
    T. K. Barnes et al. v. A. D. Redmond et al.
    
    
      (Nashville.
    
    December Term, 1912.)
    1. DESCENT AND DISTRIBUTION. Second cousin as only heir of a predeceased first cousin to intestate will inherit the share of his such parent in intestate's land where the next in degree of kinship surviving the intestate were his first cousins.
    Under the statute (Shannon’s Code, section 4163, subdivision 2, subsection c), providing that if an intestate die without issue, and his father and mother are both dead, his land shall be inherited by their heirs in equal degree, “or representing those in equal degree of relationship to the intestate,” where the next in degree of kinship surviving intestate were her first cousins, and the second in degree of kinship surviving her were her second cousins, the children and descendants of predeceased first cousins, the intestate’s second cousin, who was the only heir and representative of a predeceased first cousin, is entitled to the same interest in the intestate's land as though he were a first cousin, and takes the interest that would have descended to his parent, the predeceased first cousin, if he had survived the intestate; for the statute contemplates that, where an intestate’s parents both predeceased him, the heirs of each-parent shall take precisely as if both parents had survived the intestate, and then died intestate themselves. {Post, pp. 46-61.),
    Code cited and construed: Sec. 4163, subdiv. 2, subsec. c. (S.) £ sec. 3269 (M. & V.); sec. 2429, subdiv. 2 (T. & S. and 1858).
    Caaes cited and approved: Miller Wills, 2 Lea, 82; Alexander r. Wallace, 8 Lea, 571; Selby v. Hollingsworth, 13 Lea, 145, 147; Torrest ▼. Perch, 100 Tenn., 395, 396.
    S.- SAME. Proceeds of partition sale after-Intestate’s death go te heirs and not te distributees ef intestate, because the conver eios eecurred after his death.
    The proceeds of the sale of land in partition proceedings instituted. «tear ti* taiatetes’s ,lg s<mm of his heirs acsiast the others, will go to the intestate’s heirs In the proportion to the respective share of each in accordance with the statute (Shannons Code,' section 4163) providing how the land of an intestate shall descend or be inherited, and not according to the statute (Shannon’s Code, sections 4172, 4173) relating to the distribution of personal property; for the conclusive reason that the conversion of the land into personalty did not occur until after the death of the intestate, and there was no conversion, equitable or otherwise, before his death. (Post, pp. 51-53.)
    Code cited and construed: Secs. 4163, 4172, 4173 (S.); secs. 3268-3270, 3278, 3279 (M. & V.); secs. 2420, 2429, 2430 (T. & S. and, 1858).
    Case cited and approved: Ex parte Moore, 3 Head, 171.
    Cases cited and distinguished: Satterfield v. Mayes, 11 Humph., 59; Cowden v. Pitts, 2 Bax., 59; Wheless v. Wheless, 92 Tenn.,, 293; Wayne v. Pouts, 108 Tenn., 145.
    PROM WILLIAM SON.
    Appeal from the Chancery Court of Williamson County to the Court of Civil Appeals, and by certiorari from the Court of Civil Appeals to the Supreme Court, ^Douglass Wikle, Chancellor.
    Robeet 0. Allen, for complainants,
    J. O. Eggleston, for defendant»
   Mr. Justice Buchanan

delivered the opinion of the Court.

Mattie Barnes died in October, 1907, in Williamson county, Tenn., intestate, and seized and. possessed off two tracts of land located in that county. One tract contained about twenty acres, the other about 191 acres. This land became the property of the intestate under our statute of descent upon the death of her brother-, Joseph Barnes, who left him surviving no wife; child; or children, never having been married, the intestate bein¿ the only heir at law. Joseph Barnes acquired the land during his life by purchase.

The present suit is a partition proceeding for the purpose of selling the two tracts of land; All the parties to the cause were sw juris; all were of one accord that a sale of the land and a division of its proceeds were proper. .

