
    GABRIEL McCOMAS, Martha Wilson, Joshua F. Amos, and Others v. ANN AMOS, and Others.
    
      Decided June 18th, 1868.
    
    Distribution of intestate’s estate.
    An intestate died, unmarried, and leaving no child or descendant, father or mother, brother or sister, surviving him; but left several nephews and nieces, the children of deceased brothers and sisters, and also several grand-nephews and grand-nieces, whose parents had died in the life time of the intestate.. Held:
    
    That the grand-nephews and grand-nieces of the intestate are not entitled to share in the distribution of his personal estate, 
       p. 129
    That his nephews and nieces take per stirpes and not per capita.
    
    p. 132
    Sections 128, 129, and 131, Art. 93, of the Code of Pub. Gen. Laws, (i860), construed, . ’ pp. 128-132
    Appeal from the Orphans’ Court of Baltimore City.
    The cause was argued before Bartol, C. J., Nelson, Stewart, Miller, Alvey and Robinson, JJ.
    
      Arthur W. Machen and William Schley, for the appellants :
    The Act of 1798, ch. 101, superseding all previous laws on the subject, and in many particulars departing from their provisions, established in Maryland a complete and independent testamentary system. That important part, included in sub-ch. XX, which laid down rules for the distribution of personal estate in cases of intestacy, has been found so precise and distinct, and so easy to be applied to the circumstances of every case, as to give rise to remarkably few occasions for judicial construction. Framed as a practical guide for laymen, it was evidently intended to contain within itself every thing necessary for its own interpretation. Sections 8 and 9, identical with sections 128 and 129, of Art. 93, Code of Pub. Gen. Laws, provided, “ If there be a brother or sister, or child or descendant of a brother or sister, and no child, descendant, or father of the intestate, the said brother, sister or child, or descendent of a brother or sister, shall have the whole,” and “ every brother and sister of the intestate shall be entitled to an equal share, and the child or children of a brother or sister of the intestate shall stand in the place of such brother or sister.
    The plain meaning of these provisions is that wherever any children of a deceased brdther or.sister are to take, the amount of their interest is to be defined by ascertaining what their parent, if living, would have taken. One rule is prescribed for all cases — not one rule for the case where the brother or sister, whose place is occupied by his or her children, happens to be the only brother or sister to be considered, and another for the case where all the brothers and sisters chance to be dead — but one comprehensive rule for every case, without regard to such variety in the circumstances. The one section of the statute declares who are to take, and the other, by a general provision, how, and in what proportions, they are so to take. And this construction, it is believed, has been uniformly applied in practice, in all cases of intestacy, both by the Orphans’ Courts and Courts of Chancery, ever since the passage of the Act of 1798.
    The context strongly corroborates the construction for which we contend. 1798, ch. 101, sub-ch. 11, secs. 5 and 6 ; Code of Pub. Gen. Laws, Art. 93, secs. 125 and 126.
    Section 10, sub-ch. xx, Act of 1798, (Code, Art,. 93, sec. 130,) provides, that a mother of *the intestate, (there being no father living,) “ shall have an equal share with the brothers and sisters of the deceased, and'their children and descendants..” Thus, if he leave surviving him, five brothers, or sisters, and a mother, the mother’s share will be one-sixth. .Seekamp v. Hammer, 2 H. & J. 9. If all the five brothers or sisters have died, leaving children — some, more, some less— twenty-four in all, can it be that the mother’s share is cut down to one twenty-fifth ? Yet if the nephews and nieces take per capita, such a consequence is inevitable.
