Diana Witherspoon et al. v. Mrs. E. K. Jernigan et al., 97 Tex. 98

BfiOWhT, Associate Justice. We copy from the opinion of the Court of Civil Appeals the following statement of the case and conclusions of fact:' “This suit originated on motion filed by appellants and other heirs of the estate of S. P. Emerson, deceased, in the County Court sitting for probate purposes, against Diana Witherspoon and G. E. Wheeler, to partition seven-twelfths of the estate of S. P. Emerson, deceased, among them, plaintiffs as well as defendants.

The contention of plaintiffs was that such1 part of the estate should be partitioned and distributed upon a per stirpes basis. “The defendants, Diana Witherspoon and Z. E. Wheeler, answered admitting the facts plead by plaintiffs, which are recited in our conclusions-of fact, but contended for partition and distribution upon a per capita basis. “In the County Court judgment was rendered in accordance with plaintiffs’ contention, which upon "appeal to-the District Court was set aside and judgment there entered in consonance with the contention of the defendants. From this judgment M. B. Wheeler, D.

A, Emerson, John C. Emerson, Mary E. Butler and her husband B. F. Butler, Jas. C. Emerson, W. E. Emerson, Ida Wilson and her husband Geo. Wilson, Mattie Kinslow and John Emerson have appealed. Conclusions of Fact.—“ ‘When S. P. Emerson died on the 16th day of October, A D. 1900, he did not leave surviving him a wife, or child, or children, or their descendants, or brothers, or sisters, or their descendants, or father or mother, or grandfather, or grandmother.

He did, however, leave surviving him one aunt and the descendants of two other aunts on the maternal side, and the children or descendants of three aunts on the paternal side. In any event, then, the seven-twelfths of the estate of S. P. Emerson, deceased, to which his heirs at law were entitled, would be divided into two moieties, the maternal moiety and the paternal moiety. With respect to the maternal moiety the facts of kinship were as follows: The mother of S. P. Emerson, deceased, namely, Oney Handle Emerson, .had three sisters, Mrs. E. K. Jernigan, Mrs. Tabitha Walters and Mrs. Lucy Travis. Mrs. E. K.

Jernigan is still living and participated in the partition and distribution of the said estate. Mrs. Tabitha Walters is dead, but left surviving her a daughter, Mrs. Elizabeth Irion. Mrs. Elizabeth Irion is dead, but left surviving her one son and four daughters,—J. W. Irion, Iva Harris, May Aden, Pearl Irion and Bessie Irion. Mrs. Lucy Travis is dead, but left surviving her three children,—Lyttleton W. Travis, Joe Travis and Lucy Harris. Lyttleton W. Travis is still living. Joe Travis is dead, but left surviving him a daughter, Mrs. Anna McElwrath. Mrs.

Lucy Harris is dead, but left surviving her a daughter, Mrs. Emma Walker. Mrs. Emma Walker is dead, but left surviving her three children,—W. L. Walker, A. H. Walker and Lucy Walker. In the case, then, of the maternal moiety, of the said portion of the said estate, when S. P. Emerson died he left surviving him one aunt, Mrs. E. K. Jernigan; one first cousin, Lyttleton W. Travis, and nine second cousins,—J. W. Irion, Iva Harris, May Aden, Pearl Irion, Bessie Irion, Anna McElwrath, W. L. Walker, A. H. Walker and Lucy Walker. With, respect to the paternal moiety the facts of kinship were as follows: The father of S.

P. Emerson, deceased, namely, Pleas Emerson, had three sisters,—Mrs. Mary Wheeler, Mrs. Julia Wheeler and Mrs. Susan Emerson. They are each dead. Mrs. Mary Wheeler left surviving her a son, M. B. Wheeler. Mrs. Julia Wheeler left surviving her five children,—Mrs. Susie Bostic, Diana Witherspoon, Z. E. Wheeler, J. H. Wheeler and Tom Wheeler. Mrs. Susie Bostic is dead, but left surviving her four children,—Lizzie Carter, Nannie Carter, W. T. Bostic and L. E. Stinnett. Mrs. Susan Emerson is dead, but left surviving her two sons,—William Emerson and Joe Emerson.

William Emerson is dead, but left surviving him six children,—D. A. Emerson, John C. Emerson, Mary E. Button, James C. Emerson, W. B. Emerson and Ida Wilson. Joe Emerson is dead, but left surviving him two children,—Mattie Kinslow and John Emerson/ “It will be observed from these facts that the heirs of the deceased on the paternal side are five first cousins and twelve second cousins.”

Article 1688 of the Revised Statutes prescribes the rule for determining what persons are entitled to participate in the distribution of the estates of all persons who die intestate leaving no surviving husband or wife, as follows: First, to the children and their descendants.

