Inasmuch as the members of the Court who sat at the original hearing of this case differed as to the construction of the statutes involved, a re-argument was ordered before a full Bench which has been heard.
James S. Clark died intestate, unmarried and without any relatives nearer than the appellants, who were his first cousins, and the appellees, who were his grandnieces. He left real estate which he had acquired by purchase, and personal property. The question to be determined is whether the cousins or the grandnieces are entitled to the intestate's property, and, as he left both realty and personal property, it will be necessary to consider the two classes of property separately.
1. We will first consider the realty. Section 1 of Article 46 of the Code provides that: "If any person seized of an estate in lands * * * shall die intestate thereof, such lands, tenements or hereditaments shall descend in fee simple to the kindred, male and female, of such person, in the following order, to wit:" After first providing for the descent to children and their descendants, the statute states the order of succession when there is no child or descendant, in case the estate descended to the decedent on the part of the father, and also when it descended on the part of the mother, and then section 19 provides as follows: "If the estate shall be vested in the intestate bypurchase * * * and there be no child or descendant of such intestate, then the estate shall descend to the brothers and sisters of such intestate of the whole blood, and their descendants in equal degree, equally." Section 20 provides for its descent to the brothers and sisters of the half blood, and their descendants in equal degree, if there *Page 545 be none of the whole blood; and section 21 is as follows: "If no brother or sister of the whole or half blood, or any descendant from said brother or sister, then to the father, and if no father living, then to the mother, and if no mother living, then to the grandfather on the part of the father, and if no such grandfather living, then to the descendants of such grandfather in equal degree, equally."
It requires no argument to show, and it is not, and cannot be denied that if the appellants take at all, it must be under section 21, and likewise the appellees must take, if at all, under section 19. If the statute stopped at section 21 there could be no possible doubt that the appellees would take to the exclusion of the appellants, for they are descendants of a sister of the intestate — being granddaughters of his sister, Mary F., who married John Watson, and as the appellants can only claim under section 21, they are by the very language of the statute under which they claim only entitled "if no brother or sister of the whole or half blood, or any descendant from such brother or sister" be living. Even then they must show that there is no father, mother or grandfather on the part of the father living before they can have any standing, and then only as "the descendants of such grandfather." It is, so to speak, a condition precedent to the right of cousins to take by descent under the statute, to prove that there was no brother, sister, descendant from such brother or sister, father, mother or grandfather on the part of the father of the intestate living, and hence as the appellees are descendants from a sister of the intestate and are embraced in section 19, the descent must stop there, and cannot get to the appellants under section 21, unless there be some other part of the statute which requires an interpretation that excludes the appellees from the term "descendants," as used in section 19 and in what we have called the "condition precedent" in section 21.
As a general rule the word "descendants" is not limited to "children." In Levering v. Orrick, 97 Md. 145, JUDGE PEARCE quoted from 2 Williams on Executors, 976, where *Page 546 under the term "descendants" it is said: "Under this description is comprised every individual proceeding from the stock or family referred to by the testator;" and from 2 Jarman on Wills, 632: "Descendants are issue of every degree." But in Maxwell v.Seney's Lessee, 5 H. J. 23, our predecessors, through JUDGE BUCHANAN, held that under the second section of the Act of 1786, ch. 45 (now sec. 19 of Art. 46), as interpreted by the fourth section (which is now sec. 27, without the proviso): "if one of said brothers or sisters die, leaving a grandchild, or any the most remote descendant, as his or her heir at law, such child or descendant is entitled to the same interest in the estate as the ancestor would have been if living, and takes the same perstirpes and not per capita" (quoting from the syllabus). In that case grandnephews and grandnieces were distinctly held to be "descendants," and a great-grandnephew was permitted by representation, under the statute as it then stood, to share in his father's interest
But in 1820 our statute of descents was amended, and it is claimed by the appellants that the part of that Act which is now the proviso at the end of section 27 of Article 46, so changed the law of this State as to give first cousins priority over grandnieces. That section is as follows: "If in the descendingor collateral line, any father or mother shall be dead, the child or children of such father or mother shall by representation be considered in the same degree as the said father or mother would have been, if living, and shall have the same share of the estate as the father or mother, if living, would have been entitled, and no more; and in such case, when there are more children than one, the share aforesaid shall be equally divided among such children;provided, that there be no representation admitted amongcollaterals after brothers' and sisters' children." The proviso in italics was added by the Act of 1820 to what was the fourth section of the Act of 1786. In Maxwell v. Seney, supra, it was said, in speaking of the fourth section, "the office of which is to ascertain who shall be considered as standing in the same *Page 547 degree, and the proportions to which they shall berespectively entitled." That was in answer to the contention that in the collateral line "only those in equal degree, and none more remote than the children of brothers and sisters can take, and that they must take per capita, and not per stirpes," which contention the Court refused to sustain.
