Cook v. Catlin

Hinman, J.

The testator by his will, after disposing of the bulk of his estate in making provision for his widow, and *391 in legacies to nephews and nieces, and others, gave the remainder to his heirs in these words : “ The remainder I give to my heirs, excepting, however, that part of said remainder intended for Eliza Cook and Mary M Call, I give and bequeath to Cyrus Catlin and Guy Catlin, in trust for the sole and separate use of said Eliza and Mary, during their respective lives, and then to be paid to their heirs at law.”

The testator’s only heirs were his nephews and nieces and their representatives, being the children and grandchildren of his three deceased brothers, and of a sister also deceased ; and the question is whether the nephews and nieces take equal shares per capita, or whether they take, by right of representation, the share a brother or sister of the deceased, whose children they are, and whom they therefore represent, would take if living.

There is no doubt that in England, and probably in most of the states, under their statutes of distribution, nephews and nieces thus situated, as next of kin, would all take equally per capita, being all in equal degree of relationship to the deceased. 2 W’ms on Ex., 1080, 1081. 1 Sw. Big., 115.

But as our statute of distributions provides, in case there are no children or any legal representatives of them, that the residue of the estate not given to the wife, “ shall be distributed and set off equally to the brothers and sisters of the intestate, of the whole blood, and those who legally represent them and it is only after the failure of any representatives of brothers and sisters, of the whole or half blood, and where there are no parents to take, that the estate is given to the next of kin, in equal degree, it has been supposed that the legislature did not intend that nephews and nieces should, in any case, or under any circumstances, take as next of kin, but should take as representatives of their parents; and accordingly, as early as 1786, the superior court, in the case of Kenedy v. Kenedy, cited in 1 Sw. Dig., 115, and more fully reported in 1 Sw. Syst., 286, which is a case in all respects like this, decided that brothers’ and sisters’ children represent their parents, and take per stirpes the share their parents would take if living ; thus making the shares of the *392 nephews and nieces to vary according to the number of children of each brother or sister. And Judge Swift remarks that as the statute on the subject has been repeatedly revised without making any alteration since that decision, it' must be considered that this construction has received the sanction of the legislature. He also says, in his System, (vol. i., p. 288,) that “ the decision of our courts is as correct as that of the English courts, and a more just and equitable construction of the statute.” However this may be, it certainly ought to require the strongest reasons for disturbing an ancient decision, under which estates have been settled and distributed for so long a period. We are not satisfied that any such reasons exist; and we therefore advise the superior court to reverse the decrees of probate appealed from.

In this opinion Storrs, J. concurred. Waite, C. J., was absent.

Decrees of probate to be reversed.