The land was sold under decree of court, and the contest here is upon the correct distribution of its proceeds. No contention is here made that the land'came to the ownership of the intestate by gift, devise, or descent from a parent. From a report made under order of the court by the clerk and master, which report was not excepted to, and was confirmed by the chancellor, it appears that:

Intestate left surviving her neither brother nor. sister, mother nor father, uncle nor aunt.

The next in degree of kinship who survived intestate were her first cousins, children respectively of her uncles and aunts, and there also survived intestate divers descendants of her deceased first cousins.

Some of the first cousins and some of the descendants of deceased first cousins- who survived intestate were of kin to her through her father.. Of these there¡>jwas;.a large number, and they were widely scattered in places of residence. These were descendants of seven uncles and aunts who'were respectively brothers and sisters of her father. Fortunately, none of these appealed from the decree of the chancellor, and they need not be fur ther considered, except to say that the decree set apart, one-half of the net fund for them, and made distribution thereof among them.

The other one-half of the net fund was decreed to the first cousins and the descendants of such as were !-of kin to the intestate through her mother. * The mother of intestate had two brothers. One of these was iLee Hamer, who predeceased intestate and left surviving him eight children, each of whom survived intestate. The other brother of intestate’s mother was Reese Ha-mer, who had four children. Two of these survived intestate and two did not; but each of the latter left a child, and one of these children, Robert Cook, is the only one of all the parties in interest who appealed from .the decree of the chancellor to the court of civil appeals and perfected his appeal. His appeal did not, of course, [disturb’the decree in so far as the interests of those persons to whom intestate was of kin through her father-were concerned. But his appeal did bring up for revieAv the whole decree in so far as,the interests of.those who’ were of kin through her mother to the intestate were,', concerned. Subsection C of subdivision 2; of section ■4163 controls in fixing the interest .to which Robert Cook was entitled, and his interest may be most clearly worked out in .this way;

If her father and mother haft survived intestate, each' of them would have been entitled to an undivided one-half interest in the two tracts of land. Therefore, render the statute, upon their failure to survive intestate, one undivided one-half interest goes to the heirs of the father, and the other such interest to the heirs of the mother. With that half which would have gone to the mother, we are now to deal.

She did not survive intestate, and, having no other children than intestate, upon the death of the latter, that half interest in the land which would have gone to the mother had she survived intestate, passed by the statute to the heirs at law of intestate’s mother. These heirs were the children of Lee Hamer, a brother of intestate’s mother, eight in number, and the children and grandchildren of Reese Hamer, a brother of intestate’s mother, four in number, being two children and two! grandchildren; one of the latter being Robert Oook.

Now, it happens that each of these grandchildren ia¡ entitled to the same interest as each of the children because each grandchild is the sole representative of a deceased child, and from this it results that Robert! Cook, while only a second cousin of intestate, has thd same interest he would have if he were a first cousin, because he represents his mother, a deceased daughter^ of Reese Hamer, and the same is true of the other grandchild, Rome Hamei-, sole representative of another-deceased daughter of Reese Hamer. It then follows under the statute that each of the eigut children of Lee! Hamer became entitled on intestate’s death to 1/8 of 1/4 of the land, or 1/32 thereof, because, if Lee Hamer had survived intestate and her mother, he would have been entitled to 1/4 of the land; and it follows further that each of his eight children are entitled to 1/8 of 1/4, or 1/32, of the net purchase money on distribution.

It also follows that each of the two children and each of the two grandchildren of Reese Hamer became entitled, on intestate’s death, to 1/4 of 1/4 of the dand, or 1/16 thereof, because, if Reese Hamer had survived intestate and her mother, he would have been entitled to 1/4 of the land; and of course it also follows that each of the two children and each of the two grandchildren of Reese Hamer, one of the latter being Robert Cook, is entitled to 1/4 of 1/4 of the net amount of purchase money for distribution, or tó 1/16 thereof. See Wills of John D. and Joseph Miller, 2 Lea, 62; Alexander v. Wallace, 8 Lea, 571; Selby v. Hollingsworth, 13 Lea, 147.