The fallacy in the argument of the appellants consists in confusing the term "representation" with that of "descent," or "inheritance." If the appellees sought "by representation to be considered in the same degree" as their father, who was a son of the sister of the intestate, so as to participate in the inheritance with other nephews and nieces, an altogether different question would have arisen, but they claim as descendants of a sister of the intestate — there being no sister or brother of the intestate living and no descendants of any such brother or sister who are more nearly related to such brother or sister than they are. It can scarcely be contended that if the appellants were not living, the appellees would not have inherited this property, and they would have inherited it under section 19. That being conceded, as it certainly must be, upon what possible ground can it be said that the appellants, who must take, if at all, under section 21, can exclude the appellees, when the latter section expressly makes their right to inherit subordinate to the rights of those embraced in section 19? That of itself ought to be a complete answer to the appellants' claim.
It is perfectly certain that if the appellees would not have taken under the conditions just stated, the appellants can have no standing in Court. In Porter v. Askew, 11 G. J. 346, it was held that this proviso, in what is now section 27, limitedrepresentation among collaterals to the children of brothers and sisters of the intestate, and that was repeated in McComas v. Amos, 29 Md. 132. In Porter v. Askew, it was applied to a case where there were an aunt and first cousins of the intestate. The Court held that the first cousins, who were children of two uncles and another aunt of the intestate who had pre-deceased him, could not take by representation *Page 548 and hence Mary Askew, an aunt who survived the intestate, took the whole estate. Now if the proviso in section 27 applies to first cousins as well as to grandnieces, as has been distinctly decided, would it not prevent the appellants from inheriting this estate, if it would the appellees? Undoubtedly it would, and therefore it would seem clear that if the appellees cannot inherit under section 19 by reason of the proviso in section 27, the appellants could not inherit under section 21 by reason of the same proviso, even if the appellees were not in existence, and a fortiori cannot so inherit as they are living. We do not mean to intimate that the proviso has such effect, but if it had as to the appellees, it would also have as to the appellants. There is no escape from that conclusion.
We repeat that the appellants can only inherit, if at all by virtue of section 21. It is not a question as to whether first cousins or grandnieces would take at common law, but the question is which of those two classes take under our Statute. In 27 Am. Eng. Ency. of Law, 316, that proposition, which ought not to require authority to sustain it, is thus stated: "The State statutes generally prescribe the order in which the near relatives of the decedent shall take his property, by a designation of relationship instead of by computation of the degrees of kinship. Most of the statutes fix the order of succession by children and their descendants, the widow and the husband, the father and mother, and the brothers and sisters,nominatim. Consequently, it is only where the decedent's property goes to kindred outside this series of especially designated relatives, that the method adopted for reckoning degrees of kinship is resorted to in determining the order of succession." As no one can inherit under section 21 until the classes under sections 19 and 20 are exhausted, and there are those living who can inherit under section 19, we do not understand how it can be said that those embraced in section 21 can displace them. Such a conclusion would not only be contrary to the ordinary rules of construction, but would be in the very teeth of the statute. *Page 549 The appellees do not ask that they "by representation be considered in the same degree" as their father would have been, if living, to use the language of section 27, but they ask, asdescendants of the only brother or sister of the intestate who left descendants, that they be given what section 19 says shall, under such conditions as exist, be their property. They are such "descendants," and, as they are living, they take before those claiming under section 21 which in terms only allows them to take"if no brother or sister of the whole or half blood, or any descendants from such brother or sister," etc., be living.
