
    Ora E. Dodge v. Frank Beeler.
    
    January Term, 1874.
    1. Descent and Distribution: Widow and Children. The property of one dying intestate, and leaving widow and children, descends, one-half to the widow and the other half to the children.
    2. -: Deceased Heir. If one of the children shall have died before the ancestor, the heirs of such child will take the portion which would have descended to such child if he had survived the ancestor, and the same rule obtains for determining who are the heirs of such child as in any other case of descent.
    Error from Doniphan district court.
    Catherine Beeler, as plaintiff, and one of the heirs of Wm. D. Beeler, deceased, filed her petition for the partition of certain real estate of which said deceased died seized. The other heirs of said deceased were made the defendants; and among these heirs were Ora E. Dodge (formerly Ora E. *Beeler) and her son Frank Beeler. The district court, at the September term, 1873, decided that as Marion Beeler (a son of said Wm. D. Beeler' and the father of said Frank) had died before the decease of said Wm. D., his widow, said Ora, “took no interest in the estate of said Wm. D. Beeler, and has no interest in any part of the real estate described in the petition,” and gave judgment awarding to said Frank all the interest in said estate which the said Marion would have been entitled to had he survived the death of his father.
    
      Albert Perry, for plaintiff in error.
    
      C. W. Johnson and W. W. Guthrie, for defendant in error.
    
      
       This case followed Couch v. Wright, 20 Kan. 106; Thompson v. Meredith, 28 Kan. 635.
    
   Brewer, J.

The parties to this suit claim as heirs of William D. Beeler, deceased. The only controversy in this court is between Ora E. Dodge, plaintiff in error, and her minor son, Frank Beeler. The facts are these: Ora E. Dodge, then Ora E. Canfield, in 1863 married Marion Beeler, son of William D. Beeler. In 1864 Marion Beeler died, leaving as his heirs his widow (the said Ora) and an infant son, Frank Beeler. Subsequently William D. Beeler died. Did the interest, which would have descended to Marion Beeler, if he had survived his father, descend wholly to his own son, Frank Beeler, or one-half to his widow and one-half to his son ? Under our statutes, upon an intestate’s death one-half his property descends to his widow, and the other half to his children. Comp. Laws 1862, c. 80, §§ 5, 16; Gen. St. c. 33, §§ 8, 18. And section 19 of this last chapter, which is identical with section 17 of the former, reads: “If any one of his children be dead, the heirs of such child shall inherit his share, in accordance with the rules herein prescribed, in the same manner as though such such child had outlived his parent.” It seems to us, under these provisions, *that the plaintiff in error and her son must be held to share equally in the interest which would have passed to Marion Beeler, had he survived his father. The sufficiency and validity of such legislation was sustained in the case of McKinney v. Stewart, 5 Kan. *384.

The judgment of the district court will be modified so as to set off to plaintiff in error one-half the interest given by that judgment to Frank Beeler. The costs in this court will be charged against Frank Beeler, and if partition cannot be made by the commissioners, and a sale is had, .the sheriff of Doniphan county will retain out of the proceeds thereof going to Frank Beeler enough to satisfy such costs.

(All the justices concurring.)  