The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1897-01-27
ALONG A NEW LINE
Is JUDGE WILLIS DECISION IN
THE CASE OF THE BERG
ESTATE.
MAKES AN EQUAL DIVISION
AMONG THE SURVIVING NEPHEws
AND NIECES, FoRSAKNG TILE
OLD PER STRIPES RULE.
And 1T Is Possible That the Supreme
Court May BE Asked About
1t.


A decision. was handed down by
Judge Willis yesterday which is of in
portance in that it involves the con-
struction Of the law Of descent, and up
to this time is without precedent, the
point involved never having been ad-
judicated.
Mary c. Berg died in st. Paul, April
3, 1895, intestate, leaving an estate
valued at $4,000. The heirs were six
nephews and nleces, five living in Ger
many and one in this city. Two Of the
heirs were children Of a deceased
brother Of the intestate decedent, and
four were the children of another de-
ceased brother.
When the estate came UP IN the pro
bate court for settlement, George c.
Lambert, who was the administrator,
raised the question as to whether the
six heirs should share per capita by
right of representation, or per stripes.
In other words whether the four chill
dren Of one of the deceased brothers
should have one-haIf Of the estate and
the other two children of the other de-
ceased brother the other half, or
whether each Of the heirs should get
one-s1xth of the estate. Attorney Lam
bert raised the question that there
being no living representation each Of
the heirs should take one-sixth of the
estate. 1t has been usually held in the
distribution of estates OF this kind
that the heirs should take as their
share the part of the estate which
their respective fathers, if alive. would
be entitled to. The point raised by MI.
Lambert was a new one, and there
were no authorities which could be pre-
sented to sustain the point raised.
Judge Willrich, however, after careful
consideration Of the point raised decid-
ded that the estate should be divided
equally among the six heirs. The two
hefrS who, under previous rulings on
the division Of estates of this kind
would have been entitled to one-fourth
each of the estate, were not satisfied
with the ruling of Judge WiIlrich,
which gave them only one-sfXth, and
appealed the case to the district court
These two heirs. Theodore Staubitz and
Mary c. Mackel, who live in Germany,
through their attorneys, j. f. Fitzpar-
rick and Ernst Schrader, took the case
to the district court on an appeal, and
the same trouble as to the citation Of
authorities was round In the hearing
before Judge Willis In the district
court. the point at issue. so far as the
attorneys could discover. not having
been raised before in any case Of rec
ord. The decision of Judge Willis af-
f1rmed the decision of Judge WilIricn,
Of the probate court, and was to the
effect that the estate should be divided
among the six heirs share and share
alike.
Attorney Lambert, seen last evening,
said the decision had the effect Of es-
tahlishing the principle that the right
OF representation per stripes could only
be enforced in cases where there Is a
living representation to warrant Its
application.
1t is possible that the case will be ap-
pealed to the supreme court in order
that the question may be passed upon
by that court.