Caldwell v. Cowan, 60 N.C. 94, 1 Win. 94 (1864)

Dec. 1864 · Supreme Court of North Carolina

60 N.C. 94, 1 Win. 94

WALTER P. CALDWELL and others vs. LEONIDAS COWAN and ROBERT Z. COWAN.

Noce can take a distributive share of an intestate's estate, with his next of kin, by force of the act of 1862-’3, ch. 49, but thoso who, by representing an ancestor, can put themselves in the same degree of kindred to the intestate, as his next of kin.

This cause was removed from the Court of Equity of Eowan county to this Court.

The purpose of the suit was.to have a distribution,of the personal estate of J". Pinckney Cowan, who died intestate in May, 1863..' The plaintiffs are the brother and sister of the intestate’s mother, the sisters of his father, the grandchild of. a deceased brother of the intestate’s father, and the children of deceased sisters of his father, who claimed a right to distributive shares with the defendants, who are the children of a deceased brother of the intestate.

Sharpe foT the plaintiffs.

Boyden for the defendants.

PEARSON, C. J.

The act of 1862-3, oh. 49, ratified 12th of February, 1863, which repeals the proviso of the 2d sect, of the Statute of distributions. cc In the distribution of the estates of -interests, there shall he admitted among collateral kindred, no representation after brothers and sisters ohildren." Eev. Code, ch. 64, will, in eases t« which it has application, make a very important chang* in a long established rule of law, ‘and let in remote kindred wh«(have heretofore been excluded for the purpose of-avoiding tb.e inconvenience of splitting up estates of personal property into so many parts.

This change in the law is only njade when, by-the right of representation, and taking the place of an ancestor, a party can bring himself, up to an equality with other* 'who claim the estate. For instance — if there be a brother, or children of á deceased brother, and grandchildren of another deceased brother, the latter, will, by this change of the law, he able to.bring themselves up to an equality, and take the share their ancestor would have taken, if living. So, if there he an uñóle, and children of a deceased uncle, the latter, although excluded by the old rule, will now take a share by representation.

In the case under consideration there is no change in the law ; for, the right of representing an ancestor, however remote, will not bring up the other claimants to an equality with the defendants, who are the children of » deceased .brother of the intestate. For, by representing their grandfather, who was the father of the intestate, they are in one. degree of the intestate : whereas, none of the others can, by representing any ancestor, bring themselves nearer than' two degrees.

Allow the brother and sister of the intestate’s mother to represent their father : he was the grandfather of the, intestate on the mother’s side — that leaves them two degrees removed, if standing in place of their ancestor, Allow the grandson of the .intestate’s uncle to represent his great, great grandfather : he was the- grandfather,of the. intéstate — that leaves him two degrees removed. Or allow the children of intestate’s aunts to represent their grandfather : he was the grandfather of intestate, and that leaves them two degrees removed after their right of representation is carried as far as it will reach.

The defendants .are, - therefore, entitled, being the nearest of kin,; and the unlimited right of representing •an ancestor cannot, in-this instance, aid the other claimants. '

Let the bill be dismissed at plaintiffs’ costs.