Dailey v. Pugh , 83 Ind. App. 431 ( 1921 )

DISSENTING OPINION. I am convinced that the majority opinion puts an erroneous construction upon the section of the statute which is controlling in this case. I will forego a full discussion of the matter and will only briefly indicate my reasons for dissenting. I am of the opinion that said section should be construed as if written as follows:

"If the inheritance came to the intestate by gift, devise or descent from the paternal line: (1) it shall go to the paternal grandfather and grandmother as joint tenants, or to the survivor of them; (2) if neither of them be living, it shall go to the uncles and aunts in the paternal line, and their descendants, if any or all of them be dead; (3) if no uncles or aunts or their descendants be living, it shall go to the next of kin, in equal degree of consanguinity, among the paternal kindred; (4) and if there be no paternal kindred entitled to take the inheritance as above prescribed, it shall go to the maternal kindred in the same order."

That construction harmonizes with the general plan underlying our statute of descents, considered as an entirety. It has ever been the legislative plan in this state to cast the inheritance by families and to give to the descendants of those who are dead the share which the ancestor would have taken if living. The construction put upon the statute by the majority opinion violates that plan. To illustrate: (1) Suppose that the intestate left five uncles who are entitled to inherit his estate, viz.: Jerry, James, John, Henry and Lewis; then the estate, of course, would be divided into five equal parts, each uncle taking one-fifth. (2) Suppose that Uncle Jerry had died before the intestate, leaving no child but leaving grandchildren; then the estate would be divided into five equal parts, his grandchildren (second cousins to the intestate) taking one-fifth, and each of the four living uncles one-fifth. (3) Suppose that all the uncles except Lewis had died before the intestate, each leaving grandchildren as his only descendants; then the estate would be divided into five equal parts, each of the four sets of grandchildren (second cousins to the intestate) taking one-fifth, and Uncle Lewis one-fifth. (4) Suppose that all the uncles had died before the intestate, each leaving grandchildren as his only descendants, except Lewis who left a son (first cousin to the intestate) as his only descendant. Now, behold! A complete change of plan! The inheritance is no longer to be divided into fifths. Families are no longer to be recognized. Second cousins are no longer to inherit. Everybody is now to be disinherited except the fortunate son of Lewis, who is now to take the entire estate. I cannot give my assent to that contention. Neither can I agree to the proposition that we must invoke an arbitrary rule of construction to enable us to say that because the corresponding section of the Act of 1843 was not literally copied into the revision of 1852, something different was necessarily intended. The reason of the case leads me to believe that the author of the revision intended the same things, but that he had a mania for brevity. Instead of retaining the lucid language of the Act of 1843 he has given us brevity at the expense of clarity. For the sake of brevity he has given us faulty diction, ambiguity, uncertainty. It is another instance of the truth that change does not necessarily mean improvement. Cox v. Cox (1873), 44 Ind. 368.

To sustain appellees' contention the section must be read as follows:

"If the inheritance came to the intestate by gift, devise or descent from the paternal line: (1) it shall go to the paternal grandfather and grandmother as joint tenants, or to the survivor of them; (2) if neither of them be living, it shall go to the uncles and aunts in the paternal line, and the descendants of such of them as are dead, if any but not all of them be dead; (3) if none of the uncles or aunts be living, it shall go to the next of kin, in equal degree of consanguinity, among the paternal kindred; (4) and if there be none of the paternal kindred entitled to take the inheritance as above prescribed, it shall go to the maternal kindred in the same order."

Counsel for the appellees concede that so long as any uncle or aunt be living the descendants of any deceased uncle or aunt — children, grandchildren, or great-grandchildren, as the case may be — are entitled to the share which their ancestor would take if alive. To hold, then, that the fundamental plan must be abandoned if all uncles and aunts are dead, is a radical and unjustifiable departure. If the intention were that uncles and aunts should take as a separate and distinct class we are bound to assume that the statutory language would be "to uncles and aunts in the paternal line, or to such of them as shall be living." The mere fact that the descendants of such uncles and aunts as are dead are entitled to divide the estate with such uncles and aunts as are living, conclusively establishes the proposition that the class consists not of uncles and aunts alone, but of uncles and aunts and "their descendants."

While the language of said section is awkward enough, I cannot believe that clause three would have been written as it is if it was intended to express the meaning for which the appellees contend. It seems to me that it is not intended that the estate shall go to the indefinite "next of kin," whoever he may be, or wherever he may be found "among the paternal kindred," until after the class consisting of uncles and aunts and their descendants has been exhausted. To my mind it is too clear to admit of argument that the words "no such relatives" mean "no grandfather or grandmother, no uncle or aunt, and no descendant of any uncle or aunt." The words "such relations" necessarily relate back and include all relatives previously mentioned in the section.

The probabilities are that the case of Avery v. Vail,supra, disturbed as many titles as now would be disturbed by overruling that case. The Avery case has not "stood for such a length of time" as to justify us in perpetuating error by invoking the rule of stare decisis. The probability of unsettling any title is not sufficiently apparent to impel us to say that litigants now before us shall, in the interest of the public welfare, suffer for others. Hibbits v. Jack (1884),97 Ind. 570, 49 Am. Rep. 478; Board, etc., v. Allman, Admr. (1895), 142 Ind. 573, 39 L.R.A. 58; 15 C.J. 916 et seq.;Stephenson v. Boody (1894), 139 Ind. 60; United StatesSaving, etc., Co. v. Harris (1895), 142 Ind. 226, 40 N.E. 1072; Herring v. Keneipp (1914), 183 Ind. 91, 102 N.E. 837;Myers v. Boyd (1896), 144 Ind. 496, 43 N.E. 567; Town ofHardinsburg v. Cravens (1897), 148 Ind. 1, 47 N.E. 153;Sudbury v. Board, etc. (1901), 157 Ind. 446, 62 N.E. 45;Gross v. Board, etc. (1902), 158 Ind. 531, 64 N.E. 25, 58 L.R.A. 394.