
    George W. Ewers and others v. Daniel Follin and others.
    1. By the provisions of the 10th section of the act regulating descents, passed Eebruary 24, 1831, when an estate descended to nephews and nieces, legal representatives of brothers and sisters, no brother nor sister of the intestate surviving, the nephews and nieces took per capita; and if a nephew or ■ niece had died before the intestate, leaving children, such children took per stirpes the share of the deceased parent. This rule has not been altered by the 5th, 6th, 7th, and 8th sections of the present act regulating descents. The effect of the present act is to extend, not to limit, the rule prescribed in the 10th section of the act of 1831.
    2. H. died intestate, without issue, and nev?r having been married, seized of an estate acquired by purchase, leaving no brothers nor sisters, but three children of one brother, four children of another brother, eight children of one sister, and two children and two grandchildren of another sister. Held, that partition should be made by dividing the estate into eighteen shares, each nephew and niece taking one, and the two children of the deceased nephew one.
    
      ^Petition for partition. Reserved in the district court of Richland county.
    The petition in this case states that Hannah G-regg died in the year 1855, seized of certain real estate described, intestate, without issue, and never having been married; that the intestate had two brothers and two sisters, all of whom she survived; that one brother, Thomas, left three children; the other brother, John, left four children; one sister, Martha, left eight children; and the other sister, Ann, left three children, one of whom died before the intestate, leaving two children, who survived the intestate. Thus the parties claiming partition are the three children of Thomas, the four children of John, the eight children of Martha, the two children and the two grandchildren of Ann, all of whom survived the intestate.
    The real estate came to the intestate, not by descent, devise, or deed of gift, but by purchase. It is claimed on the part of the petitioners, who are the eight children of Martha, that the estate should be divided into eighteen shares among the nephews and nieces of the intestate, the two grandchildren of Ann taking the share of their deceased parent. It is claimed, on the part of the other defendants, that the estate should be divided into four shares, and that the descendants of the brothers and sisters of the intestate should take the share which their parent or ancestor would have been entitled to claim, had he or she survived the intestate. The court of common pleas decided in favor of the latter view. An appeal was taken to the district court, and the question reserved for decision to this court.
    No argument was submitted on either side.
    
      Vance & Smith, for petitioners.
    
      Geddes & Burns, for defendants.
   *G-holson, J.

The act regulating descents, i:>assed 24th February, 1831, in the case of an estate which came from an ancestor by descent, devise, or deed of gift, after providing for a descent to the children of the intestate, the brothers and sisters of the intestate, etc., also provides for the brothers and sisters of the ancestor from whom the estate came, or their legal representatives. In the case of an estate which came not by descent, devise, oi deed of gift, but by purchase, the brothers and sisters named are those of the intestate. The tenth section of that act provided, that, “when any of the before-mentioned children, brothers, sisters, or their legal representatives, in the same degree of consanguinity or kindred, come into partition of any real estate, they shall take per capita; but where one or more of them are dead, and one or more of them are living, the issue of those dead shall have a right to partition; and such issue, in such case, shall take per stirpes.” Under this provision, the parties in this case would be included as Jegal representatives of the brothers and sisters of the intestate. They are in the same degree of consanguinity or kindred — all either living nephews and nieces of the intestate, or children of a nephew deceased; the former would take per capita, the latter per stirpes.

Such would have been the rule applicable to this case, before the act to regulate descents, passed 14th March, 1853. In that act, the tenth section of the act of 1831 is not, in terms, re-enacted. In its stead are the 5th, 6th, 7th, and 8th sections of the act of 1853. The 5th and 6th sections provide, in express terms, for the children of the intestate, in the two cases, where there are living children and no issue of deceased children, and where there are living children and also issue of deceased children. In the former case, the children take per capita; in the latter, a representation per stirpes is allowed. The act, in terms, provides for no other ease; but the 6th and 8th sections provide that the same rule, prescribed in the 5th and 6th ^sections, shall apply in other cases. In what other cases, is the question to be solved ?

There is some ambiguity arising from the language employed in the 6th section, which has probably led to the reservation of the question in this case. It might, upon a first inspection of that section, be supposed that the “ descendants ” to which it refers, were the lineal descendants only of the intestate, such as grandchildren and great-grandchildren; but a more careful examination shows the contrary. It will be seen that in the 6th section children as well as grandchildren and great-grandchildren are named, which, if the lineal descendants of the intestate alone are intended, would have been unnecessary, the children of the intestate having been provided for in the 5th section. The concluding language of that section also shows, that descendants, in the sense of those to whom the estate descends, were in the contemplation of the legislature. Its provisions are to apply “ so that the estate shall pass to such persons of equal degree of consanguinity to such intestate in equal parts, however remote from the intestate such equal and common degree of consanguinity may be.”

Our conclusion is, that the legislature, instead of limiting the rule as provided in the tenth section of the act of 1831, intended to extend and apply it to every case in which an estate was to be divided among a class of descendants, whether their consanguinity to the intestate be lineal or collateral. The partition will, therefore,_ be ordered, in accordance with the claim of the plaintiffs, into eighteen shares, of which the nephews and nieces of the intestate will each be entitled to one, and the two children of the deceased nephew will together be entitled to one.

Brinkerhoee, C. J., and Scott and Sutliee, TT., concurred.

Peck, J., was absent.  