
    No. 98
    HUNTINGTON et v. MacMAHON et
    No. 19421.
    Supreme Court
    On motion to certify.
    Dock. Nov. 14, 1925;
    3 Abs 722
    389.’ DESCENT & DISTRIBUTION — Where all of the next of kin of a former deceased husband are nieces and nephews, does the property pass and descend to them per stirpes or per capita under 8577 GC?
    Attorneys — Arnold, Wright & Harlor for Huntington et; F. H. Game, O. W. Newman, and M. W. Bradshaw for MacMahon et.; all of Columbus.
   The original action was a proceeding in partition instituted in the Franklin Common Pleas by Thomas Huntington and six other brothers and sisters. Benjamin Huntington, the original owner of the estate in controversy, died in 1903, intestate and without issue, the estate descending to his wife. The wife died in 1924 without issue and the real estate descended under 8677 GC., one half to collaterals of her blood and one half to collaterals of the blood of her deceased husband.

The brothers and sisters of Benjamin Huntington are dead and there are eight nephews and nieces to whom that portion of the estate descends. Seven of these are children of one brother and one is the child of another brother of Benjamin Huntington, deceased. The case was appealed from the Common Pleas, and the question presented was whether the nephews and nieces take per stirpes or per capita. The Court of Appeals held that the real estate be partitioned per stirpes.

The seven nephews and nieces of the one brother take the case to the Supreme Court, and claim that where the descendents either lineal or collateral stand in equal degrees they take per capita, but if they stand in unequal degrees, they take per stirpes. It is claimed that “where an intestate leaves property acquired by purchase, with no heirs except nephews and nieces title is cast upon such nephews and nieces as a class and they therefore take per capita and not per stirpes.”

It is contended that what is now 8577 GC. was originally intended to be a part of the general act covering descent of property which contemplated that where the next of kin to the intestate were of equal degree of relationship to the intestate they took per capita, and where they were of an unequal degree, they took per stirpes. It is claimed it must have been the purpose of the legislature to apply the rule to all cases arising out of 8577 GC.

“A code of statutes relating to one subject is presumed to be governed by one spirit and policy, and intended to be consistent and harmonious and all of several sections are to be construed in order to arrive at the meaning of any part, unless a contrary intent is clearly manifest.” Hence it is claimed 8581, 8582, 8583, apply to 8577 GC.

It is urged that the intention is imputed to the legislature in attempting to make a will for an intestate and should not be different from the intention imputed to the testator where he fails to specify the manner of apportionment. In other words, if the court applies the per capita rule, where a will is silent as to the method of apportionment, it should apply the same rule in construing a statute which is silent as to the method of apportionment.  