#### Henry Hayes, Adm’r. Appellant, v. John Thomas and others, Appellees.

APPEAL FROM ST. CLAIR.

The computation of the civilians is adopted to ascertain who are next of kin to an intestate.

Where a person dies leaving no issue or father, but mother, brothers and sisters, the mother is the heir to her son's whole estate.

If the court, in looking into the whole record, find a decree has been entered in favor of persons not entitled to it, this court is bound to reverse it.

An entire judgment against several defendants can not be affirmed as to one, and reversed as to the others, and the same rule should prevail as to plaintiffs.

This was a suit in chancery, brought by the appellees against the appellant for a share of the estate of an intestate, to whom they claimed to be the heirs at law.

Opinion of the Court by

Chief Justice Wilson.*

The first question" presented in this case is, who are the next of kin in equal degree to the intestate. It appears from the bill, that the intestate died without issue, but that he left a mother, brothers and sisters.

According to the computation of the civilians, the father and mother are related to their children in the first degree, and brothers and sisters in the second. According to the rule of Hilhouse v. Chester, 3 Day’s Rep., 166, 210, the computation of the civilians is adopted, to ascertain who are next of kin, and this rule prevails, whether the expression is used in relation to the descent of real or personal estate. The court thinks that the civil law mode of ascertaining who are next of kin, ought to be adopted in construing our statute, as being more agreeable to the nature of things, and more conformable to adjudged cases. The mother is therefore to be considered the next of kin to the intestate, and entitled to the whole of her son’s estate. (1) It is, however, objected, that it is now too late to take the advantage, that persons are complainants in the bill in whose favor a decree has been made, who are not by law entitled to such decree, because no *181objection was taken below to 'the improper joinder of parties who have no interest in the suit. This objection can not prevail, however much the court may regret that so much expense has been incurred before the discovery of the error. The court is bound to look into the whole record, and if they find a decree has been made in favor of persons who are not entitled to it, they are bound to reverse it. 4 Hen. and Munf., 200. 16 Johns. Rep., 348.

Cowles, for appellant.

Blackwell, for Appellee.

A further question arises here, whether the decree may not be reversed in part, and affirmed in part. This may be done where the decree or judgment is in distinct parts, but in this case, the decree is for an aggregate sum to all the complainants. It has been decided that an entire judgment against several defendants can not be affirmed as to one, and reversed as to others, 14 Johns. Rep., 417; and the same rule should prevail as to plaintiffs. The decree must therefore be reversed. The court have, however, a discretion as .to costs, and inasmuch as the defendant did not avail himself of the error below, and the mistake appears to be mutual, the court order that each party pay his own costs, both here and in the court below, (a) Decree reversed.

*

Lockwood, J., having been counsel in this cause, gave no opinion.

(1)

This is now changed by statute, which provides, that when there are no children of the intestate, nor descendants of such children, and no widow, the estate shall go to the parents, brothers and sisters, in equal parts among them; and if one of the parents be dead, the survivor shall take a double portion. The same statute also provides that the computation among collateral relations shall be according to the rules of the civil law. Purple’s Statutes, p. 1200, sec. 46. Scates’ Comp., p. 1199.

A posthumous child will inherit directly from the parent, with the same effect as if it had been born at the time of the decease of the parent. Detrick v. Migatt, 19 Ill., 146. McConnel et al. v. Smith, Adm’r, etc., 23 Ill., 611.

(a)

The next of kin are those who are so determined by the civil law, by which the intestate himself is the terminus a quo the several degrees are numbered. Under that rule the father stands in the first degree, the grandfather and grandson in the second, and in the collateral line, the computation is from the intestate up to the common ancestor of the intestate, and the person whose relationship is sought after, and then down tcfrthat person. According to that rule, the intestate and his brothers are related in the second degree, the intestate and his uncle in the third degree. 2 Kent’s Comm., 339.

The court of king’s bench declared in the case of Blackborough v. Davis, 1 P. Wms., 41. 2 Vesey, 215, that the father and mother had always the preference before the brothers and sisters, in the inheritance of the personal estate, as being esteemed nearer of kin.

Under the statute of distributions, claimants take per stirpes only when they stand in unequal degrees, or claim by representation, but when they are all in equal degree, as three brothers, three nephews, &c., they take per capita, or each an eqflal share. 2 Kent’s Comm., 342.

Our statute of distributions passed in 1829, (Laws of 1829, page 206,) declares that where there shall be no children of the intestate, nor descendants of such children, and no widow, then the estate goes to the parents, brothers and sisters of the deceased person and their descendants, in equal parts among them; if there be a widow and no child, or descendants of a child, then the one-half of the real estate, and the whole of the personal estate shall go to the widow as her exclusive estate forever. If there be no children or descendants of children, and no widow, no parents, brothers or sisters, or descendants of brothers and sisters, then the estate descends in equal parts to the next of kin to the intestate, in equal degree, computing by the rules of the civil law.

Prom this law it will be perceived that the rule of distribution as declared in the case of Hays v. Thomas, is now altered.

Where a judgment is entire, there must be a total affirmance or reversal. 12 Johns. Rep., 434.