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.

Ufone can take a iHsfcnt utiva share of an intestate's estate, with his next of kin, by force of the art of 1862-8, ch. .49, but those 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 Rowan eounty to this Court.

The purpose of the suit was to have a distiibution-of the personal estate of J. Pinckney Cowan, who died intestate in May, 18(53. The plaintiffs are the brother and lister 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 for the plain tiffs.

Boy den for the defendants.

Pearsoh, C. J.

The act of 18,62-3, ch, 49, ratified- 12th of February, 1863, which repeals the proviso of the 2d sect, of the Statute of distributions. “ In the distribution of the estates of interests,«there shall be admitted among, collateral kindred, no representation ■ after brothers and sisters children." Rev. Code, ch. 64, will’ in cases to which it has application; make a very important change in a long established rule of law, and let in . remote kindred who have heretofore been excluded for the purpose of avoiding the inconvenience of splitting up estates of personal property into so many parts.

This change in the law is only made when, by the right of representation, and taking the 'place of an ancestor, a, party can bring himself up to an equality with others who claim the estate. For instance — if there-be a brother, o>r children of a deceased brother, and grandchildren of another deceased brother, the latter will, by this change of the law, be able t© bring themselves- up to an' equality, and take the share their ancestor would have taken, if living. So, if there be an -uncle, and children of a diseased uncle, the latter, although excluded by-the old rule, st-ill now take a share by representation.

In the case under consideration-there is no change ia the law : for, the right of representing an ancestor, how-jver remote, will not bring up the other claimants to an jquality with the defendants, who are.the children of a leceased brother of the intestate: For, by representing ;heir grandfather/who was the father of the intestate, ;hey are in one degree of the intestate : whereas, none of the others can, by representing anyancestoiy bring themselves ntearer than two degrees.

Allow the brother and sister of the intestate’s mother ;o represent their father : he was the grandfather of the,, ntestate on the mother’s side — that leaves them two decrees removed, if standing in place of their ancestor. ■ Al-ow the. grandson of the intestate’s uncle to represent his rreat, great grandfather : he was the grandfather of the ntestate — that leaves him two degrees removed. Or al-ow the children of intestate’s aúnts 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 meanest of kin ; and the unlimited right of representing am ancestor cannot, in this instance, aid the other claimants..

Let the bill be dismissed at plaintiffs’ costs.