Gilfether v. Smith

SMITH, C.

This is an appeal from a decree of distribution. The deceased, who died intestate, inherited the property distributed from her father. She left surviving her, her husband, and two half-sisters on the mother’s side, the appellants. The whole of the property was distributed by the decree to the respondent and the appellants excluded. The case turns upon the construction of the provisions of the Civil Code governing successions, and especially of those of sections 1386

(2)

and 1394. By the former provision it is especially provided in the case here presented that the husband shall take one-half of the estate and the sisters the other half; but it is contended that by the latter section the sisters are excluded as not being of the blood of the ancestor from whom the defendant derived the estate; and it was so held by the court. But I do not think this contention can be sustained.

The section in question consists of two clauses connected by the conjunction “unless,” which, as said by Lord Mansfield

(Smith v. Wilson,

3 Burr. 1556), means the same as “except,” and hence implies merely an exception to the first clause. (Standard Dictionary; Century Dictionary;

Ryan v. Andrews, 21

Mich. 234, 235;

Estate of Kirkendall,

43 Wis. 173-75, 177 et seq.;

Rowley v. Stray,

32 Mich. 75, 76.) The last clause can, therefore, apply only to the class described in the first, or, in other words, to the class from which it constitutes an exception, which is, kindred “in the same degree.” Hence, it can have no application to the relations between different classes as determined by degree of kindred or otherwise, as, e.

g.,

between half brothers or sisters and remote collateral kin, or between grandparents and uncles or aunts, as in

Ryan v. Andrews, supra,

and in

Estate of Kirkendall, supra.

The effect of the provision is therefore simply to subdivide each of the classes as determined by degree of relationship into two classes, namely, those of the full -and those of the half blood, and in each class