In the construction of the Miller will, supra, this court said:

“If either parent be dead, the surviving parent will take under the first subdivision. If both be dead, the law contemplates that the heirs of each shall take precisely as if each had taken when alive and then died.”

In Selby v. Hollingsworth, 13 Lea, 145, 147, it was said:

“The heirs of Louis Selby, Jr., on the part of his mother, who can take under the statute, are only such heirs as would have inherited from tfag motkgr if she had survived the son and then died; for such heirs would be the only heirs who could be in equal degree, or representing those who are in equal degree to the intestate. ”

And further in that opinion:

“The statute, itself, shows what is meant by representation by section 2420, subsection 1 (Code 1858) which defines the representation of lineal descendants.”

And in Alexander v. Wallace et al., 8 Lea, 571, it was said:

“The heirs of the testator, by the laws in force at his death, to inherit the realty, were the issue of his deceased brothers and sisters; such issue in each descending line taking by way of representation of a deceased parent, and therefore per stirpes, without any limit to the representation.” See, also, Forrest v. Porch, 100 Tenn., 395-396, 45 S. W., 676.

'The second insistence of the petition is that the partition proceedings, and sale of the land, was operative as an equitable conversion of the land into personalty, and that the proceeds must be distributed under the law controlling the descent of personal property, and that the distribution should therefore be under subsection 7 of section 4172, Shannon’s Code, and that under section 4173 of Shannon’s Code, in the descent of personal property, there is no representation among collaterals after brothers’ and sisters’ children, and to sustain this insistence the following cases are cited: Ex parte Moore, 3 Head, 171; Cowden v. Pitts, 2 Baxt., 59; Satterfield v. Mayes, 11 Humph., 59; Wheless v. Wheless, 92 Tenn., 293, 21 S. W., 595; Wayne v. Fouts, 108 Tenn., 145, 65 S. W., 471.

A conclusive answer to this insistence is that the conversion did not occur during the life of the intestate. The precise point was decided in Ex parte Moore et ux., 3 Head, 171. The statute of descent, therefore, upon the death of the intestate cast the title to the land as real estate upon such of her next of kin as, under the terms of the statute, were entitled thereto, and, upon the conversion of the land into personalty by the sale, each owner of an undivided interest in the land became entitled to his or her proportionate part of the proceeds. As a matter of course, if the conversion had occurred 'before the death of the intestate, the statutes regulating Ithe descent of personalty would have applied. Upon ithe facts of this case, the second insistence made by ¡the petition is unsound.

We understand the opinion of the court of civil appeals to be practically in accord with the yiews expressed in this opinion, but, in the concluding portion of the opinion of the court of civil appeals, this is.said:

“The cause will be remanded to the chancery court of Williamson county to the end that the.net'fund arising from the sale of the land be distributed sons to .give to the heirs and representatives of Reese. Hamer,, deceased, each 1/16 thereof, and the heirs and representatives of Lee Hamer, deceased, 1/4 of the net proceeds of the sale of said land, and the costs of this appeal will he naid out of the proceeds of the sale of said land now in the hands of the chancery court of Williamson county.”

Counsel for petitioner does not seem to understand the above quotation from the court of civil appeals as we do, and, therefore, to the end that all uncertainty may be avoided and the chancellor fully advised, we grant the writ of certiorari and hold that a correct distribution of that 1/2 under consideration of the net fund arising from the sale of the land .of the intestate which remains'after payment of all costs, attorneys’ fees, etc., will be to pay to Robert Lee Cook and each of the other three persons who are either children or grandchildren of Reese Hamer a sum of money equal in amount to i/16 part of the entire net fund, and to each of.the eight persons who are children of Lee Hamer a sum of money equal in amount to 1/32 part of the entire net fund.

And a copy of this opinion in lieu of that of the court of civil appeals will be made a part , of the procedendo upon the reman'd of this cause, and 'the same will be remanded to the chancery court of Williamson county; for nroceedinss there in accord with this opinion.  