Taking "by representation" is an altogether different thing from taking by inheritance. The former only applies when a party seeks to be considered in the same degree as a deceased father or mother would have been in, if living. Section 27 does not prohibit grandnephews and grandnieces from inheriting. The construction contended for by the appellants would in effect limit the use of the word "descendants" to that of "children" — so that no one beyond children of a brother or sister of an intestate could inherit. If the Legislature had intended the proviso in section 27 to have such effect, it could have much more easily have said so by using the word "children" in section 19. The Act of 1820 did not attempt to amend section 19, but section 27, and only amended that by limiting the right ofrepresentation to brothers' and sisters' children. That limitation necessarily implied that it was only in cases where there were brothers and sisters or nephews and nieces because, unless that be so, the proviso was absolutely useless. The only occasion for grandnephews by representation being considered in the same degree as their father or mother would be to enable them to take part in the distribution with those of the same degree as their father or mother. That the Act of 1820 prohibited, but if the grandnieces are the nearest descendants from a brother or sister of the intestate they are not dependent upon representation, but upon the descent which the law has cast upon them as the nearest descendants. *Page 550
The appellants contend that McComas v. Amos, 29 Md. 132, has determined the question in their favor, but we cannot agree with them in that contention. That was a controversy between nephews and nieces on the one hand and grandnephews and grandnieces on the other. Under section 27 the latter, in such case, are undoubtedly excluded. The reason for it is perfectly clear, namely, because nephews and nieces are more closely related than grandnephews and grandnieces, and both are included in section 19, and those in that section most closely related to the intestate take to the exclusion of the others, excepting in so far as section 27 enables them to take by representation, but there is nothing in any part of the statute which can be construed to mean that any included in section 19 are to be subordinated to those in section 21.
JUDGE ALVEY said on this branch of the case: "As to the right of the grandnephews and grandnieces to share in the proceeds of the sale of the intestate's real estate, that depends upon the true construction of this restrictive proviso, attached to the twenty-seventh section of the statute just quoted. * * * By all the decisions, our own, as well as those made in the English Courts, brothers and sisters referred to in the proviso have been construed to mean brothers and sisters of the intestate, and thatrepresentation is not admitted when the distribution happens to fall among brothers and sisters who are remotely related to the intestate. Porter v. Askew, 11 Gill J. 346. And although lineal descendants ad infinitum may share in the inheritance of an intestate's real estate, yet upon the received construction of this proviso, as among collateral descendants, except only the instance of the intestate's brothers' and sisters' children, proximity of blood alone gives title to it. And in this case,there being those in existence at the death of the intestate of greater degree of proximity of blood to him, it follows,therefore, that the grandnephews and grandnieces who made claim in the Court below have no right to share in the inheritance."
