Smallman v. Powell

• Decision Date: 20 January 1890
• Citation: 18 Or. 367,23 P. 249
• Parties: SMALLMAN v. POWELL.
• Court: Oregon Supreme Court

23 P. 249

18 Or. 367

SMALLMAN v. POWELL.

Supreme Court of Oregon

January 20, 1890

Appeal from circuit court, Linn county; R.P. BOISE, Judge.

It is herebye stipulated and agreed by and between the parties herein to submit this cause to the court for trial upon the following statements of the facts herein, to-wit:

First. That Sampson Smallman and Margaret Smallman, now both deceased, were, at and prior to their death, seised in fee-simple of the following-described real estate, to-wit The donation land claim of Sampson Smallman and Margaret Smallman, his wife; the same being notification No. 1118, and claim No. 6, being part of section 35, in township 9 S range 2 W., and claim No. 53, being parts of sections 1, 2, 3, and 11 in township 10 S., range 2 W., in Linn county, Or Second. That said Sampson Smallman and Margaret Smallman died intestate, leaving John Smallman, the plaintiff herein, and Elizabeth Smallman, their only children, surviving them, and their only heirs. Third. That afterwards said Elizabeth Smallman was lawfully married to Wiley Powell, a son of Peter Powell, the defendant herein. Fourth. That afterwards said donation land claim was duly partitioned and divided between the plaintiff and said Elizabeth Powell, and the east half of said donation land claim was allotted and set apart to the said Elizabeth Powell, in her own right, in fee-simple, as for her share of said land claim, and the west half of said land claim was allotted and set apart to the plaintiff as and for his share of said land claim, in his own right, in fee-simple. Fifth. That afterwards said Elizabeth Powell and said Wiley Powell, her husband, died intestate, leaving one child, Sampson T. Powell, their only heir, surviving them. Sixth. That afterwards said Sampson T. Powell died, and at the time of his decease he left neither wife, nor father mother, brother, nor sister, nor the representatives of either, living. Seventh. That said Sampson T. Powell, at the time of his death, was seised in fee-simple of the east half of said land claim, as the sole heir at law of said Elizabeth Powell, his mother. Eighth. That Peter Powell, the defendant herein, is the paternal grandfather, and only surviving grandparent, of the said Sampson T. Powell. Ninth. That John Smallman, the plaintiff herein, is the uncle of the said Sampson T. Powell, on the part of his mother, and the only surviving child of the maternal grandparents, now deceased, of said Sampson T. Powell, on his mother's side.

If the court shall be of the opinion upon the above statements of the facts in the case, that the plaintiff is entitled to the east half of said donation land claim, as the sole heir and next of kin of the said Sampson T. Powell, then the plaintiff is to have judgment herein for the possession of the said east half of said land claim; but if the court shall be of opinion that the defendant, in his own right, as next of kin, on the part of the father of said Sampson T. Powell, is entitled to said east half of said land claim, then the court is to find and render judgment herein in favor of the defendant, as shall be deemed advisable and just on the above statement of facts in this cause.

After argument by counsel, the court, having fully considered the allegations of the parties, and the facts as agreed upon by the parties in their stipulation to file herein, finds the facts as stipulated, and adopts the statement of facts so stipulated as the findings of fact by the court, and as conclusions of law; and the court finds, first, that Peter Powell is the nearest of kin surviving the said Sampson T. Powell, and is the heir at law of said Sampson T. Powell, and takes by descent the east half of the land claim described in said stipulations as the sole heir at law of said Sampson T. Powell, and is the lawful owner, and entitled to the possession, thereof.

The court found a decree in accordance therewith, and from which this appeal is taken.

(Syllabus by the Court.)

The grandfather is one degree nearer of kin than the uncle, as computed by the civil law.

. Where an intestate has no issue, nor wife, nor father, mother, brother, nor sister, held, that his grandfather took the estate in preference to his uncle, as next of kin.

J.K. Weatherford, for appellant.

J.C. Powell, for respondent.

LORD, J., (after stating the facts as above.)

This case presents the single question whether the real property already described passes to the defendant as next of kin, or to the plaintiff; the former being the grandfather, and the latter the uncle, of the intestate. The whole matter depends upon the meaning to be given to subdivision 5, § 3098, Code Or. "If the intestate shall leave no lineal descendants neither wife, nor father, mother, brother, nor sister, such real property shall descend to his next of kin in equal degree," etc. And section 3103 provides that "the degree of kindred shall be computed according to the rules of the civil law." It is somewhat difficult to catch the point in the contention for the plaintiff. While the rule for computing kindred as declared by the statute is admitted, the argument indicates that if so computed, and the grandfather be found to be one degree nearer than the uncle, he would not be entitled to the inheritance, because he is not of...