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Preston v. Cole, 64 N.H. 459, 13 A. 788

Facts

Abby P. Brown died intestate, leaving behind 12 heirs: eleven nephews and nieces and one grand-niece, all of whom are descendants of her deceased siblings. The probate court ruled that the estate should be distributed in equal shares among these heirs. The appellants, who are the only children of a brother and sister of the deceased, appealed the decision, arguing that the estate should have been divided per stirpes rather than per capita, which would have granted them a larger share.

The distributees of the personal estate of the intestate are eleven nephews and nieces, children of five deceased brothers and sisters of the intestate, and one grand-niece, child of the deceased daughter of one of the deceased brothers.

Issue

The main legal issue is whether the 12 claimants take the estate per capita or per stirpes, and if per stirpes, whether the roots or principals are the five deceased brothers and sisters or their 12 children.

The single question is whether the 12 claimants take per capita, or per stirpes, and if per stirpes, whether the roots or principals are the five deceased brothers and sisters, or their 12 children.

Rule

When claimants are related to the intestate in equal degree, they take per capita; however, when they stand in unequal degrees, representation is necessary. The representatives of deceased siblings become principals and stand next in degree to the intestate in their own right.

When the claimants all stand related to the intestate in equal degree they take per capita, representation not being necessary to prevent the exclusion of those in a remoter degree; but when they stand in unequal degrees, representation is necessary.

Analysis

The court analyzed the relationships of the heirs to the intestate and determined that since all the brothers and sisters of the intestate were deceased, their children (the claimants) stood in equal degree to the intestate. Therefore, the court concluded that the estate should be distributed per stirpes, with the surviving nephews and nieces and the deceased niece being the roots or principals.

The brothers and sisters of the intestate all being dead, their representatives in equal degree, to-wit, their children, become themselves principals, and stand next in degree to the intestate in their own right, and not by right of representation.

Conclusion

The court dismissed the appeal, affirming the probate court's decision to distribute the estate equally among the 12 heirs.

Appeal dismissed.

Who won?

The prevailing party is the estate's distribution as decreed by the probate court, which upheld the equal shares among the heirs based on their equal degree of relation to the intestate.

The estate, therefore, is distributed per stirpes, the 11 surviving nephews and nieces and the deceased niece being the roots or principals.

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