This case was heard before a single justice, and now comes before the full court on appeal by the administrators. The case was heard and decided, and there being some delay in drawing the decree, on motion of parties two decrees were entered nunc protunc by the judge, as of dates near the time when the decision was actually made.
We see no objection to this, as it does not take away the right of appeal, which runs from the date when the decree is actually entered.
The judge rendered two decrees, one settling the rights of the parties and distributing the sum of $24,000 forthwith among the persons entitled to distribution, and the other, and of later date, distributing the remainder after the allowance of sundry accounts. The reason given for this was, that it was thought the former decree would not be appealed from, and would lead to an early distribution of the greater part of the funds; leaving the disputable matters to be settled on appeal from the last decree.
A motion is now made to dismiss the appeal from the first decree, (which only directed a distribution,) on the ground that the administrators are not aggrieved parties, and therefore have no right to appeal under the provisions of the Revised Statutes, chapter 692, section 3.
The administrators are not interested in the distribution, but they are interested in the allowance of their compensation; and represent the estate so far as regards the allowance of any accounts or claims against the estate.
And there being an appeal from the second decree, and that *Page 285 bringing up before the court all the matters involved in it, (one of which is the distribution,) and the parties having a right to be heard thereon, as well as on the particular ground, if any, on which the appeal was made, it seems to us that it necessarily draws after it the reconsideration of the first decree so far as it directed a distribution. If the distribution ordered by the second decree is wrong, it follows, of course, that the first decree must be erroneous. And although the first of these decrees was in a sense interlocutory, yet, inasmuch as it settled the right of the parties to a part of the fund, it is, so far, a final decree. Forgay v. Conrad, 6 Howard, 203.
But it is contended by the administrators, that this court has no power except to advise the administrators in the execution of the trust, and that it has no jurisdiction to settle accounts and decree distribution, because that is in the exclusive jurisdiction of the Court of Probate; and that all they asked of the court was advice.
The bill states that the administrators have settled their final account with the Court of Probate, and that there is a certain sum remaining in their hands for distribution; that they are advised it is doubtful to whom they ought to distribute, and that they cannot safely do it without the direction and indemnity of this court; and the prayer is, that the rights of the defendants in said money may be ascertained and declared by this court; that all proper directions may be given to them as to the payment and distribution, and the persons to and among whom, c.,c.; and that they may be protected and indemnified in paying a due observance to the decrees and directions of this court, and for further and other relief, c. Now, if the administrators wish for advice only, then they are not properly before the court for that purpose. On the contrary, they have asked for the direction of the court, and to be indemnified for following its directions. Before the Supreme Court had equity powers, the jurisdiction of the Court of Probate was indeed exclusive, because there was no other court which had any power over matters of this kind. But since full equity jurisdiction was conferred upon this court, it has power, when a proper bill is *Page 286 filed, and it has the fund or the parties before it, to proceed to a final settlement and distribution, if the nature of the case renders it proper.
It is made a further objection to a decree by this court, that all the parties interested may not have been discovered, and may not have been served with process, and that so the decree rendered may not bind all parties. As the fund is within our jurisdiction, we have no doubt that the decree will bind all parties properly notified either by personal or substituted service; and that the court has the power and will exonerate the administrators for payment according to its decree, and will protect them therefor. But it has been held in other courts, that in such case, parties who have not had actual notice, (as may happen in case of advertisements,) and who use reasonable diligence, will be allowed to file a bill for relief against the parties who have received the money, (if they have received more than they are justly entitled to,) and they will be decreed to refund their proper proportions. Story's Equity Pleadings, § 106, and cases cited; 2 Williams on Executors, 1722. And it is stated by the administrators, that in the present case all the different degrees of kindred are represented before the court.
The cause being thus properly before the court, upon the appeal of the administrators, the administrators, by their counsel and several of the respondents, have presented and argued questions as to the rights of the parties in the fund and the shares in which it is to be distributed; one of the respondents claiming the whole as next of kin.
Eliza Field died March 6, 1864, and her will was duly proved in April, 1864. The material parts are these: "I hereby authorize, empower and direct my executors herein named, as soon as conveniently may be after my decease, to sell at public auction and convert into cash, all my real estate of which I may die seized and possessed," c., with power to execute deeds. She then gives the residue to five nephews and nieces, Robert Field, Aaron Field, Mary Field, William F. Waterman, and Nathan Waterman, "equally between them, share and share alike, and to their respective heirs, executors, administrators *Page 287 and assigns, provided they all survive me; if not, to such of them, the said Robert, Aaron, Mary, William F. and Nathan, asshall survive me, equally between them, share and share alike, and to their respective heirs, executors, administrators and assigns." None of these nephews or nieces survived her, but all of them, except Nathan Waterman, left lineal descendants, as did also several of her brothers and sisters. Stephen Field was the only child of a brother or sister living at her decease, thus being the nearest of kin.