We do not at all question that statement of the learned *Page 551 Judge, but cannot, as the appellants do, apply the language used by him to a state of facts wholly different from those he was considering and passing upon. In that case, as we have seen, the Court was determining the respective rights of nephews and nieces, who were on one step and grandnephews and grandnieces who were on a lower step of the ladder of descent, but all of whom were in the classes of heirs included in section 19, if they could inherit at all from the intestate. That section provides that "the estate shall descend to the brothers and sisters of such intestate of the whole blood, and their descendants inequal degree, equally." Grandnephews and grandnieces were not "descendants in equal degree" with nephews and nieces, and therefore the estate did not descend to them, unless they could by representation stand in the place of their deceased parents, who where nephews and nieces, and consequently in equal degree with the other nephews and nieces. But as section 27 provided "that there be no representation admitted among collaterals after brothers' and sisters' children," and they were not children, but grandchildren of the brothers and sisters, of course there could be no representation by them. Nephews and nieces are higher up the ladder than grandnephews and grandnieces, and therefore "proximity of blood alone" gave them title to the real estate, to the exclusion of those descendants of brothers and sisters who were a degree below them in "proximity of blood." That is all that JUDGE ALVEY could have meant, and in our judgment it is all that he said, when taken in connection with the facts he had before him. In stating his conclusion above quoted he said: "And in this case, there beingthose in existence at the death of the intestate of greater degree of proximity of blood to him, it follows, therefore, that the grandnephews and grandnieces have no right to share in the inheritance." Is not the necessary implication to be drawn from that statement, that they would have had the right to share but for the nephews and nieces who were in existence? JUDGE ALVEY, in the passage quoted above, was distinguishing between lineal descendants *Page 552 who may, ad infinitum, by representation take, and collateral descendants, who are not admitted by representation beyond brothers' and sisters' children, and of course those beyond that must depend upon "proximity of blood alone," just as he said. The only reason he gave why those grandnephews and grandnieces could not inherit was because there were in existence those of greater degree of proximity of blood, all of whom were included in section 19. Unquestionably, if there had not been nephews and nieces in existence, the grandnephews and grandnieces would have inherited from Dr. Amos, and would have done so under section 19, and cousins, who come under section 21, could have had no standing until all included in sections 19 and 20 were shown to be extinct.
It is not a question whether cousins are more nearly related than grandnephews and grandnieces — that might depend upon how you determine the degrees — but the question is what order ourstatute of descents fixes, and, without violating that statute, you cannot give those embraced in section 21 the right to inherit before those included in section 19. As we have seen, section 1 of Article 46 says the lands, etc., "shall descend in fee simple to the kindred, male and female, of such person, in thefollowing order, to wit." Even a father or mother cannot inherit under section 21 until all entitled under section 19 are extinct; and it must be conceded that nephews and nieces are entitled under the latter, even if it be denied that grandnephews and grandnieces are. The appellants have to go up to the intestate's grandfather, and then down to grandchildren of their grandfather, and they can only do that by virtue of section 21.
We are then of the opinion that the appellees, as grandnieces of the intestate are entitled to the real estate to the exclusion of the appellants, who can only take under section 21, which by its terms is subordinate to section 19, and that all thatMcComas v. Amos, decided was that grandnephews and grandnieces could not share with nephews and nieces, because under section 27 the latter take by representation the shares of their parents, while the former do not. That *Page 553 was all that was before the Court affecting this subject, and we are sure JUDGE ALVEY had no intention of determining in that case the rights of classes who take under the statute which were not before him. But the language used by him was unquestionably applied to the facts before the Court in that case, and we have no doubt about the correctness of his conclusion.
In Garrison v. Hill, 81 Md. 211, and Graham v.Whitridge, 99 Md. 289, cited by the appellants, the controversy in each case was also between nephews and nieces on the one hand and grandnephews and grandnieces on the other. There is no case that we have been able to find which casts the slightest doubt on the right of grandnephews and grandnieces to take where there was no sister, brother, nephew or niece, living at the death of the intestate under such a statute as ours.