Second, if there be no children nor their descendants, then to the father and mother equally, but if only one parent survives, then one-half to go to the surviving parent and the other half to the brothers and sisters and their descendants; “if there be none such,” the whole to go to the surviving parent, and if there be no surviving parent, "then the entire estate shall go to the brothers and sisters or their descendants.” Subdivision 4 of the said

article is in these words: “If there be none of the kindred aforesaid, then the inheritance shall be divided into two moieties, one of which shall go to the paternal and the other to the maternal kindred, in the following course, that is to say: To the grandfather and grandmother in equal portions, but if only one of these be living, then the estate shall be divided into 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 grandmother. If there be no surviving grandfather 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 and their descendants.” The estate of S. P.

Emerson comes strictly within the terms of the fourth subdivision, and the trial court properly divided the estate into two equal parts, each of which for the purposes of distribution became a separate estate, one to go to the maternal and the other to the paternal kindred. McKinney v. Abbott, 49 Texas, 371. The heirs being ascertained, the following

article of the Revised Statutes governs the distribution of the property among those entitled to receive it: “Art. 1695. When the intestate’s 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 partition, they shall take per capita—that is to say, by persons; and when-a part 'of them being dead and a

part living, the descendants of those dead have right to partition, such descendants shall inherit only such portion of said property as the parent through whom they inherit would be entitled to if alive.” The former law on the subject was in this language: “Where the children of the intestate’s brothers and sisters, uncles and aunts, or any other relations of the deceased standing in the same degree, come into the partition, they shall take per capita, that is to say, by persons; and where a part of them being dead and .a

part living, the issue of those dead have right to partition, such issue shall take per stirpes, or by stocks, that is to say, the shares of their deceased parents.”

Article 1695 was enacted as an amendment to the former law by the Legislature at its session in 1887, and it was intended to enlarge the scope of the provisions of the repealed law so as to include all persons who might be entitled to participate in a partition.

The amendment did not in fact enlarge the scope of the act, except that it mentioned several classes of heirs which were not expressly stated in the old law., but were embraced in the general language, “any other relations of the deceased standing in the same degree.” The purpose of the Legislature in enacting both laws was to define what classes of persons should take' per capita and what should take per stirpes (Powers v.

Morrison, 88 Texas, 133); and that intention must be preserved even though it should require the court to disregard some of the words or to supply words necessary to make plain the meaning of the law. The intention of the Legislature will not be sacrificed to a literal

interpretation of the words used. Russell v. Farquhar, 55 Texas, 355. When a literal

interpretation of the language used would produce an absurdity, the court will restrict or enlarge the text so as to conform to the general purposes and intent of the Legislature. People v. Deavenport, 91 N. Y., 585. A literal construction of the following phrase embraced in

article 1695, “or any other relations of the deceased standing in the first and same degree,” would produce an absurdity, for “same” as there used with the copulative" conjunction “and” refers back to “first” and means the same as the first degree, which would be equivalent to saying, “in the first and first degree.” This can be easily avoided by giving to the word “and” the meaning of “or” and reading the phrase, “in the first or same degree.” Mr. Sutherland in his work on Statutory Construction,

section 252, says: “The popular use of 'or’ and 'and’ is so loose and so frequently inaccurate that it has infected statutory enactments.

While they are not treated as interchangeable, and should be followed when their accurate reading does not render the sense dubious, their strict meaning is more readily departed from than that of other words, and one read in place of the other in deference to the meaning of the context.” This proposition is well sustained by authority and the method of construction has been frequently resorted to for the purpose of reconciling what would otherwise be a conflict between the language employed and the purpose and intent of the act.

The same result can be reached and the correctness of this construction demonstrated by reading into

article 1695 that which is implied as follows: "When * * * any other relations of the deceased standing in the first degree come alone into partition, they shall take per capita; that is to say, by persons; and when any other relations of the deceased standing in the same degree come alone into the partition, they shall take per capita; that is to say, by persons.” The author of that act undertook to embrace in this clause all classes of heirs not designated.

The construction sought by defendants in error would defeat that purpose, leaving all heirs except those in the first degree, and brothers and sisters, uncles and aunts, subject to the common law, which would make the law of descent incongruous with no reason for such distinction. The intent to produce such consequences will not be attributed to the Legislature unless it plainly appeared from the language used. Suth. Stat. Const., sec. 324. There being no children of S. P.

Emerson nor their descendants and no wife, neither father nor mother, brothers nor sisters, grandfather nor grandmother, the class of persons next in collateral kinship to the decedent was ascertained by finding the nearest lineal descendants of the paternal grandfather and grandmother, and the testimony shows that this class consisted of eight first cousins, five of whom were living and three were dead, the latter leaving children who were entitled to participate in the partition; therefore, under the plain provision of

article 1695, the estate must be divided into eight equal parts, one part to be allotted to each of the surviving first cousins, and one part to the children of each of the deceased first cousins; that is, each set of children are entitled to the portion that their ancestor would be entitled to )i£ living, to be divided among them equally. We conclude that the Court of Civil Appeals erred in reversing the judgment of the District Court and in rendering judgment for the appellants. It is therefore ordered that the judgment of the Court of Civil Appeals be reversed and that the judgment of the District Court be affirmed. Reversed and judgment of District Court affirmed.