    The Statute of Distributions, 22 and 23 Car. II, ch. 10, secs. 6 and 7, by denoting the persons who are to take (in default of children of the intestate,) by one comprehensive term, and that descriptive merely of the degree of kinship, without any reference to representation, left no room for any but a per capita division. Under the term “ the next of kindred of the intestate, who are in equal degree,” the only inquiry is who are the persons standing in the nearest degree to the intestate, and they all take by virtue of that common quality, and, necessarily, by an equal right. Thus, not only do nephews and nieces all stand in the same degree with each other, but also with aunts and uncles of the intestate. So that, if A. died, leaving three nephews — children of a deceased brother or brothers — and- an uncle — the brother of the intestate’s father —-the uncle and nephews, being all alike in the third degree, would all take equally, i. e. each, one-fourth part of the whole. Lloyd v. Tench, 2 Ves. Sr. 2x3.
    Where the individuals to take were not all in the same degree, as where the intestate left a brother and nephews, children of a deceased brother, these last would have been entirely excluded, but for the further words of the Statute, applicable to such a case — the whole clause reading, “ the next of kindred of the intestate, and those who legally represent them.” The brother being in the first degree, all in that degree would be the next of kin ; and the Statute, by authorizing representation under deceased individuals of such next ^degree, enabled the children of the other brother to stand in his place. Where there were no brothers, but only nephews and nieces, children of deceased brothers or sisters, these,- constituting the next of kindred, were found in the third degree— not in the second, as they would have been if they could have claimed under their parents, for, as from brother to brother the descent is immediate. Collingwood"v. Pace, 1 Vent. 413, 424; Barnits v. Casey, 7 Cranch, 467; Hall v. Jacobs, 4 H. & J. 249; so, in succession to personality, there is no degree between brother and brother. Evelyn v. Evelyn, 3 Atk. 764. Being all then in the third degree, the nephews and nieces, according to the terms of the Statute of Distributions, necessarily “ stood in a proper degree,” (Sir John Strange, M. R., 2 Ves. Sr. 215,)i. e., their own proper degree, and could not but take per capita. 
      They were the next of kin, and took as such. Davers v. Dewes, 3 P. Wms. 50.
    The Statute of Maryland in providing, in the first instance, for lineal descendants requires a distribution per stirpes. Code of Pub. Gen. Laws, Art. 93, sec. 126.
    In proceeding then to brothers and sisters, and their children, it speaks, although, as was to be expected, in language more succinct and terse, of the same sort of distribution, and provides for no other kind. Code of Pub. Gen. Laws, Art. 93, secs. 128, 129. And when the rule of, representation is manifestly intended to be departed from, the intention is distinctly expressed ; and the statute, leaving those who are meant to be specially provided for, as children and other lineal descendants of the intestate, brothers and sisters, and brothers and sisters’ children, provides for all the rest in general terms, and by reference to the degree of kin, and also furthermore expressly negatives representation amongst them. Both the letter of the statute, therefore, and its general intent, require a distribution per stirpes in a case like the present. Maxwell v. Seney, 5 H. & J. 23; Duvall v. Harwood, 1 H. & G. 474; Robbins v. State, 1 H. & G. 476; *Stewart v. Collier, 3 rH. & J. 289; Stewart'v. Jones, 8 G. & J. 1; Porter v. Askew, 11 G. & J. 346; Hall v. Jacobs, 4 H. & J. 256; Levering v. Levering, 14 Md. 30; Ellicott v. Ellicott, 3 Md. Ch. 468; Levering v. Heighe, 3 Md. Ch. 365.
    
