R-312 

THEATTORNEYGENERAL 

OFTEXAS 

Hon. George H. Sheppard 

Comptroller of Public Accounts 

Austin, Texas opinion No. v-174 

Ben Proper distribution of 

intestate's estate under 

Dear Sir: submltted facts., 

,You have rcquested,sn opinion from this Department as to the distribution thatshould be made 

in the administration of the estate of C. C. Mitchell, 

deceased, in view of the folloving facts~: 

C.'C. Mitchell, an only child, had never 

married. 'Be died intestate, leaving neither father 

nor mother, nor grandparents. this paternal grandmother had tvo children by a second marriage. 'Both 

of these children are dead. One of them left nine 

children; the other, four. These thirteen "half" 

first c~ousins are, intestate's only relatives on the 

paternal side. On the maternal side, twelve first 

cousins survfve intestate. Right descend from one 

matepnal'aunt; four, from anothert'and one, from a. 

third. 

,An examination of the various Articles OS 

Title ~48, "Descent end Distributioa," R.O.S,, reveals, 

several provIsions that bear on a determination of the 

problem at. hand. Article 2570 provides the course and 

manner of descent of the property of an intestate uho 

leaves no husband or wife- The first three sections of 

Article,2570 presaribe the distribution to be made if 

the intestate is survived by children or'their descendants, or~by parents or one of them,, or by brothers or 

sidters or their descendants. Section 4 of Article 2570 

is applicable to,the~ facts of this case and reads 8s follaws: 

"If there be none.of the Hadred aforesaid, then the inheritance shall,be divided 

into two moieties s ,one of which shall go to 

the pat,isrnal and the other to the~maternal 

kindred, in the following course8 To the 
Eon. George H. Sheppard, Page 2, V-174 

grandfather and grandmother in equal portions, but, if only one of these be living, then the estate shell be dividied lnto two equal parts, one of which shall go 

to such survivor, and the other shall go 

to the descendant or descendants of such 

deceased grandfather or grandmother. If 

there be no such descendants, then the 

whole estate shall be inherited by the 

surviving grandfather or grsndmother. If 

there be no surviving grsndfsther or grandmother, then the whole of such estate shall 

go to their descendants, and so on without 

end, passing in like manner to the nearest 

lineal ancestors sad their descendants. 

Act March 18, 1888, pa 129; P-D, 3419; G. 

L. vol. 3, pS 129; Act Jan. 18, 1840, p. 

132; G.L. Vol. 3, p. 306," 

Article 2573 makes the folloving special provisions for 

kindred of hslf-bloods 

"In cases before mentioned, where the 

inheritance is directed to psss to the collateral kindred of the Intestate, if part 

of such collstereI be of the whole blood, 

snd the other part of the half blood only 

of the intestate, those of half blood shall 

inherit only half so much as those of the 

whole blood; but if all be of the hslfblood they shall have whole portions. Acts 

1848~ pe 129; P.D. 3424: G.L. Vol. 3, pa 

129. 

Article 2577 is likewise determinative and reads as follows : 

"Where the intestatess children, or 

brothers and sisters, uncles and aunts, 

or any other relations of the deceased 

standing in the first and same degree alone come into the psrtltion, they shall 

take per capita, namely: by persons, and, 

when e pert of them being dead and a part 

living, the descendants of those dead have 

right to partition, such descendants shsll 

inherit only such portion of said property 

as the parent through whom they inherit 

would be entitled to if alive. 

p. 49; G.L. vol. 9, p. 847." 

Acts 1887, 
Hon. George H. Sheppard - Page 3, V-174 

None of the other provisions of Title 48 are relevant; 

therefore; a determiwtion of the proper distribution 

of the C. C. Mitchell eSt8te nust be mde from the above quoted articles as construed by our courts. 

In 1878, in McKinneg v. Abbott, 49 Tex. 371, 

the Suureme Court of the8te of Teus construed whst 

wss then the fourth subdivision of Section 2 of the ‘act 

“To regulate the descent and distribution of intest8tes’ 

estates,” (Paschal’s Dig., Art. 3419.), now Section 4 

of Article 2570, R.C.S. Some of the heirs in tH8t case 

were descendants of the patern gmndfather and grandmother; the others were descendruts of the wterixal 

greet gmndfather and great gmndmothor. The court 

Held that the estate left by the intbstrte should be divided into two equsl moieties or portions, and one given 

to the descendants of the gmndfather rnd gmndmother on 

the father’s side and th8 oth8r portion given to the desCmd8nt8 of the great gmndyr8nta on the mother's aide. 

