Baning's Will

Delaware Orphan's Court

Baning's Will

3 Del. Cas. 49, 1822 Del. LEXIS 15

CourtOrphan's Court of Delaware

DecidedNovember 24, 1822

StatusPublished

Cited by2 cases

This text of 3 Del. Cas. 49 (Baning's Will) is published on Counsel Stack Legal Research, covering Orphan's Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Baning's Will, 3 Del. Cas. 49, 1822 Del. LEXIS 15 (Del. Ct. App. 1822).

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Opinion

[50]*50The following answer was given by the Chancellor, November 26, 1822.

On comparing the Statute of Distribution, 22 & 23 Car. II, c, 10, with our Act of Assembly for the better settling intestates’ estates, [1 Del.Laws 284,] I find a material difference in those parts which relate to the distribution to collaterals. The English statute gives the portion of the surplus which is not given to the wife, if there be no children nor any legal representatives of them, equally to every of the next of kindred who are in equal degree, and those who legally represent them, without noticing brothers or sisters, or their representatives. Therefore when a man had three brothers, one of whom died leaving three children, another died leaving two, and the third died leaving five, after which he himself died intestate, it was resolved that distribution should be per capita and not per stirpes; and that all the children should have equal [shares,] because none of them take by way of representation, but all as next of kindred in equal degree.

But our Act of Assembly, if there be no children nor any legal representatives of them, distributes the residue, after the wife’s share, equally to and among the brothers and sisters of the deceased or their legal representatives, and does not give the residue to the next of kindred, except in case there be no brothers or sisters or legal representatives of them. While there are representatives of brothers and sisters they must take by representation, and not as next of kindred; for so the Act is. The words, “or legal representatives of them,” apply to representatives of brothers and sisters who have died in the lifetime of the intestate, and not to brothers and sisters who died after the intestate. If one or more of the brothers or sisters had died after the intestate in the case stated, the share of such deceased brother or sister would have been a vested interest, transmissible to his or her executors or administrators, and his or her children could [51]*51not have taken by way of representation from Richard Baning, the intestate, nor per capita. They would have taken as heirs of such surviving brother in the distribution of his estate. Unless the children of the brothers and sisters take per stirpes, the words in the Act, “or their legal representatives,” will have no effect.

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[50]*50The following answer was given by the Chancellor, November 26, 1822.

On comparing the Statute of Distribution, 22 & 23 Car. II, c, 10, with our Act of Assembly for the better settling intestates’ estates, [1 Del.Laws 284,] I find a material difference in those parts which relate to the distribution to collaterals. The English statute gives the portion of the surplus which is not given to the wife, if there be no children nor any legal representatives of them, equally to every of the next of kindred who are in equal degree, and those who legally represent them, without noticing brothers or sisters, or their representatives. Therefore when a man had three brothers, one of whom died leaving three children, another died leaving two, and the third died leaving five, after which he himself died intestate, it was resolved that distribution should be per capita and not per stirpes; and that all the children should have equal [shares,] because none of them take by way of representation, but all as next of kindred in equal degree.

But our Act of Assembly, if there be no children nor any legal representatives of them, distributes the residue, after the wife’s share, equally to and among the brothers and sisters of the deceased or their legal representatives, and does not give the residue to the next of kindred, except in case there be no brothers or sisters or legal representatives of them. While there are representatives of brothers and sisters they must take by representation, and not as next of kindred; for so the Act is. The words, “or legal representatives of them,” apply to representatives of brothers and sisters who have died in the lifetime of the intestate, and not to brothers and sisters who died after the intestate. If one or more of the brothers or sisters had died after the intestate in the case stated, the share of such deceased brother or sister would have been a vested interest, transmissible to his or her executors or administrators, and his or her children could [51]*51not have taken by way of representation from Richard Baning, the intestate, nor per capita. They would have taken as heirs of such surviving brother in the distribution of his estate. Unless the children of the brothers and sisters take per stirpes, the words in the Act, “or their legal representatives,” will have no effect.

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3 Del. Cas. 49, 1822 Del. LEXIS 15, Counsel Stack Legal Research, https://law.counselstack.com/opinion/banings-will-delorphct-1822.

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