      Henry Stockbridge, Henry D. Farnandis and J. Nevitt Steele, for the appellees :
    The Acts for the distribution of the estates of persons dying intestate, in all the States of our. Union, are based on the Act of Parliament, entitled, “ For the better séttling of intestates’ estates,” passed in the year 1670-22 and 23 of Charles II., ch. 10.
    While some of the States have somewhat modified this rule as laid down in this Act, Maryland has always been understood by jurists as being one of the States that followed it closely, the change being only one of phraseology merely, not of substance. 2 Kent, 426; 2 Williams on Executors, 1335.
    Our original Act of 1715, ch. 39, sec. 6, is a verbal copy of the English Statute.
    
      Various modifications of the testamentary law had been made, till it had “ become complicated and difficult to be understood,” and to reduce it to harmony and unity, and free it from all difficulties, the Act of 1798, ch. 101, was passed, and all the antecedent law of distribution was codified in its sub-ch. 11, now transferred to our Code of Pub. Gen. Laws, Art. 93, secs. 120-138. From a careful examination of this Act, it will clearly appear that the only modification made by the Act, affects only the question who are entitled to share in the distribution ; not how shall the property be divided among those who are entitled to participate.
    The rule under the English Statute, as settled by many adjudicated cases, is that dictated by natural justice, viz.: That where the distributees all stand in equal degree of relationship *to the intestate, they all share equally in the distribution. The question in all the cases is, the degree of relationship ; and if all stand in equal degree they take equally and in such a case they take in their own right. The term representation is not used in any such case. Persons take “ by representation ” only when there' are others entitled to share in the distribution who stand in nearer degree. For example, the intestate has left a child, and grand-children who are the children of a deceased child. The surviving child takes a share in his own right ; the grandchildren take a share by representation, in right of the deceased child, their parent, and the distribution is per stirpes, not per capita. The persons sharing the distribution do not stand in equal degree. Put where all the children of the intestate have died before the intestate, and the distribution is among grandchildren only, none take “ by representation,” and the term is not used in such cases. All take in their own right ; they stand in equal degree and share equally. The distribution is per capita, not per stirpes. Roberston on Personal Succession, 12 Law Lib. 323; Lovelass on Wills, 25 Law Lib. 146 ; 2 Williams on Executors, 1347, 1349: !363: 1364-
    The language of the English statute, as well as that of Maryland, affecting the mode of distribution when the distributees are ascertained, which is applicable where the property passes to the collateral line, and the construction put upon it by the courts, is the same as when it passes to lineal heirs. They who stand in equal degree share equally. . If all are in equal degree, all take in their own right. If they who participate are in unequal degree, those who are nearest to the intestate take in their own right, the more remote, by representation. The only difference between the lineal and the collateral line is that representation continues indefinitely among the lineal descendants, but stops with nephews and nieces in tile collateral line-. It affects only the question of who are entitled to share the distribution, not the proportions *which they shall receive, who are entitled to share. 4 Bacon’s Abr. 95, pl- 3-
    •Under the English statute there has ceased to be any doubt as to the manner of distribution. Where there are not persons in different degrees claiming, there is no representation. If -there be a brother or sister, and children of other brothers and sisters, there is representation, and the distribution is per stirpes. If there be no brother or sister living, but all are nephews or nieces, there is no representation, and the distribution is per capita. Stanley v. Stanley, 1 Atk. 457; Lloyd v. Tench, 2 Ves. Sr. 213; Walsh v. Walsh, Prec. in^Ch. 54; Jan-son v. Bury, Bunbury, 157; Bowers v. Littlewóod, 1 P. Wms. 595; Robertson on Per. Sue. 335,336; 2 Bl. Com. 517.
    The American statutes being all based on the English, have received the same construction, with so Tew exceptions, that the American rule and the English rule are the same. 2 Red-field on Wills, 905, ch. 21, sec. 1?; Walker’s American Law, 359, 362; Odam v. Caruthers, 6 Ga. 387; Miller’s Appeal, 40 Pa. St. 387; Kelly v. McGuire, 15 Ark. 555; Hatch v. Hatch, 21 Vt. 450; Ezvers v. Folin, 9 Ohio, 327; Deputy Commissary’s Guide, no, 113.
    The Maryland statute, on this point, is in conflict neither with the English nor the American rule. The only change of the English rule made by our statute is, that we exclude uncles and aunts from participation with nephews and nieces in the distribution of an intestate’s estate. This is the only purpose discoverable in the modification which was made in the Act of 1715, by the Act of 1798. This modification is contained in' secs. 128 and 129, Art. 93 of the Code ; and sec. 128 controls the present case, and is all which is really applicable, to it.
    
