The only question here is, who were the the heirs at law of Wellington Cass Page on October 6, 1939, as applied to the property *Page 250 devised by Humphrey R. Wagar under the residue clause of his will. We are not concerned with any other property.
On October 6, 1939, Wellington Cass Page was deceased, intestate, leaving no issue, widow, father or mother, or child of a deceased brother or sister, surviving him. He was survived by a sister and a half-brother. They would take this property equally, unless otherwise prevented by statute. 3 Comp. Laws 1929, § 13444 (Stat. Ann. § 26.985); cf. Act No. 288, chap. 2, § 84, Pub. Acts 1939 (probate code [Comp. Laws Supp. 1940, § 16289-2 (84), Stat. Ann. 1941 Cum. Supp. § 27.3178 (154)]). What was the intent of the testator as to who should be considered the legal heirs of Wellington Cass Page? Wellington Cass Page died during his minority, and during the lifetime of the testator. His mother was a daughter of the testator. Five years before the will was executed, his mother and father were divorced. His father remarried, and Rufus Lee Page, Jr. (claimant here), was born of that marriage. He is not of the blood of Humphrey R. Wagar, the ancestor (testator in this will). He is the child of the ex-husband of the testator's daughter, from whom she had been divorced for a number of years. Under these circumstances, there is no presumption that Humphrey R. Wagar had him in mind as one who should inherit one-eighth of the residue of his estate.
When there is no indication in the will itself as to the testator's intent, the statute steps in. In this case, the statute (3 Comp. Laws 1929, § 13444), disinherits Rufus Lee Page, Jr. It provides:
"Kindred of the half blood shall inherit equally with those of the whole blood in the same degree, unless the inheritance come to the intestate by descent, devise, or gift of some one of his ancestors, in which case, all those who are not of the blood of *Page 251 such ancestor shall be excluded from such inheritance."
Rufus Lee Page, Jr., is not of the blood of the ancestor from whom the estate descends. There is nothing to indicate that the testator intended him to share, and the statute is to the contrary. In this State, the question as to who is an heir at law is controlled entirely by the statutes of descent and distribution. Rufus Lee Page, Jr., would not be a legal heir under any circumstances but for the statute, which by express terms excludes him from being considered an heir at law in this case. The blood descendant, Marion Greenwood, must take the share of Wellington Cass Page.
There should be reversal for entry of decree to that effect, with costs to appellant.
WIEST, J., took no part in this decision.