Austin v. Wight

38 Conn. 405

• Court: Supreme Court of Connecticut
• Decided: September 15, 1871
• Status: Published

Opinion

Butler, C. J.

This case turns upon the construction of the act of 1866 in relation to the ancestral estate of intestate minors. The act is cited in one of the briefs, and is what its title and character import, “ an act in addition to and alteration of” the then existing statutes relating to the distribution of ancestral estates.

* So much of the original act in respect to the distribution of ancestral estate as is material to this inquiry is also set out in the brief.† Contrasting these two provisions, it will be observed that they differ in three particular's, viz:

1. The original act gave direction to ancestral real estate only. The act of 1866 attaches the ancestral character, if it exists, to personal estate also, and gives to both the same direction.

2. The original act was imperfect in its provisions, inasmuch as it did not provide for the distribution of the estate where there were neither brothers or sisters, nor representatives of them, nor children, of the ancestor from whom the estate was derived; but the act of 1866 provides for all contingencies, by directing the distribution of such estate to the next of Jcin of the ancestor, if there be any such, and if not, to the next of kin to the intestate generally, to be ascertained by the rule of the civil law.

8. The third particular of difference is that the act of 1866, in enumerating the persons whose non-existence shall change the order of distribution, includes the parent, who is not iucbuded in such enumeration in the original act, and the whole case hinges on this fact. The plaintiff claims that by including the parent among those whose non-existence is to divert the descent of the estate from the kin of the intestate to the kin of the ancestor, the legislature have said by necessary implication that the parent, if in existence, shall inherit ancestral real estate. But we think there is no such necessary implication. It was proper the parent should be named in the act of 1866 among those whose non-existence should work a diversion of the estate from the kin of the intestate to the kin of the ancestor, to prevent an injustice ; because that statute embraces ancestral personal estate, as well as real; which personal estate the parent would inherit under the original act, and of which ho would be deprived under the new law, if there had been no exemption made in his favor by naming him.

We are all satisfied therefore that there was a reason for including the parent in the list of non-existents in the new law, which did not relate to the real estate, and that although it leaves some ground for the implication claimed as to the reality, it is not a necessary implication, or sufficient to warrant us in holding that such was the intention of the legislature.

In this opinion the other judges concurred.

The act of 1866 is as follows.: “Whenever any person under the age of twenty-one years shah have died intestate, leaving either real or personal estate that came to such person by descent, gift or devise from his parent, ancestor or other kindred, and such deceased person shall not have left any lineal descendants, or any brother or sister of the whole blood, or any descendants of such brother or sister, or any parent, such estate shall be distributed to and among the next of kin of the intestate, of the blood of the person from whom such estate came or descended, in equal proportions, and if there be no such kindred, then to be distributed to the next of kin equally, and in ascertaining the next of kin, in all cases the rule of the civil law shall be adopted.”

The portion of the original act referred to is as follows: “ If there be no children, or any legal representatives of them, * * * all the real estate of the Intestate which came to him by descent, gift or devise from his parents, ancestors or other kindred, shall belong equally to the brothers and sisters of the intestate, and those who'legally represent them, of the blood of the person or ancestor torn whom such estate came or descended, and in case there he no brothers or sisters or legal representatives as aforesaid, then equally to the children of such persons or ancestor, and those who legally represent them.”