Brown v. Hay

1 Stew. & P. 102

• Court: Supreme Court of Alabama
• Decided: July 15, 1831
• Status: Published

Opinion

Lipscombe, C. J.

-James- Brown died intestate, leaving no wife or child; but left two sisters,. the wives of the present defendants, and his father Allen Brown, the plaintiff. The Judge of the County Court granted administration to the defendants in right of their wives, in exclusion of the father. The father appealed to the Circuit Court, where the order of appointment, made by the Judge of the County

Court, was affirmed, fren -which judgment the case is brought into- ibis Court by a writ of error. The question to be decided is one of construction, arising on the act of the Mississi ppi Territory of 1S06, in force in this State.

a By the 20th section of this act, the administration is given to the widow, if there be one; if not, then to the next of kin, or some of them. The question turns mainly on what is meant by the next of hin: whether the degree is to be ascertained by resorting to the Canon or Civil Law rules. If the computation of the degrees of propinquity is to be mads according to the Canon Law, then the father and his daughters would stand in an equal degree, each-being one remove from the desceased, the terminus a quo of computation. But according to the Civil Law the father, as the common ancestor of the deceased, and his surviving sisters, would be the propositus in the geneological' table, and each remove in the ascending and descending line would count a degree. Thus the ascent of the sisters to Allen Brown, the plaintiff, and corn mon aiice~tor, is one degree: the descent. from him to a level with the deceased bro-tl~er, would be another degree, whereas the ascent from the deceaced to the father who claims the ad-ministraticu, is but one degree.b It is at the discretion of the Judge of the County Court, to make a setion from those in equal degrees, if there is no widow, or she is from any cause passed; and the selection of the husbands of the sisters to the exclusidn of the thther, would be no ground of reversal, if their rights were equal, as they would be if the Canon La~ rule of compnti~ig propin~ uity is the cne contemplated by the act of 1306. J~ut if the Civil Law rule is the correct one, then the father's right is superior to Ms daughter's. In giving a construction to the meaning of next of kin as used in the act of 1806, if we were left in any degree of uncertainty as to which should be adopted, the Civil or Canon Law meaning of the term, there would be some reason in setting the question in favor of the Canon Law, as that rule would in this instance throw the administration on the persons entitled to the property of the deceased under our statute of descents. This reason would not always hold good, because not unfrequently the persons entitled to the property would not be in a situation from infancy or from some other cause, to take on themselves the administration, and in such cases there could perhaps be no safer depository of the trust, than with the common ancestor. But the 16th section of the same act of 1806, directs that in ascertaining the next of kin, it shall be according to the rule of the Civil Law.a

The Legislature then having explained in what manner the next of kin shall be computed in the 16th section, although that section relates to descents, *we are bound to infer that the 20th, and all other subsequent sections, wherever the same term occurs, should be subjected to the same rule.

We are therefore brought to the conclusion, that the father's right to the administration should have-been preferred to the sisters', and that the judgments of the County and Circuit Courts must be reversed.

ToulDig. 324.

2 Blacks. Com. 324, 504.

Toul.Dig. 886.