proviso to the above clause declares that, if such heirs do not stand in equal degree of relationship to the intestate, those who are nearest in blood shall take the estate. And the second proviso declares 'that when the estate came to the intestate by gift from the father, or by gift, devise, or descent from the ancestors of the father, the same shall descend to the father only, if living, in preference to the mother. And when the estate came to the intestate by gift from the mother, or by gift, devise, or descent from the ancestors of the mother, the same shall descend to the mother only, if living, in preference to the father.'

'This statute is inartificially framed, and its meaning is somewhat obscure.' At pages 299-300.

The construction which that Court placed on the statute just quoted is:

'The policy of the statute would seem to be to distinguish between such estate of the intestate as he may have acquired, in any mode, from either parent, or either parental line, and such estate as he may have acquired, otherwise; and that, in the former case, the estate should go to the parent, or relations of the line whence 'it came;' and in the latter case, that it should go in equal moieties to the parents, if living, or the survivor; and if both were dead, then in like manner to the heirs of both.'

It repeats that part of the holding which concerns the issue now under consideration, viz.:

'And in the event of the death of both parents in the life of the intestate, the heirs of the father and the heirs of the mother take the estate in equal moieties.'

Each emphasis above is supplied.

And then closes with the following statement, at page 303:

'The construction we have put upon the statute, while it leaves important principles untouched, is, we think, in accordance with the spirit and meaning of the law.'

So, that Court in construing, as a whole, the statute which it quoted concluded that 'the spirit and meaning of the law' is that if both parents predecease the intestate 'the heirs of the father and the heirs of the mother take the estate in equal moieties.'

Immediately before so construing that statute the Court had expressly called attention to, to use the Court's language, 'the first proviso to the above clause declares that, if such heirs do not stand in equal degree of relationship to the intestate, those who are nearest in blood shall take the estate'. Thus, an inescapable conclusion is that the Court necessarily had in mind this proviso, as well as all other provisions of the statute it was construing, when it held that if both parents have predeceased the intestate the heirs of each take his land in equal moieties.

The only difference between the language of the proviso in question in Chapter 169 of the Acts of 1842 thus construed in Beaumont v. Irwin, and the language of Chapter 171, Acts of 1841-1842 carried as Section 31-101(2)(c) of the Code, is that in this code section, after the expression 'in equal degree', there is added the expression,--'or representing those in equal degree of relationship to the intestate', and 'or representing those who are nearest in blood to the intestate, shall take in preference to others more remote'.

The meaning of the expression appearing in the code section, to-wit, 'or representing those in equal degree...