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 De-
partment 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 grand-
mother 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~ousinsare,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 descend-
ants, 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 fol-
laws:
          "If there be none.of the Hadred afore-
     said, then the inheritance shall,be divided
     into two moietiess ,one of which shall go to
     the pat,isrnaland 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 por-
     tions, but, if only one of these be liv-
     ing, then the estate shell be dividied ln-
     to 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 grand-
     mother, 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 col-
     lateral 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 hslf-
     blood 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 fol-
lows :
          "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 a-
     lone 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. Acts 1887,
     p. 49; G.L. vol. 9, p. 847."
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 a-
bove 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 grand-
mother; the others were descendruts of the wterixal
greet gmndfather and great gmndmothor. The court
Held that the estate left by the intbstrte should be di-
vided 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 des-
Cmd8nt8 of the great gmndyr8nta    on the mother's aide.
The court in reaching this conclusion PP8880R8d88.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 in-
     haritmd, concluding with the direction that
     It shall go to the “ne8remt lfneal’ancestors,
     or their descendsnts, or to such of the* 88
     there  be Dq
          “If this hsd been srid to be the courae
     of e8ch otaeof the two est8tes, -de by dirld-
     fng the inheritance into two noi8tie8, it would
                    plain a8 to wh8t WI8 me8nt. Still,
     h8ve been lilore
     it is aore reason8ble that such vas its meaning,
     then that there should be no diriaion of the in-
     hirit8nue 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 fn-
     heW.tance should go to the paternal and
     maternal .klndred respectfvely,‘although
     the kindred of one side might be more re-
     mo,tethan 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 prop-
erly 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 ‘ofArticle 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 dis-
tributfon of an lntestatens property     The court in the
Wthersooon ease. sunra . vofnts out that ,a literal con-
structfbn 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 cl-
sustain thfs met      of construction. and the court PFnds
further suppdpt for the result by 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 “paternal estate.” Article
2573 (prevfous ly quoted ), dealing with the shares to be
accorded those of half -bloodB 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 al-
loted to the paternal kindred or l/26of 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 al-
lotted 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 ma-
          ternal and the paternal grandparents, the
          estete of the intestate must be divided into
          two equal parts, one of which goes to the pe-
          ternal 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 half-
          cousire, being of the same degree, and there
          being no otherskindred 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
                                ATTORPIEYGFEERAL OF TRXAS


ATTORNFlY     GEEERAL                 Mrs. Mariett8

MP/lh