McKinney v. Stewart , 5 Kan. 384 ( 1870 )

By the Court,

Valentine, J.

One question only is involved in this case. On the 3d day of October, A. D., 1862, F. M. McKinney died, leaving a mother and two brothers, but no wife, children or father. It is admitted that the two brothers inherit one half of their deceased brothers estate, but whether the mother or the two brothers iuherit the other half of the estate is the question now presented for our consideration.

Descents and Distributions. Hnder section eighteen of the act relating to descents and distributions, [Comp. Laws, 470,] the father would have inherited the whole of his deceased son’s estate if he had outlived his son; but having previously died, the estate under section nineteen of the same act, goes to the heirs of the father. The two brothers do not inherit because they are brothers to the deceased, but because they are heirs of the father. The question is reduced then simply to this: who are the heirs of the father? It is admitted that his two sons are heirs, and that they inherit one half of the estate, but is his wife an heir? The statute gives her one half of all her deceased husband’s estate, real and personal, legal and equitable, [§ 5, Comp. Laws, 469; § 7, 697,] not merely a right of dower, but the absolute and unqualified property. -It is urged that she cannot be made an heir at all, and particularly not in this case, as the husband was never seized of the property in controversy. It seems to us scarcely necessary to say that this is purely a question of statutory law, [2 JBlackst. Com., 211,] and that the statute of this state has covered the entire grounds; and, therefore, that the , common law authorities and the decisions and statutes of other states with respect to who are heirs, or who inherit, have but little application in this state. The statute may make any person an heir. An heir in law is simply one who succeeds to the estate of a deceased person. In this sense the wife is an heir of her deceased husband, and when her deceased son has no wife, child, or father, she is his heir. She succeeds to the estate of her son in the same manner, as though her husband had outlived the son, had inherited the son’s property and then died. If she makes no election under the act for the relief of widows, [Comp. Laws, 902,] within six months after that time, then she takes under the act relating to married women.

The judgment of the court below is affirmed.

All the justices concurring.