Brown v. City of Baraboo

30 L.R.A. 320, 62 N.W. 921, 90 Wis. 151, 1895 Wisc. LEXIS 225

• Court: Wisconsin Supreme Court
• Decided: April 3, 1895
• Status: Published

Opinion

Pinney, J.

1. It was provided by the statute of descent in force at the time of the death of George W. Brown that “ when any person shall die seised of lands, tenements or hereditaments not by him devised, . . . where there are no children of the intestate, the inheritance shall descend equally to tbe next of kin in equal degree, and those who represent them, computing by the rules of the civil law.” Terr. Stats. 1839, p. 184, § 38. Consanguinity, it is said, is either lineal or collateral. Lineal consanguinity is that which subsists between persons of whom one is descended in a direct line from the other, as between an intestate and his father or grandfather, etc., in the direct ascending line, or between him and his son or grandson, etc., in the direct descending line; and every generation in lineal, direct consanguinity constitutes a different degree, reckoning either upward or downward. This method of computation of degrees of kindred in the direct line obtains as well in the civil and canon law as in the common law. 2 Chit. Bl. *203. The difference in the method of computation of degrees exists only in relation to collateral consanguinity. As G-eorge W. Brown left no children, his father and his mother were his next of kin and in the first degree. They stood as such in equal degree, and the statute declared, in 'substance, that his inheritable property should descend to thein equally, as his next of kin. The common-law canon of inheritance, by which males were preferred to females in the same degree, was abrogated by this statute. “ It is a general rule that those who take property as a class of persons described, where there is nothing in the law making the appropriation to distinguish their respective rights, take in equal shares.” Reeve, Descent, 105, 123; Knapp v. Windsor, 6 Cush. 156; Snow v. Snow, 111 Mass. 389, 390; Balch v. Stone, 149 Mass. 42. The statute leaves no question, but declares in express terms that “ the inheritance shall descend equally to the next of kin in equal degree.” It is very evident that the real estate in question descended equally to the father and to the mother of the deceased; and as they took by descent, and not by purchase, as by grant or devise, we think that they-took as tenants in common and by moieties, and not by entireties, and -therefore that upon the death of the mother her interest did not go to the father, her husband, by right of survivorship.

The creation of an estate in joint tenancy, it is said, “ depends on the wording of the deed or devise by which the tenants claim title, for this estate can only arise by purchase or grant,— that is, by the act of the parties,— and never by the mere act of law.” 2 Chit. Bl. 180. By the common law, where an estate is granted to husband and wife, they take by entireties and not by moieties. Neither could sell without the consent of the other, and the survivor took the whole. Ketchum v. Walsworth, 5 Wis. 95. This result was upon the ground that the estate was created by act of the parties, and that in such cases husband and wife are but one person in law for the purposes of the grant; but where the estate is created by act of law, as by descent, the rule is otherwise, and they take, as tenants in common and by moieties. The father and mother of George W. Brown inherited his estate equally, by reason of the relation of each to him, and not by reason of their relation to each other as husband and wife. The right of each is separate and distinct, and is in no way dependent upon the right of the other.

In Knapp v. Windsor, 6 Cush. 157-161, the whole subject is considered, and Shaw, C. J., says: “ It appears to us that the analogy between the acquisition of property by operation of law, giving to each individual of a class a share mo j%vre, and a grant giving a certain amount of property to several persons, two of whom are husband and wife [as in that ease], and named and designated as such, is very slight. The former has its operation from the provisions of law which are general and unlimited, and look simply at the relation of each to the intestate, and intend to give to each because so related; the other takes its effect from the presumed intent of the grantor or devisor, who has the power to make such gift as he pleases.” Thi^ case is an exhaustive and instructive consideration, of the subject, and, we think, fully sustains the conclusions at which we have arrived.

We have not been referred to any authority, nor do we know of any, sustaining the position that, where husband and wife take by descent as next of kin, they take by entireties and not by mojeties, or that, as between them, the right of survivorship obtains. Many authorities were cited showing that, as to personal estate in such a case, the father and husband would take it, to the exclusion of the mother and wife y but this is because the estate is personal, which, as soon as-it is property of the wife, becomes the property of the husband by right of marriage. “ It would be idle to distribute to her, when by the very act of distribution it would become the property of the husband. But it is otherwise in the case of real property. This is not his, but belongs to her, and she is as capable of inheriting it as her husband.” Reeve, Descent, 123. During coverture he is entitled to the use.of her real estate or the rents and profits of it. Subject to this right, she might convey or devise it and it would descend to her heirs.

We hold, therefore, that upon the death of George W. Brown his real estate descended equally to his father and mother, as tenants in common, and that upon her death her moiety descended to her heirs at law. It follows, therefore, that the nonsuit was erroneous.

By ihe Oowrt.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.