In re Estate of Pearsons

McFarland, J. This is an appeal by Ira Mathewson, Daniel Mathewson, Henry Mathewson, Rhoda Smith, and Lucy A. Angelí from parts of an order of [526]partial distribution of the estate of Hiram Arthur Pear-sons, deceased.

Although said deceased left a will, the part of his estate here in question is, for reasons not necessary to be stated, to be distributed as though he had died intestate. His next of kin of equal degree are aunts and uncles, and are the appellants, who are sisters and brothers of the decedent’s mother, Ann Charity Pearsons, and Clarissa P. Wheeler and Lucy A. Valentine, who are sisters of the decedent’s father, Hiram Pearsons. (Lucy A. Valentine being now dead, her estate and interests are represented by her administrator, Joseph W. Beay.) The greater part of the estate to be distributed came to the deceased, Hiram Arthur Pearsons, by gift and devise of his father, Hiram Pearsons, deceased; while a lesser part came to him from his mother, Ann Charity Pearsons. The probate court held that all of said estate which came from the father should be distributed to said Clarissa P. Wheeler and the administrator of said Lucy A. Valentine; and that the appellants should share only in that part of the estate which came to the deceased from his mother. Appellants contend that the whole of the estate of the deceased should be distributed equally to all the aunts and uncles. This contention presents the only question to be determined on this appeal, and it appears to us quite clear that it must be sustained.

The rule which governs here is the one declared in subdivision 6 of section 1386 of the Civil Code, and is as follows: “ If the decedent leave neither issue, husband, wife, father, mother, brother, nor sister, the estate must go to the next of kin in equal degree.” In the case at bar “ the next of kin” were the seven aunts and uncles of the decedent and they were “ in equal degree” ; therefore the estate goes to them in seven equal parts. Next of bin means, of course, next of kin of the decedent. Our code has no allusion to “ the blood of the first purchaser,” and makes no attempt at any distinction founded upon the sources from which the estate of [527]a decedent may have been derived—except in the single instance of kindred of the “ half blood.” But no question of the rights of kindred of the half blood arises in this case; for all the aunts and uncles were the decedent’s kindred of the whole blood, of equal degree.