      This section provides that if there be “ no child, descendant or father of the intestate, the brother, sister, or child or de*scendant of a brother or sister, shall have the whole.” It is hardly possible to doubt, but that, if there were no additional sections, an estate passing collaterally would be shared equally by brothers and sisters, and if all brothers and sisters were dead, that it would be distributed equally, per capita, among their children, the nephews and nieces of the intestate. This is consonant to natural justice, and in accordance with the uniform current of English and American decisions. But it would leave two classes unprovided for, viz.: 1st. A surviving mother of the intestate ; and 2nd. Children of any deceased brother or sister, if a brother or sister had died leaving issue, and another brother or sister of the intestate survived said intestate.
    Sections are added to provide for both of these omitted classes. Sec. 130 provides for the mother of the intestate, bringing her in to share equally with his brothers and sisters.
    Sec. 129 prevents the exclusion of nephews and nieces of the intestate, by his brothers and sisters, if any were living, and requires those brothers and sisters to share the estate of the intestate with the nephews and nieces who were the children of brothers and sisters deceased.
    Sec. 128 had already provided that nephews and nieces should share in the distribution. When it seems to have occurred to the legislators that under its terms nephews and nieces might claim to share equally, per capita, with brothers and sisters, though standing in unequal degrees of relationship. To guard against this and to make this provision conformable to all other provisions which make those to share equally-who stand in equal degree, sec. 129 was added. It clearly meant that “ the child or children of a brother or sister of the intestate,” deceased, coming into share with a surviving brother or sister shall take, and shall take only the share to which their deceased parent, if living, would be entitled ; they shall not claim to share per capita with their uncles and aunts, but shall take per stirpes, by representation.
    
      
      
         Approved in Garrison v. Hill, 81 Md. 211. See also Chester Co. Hospital v. Hayden, 83 Md. 115; Schaub v. Griffin, 84 Md. 563.
    
    
      
       See Code of Pub. Gen. Laws, Art 93, secs. 119, 137.
    
   *Alvey, J.,

delivered the opinion of the court.

The deceased, the distribution of whose estate is the subject of controversy in this case, died in the City of Baltimore, in the year 1866,, intestate, without wife, and leaving no child or descendant, father or mother, brother or sister surviving him ; but leaving several nephews and nieces, the children of deceased brothers and sisters, and also several grand-neph'ews and grand-nieces, whose parents had died in the lifetime of the intestate.

After administration had, and the personal estate of the deceased was ready for distribution among those entitled, questions arose, in the Orphans’ Court of Baltimore City, as to whom, and in what manner, such distribution should be made.

The Orphans’ Court, upon hearing the respective parties in support of their claims, ordered that the estate be distributed to the nephews and nieces of the intestate, excluding the grandnephews and grand-nieces ; and that such distribution be made amongst the parties per capita, and not’ per stirpes. And from this order, some of the nephews and nieces, feeling themselves aggrieved by this mode of distribution, have taken this appeal. And the record presents two questions to be deter.mined by this court :

1st. Whether the grand-nephews and grand-nieces are entitled to share in the distribution ; and if not,

2nd. Whether the distribution among the nephews and nieces should be per capita or per stirpes.

These questions depend for their correct determination upon the construction of those sections of the 93d Article of the Code of Public General Laws, that relate to, and direct the manner of distribution of an intestate’s personal estate among his collateral relations.

And first, as to the right of the grand-nephews and grandnieces to share in the distribution. The only provision in the Article of the Code just referred to, upon which their claim could be founded, is in sec. 131, which declares *that “ after children, descendants, father, mother, brothers and sisters of the deceased, and their descendants, all collateral relations in equal degree shall take, and no representation amongst such collaterals shall be allowed.” And to allow them to share in the distribution when there are those, as in this case, of a nearer degree of relationship to the intestate, it must be supposed that they ’ are embraced by the word “ descendants “ used in this section in relation to brothers and sisters, and that they are in the category of those who take by representation the portion that their deceased parents would have been entitled to if living. And this supposition is certainly plausible, and derives considerable support from the ordinary meaning of the word “ descendants,” and the strong implication from the classification made by this section, of those who can take by representation, and those who can only take per capita. But such is not the judicial construction heretofore adopted of this provision of the statute. The word “ descendants,” as connected with brothers and sisters of the intestate, in this section, has been construed to mean children of such brothers and sisters. And by thus restricting the word “ descendants,” and taking it as synonymous with children of brothers and sisters, secs. 129 and J31, are made to harmonize ; and, with such construction, no representation is admitted among col-laterals after brothers and sisters’ children. Such we understand to be expressly decided by Robins v. State, 1 H. & G. 476, note; and Duvall v. Harwood, 1 H. & G. 474. it necessarily follows, therefore, that these grand-nephews and grandnieces are not entitled to share in the distribution, and that the Orphans’ Court was right in excluding them.

