KING et al.
v.
SMITH.
No. 19.
Supreme Court of North Carolina.
September 17, 1952.*426 Folger & Folger, Mount Airy, for defendant appellant.
John H. Blalock, Pilot Mountain, and Woltz & Barber, Mount Airy, for plaintiff appellees.
BARNHILL, Justice.
The defendant does not challenge the sufficiency of the complaint for that it does not state facts sufficient to constitute a cause of action for the wrongful desecration of the graves of the Kings. That is, he does not assert that the complaint fails to allege a tort for which resulting damages may be recovered by the real party in interest. State v. Wilson, 94 N.C. 1015; 10 A.J. 514, 15 A.J. 841; Anno. 21 A.L.R. 651; 42 L.R.A. 721n. His demurrer is bottomed upon the theory that at the time the alleged wrongful act was committed plaintiffs were not then next of kin of the Kings and are not now next of kin of Mrs. Snyder; and that therefore they are not now and have never been possessed of any right of action founded on the tort alleged in the complaint.
The complaint alleges facts sufficient to constitute a cause of action for the wrongful desecration of the graves of the Kings and the demurrer, for present purposes, admits the facts alleged. The defendant contends, however, that this cause of action vested in those who were next of kin at the time the wrongful act was committed. His position in this respect is sound. If Mrs. Snyder was at that time the sole next of kin then she and she alone acquired the right to maintain an action founded on the alleged tort. But such is not the case. It is true she was the nearest of kin, but that does not mean that she was the sole next of kin.
If the graves of the ancestors of plaintiffs were desecrated as alleged, then the cause of action created thereby vested in the next of kin of the Kings who were then living, but, in ascertaining who are the next of kin, it must be determined: first, who were the nearest of kin in equal degree; second, were there others who, if living, would be kin in equal degree; and third, did those who, if living, would be kin in equal degree, leave children or other lineal descendants surviving at the time the right accrued. If it appears that there were others who, if living, would be kin in equal degree and that they left children surviving, then such children are deemed next of kin by representation and are vested with the same right which would have accrued to the parent had he or she been living at the time the right accrued. In re Estate of Poindexter, 221 N.C. 246, 20 *427 S.E.2d 49, 140 A.L.R. 1138; In re Estate of Mizzelle, 213 N.C. 367, 196 S.E. 364.
It follows that the plaintiffs are now, and were at the time the alleged wrong was committed, next of kin of the Kings for the purpose of determining who are the real parties in interest entitled to maintain this action.
It is true that when the right sought to be enforced is created by will, we ordinarily construe "next of kin" to mean "nearest of kin." Williams v. Johnson, 228 N.C. 732, 47 S.E.2d 24, 26. But when, as here, the right of action is created by law and rests upon blood relationship to a deceased person, those who may assert the right are those who would take under the statutes of distribution, and they are to be ascertained as of the date the cause of action arose. We need not now discuss the underlying reasons for the distinction. It is sufficient to say that it does exist and that, therefore, former decisions of this Court construing the meaning of "next of kin" in cases arising out of contests over bequests in wills have no application here.
The judgment overruling the demurrer is affirmed.