(1969) 1 CLR 547
1969 October 30
[*547]
[VASSILIADES, P., TRIANTAFYLLIDES, JOSEPHIDES, JJ.]
PIERAS MICHAEL AND OTHERS,
Appellants-Plaintiffs,
v.
NICOS I. ANTONIOU AND OTHERS AS
ADMINISTRATORS OF THE ESTATE OF THE
DECEASED MICHALAKIS K. HADJI DEMETRIOU,
Respondents-Defendants.
(Civil Appeal No. 4707).
Inheritance—Succession ab intestato—Succession of the kindred—Children of predeceased first cousins of deceased not entitled to inherit alongside with surviving first cousins—The latter being in the nearer degree of kindred (fourth) exclude the former as more remote (fifth degree of kindred)—The Wills and Succession Law, Cap. 195, section 46 and the first and second schedules to the said statute.
Statutes—Construction—General principles—The Court must look for the intention of the legislator, reading in their appropriate meaning the words used to express such intention and in their proper context in the statute.
Succession—Inheritance—See hereabove.
Intestate succession—See hereabove.
The deceased M.H. died intestate on October 20, 1964. He never had a wife; and his nearest relatives, living at the time of his death, were a number of first cousins and the children of predeceased first cousins. These children claim that they are entitled to inherit alongside with the aforesaid surviving first cousins.
Section 46 of the Wills and Succession Law, Cap. 195 provides:
“46. Subject to …………. the class of person or persons who on the death of the deceased shall become entitled to the statutory portion, and the undisposed portion if any, and the shares in which they shall be so entitled, if more [*548] than one, shall be as set out in the several columns of the first schedule to this Law:
Provide that persons of one class shall exclude persons of a subsequent class.”
It is common ground that this case is governed by the provisions relating to the fourth class provided in the aforesaid first schedule to the Law (supra). This fourth class contains:
“The nearest kin of the deceased living at the death, within the sixth degree of kindred, the nearer degree excluding those more remote.”
It is also common ground that in accordance with the Second Schedule to the said Law the first cousins are in the fourth degree of kindred whereas the children of the predeceased first cousins are in the fifth degree of kindred in relation to the aforesaid deceased M.H. It was argued on behalf of the appellants (plaintiffs—the children of the predeceased first cousins of the deceased) that they are legally entitled to inherit in their own right as heirs in the fifth degree alongside with the living first cousins who, admittedly are heirs in the fourth degree of kindred; and that the wording in the relevant part of the First Schedule (supra) to the effect that the heirs nearer in degree exclude those more remote, only means that the surviving first cousins (heirs in the fourth degree) exclude their own children who admittedly are heirs in the fifth degree and thus more remote.
Dismissing the appeal taken by the children of the predeceased first cousins of the deceased M.H., the Court:—
Held, (1). In construing the statutory provisions applicable to the matter in hand, we must look for the intention of the legislator, reading in their appropriate meaning, the words which he used to express such intention. Reading section 46 of Cap. 195 (supra) in its context in the statute, together with the two relevant schedules we can have no doubt that the legislator intended that the estate of the deceased should be inherited as prescribed in the statute, by his heirs within the sixth degree, as defined in the second schedule to the statute; and that their respective rights of inheritance are governed by the provisions in the first schedule thereto.
(2) It is we think equally clear that the legislator intended [*549] that the descendants of any of the deceased's children who died in his lifetime (falling in the first class of the said first schedule) as well as the descendants of his predeceased brother or sisters (falling in the second class of the same schedule) should be entitled to inherit, per stirpes, the share of their predeceased ancestor; while the descendants of the heirs falling in the third and in the fourth classes of the same schedule, should not be entitled to inherit their predeceased's ancestor's share.
(3) It is not for the Court to speculate as to the reasons why the legislator so intended and so enacted. If statutory provisions are made to appear that they require any change, it is for the legislator and not for the Courts to bring such change about.
(4) As expressly provided in the said first schedule regarding the heirs in the fourth class (supra) the nearer degree exluded these more remote. Consequently in the instant case the surviving first cousins, being nearer in degree, exclude the children of the predeceased first cousins as more remote.
