R-312



## THEATTORNEYGENERAL

OFTEXAS

Hon. GeorgeH. Sheppard Comptroller of PublicAccounts Austin, Texas opinion No. v-174

Ben Proper distribution of intestate's estate under Dear Sir: submltted facts.,

,Youhave 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. 'Bedied intestate, leaving neither father
nor mother, nor grandparents. thispaternal grandmother had tvo childrenby a secondmarriage. '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.

,Anexamination of the various Articles OS Title~48,"Descentend Distributioa,"R.O.S,, reveals, several provIsions that bear on a determinationof the problem at.

hand. Article 2570 provides the course and
manner of descent of the property of an intestateuho leaves no husband orwife- The first three sections of Article,2570presaribe the distribution to be made if the intestate is survivedby children or'theirdescendants, or~byparents or one of them,,orby 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 inheritanceshall,bedivided into two moietiess ,oneofwhich shall go to the pat,isrnaland the other to the~maternal kindred, in the following course8 To theEon. George H. Sheppard, Page 2,V-174

grandfatherand grandmother in equal portions, but, if only one of thesebe living, then the estate shellbe 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 inheritedby the surviving grandfather or grsndmother. If there be no survivinggrsndfsther or grandmother, then the whole of such estate shall go to their descendants,and so on without end, passing in likemanner 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 specialprovisions for kindred of hslf-bloods

"In cases before mentioned,where the inheritance is directed to psss to the collateralkindred of the Intestate, if part of such collstereIbe of the whole blood, snd the other part of the half blood only of the intestate, those of half blood shall inherit onlyhalf 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 likewisedeterminativeand 

### readsas follows:
"Where the intestatesschildren, 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 thembeing 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 throughwhom they inherit would be entitled to if alive. p. 49; G.L. vol. 9, p. 847." Acts 1887,Hon. GeorgeH. Sheppard - Page 3,V-174

None of the otherprovisions of Title 48 

### are relevant; therefore;a determiwtion of the proper distribution of the C. C. Mitchell eSt8tenust be mde from the above quoted articles as construedby our courts.

In 1878, in McKinneg v. Abbott, 49 Tex. 371, the Suureme Court of the8te of Teus construedwhst
wss then the fourth subdivision of Section 2 of the ‘act “To regulate the descent and distribution of intest8tes’ estates,” (Paschal’sDig., 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 otherswere descendruts of the wterixal greet gmndfather and great gmndmothor. The court Held that the estate left by the intbstrteshould be divided into two equslmoieties or portions, and one given to the descendants of the gmndfather rnd gmndmother on the father’s side and th8 oth8rportion given to the desCmd8nt8 

### of the great gmndyr8nta on the

### mother'saide. The court in reaching this conclusion PP8880R8d 88.follava:

‘“Theobscurityand 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 sectionmakes 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, concludingwith the direction that It shall go to the “ne8remt lfneal’ancestors,
or their descendsnts, or to such of the* 88 there beDq
“If this hsd been srid to be the courae of e8ch otae

of the two est8tes, -de by dirldfng the inheritance into two noi8tie8, itwould h8ve been lilore

plain 

### a8 to wh8t WI8 me8nt. Still, it is aore reason8ble that suchvas its meaning, then that there should be no diriaion of the inhirit8nuewhen the kindredh8pp8ned to be ne8rer
on one side then on the other,which, itmuat have been known,would very oftenh8ppen,”

The court also analyzes the historicalbackground of the legislrtlonand 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 contemplatedby this fourth subdivision,the moieties of the fnheW.tance should go to the paternal and maternal .klndredrespectfvely,‘although the kindred of one sidemight be more remo,tethan those upon the other, any such existed to take the ed to each Sfde.“mphasfs added).

InWitherspoon v. Jernfgan, 76 S.W. 445, the Supreme Court again consfdered thfs same provisionwhich at ‘thattime was subdfvision 4 of Artfcle 1688, Rev. St. 1895. The court cited the bkfinneg cask with approval and held that under this subdivisionan estate is properly divided Into two equalparts, “each ofwhfch for murposes of distrfbutfonbecame 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 decisionswere 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 kIndredo The genera1 statutory rules of distributionare then avDlicable to each of the two estates so created.

on v, JernPgan, supra; Peters v. Clancy, Cfv.
.w. 2a 937.

Article 2577 (previouslyquoted) defines the class of personswho take a per capita share in the distributfon of an lntestatensproperty The court in the Wthersooon ease. sunra
.vofnts out that,aliteral 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 resultby tracing the history of previous legfslative enactmentsO See also Peters v.. C!~L,;~~ra.~B~;o~; paternal kindred are al1 of the
on com'lnginto partition they take a per capita share of the “paternalestate.” 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 "paternalestate" all 

### are "ofhalf-blood and they shall have whole portions". Each paternal half-cousin is 'thusentitled to l/13 of the,eatatealloted 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, theywill 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 survivingkindred of
an intestateare the descendent8 of the maternal and the paternal grandparents,the estete of the intestatemust be divided into two equal parts, one ofwhich goes to the peternal kindred and the other to the maternal kindred. Section 4 of Article 2570. R.O.S.: McKinneF v. v.
of distributionare 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