Davis v. Stinson

53 Me. 493

• Court: Supreme Judicial Court of Maine
• Decided: July 1, 1866
• Status: Published

Opinion

Appleton, C. J.

Huldah Green died leaving no issue, nor lather, mother, brother or sister. At the time of her decease, her nearest of kin were nephews and neices, to whom the Judge of Probate decreed her estate should descend, from which decree the appellant,.a grand niece, appeals.

By R. S., 1857, c. 75, § 1, ride 5, relating to the descent of real estate, — "If no such issue, father, mother, brother or sister, it descends to his next of kin in equal degree,” &c. By § 8, — " the personal estate of an intestate” with certain specified exceptions, "is to be distributed” "by the rules provided for the distribution of real estate” subject to the provisions which follow. The decree was in accordance with the fifth rule. A grand niece is not related to the deceased in equal degree, with her nephews and nieces and, unless she is, she cannot claim under this rule.

The case of Doane v. Freeman, 45 Maine, 113, was decided under the statute of 1852, c. 295, which, except so far as it is embodied in the revision- of 1857, has been repealed.

The several rules in c. 75, § 1, are distinct and are each to be construed separately and with reference to the conditions of each rule as therein set forth. The clause in rule 3, "to his or her children or grandchildren by right of representation,” applies only to that rule. It will be apparent that these words are inapplicable to rules 4 and 5, by appending them thereto.

The decree of the Judge of Probate affirmed with costs.

Kent, Walton, Dickerson, Barrows and Danforth, JJ., concurred.