It is contended on behalf of the representatives of the four devisees who left children, that they are entitled to take the property (or at least four-fifths of it) by virtue of chapter 154, section 12 of the Revised Statutes; "when any child, grand-child, or other person, having a devise or bequest of real or personal estate, shall die before the testator, leaving a lineal descendant, such descendant shall take the estate, real or personal, as devisee or legatee, in the same way and manner as such devisee would have done in case he had survived the testator." And it is contended, that the will must be supposed to be made in view of the law, and that the testatrix knew that the law had provided for the case of their not surviving her, and that the law made the very provision she desired.
If she had made an unconditional devise, this section would have provided for the case. But her intention here seems very evident, that not all of the five, but only such of them as outlive her, shall take; and that is made a condition; nothing is given to any one who does not survive her; beyond those five she does not seem to have entertained any preferences among her numerous relatives; and seems to have been willing to let the law take its course as to the rest. If she had intended to provide that their families should take it, the most common scrivener could have used language that would have carried out her intention. And the conclusion seems unavoidable, that she must be considered as dying intestate so far as this residuary estate is concerned.
On behalf of Stephen Field, as the nearest living relative, a claim is set up to the whole of the property. His counsel contend *Page 288 that the property is all ancestral, and that, as next of kin, he is entitled to it by virtue of chapter 159, section 6 of the Revised Statutes of 1857. "Where the title to any real estate of inheritance, as to which the person having such title shall die intestate, came by descent, gift or devise, from the parent or other kindred of the intestate; and such intestate die without children, such estate shall go to the kin next to the intestate, of the blood of the person from whom such estate came or descended, if any there be." A portion of this property had been derived by the intestate from sales of ancestral estate made by herself before her decease, and another portion of it had been derived by her from the rents and accumulations of profits of said estate. This is not stated in the bill, but was stated in argument and not denied. So far as this personal estate is concerned, chapter 159, section 9, p. 3, leaves no doubt that it is to be distributed without any regard to the blood. The statute has regulated it so since 1844, and the same had been settled by the courts as the construction of the statute of 1822.
But the sum of $3,700 of the personal estate is derived from sales of ancestral real estate made by the executors after her decease, by virtue of the power and direction given in the portion of the will we have quoted. Her will seems to make an absolute conversion of the real into personal estate necessary. The sale is not authorized, but positively directed, and the executors have no discretion as to the sale, (except as to convenient time,) or as to the disposition of the proceeds.
But it is not necessary to decide this claim upon the doctrine of conversion. All the claimants are descendants of the brothers and sisters of the testatrix, and all of course are of the blood of the persons from whom the estate came, and all entitled to shares thereof, unless Stephen would be entitled to the whole, (if considered as real,) on the ground of his being next of kin. His counsel contend that section 6 of chapter 159, before recited, was intended to provide for ancestral estates as an entirely distinct class, and without any reference to the classification of heirs in the previous sections. Whatever doubts may formerly have been entertained on this point have been put at rest by the *Page 289 decision in Smith v. Smith, 4 R.I. Rep. 1. All parts of the statute are to be construed together. In ascertaining the next of kin under section 6, we are to be guided by the previous classification in section 1; and of course the right of representation applies ad infinitum according to section 5.
It is claimed in behalf of Stephen Field, that the word "descendants," in the last clause of section 1 of the act of 1857, means descendants nearest in degree. But this must be construed in connection with section 5, which gives the right of representation.
The complainants, in their brief, put a construction upon chapter 159, section 3, which, if correct, might sustain the claim of Stephen Field. They contend that if it means anything, it excludes the descendants of all the nephews and nieces who died before the intestate; Stephen Field being the only nephew who survived her. Section 3 is, "But no right in the inheritance shall accrue to any person whatsoever, other than to the children of the intestate, unless such persons be in being and capable in law to take as heirs, at the time of the intestate's death." This is not a common provision in statutes of descent, and it may seem strange that there has been no decision on it, either in our own state or in Virginia, from whose statute ours is said to have been taken.
Our statute of 1798 was framed like many of the statutes of descents of the other states, upon the English statute of distributions, which had been the law in the colony as to personal estate for a long time previous. It provided that the estate of an intestate, if there were no children, should be divided "amongst the next of kin in equal degree, and those who shall represent them, if any of them be dead * * * no person to be considered as a legal representative of collaterals beyond the degrees of brothers' and sisters' children of the intestate." And it may have been supposed that the intention of section 3, act of 1857, (same in 1822 and 1844,) was to confine representation still more closely, and to limit it to the descending line or to children alone. But, on the contrary, on examining the statute, it seems to have been the intention of the legislature *Page 290 to adopt the principle of representation in its fullest extent.
By section 1, the estate is to go to those of a particular class named and their descendants; and if there be no descendants, then, c.; evidently contemplating that it shall not go to a succeeding class so long as any descendants of a previous nearer class remain. But for section 5, (which is not in the statute of Virginia,) the representation would perhaps, in some cases, be per capita. And this is the construction of the Virginia statute. But section 5 of our statute establishes a uniformity of representation per stirpes in all cases. Reeve on Descents; 290, 292, 296; Davis v. Rowe, 6 Randolph, 355.