The court in reaching this conclusion PP8880R8d 88. follava: 

‘“The obscurity and uncertainty of thir 

subdivision of said section arise out of the 

fret that after the inheritance is directed 

to be divided into two aoleties, one to go to 

the paternal and the other to the m8tern81 

kindmd of the intestate, the sbtute in th8t 

section makes no further refmence to the two 

estates thus created out of the inheritance, 

but proceeds to state how the estate, as if . 

there were but one, ah811 descend and be inharitmd, concluding with the direction that 

It shall go to the “ne8remt lfneal’ancestors, 

or their descendsnts, or to such of the* 88 

there be D q 

“If this hsd been srid to be the courae 

of e8ch otae of the two est8tes, -de by dirldfng the inheritance into two noi8tie8, it would 

h8ve been lilore plain a8 to wh8t WI8 me8nt. Still, 

it is aore reason8ble that such vas its meaning, 

then that there should be no diriaion of the inhirit8nue when the kindred h8pp8ned to be ne8rer 

on one side then on the other, which, it muat 

have been known, would very often h8ppen,” 

The court also analyzes the historical background of the 

legislrtlon and concludes : 
Ron. George H. Sheppard - Page 4, V-174 

with the explanation thus furnished 

. e o there could be no doubt but that, 

in the contingency contemplated by this 

fourth subdivision, the moieties of the fnheW.tance should go to the paternal and 

maternal .klndred respectfvely,‘although 

the kindred of one side might be more remo,te than those upon the other, 

any such existed to take the 

ed to each Sfde.“mphasfs added). 

In Witherspoon v. Jernfgan, 76 S .W. 445, the 

Supreme Court again consfdered thfs same provision which 

at ‘that time was subdfvision 4 of Artfcle 1688, Rev. St. 

1895. The court cited the bkfinneg cask with approval 

and held that under this subdivision an estate is properly divided Into two equal parts, “each of whfch for 

murposes of distrfbutfon became a separate estate, 

one to go to the maternaT and the other to the paternal 

kindred ” D [%phasis added) 

The provisions of Section 4 ‘of Article 2570, 

R.C.S. have not been changed since these decisions were 

rendered; therefore, it is mandatory thaf the property 

first be divided into two equal parts, one to go to the 

relatives on the paternal sfde, the other to the maternal 

kIndred o The genera1 statutory rules of distribution are 

then avDlicable to each of the two estates so created. 

on v, JernPgan, supra; Peters v. Clancy, Cfv. 

.w. 2a 937. 

Article 2577 (previously quoted) defines the 

class of persons who take a per capita share in the distributfon of an lntestatens property The court in the 

Wthersooon ease. s unra . vofnts out that ,a literal constructfbn of the’phrgse’“‘ or” any other’ reletfont of the 

deceased standing in the 

added) O This result fs a k%dl 

“or” for the word “and”” The phrase then reads “in the 

first or same de Verlous authorfties are clsustain thfs met of construction. and the court PFnds 

further suppdpt for the result by tracing the history of 

previous legfslative enactments O See also Peters v.. 

C!~L,;~~ra.~B~;o~; paternal kindred are al1 of the 

on com'lng into partition they 

take a per capita share of the “paternal estate.” Article 

2573 (prevfous ly quoted ) , dealing with the shares to be 

accorded those of half -blood B in no way impedes this result; 
Hon. George H. Sheppard - Page 5, V-174 

for as to the "paternal estate" all are "of half-blood 

and they shall have whole portions". Each paternal 

half-cousin is 'thus entitled to l/13 of the,eatate alloted to the paternal kindred or l/26 of the original 

estste, 

The maternal kindred are lfkewise of the same 

degree. By vlrtue of Article 2577, they will take a per 

capita share on coming into the partition. The share to 

which each cousin is entitled is l/12 of the estate allotted to the maternal kindred or l/24 of the original 

estate. 

SUMMARY 

Where the nearest surviving kindred of 

an intestate are the descendent8 of the maternal and the paternal grandparents, the 

estete of the intestate must be divided into 

two equal parts, one of which goes to the peternal kindred and the other to the maternal 

kindred. Section 4 of Article 2570. R.O.S.: 

McKinneF v. 

v. 

of distribution are then applicable to each 

of the two estates so created. Paternal halfcousire, being of the same degree, and there 

being no others kindred ou the peternal sfde, 

take an equal per capita shsre in the estate 

allotted to paternal kindred. ArtLcle 2577, 

aupra.; 

2573 R.C.S. 

inn ail of 

the same degree take equel shares Gf the estste 

allotted to the wternal kindred. 

Yours very truly 

ATTORPIEY GFEERAL OF TRXAS 

ATTORNFlY GEEERAL Mrs. Mariett8 

MP/lh