2. In the distribution of personalty, after the statute has provided for lineal descent, and that, if there be a father and no child or descendant, the father shall have the whole, section 126 of article 93 provides that, "if there be a brother or sister, or child or descendant of a brother or sister, and no child, descendant or father of the intestate, the said brother, sister or child or descendant of a brother or sister, shall have the whole." It seems to us that there ought to be no doubt about the meaning of that section, when taken in connection with section 127, which is: "Every brother and sister of the intestate shall be entitled to an equal share, and the child or children of a brother or sister of the intestate shall stand in the place of such brother or sister." If an intestate had a brother and a sister, and both were living at the time of his death, each would take one-half of the personalty, exclusive, of course, of the widow's share. If the brother was living and the sister was dead, but left one child surviving her, then, under section 127, the brother and the child of the sister would each take one-half. Or, if the brother had died without leaving a child and the sister left a child, then such child would take the whole. But if neither of them left *Page 554 children, but one left a grandson, then the grandson, who would be a grandnephew of the intestate, would take the whole. Section 126 says: "The child or descendant of a brother or sister shall have the whole." That does not limit the distribution to a "child," but to a "child or descendant," and must mean that if there be no brother, sister, or child of a brother or sister, but there is a descendant of a brother or sister, such descendant would take before any other collateral relations, excepting in so far as section 128 provides for the mother taking a share under certain conditions The case of McComas v. Amos, 29 Md. 120, is supposed to be contrary to that conclusion, but we do not find it so. There JUDGE ALVEY had under consideration what are now sections 127 and 129 of Article 93. He said that the word "descendants," as used in section 129 (section 131, Art. 93, Code 1860, which he was referring to), was construed to mean children of such brothers and sisters, but he did not construe the words "or child or descendant of a brother or sister" in section 126 to mean child alone, in determining who was to take. He was in that case, as in the later case on page 132, considering the rights of nephews and nieces on the one side, and grandnephews and grandnieces on the other, and not, as in this case, whether grandnieces are to be excluded from distribution by cousins. There is no case in this State in which the precise question now before us was passed on or considered, and, after a careful investigation of the decisions in other States, we have found none that sustain the contention of the appellants. There are cases which hold, as McComas v. Amos did, that under a statute such as ours, nephews and nieces take to the exclusion of grandnephews and grandnieces, but in none of them have we found any intimation that, where there are no brothers or sisters or nephews or nieces, grandnephews and grandnieces do not take.
If there had been no cousins, it would scarcely have been contended that the appllees would not have been entitled to the estate, as we have already said in reference to the realty. *Page 555 Section 129 of Art. 93 is: "After children, descendants, father, mother, brothers and sisters of the deceased, and theirdescendants, all collateral relations in equal degree shall take, and no representation among such collaterals shall be allowed; and there shall be no distinction between the whole and half blood." This section and section 126 would seem to make the case as to the personalty even stronger than that of the realty, as section 126 expressly says, "child or descendant of a brother or sister" and section 129 in terms postpones such collaterals as the appellants, to take after "brothers and sisters of the deceased and their descendants." In Shriver v.State, 65 Md. 285, JUDGE MILLER, in speaking of a brother (James) of the intestate, said: "The onus is upon the plaintiff to show that James died before the intestate, leaving no childrenor descendants, and if he fails to show this he can recover only one-fourth."
As the appellees are entitled to distribution under section 126 of Article 93, we are unable to understand upon what principle those who claim under other sections, which only confer rights after those in section 126 are extinct, can displace the latter. The statute seems to us to clearly give the right of distribution to the grandnieces in preference to the cousins.
3. We do not deem it necessary to further prolong this opinion by discussing the degrees of relationship at common law, as we have already sufficiently expressed our views on that subject, but we do not want to be understood as agreeing with the appellants as to the relationship of these parties. The appellants claim as descendants of the grandfather of the intestate, while the appellees claim as descendants of a sister of the intestate. If, therefore, we did undertake to determine the degrees of relationship we could not properly do so by taking the grandfather as the common ancestor. But we prefer to base our decision on the interpretation of the statutes, and are of the opinion that although grandnephews and grandnieces cannot take when there are nephews and nieces, because of the proximity of blood of the latter as compared *Page 556 with the former, when there are no nephews or nieces the grandnephews and grandnieces do take as descendants of a brother or sister of the intestate to the exclusion of cousins, because the latter cannot take until those in prior sections (19 of Article 46 and 126 of Art. 93), which include grandnephews and grandnieces, are shown to be extinct.
We are, for the reasons given, of the opinion that the decree of the lower Court must be affirmed, both as to the realty and personalty.
Decree affirmed, the appellants to pay the costs, above andbelow.
BRISCOE and SCHMUCKER, JJ., dissented.