Felix Auger, in the right of Esther, his wife, Appellant, against Willis Taylor and Joseph Bradley, Administrators on the Estate of Caleb Taylor, Appellees, 2 Tyl. 260

Opinion of the Court. Curia. It appears from the files, that Caleb Taylor died of full age, unmarried, without issue, and intestate, leaving his mother Esther Taylor, five brothers, to wit, Eldad, Willis, Ezra, John, and Horatio Gates; and five sisters, to wit, Rhoda, married to John Shaw, Naomi to Joseph Bradley, Keziah to John Jones, Betsey to John Munson, and Esther to the appellant. A residue of the personal estate remains to be divided, and the question is, what proportion each sister shall take. This must be decided by a sound construction of the act for the probate of wills and settlement of estates. Vermont Stat. vol. 1. p. 353. The 31st

section of this act enacts, “ that when any person shall die possessed of any goods or personal estate, not bequeathed, the same shall be distributed in the manner real estates descend by this act.” This leads to the descent of real estates, as is provided for by the 27th

section of the same act. “ That when any person shall die seised of any lands, tenements, or hereditaments, within this State, not by him devised, the same shall descend to his children, or their legal representatives if any of the children be dead, in such manner that the portions of all the male children shall be equal, and the portions of all the female children shall be equal, and the portion of a male child shall be double the portion of a female child ; and if any child shall have been advanced by way of settlement, or otherwise, by the intestate in his life-time, such advancement shall be reckoned to the share of such child, either in whole or in part, according to the value thereof at the time of such advancement.

And if the intestate shall have no child or children at the time of his decease, such estate shall descend equally to the next of kin, in equal degree, and those who represent them.” Upon the last clause of this section, it appears, the appellant founds his claim in the right of his wife, to a portion of the personal estate of the intestate, equal in amount to the portion of either of his wife’s brothers. The Court consider that the probate decree has pursued the true intent of the statute. The misapprehension Of its meaning seems to have arisen from an erroneous application of the word equally.

When the statute declares that “ such estate shall descend equally to the next of kin,” the word is not used in its verbal sense, as it is in the former part of the section, where it is said that “ the portions of all the male children shall be equal,” where it intends that they shall be on a level, or to the same amount; but the term equally, as an adverb, is used in one of its adverbial senses, and intends, in like manner, or in the same manner as has been before provided. This construction is put beyond doubt by a recurrence to the third proviso under this

section : “ that if any child of an intestate die before he or she shall arrive at full age and unmarried, such deceased child’s portion or share shall descend to the surviving brothers and sisters, and such as legally represent them, in proportion as is above directed in this act: but if such child die after having arrived at full age, unmarried and intestate, in the life-time of the mother, she shall inherit equally with every sister.” In this proviso there is a reference to the 27th

section for the proportion which shall be distributed to the surviving brothers and sisters; and further, in case the child of the intestate, after arriving at full age, died unmarried, and also intestate, the mother shall inherit equally with every sister: not with all the brothers and sisters ; not equally with the next of kin, but with every sister. Whence this distinction, if the brothers and sisters were to have equal portions ? William C. Harrington, for the appellant.

The Court consider, in cases like this now submitted, that if a person die intestate, unmarried, and without issue, and leave surviving brethren and sisters, his or her personal estate must be distributed by the administrator or administrators, under a decree of the probate, so that the brothers shall have equal portions and the sisters equal portions, but that each male portion shall be double the amount of each female portion.

It does not appear from the record, whether the personal estate in contest was acquired by Caleb the intestate after he became of age, or was part of his paternal portion, as the Judge of Probate in his decree has given an equal proportion of it to the mother with the sisters. The presumption is that the latter is the case; and being so, the decree is correct in ordering the mother an equal portion with the sisters. But as this is a point not submitted, the Court will not enlarge. The decree of the Judge of Probate is affirmed.