Estate of Ferguson v. Conklin

723 S.W.2d 24, 1986 Mo. App. LEXIS 4872
CourtMissouri Court of Appeals
DecidedOctober 28, 1986
DocketNo. WD 37534
StatusPublished
Cited by2 cases

This text of 723 S.W.2d 24 (Estate of Ferguson v. Conklin) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Estate of Ferguson v. Conklin, 723 S.W.2d 24, 1986 Mo. App. LEXIS 4872 (Mo. Ct. App. 1986).

Opinion

SHANGLER, Presiding Judge.

Ethel Eula Ferguson died intestate, a widow, without issue, and survived only by collateral heirs of the full blood descended from her maternal grandparents and by collateral heirs of the half blood descended from her paternal grandfather and his third wife — a person not the grandmother of Ethel Eula Ferguson. The administrator of the estate of the intestate brought a Petition for Determination of Heirship in the probate division of the circuit court. The court entered a decree of heirship from which the relatives of the whole blood appeal.

On the proceeding in the probate division to determine heirship, the family tree was received by agreement and the relationship of these persons to the decedent was stipulated as fact. The collateral heirs of the whole blood who survived Ethel Eula Ferguson were four second cousins, and Spencer Roberts, another second cousin,1 and two third cousins [children of another second cousin who predeceased the intestate Ferguson].2 The half blood kindred who survived Ethel Eula Ferguson were four first cousins, twenty-one second cousins, and five third cousins [who were descendants of deceased first and second cousins of the half blood]. A total of fifteen half blood cousins were either alive or had descendants alive at the time Ethel [26]*26Eula Ferguson died. The probate division, conformably with the design of inheritance tendered by the petition, determined that the surviving first cousins [of the half blood] was that level of kinship most consanguineous to the intestate Ethel Eula Ferguson, and hence was that class among whom apportionment was to be calculated in equal parts. There were, as the family tree disclosed, seventeen such descendants — -fifteen of the half blood and two of the full blood. The probate division then gave effect to the provision of § 474.040, RSMo 1978 that where the inheritance passes to the collateral kindred of the intestate “those of the half blood shall inherit only half as much as those of the whole blood,” by an order that divided the inheritance onto nineteen fractions and then allocated one-nineteenth to each half blood and two-nineteenths to each full blood. That is, the determination of heirship divided the inheritance in seventeen equal parts [the total number of first cousin descendants], and then doubled the parts taken by each of the whole bloods. In those terms, the full bloods received a total of four-nineteenths of the Ferguson estate and the half bloods, a total of fifteen-nineteenths of that inheritance.

The full bloods appeal that order of determination. They argue that the § 474.-040 directs that the whole bloods as a class take twice as much as the half bloods as a class, so that the allocation of the estate in the proportion of two-thirds to the whole bloods and one-third to the half bloods must antecede any shares to individuals within the class. The probate division, rather, understood the statute to mandate that each individual whole blood — rather than the class itself — take twice as much as each individual half blood, and framed the heirship accordingly. The whole bloods argue also that § 474.020 as well as § 474.-040 appertain to the treatment of half blood relatives in intestate succession, and thus understood in pari materia, compel the sense that the full bloods are intended to take as a class doubly weighted against the half bloods as a class.

The full bloods come to the posture that heirs of the whole blood as a class inherit twice as much as heirs of the half blood as a class not only from the integral sense of § 474.040 and 474.020, but also by rules of grammar. They cite [as stressed] the text of § 474.040: Collaterals of half blood inherit, how:

When the inheritance is directed to pass to the ascending and collateral kindred of the intestate, if part of the collaterals is of the whole blood of the intestate, and the other part of the half blood only, those of the half blood shall inherit only half as much as those of the whole blood; but if all collaterals are of the half blood, they shall have whole portions, only giving to the ascendants double portions.3 [emphasis added]

They cite also [as stressed] the text of § 474.020: Lineals take per capita and per stirpes, when:

When several lineal descendants, all of equal degree of consanguinity to the intestate, or his father, mother, brothers and sisters, or his grandfathers, grandmothers, uncles and aunts, or any ancestor living and their children, come into partition, they shall take per capita, that is by persons; where a part of them are dead, and part living, and the issue of those dead have a right to partition, such issue shall take per stirpes; that is, the share of the deceased parent, [emphasis added]

The whole bloods argue that the use of the collective pronoun those in combination with the singular noun part and the singular verb is “suggests a legislative intent to make the division between two groups [‘parts’], the whole blood relatives and the half blood relatives.” This grammatical synthesis of § 474.040, they say, is reinforced by the provision of § 474.020, that only when “several lineal descendants, all [27]*27of equal degree of consanguinity to the intestate” come into partition of the estate do they take per capita, that is, by persons. Thus [the whole bloods continue in argument], since degree of consanguinity “imports a measure of the common blood shared by related persons,” none of the half blood branch of the Ferguson heirs can share an equal degree of joint blood as do the heirs of the whole blood. Therefore [the syllogism concludes], unless the initial division of the estate is rendered into two parts, the heirs of the whole blood and the heirs of the half blood, “one cannot find a generation of heirs in which division can be made among persons of an equal degree of consanguinity as is required by section 474.020.”

We avert for the moment the response to construction of § 474.040 by syntactics and the in pari materia interrelationship the whole bloods attribute between § 474.040 and § 474.020 to address the assertion in-dispensible to the construct of the whole blood claim to a double part of the entire estate before distribution to the individuals of that part: that unless that division is rendered at outset, “one cannot find a generation of heirs in which division can be made among persons of an equal degree of consanguinity as is required by section 474.020.” The argument that there can be no partition of the estate by the person among the Ferguson heirs because relatives of the whole blood and of the half blood do not share a common degree of consanguinity not only rests on a false premise, but also neglects another statute, also in pari materia and relevant — § 474.-010. The whole blood syllogism mistakenly assumes that consanguinity imports whole blood contradistinct from half blood connotations, and so insinuates into § 474.020 a distinction the text does not yield.

The whole bloods acknowledge that § 474.010 4 defines the manner in which the property of an intestate decedent descends and is distributed, and that subsection 2(c) operates to identify the whole bloods and half bloods delineated as the Ferguson heirs entitled to share the estate.

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Cite This Page — Counsel Stack

Bluebook (online)
723 S.W.2d 24, 1986 Mo. App. LEXIS 4872, Counsel Stack Legal Research, https://law.counselstack.com/opinion/estate-of-ferguson-v-conklin-moctapp-1986.