Judge Reeve is of opinion, (p. 133,) that the clause in the act of Rhode Island, 1798, "In every case where children shall inherit by representation, they shall take the same proportion of the estate as would have descended to the person whom they represent, and shall inherit the same in equal shares," was intended to abolish representation per capita in all cases where representation was allowed by that statute. This would go to show that the doctrine of representation per capita was never very congenial to the feelings of our people. From these considerations, it may therefore be inferred that the object of section 3 could not have been to limit representation to the one case of children. Reeve on Descents.
And we think we can find a different and a reasonable construction for section 3. The act of 1798 had provided that a posthumous child of the intestate should inherit as if born before the intestate's death, but had not provided for cases of posthumous children of other kindred. The act of 1822 removes all doubt growing out of conflicting decisions, and positively excludes posthumous children other than posthumous children of the intestate himself. See Chitty on Descents, 286; Cruise 2, 251, c.
Judge Tucker (Bl. Com. Tucker's ed. 1803, vol. 2, appendix, p. 20,) considers that this is the object of the provision in the statute of Virginia, and gives instances of its application. Judge Reeve, in his work on Descents, pages 290, 295, considers this section as providing for the case of posthumous children, and it is evident from page 296, that he did not consider it as intended *Page 291 to limit representation. And in the case of Davis v. Rowe, 6 Randolph (Virginia,) Rep. 355, 397, 428, although it was not necessary to be decided in that case, this was recognized by the judges in discussion as being the purpose of the section.
By the ancient law, if a father had issue, a son and a daughter, and the son purchased land and died without issue, his sister might inherit, but might be deprived of the inheritance by the birth of a brother, no matter how long after. Co. Lit. 11, b., and Chitty on Descents, 287. The language of our statute, "such as there be," c., evidently refers to the intestate's death, and would probably prevent the occurrence of such cases. But section 3 removes all doubt. Davis v. Rowe, 6 Randolph, 355, 397.
As the statute of Rhode Island of 1822 (same as 1844 and 1857, except that sections are substituted in the latter,) was probably copied from the Virginia statute of 1785, reenacted in 1819, (Revised code of 1819, vol. 1. p. 355,) the Virginia statute and the decisions upon it, and especially the commentaries of Judge Tucker (2 Bl. Com. Tucker's ed. 1803, appendix, p. 11,) and of Judge Reeve, (Reeve on Descents, A.D. 1825, page 285,) may always be referred to for considerations governing its construction. The Virginia act was drawn by Thomas Jefferson, and was reported by a commission consisting of Jefferson, Pendleton and Wythe. (Memoir of Jefferson, Jefferson's Writings, Tucker's ed. vol. 1.) Judge Reeve commends it as a "well penned" statute. Reeve on Descents, 313. Except in regard to the doctrine of representation, the Rhode Island act is, with the exception of a very few words, a transcript of that of Virginia.
The Virginia act provides, as we have said, for representation per capita in certain cases, while the Rhode Island act provides for representation per stirpes in all cases. It has been a very common opinion, that the act of 1822 was substantially the same with the act of 1798, except that it was drawn out in more detail. A little examination, however, would show some substantial differences. The rule of representation per stirpes in all cases, adopted in 1822, is neither the rule of the Roman law nor. *Page 292 of the English statute of Distributions, (adopted here in 1750, and practiced on before,) nor of our statute of 1798. (See Reeve, 133.)
The Roman law adopted representation per stirpes adinfinitum in the descending line, but limited representation as to collaterals. The English statute of Distributions, as also our statute of 1798, like the Roman, limited representation as to collaterals, but did not, like that, provide for representationper stirpes in all cases in the descending line. See Robertson on Personal Succession; Reeve, 133. And under either of these statutes cases might arise which to us might appear to savor of hardship.
Our present rule of representation is an improvement upon that of the English statute of Distributions, and of our statute of 1798, and of that of Virginia. It is, in fact, the doctrine of the old common law, divested of those features derived from the feudal law, such as the preference of males, of eldest sons, the exclusion of ascendants, c. By the spirit of that law, remote kindred never succeeded so long as any issue of nearer kindred remained. Chitty on Descents, 98, 81. So with our statute.
Distribution, even of personal property, by the strict rule of next of kin, appeared so unnatural to the English mind, that in several very important respects it had been altered by statute and by decisions of courts. Statute 1, James II. Ch. 17, § 6. Robertson on Personal Succession.
And it has been suggested, (6 Randolph, Va. Rep. 404, 417, 420, 433,) that a rule of representation was necessary to prevent trouble from too strict a construction of the paragraph, brothers and sisters "and their descendants," c., inasmuch as under those clauses, a person's descendants might claim to take with him while he was alive.
The mode of distribution directed by the decrees appealed from, will, therefore, be confirmed; and upon the other matters, allowance of charges of counsel of the respondents out of the fund, compensation of the administrators, c., the court will hear the parties further.
Decree of distribution confirmed. *Page 293