Smallman v. Powell

Lord, J.

This case presents the single question, whether the real property already described passes to the defendant as next of kin, 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 6 of section 3098, Or. Code: “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 degrees,” etc. And section 3103 provides that *370 “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 the blood of the ancestor from whom the estate originally descended. The argument proceeds upon the theory that there is an exception when the estate comes by descent, which, by the law of some of the States, when the intestate leaves no children, reverts to the heir or kindred of the person through whom it is acquired. The policy of the common law was to keep the real property in the line of the ancestor by whom it was brought into the family, and the statute** of descent, m some of the States, in certain cases, have provisions to that effect. But, generally, in the United States the English common law of descents, in its essential features, has been rejected, and each State has established a law for itself. 4 Kent’s Com., 412. In fact, by enactment, the common law rule prevails that the right of succession is entirely statutory.

The reason is obvious. At common law the canons of descent grew out of the feudal "ystem. of tenures, and the policy of the State to establish and maintain a wealthy landed aristocracy, which cooperated to prevent the distribution of real property, and to promote its accumulation in the hands of the few. An important factor in working out this result was the common law mode of computing kindred, which, being alien in spirit to our political institutions, has been generally rejected, and in this State abrogated and the rules of the civil law adopted. In the mode of computing degrees of kindred, the civil law did not begin as at common law, and reckon from the common ancestor downwards to each of the persons related, or to the most remote of them, but from the person a quo upwards to the common stock, and then downwards to the *371 other party related. “The difference is manifest; the canon and common law, starting from the common ancestor, and the civil law, starting from the intestate himself, as the terminus a quo, the several degrees are numbered. Thus, by the civil law, from the intestate to his father, in lineal ascent, is one degree, and thence to the grandfather, is another or the second degree-Again, from the intestate to his mother is, lineally, one degree; thence to her father or mother is the second degree, and thence downward to the aunt is the third degree. The paternal grandfather being in the second, and the maternal aunt in the third degree, by this mode of computation he is therefore the nearest of kin. The spiritual courts have adopted the rule of the civilian in reckoning propinquity of degree, and in so doing have necessarily placed grandfathers a degree nearer the intestate than uncles and aunts. ” Sweezy v. Willis, 1 Bradford, 498 ; 2 Black. 224 ; 2 Kent, 422. Under the civil law, then, the grandparents are one degree nearer than uncles and aunts, and so speak all the authorities without a dissentient voice. Cables v. Prescott, 67 N. C. 582 ; Kelsey v. Hardy, 20 N. H. 479; Ryan v. Andrews, 21 Mich. 229 ; Phillips v. Pellet, 35 Ala. 696 ; Barger v. Hobbs, 67 Ill. 592 ; Kirkendall v. Appeal, 43 Wis. 167 ; Bassil v. Loffer, 38 Iowa, 451 ; Cole v. Batley, 2 Curtis, 562; 2 Domat’s Civil Law, §§ 2832, 2834. Peter Powell, therefore, as the grandfather of the intestate, 'Sampson T. Powell, is one degree nearer than John Small-man, his uncle, the plaintiff, and is next of kin, upon the facts, to which the estate ascends, unless there is some exception which affects that result.

A glance at the statute will satisfy any one that, in the absence of those specified, the estate goes to the next of kin as computed by the civil law. The course is prescribed -by the statute without reference to the source from which the property was acquired. While it may be admitted that whenever a statute does not prescribe in a given case to Whom an estate shall descend, that the common law rule prevails for ascertaining who is the person or heir entitled *372 to take. No such inquiry can arise here, for the statute provides in direct terms that ‘ ‘ if the intestate shall have no lineal descendants, neither wife, nor father, mother, brother nor sister, such real property shall descend to his next kin in equal degrees.” And as Sampson T. Powell, the intestate, had no issue, nor wife, nor father, mother, brother nor sister, his grandfather, the defendant, would take the estate in preference to the plaintiff, his uncle. The statute makes no distinction founded upon the source from which the property has been derived, but assigns it to the next of kin, who is the defendant and grandfather, upon the facts, as reckoned by the civil law, and to whom it must ascend.

It follows, there was no error, and that the judgment of the court below must be affirmed.