In re the Final Accounting in the Goods of Mercure

1 Tuck. Surr. 288

• Court: New York Surrogate's Court
• Decided: July 1, 1870
• Status: Published

Opinion

; The Surrogate:

The" intestate was a resident -or citizen of the Territory .of Hew Mexico, who died on 'a-journey-from his- residence to St; Louis,- Missouri, ■ leaving asséts'jn the State and county of HeW York." These'have been: administered, and the administrator’s' accounts are settled.Were, there any representative of the -goods of' the intestate at'his place of residence or domicil,'competent and.claiming to receive these-assets for distribution1 I should order them paid over, to such representative; but not being aware that there is any, I must myself distribute here according to the law of the domicil.

The intestate left surviving two whole brothers, two whole sisters, the dcscendents of one deceased whole sister, and also a half brother and a half sister, children of his mother by a former husband. The question is whether the half blood take distributive shares as next of kin under the laws of Hew Mexico.

Our own statutes prescribe .distribution to relatives of the half blood equally with those of the whole blood (3 R. S, 5th ed., p. 184, sec. 10); and this was the Common Law. (2 Black. Com., 233, 505, 515, marg. page; Carter v. Crowley, T. Raymond, 496; Shaw, Cases in Parliament, 108; Hallett v. Hare, 5 Paige, 316.)

The legal presumption perhaps, is, that in the absence of evidence of any othér law, the Common Law prevails in a given country. But in respect to the Territory of Hew Mexico, which never was subject to Great Britain, but formerly belonged, with the rest of Mexico, to the Kingdom of Spain, the presumption rather is that it must have adopted the laws of Spain, which are based upon what is called by our writers the Civil Law. (1 Kent’s Com., p. 516.)

In the Civil Law, also, we find that no distinction was made as to succession to the personalty, between relatives of the whole and of the half-blood. (2 Kent’s Com.,p. 422.)

The counsel for the whole brothers and sisters, however, puts in statutory evidence which must beheld to overturn the presumptions of law, both common and civil, as I have stated them. He produces a printed volume, purporting to be published under the authority of the territorial government of Hew Mexico, and proves it as a matter of fact. It is entitled the “ Revised Statutes of the Territory of Hew Mexico, &c., revised and arranged by order of the Legislative Assembly, under the direction of . Governor Merri wether, by James J. Davenport, Chief .-Justice of the Territory.’’ In this book, art. 2, sec. 37, ■p.: 492,1 find the following: '

“ In tiie absence of direct heirs * the nearest . collateral relatives become the heirs of'the deceased intestate, as follows: .

1. The carnal-brothers and their children: * * *

2. In defect of the.foregoing, the uterine brothers. * *”

: The' “Diccionario .Razonado de-Legislación,” (law dic-tionary,) of D. Joachin Escriche, (p. 256,) says'“under'the name of brothers, sisters are included.”

The. same dictionary, and also “ Soane’s, Henman and „ Barretti’s Spanish -Dictionary, by Velasquez-,” define' the . words “ carnal brother” as a.brother by the same father and mother, a whole-blood brother; and a “ uterine brother,”-,as a brother of the same mother, by another father.

■It. would therefore appear that brothers and sisters of the half-blood are excluded- from participation in the personal -property of an -intestate, under the laws of Hew Mexico, where'there are brothers and sisters of the whole ..blood. ' '

" Under- the Civil Law, and in countries in which-it prevailed, the, word' “ -heirs” is-used to designate the successors to personal property as- well as -to' real estate. " '•

It is therefore my decision that the kin of the half-blood -.-take no-distributive share on this-accounting.