Rowley v. Stray

• Decision Date: 30 April 1875
• Citation: 32 Mich. 70
• Court: Michigan Supreme Court
• Parties: Joel L. Rowley v. George W. Stray and another

32 Mich. 70

Joel L. Rowley v. George W. Stray and another

Supreme Court of Michigan

April 30, 1875

Heard April 22, 1875; April 23, 1875,

Case made from Branch Circuit.

Judgment reversed, with costs of both courts, and judgment entered in this court for the plaintiff.

Loveridge & Barlow, for plaintiff.

Upson & Thompson, for defendants, cited among other cases Aldridge v. Montgomery, 9 Ind. 302; Smith v Smith, 23 Ind, 202; McMackin v. Michaels, Ibid., 462; Beebee v. Griffing, 14 N. Y., 235; Wheeler v. Clutterbuck, 52 N. Y., 67; Den v. Urison, 2 Pennington 154; Den v. De Hart, Ibid., 363; Den v. Jones, 3 Halst. (N. J.), 340; Cresoe v. Laidley, 2 Binn. 279; Baker v. Chalfant, 5 Whart. 477; Danner v. Shissler, 7 Casey 289; Shippen v. Izard, 1 S. & R., 222; Beran v. Taylor, 7 S. & R., 397; Gardner v. Collins, 2 Pet. 58; Cole v. Batley, 2 Curtis 562; Smith v. Smith, 4 R. I., 1.

OPINION

Cooley, J.:

The controversy in this case concerns the title to a parcel of land formerly owned by David Mann, and which on his death passed under the statute of descents to David Albert Mann, his only child. The mother of David Albert survived her husband, and subsequently married a second time. Of this marriage four children were born, of whom the plaintiff is one. The mother died in 1859. David Albert died intestate, and without having married, March 23, 1864. His nearest surviving kindred were his father's mother, Polly Mann, and the children of his mother's second marriage. David Albert died seized of the land in controversy, and Polly Mann, claiming to be his heir at law, gave a deed thereof to Peter I. Mann, under whom defendants hold possession. And the question in the case is whether the father's mother, or the brothers and sisters of the half-blood, inherited this estate.

The statute of descents, so far as it affects the present case, is as follows:

"(4309). When any person shall die seized of any lands, tenements or hereditaments, or of any right thereto, or entitled to any interest therein in fee simple, or for the life of another, not having lawfully devised the same, they shall descend subject to his debts, in manner following:

"First, In equal shares to his children, and to the issue of any deceased child by right of representation; and if there be no child of the intestate living at his death, his estate shall descend to all his other lineal descendants; and if all the said descendants are in the same degree of kindred to the intestate they shall share the estate equally; otherwise they shall take according to the right of representation;

"Second, If he shall leave no issue, his estate shall descend to his widow during her natural lifetime, and after her decease to his father; and if he shall leave no issue or widow, his estate shall descend to his father;

"Third, If he shall leave no issue, nor widow, nor father, his estate shall descend in equal shares to his brothers and sisters, and to the children of any deceased brother or sister by right of representation: Provided, That if he shall leave a mother also, she shall take an equal share with his brothers and sisters; "Fourth, If the intestate shall leave no issue, nor widow, nor father, and no brother nor sister, living at his death, his estate shall descend to his mother, to the exclusion of the issue if any of deceased brothers or sisters;

"Fifth, If the intestate shall leave no issue, nor widow, and no father, mother, brother, nor sister, his estate shall descend to his next of kin in equal degree, excepting that when there are two or more collateral kindred in equal degree, but claiming through different ancestors, those who claim through the nearest ancestor shall be preferred to those claiming through an ancestor more remote: Provided, however,

"Sixth, If any person shall die leaving several children, or leaving one child and the issue of one or more other children, and any such surviving child shall die under age, and not having been married, all the estate that came to the deceased child by inheritance from such deceased parent shall descend in equal shares to the other children of the same parent, and to the issue of any such other children who shall have died, by right of representation;

"Seventh, If at the death of such child who shall die under age, and not having been married, all the other children of his said parent shall also be dead, and any of them shall have left issue, the estate that came to said child by inheritance from his said parent shall descend to all the issue of other children of the same parent; and if all the said issue are in the same degree of kindred to said child, they shall share the said estate equally, otherwise they shall take according to the right of representation;

"Eighth, If the intestate shall leave a widow and no kindred, his estate shall descend to such widow;

"Ninth, If the intestate shall leave no widow nor kindred, his estate shall escheat to the people of this state for the use of the primary school fund."

A subsequent section provides:

"(4313). The degrees of kindred shall be computed according to the rules of the civil law, and kindred of the half-blood shall inherit equally with those of the whole blood in the same degree, unless the inheritance come to the intestate by descent, devise or gift of some one of his ancestors, in which case all those who are not of the blood of such ancestor shall be excluded from such inheritance."

The plaintiff claims that, as the intestate left surviving him neither issue, nor widow, nor father nor mother, the land, under the third subdivision of § 4309, descended to the brothers and sisters; and, although it was ancestral estate, yet, as there were no brothers or sisters of the whole blood, this circumstance becomes immaterial, and those of the half-blood must inherit. On the other hand, the position of the defendants is, that as the father's mother and the brothers and sisters of the half-blood all stand to the deceased in the same degree of relationship computed by the rules of the civil law, and as the latter are not of the father's blood, they are excluded by the express terms of § 4313, and the father's mother becomes sole heir. And this position would seem to be impregnable if descent under the facts of this case is to be determined on a computation of the degrees of kinship.

It is very evident, however, that the statute has classified heirs by a designation of relationship instead of by computation of degrees of kindred, and that it is only when no persons are found answering to the designation that resort is had to the computation. The descent,--saying nothing of representation of deceased persons who if living would have been heirs,--is first, to children; second, to the widow and father, if any; third, to brothers and sisters and the mother; fourth, to the mother, when there is neither issue, widow, father, brother or sister; and when none are found in either of these classes, then, fifth, to the next of kin in equal degree under...