GODWIN et al.
MARVEL et al.
Estate proceeding. The Orphans' Court, Carey, J., held that, where only children or issue of deceased children of intestate's brothers and sisters survived intestate, proceeds from sale of intestate's realty would be divided by per stirpes division based upon number of intestate's brothers and sisters.
Decree in accordance with opinion.
[55 Del. 2] James H. Satterfield died intestate in 1950, owning a house and lot in Frederica. He left to survive him no widow, no father or mother, and no brothers or sisters. There were five brothers and sisters who predeceased him, all leaving children or issue of deceased children to survive them. Altogether there were eleven nephews and nieces, some of whom predeceased the intestate leaving issue. The petition filed in this case avers that the proceeds of the real estate should be divided equally among the living nephews and nieces and the issue of those who died before the intestate or, in other words, that the primary number of shares is eleven. The appearing respondents contend that the division should be per stirpes or, in other words, that the number of primary shares is five.
The pertinent statute is 12 Del.C. § 502, which gives the rules of descent of real estate. It provides for descent first to children and issue of deceased children; if there be none, then to father and mother or the survivor of them. Paragraph (3) reads in part as follows:
‘ If there be no father or mother, then in equal shares to his brothers and sisters, and the lawful issue of any deceased brother or sister, by right of representation. * * *.’
Paragraph (4) provides if there be no brother or sister or issue of such, then the descent is to the next of kin in equal degree, and the lawful issue of such next of kin, by right of representation.
George M. Fisher and Herman C. Brown, both of Dover, for petitioners.
Max Terry, Dover, for certain respondents.
This case presents the problem of whether our intestate statute requires a per capita division among nephews and nieces, or a per stirpes division based upon the number of brothers and sisters of the intestate, where none of those brothers and sisters survive.
This question was answered, as to personal property, by Chancellor Ridgely in Richard [55 Del. 3]Baning's Will, Orph. Ct., 3 Del.Cas. 49 in the year 1822. The statute under which his decision was rendered is found in 1 Del.Laws 284, being Chapter CXIX, 24 Geo. II. The Chancellor there pointed out a material difference between our statute and the English Statute of Distribution (22 & 23 Car. II, c. 10). He showed that, under the English statute, distribution among nephews and nieces was per capita because that act made no specific mention of brothers or sisters or their issue. It gave the surplus to the children or their representatives and, if there were none, ‘ equally to every of the next of kindred who are in equal degree, and those who legally represent them’ . The Chancellor next showed that under our Act then in force, if there were no children or issue of such, the residue was distributed equally among the brothers and sisters or their representatives, and only gave the residue to the next of kindred in the absence of brothers and sisters, or issue thereof.[*] He directed a per stirpes division.
The statute upon which the Baning case was based contained exactly the same language for the distribution of personal property as for the descent of real estate, and although the decision dealt with personal property, it applied with equal force to real estate. It accordingly becomes important to ascertain whether the present law of Delaware is or is not substantially the same as it stood in 1822.
In examining the legislative history of our Act, it is interesting to notice the provisions of Chapter 6, 12 Williams III, adopted in 1700, and published in 1 Del.Laws, Appendix Page 26. Like the English statute of descents, this Act, if there were no children or issue thereof, gave both the personal and real estate to the next of kindred in equal degree and those who legally represent them. There seems to have been little change in this scheme until the Act of 24 [55 Del. 4] Geo. II, c. 119, when for the first time it was expressly provided that, if there be no children or legal representatives thereof, the estate should be distributed equally among the brothers and sisters, or their legal representatives. If there were none, then it passed to the next of kindred in equal degree or those who legally represent them. As indicated above, it was this statute which was in effect when the Baning case was decided.
In the year 1827 a new statute was adopted, being found in 7 Del.Laws 316. It applied only to real estate and gave it, if there were no children or issue of them, ‘ to every the brothers and sisters * * * and the lawful issue of any such brothers and sisters who shall have died before the deceased of the intestate’ . It also contained this provision: ‘ The issue of children, brothers, sisters, or other kin, who shall have died before the decease of the intestate, shall in all cases take according to stocks by right of representation, that is to say; the same share which such children, brothers, sisters or other kin if living would have taken: and this rule shall hold although the descent shall be entirely to issue of deceased children, brothers, sisters or other kin’ . Two years later in 1829, a statute was adopted which altered the manner of distribution of personal property. 7 Del. Laws 217, 227. It designated the same order of descent in similar language as did the Act of 1827 but, in contrast to the proviso found in the latter act, contained this paragraph: ‘ Distribution among children, brothers, sisters, or other kin in equal degree shall be in equal portions; but issue of children, brothers or other kin who shall have died before the intestate, shall take according to stocks by right of representation; and this rule shall hold although the distribution be entirely among such issue’ . It will be noticed that the statute of distribution, enacted only two ...