Next, as to the mode of distribution. This is a part of the case that has been most extensively argued, and about which it was supposed there exists the greatest difficulty. And certainly, great diligence has been displayed by the respective counsel, in bringing to the view of the court all the authorities supposed to bear upon the question, and they were ex*pounded and applied with rare skill and ability. But we think, in deciding this question, but little aid can be derived from adjudged cases on questions of distribution, arising elsewhere than in our own courts. The English statute of distribution of 22 and 23 Car. .11. ch. xo, upon the construction of which most of the cases cited have occurred, is not in force here, and by the Act of 1798, ch. 101, since incorporated into our Code, the Legislature of this State adopted rules and principles of distribution materially variant from those of the British statute. Hence, the adjudication as to the construction of the latter statute, can have but slight application to the question under consideration.

The sections in Art. 93, Code of Pub. Gen. Laws, upon which this question depends, aré 128 and 129. By the first of these sections, it is declared that “ if there be a brother or sister, or child or descendant of a brother or sister, and no child, descendant, or father of the intestate, the said brother, sister, or child or descendant of a brother or sister, shall have the whole.” And, by the latter section, it is declared that “ every brother and sister of the intestate shall be entitled to an equal share, and the child or children of á brother or sister of the intestate, shall stand in the place of such brother or sister.”

It is contended on the part of the appellees, that as the distributees here are all in equal degree of relationship to the intestate, they do not stand in the place of their parents, and take by representation, but that they each take in his or her own right, an equal portion of the estate. Such is, unquestionably, the rule established by many decided cases upon the English statute of distribution, and such would be the rule here, if our statute contained the same provisions upon this subject as that of Car. II. But, as we have before said, the statutes are different, and hence the English decisions do not apply. Under the English statute, these distributees would take as next of kin simply, and by virtue of their own proper degree of relationship to the intestate, and not as representatives of *their deceased parents, and, of necessity, would take per capita. There it would only be necessary to ascertain who are the persons standing in the nearest degree of kin to the intestate, to determine who are entitled ; and those “ who are in equal degree ” take equally ; representation being allowed only in cases where it is necessary to avoid excluding those in a remoter degree. And this rule applies, under that statute, to both the lineal and collateral lines. As, for instance, where the intestate’s children are all dead, all of them having left children, some one number and some another, in that case, all the intestate’s grand-children share equally ; for, as his children are all dead, their children take as next of kin, and, therefore, take per capita. But under our statute a different rule obtains.

The 128th section, when it declares that if there be no child, descendant, or father of the intestate, the brothers and sisters, and their descendants, shall have the whole, simply determines who shall take, without furnishing a rule as to the apportionment. It was therefore necessary to make further provision upon the subject. This was done in sec. 129, which is to be read as explanatory of the preceding sec. 128. By this explanatory section, every brother and sister is declared to be entitled to an equal share, and that the child or children of such brother or sister “ shall stand in the place ” of his or their parent. Thus the rule of apportionment is given, and representation is provided for in all cases where nephews and nieces are the distributees, without regard to the fact that all the brothers and sisters of the intestate may have died before him. The rule prescribed is a general one, and from the terms of the statute, it admits of no exception or qualification. The same general rule of representation is prescribed by sec. 126, as to lineal descendants, and there can be no good reason suggested why distribution to children of brothers and sisters should be made on a different principle. Such child or children can only claim by standing in the place of his or their deceased ancestor and not by the degree *of kindred to the intestate, as under the English statute of distribution. They take by representation, and not in their own right.

We are, therefore, of opinion that the Orphans’ Court committed error in ordering the distribution to be made among the nephews and nieces of the intestate, in equal portions, or per capita, instead of per stirpes ; and the order appealed from must, therefore, be reversed. And the cause will be remanded to the Orphans’ Court that distribution may be made in accordance with this opinion.

The costs in this court, and those attending this controversy in the court below, to be paid out of the assets of the estate.

Order reversed and cause remanded.  