Appeal dismissed. Costs
out of the estate.
Appeal.
Appeal by plaintiffs against the judgment of the District Court of Famagusta (Georghiou P.D.C. & Kourris D.J.) dated the 29th March, 1968 (Consolidated Action Nos. 1243/67 and 966/67) dismissing their action for a declaration, inter alia, that they are entitled to inherit from the property of the deceased Michael K. HadjiDemetriou late of Famagusta.
N. HadjiGavriel, for the appellants.
A. Pouyouros, for the respondents.
Cur.adv. vult.
The judgment of the Court was delivered by:
Vassiliades, P.: This appeal turns on a narrow issue of statutory construction: The effect of the provisions in the first schedule to the Wills and Succession Law (Cap. 195) governing in conjunction with section 46 of the statute, the right of succession of heirs within the sixth degree of kindred [*550] in relation to the deceased and his estate. The question arises from the claim of the heirs of predeceased cousins of the deceased, to inherit alongside with his surviving cousins, notwithstanding the provisions in the schedule.
The facts, material to this issue in the instant case, are simple; and constitute common ground. Michael HjiDemetriou—to whom we shall hereafter refer as the deceased—died intestate on October 20, 1964. He never had a wife; and his nearest relatives, living at the time of his death, were a number of first cousins and the children of predeceased first cousins.
The defendants—to whom we shall refer as the administrators—were appointed on April 30, 1965, under a Court order made in Probate Application No. 66/1964 in the District Court of Famagusta, to administer the estate of the deceased under the Administration of Estates Law, Cap. 189.
The estate realised, amounts to about £34,000 (thirty four thousand pounds) which the administrators must deal with according to law, dividing the net estate among the heirs entitled thereto as provided in the Wills and Succession Law, Cap. 195.
Taking the view that the surviving cousins are entitled to succeed to the estate in equal shares, excluding the heirs of the predeceased cousins, the administrators expressed the intention of dividing the estate accordingly, amongst the surviving cousins. Thereupon the heirs of the predeceased cousins, filed actions No. 966/67 and No. 1243/67 in the District Court Famagusta (now consolidated) against the administrators, for a declaration that the plaintiffs are entitled to share with the surviving cousins, the estate of the deceased, as heirs in the fifth degree.
It may be added here for the sake of interest, that the plaintiffs all relatives in the fifth degree, are 32 in number, children of seven first cousins of the deceased who died in the latter's lifetime; and that the heirs amongst whom the administrators expressed the intention of dividing the estate, are 21 first cousins who survived the deceased. They claim that being relatives in the fourth degree are nearer to the deceased and exclude those who are more remote, as expressly provided in the schedule.
Early in the proceedings, learned counsel on both sides took the commendable course of agreeing on the material facts; [*551] and agreed their case on the short issue whether the children of first cousins who died in the lifetime of the deceased, are entitled to succeed together with the surviving first cousins? And if so, in what share?(See record at p. 37).
There can be, of course, no doubt that the matter is governed by the relevant provisions of the Wills and Succession Law (Cap. 195); and that these are principally section 46 and the schedule in question. Section 46, under the marginal heading “Succession of the kindred", reads:
"46. Subject to the provisions of this Law as to the incapacity of persons to succeed to an estate and subject to the share of a surviving wife or husband of the deceased, the class of person or persons who on the death of the deceased shall become entitled to the statutory portion, and the undisposed portion if any, and the shares in which they shall be so entitled, if more than one, shall be as set out in the several columns of the First Schedule to this Law:
Provided that persons of one class shall exclude persons of a subsequent class."
The first schedule referred to above is under the heading “Succession of the Kindred"; and is framed in three columns. The first, under the heading“Class", divides the persons entitled to succeed to the estate of the deceased, into four classes. The second, under the heading” Persons entitled” places the heirs entitled to succeed, into those four classes, according to their degree of proximity of their relationship to the deceased. And the third column under the heading “Shares", sets out the shares in which the heirs in each of the four classes, are entitled to succeed to the estate.
The first of the four classes in the schedule contains “(a) the legitimate children of the deceased living at his death; and (b) the descendants, living at the death of the deceased, of any of the deceased's legitimate children, who died in his lifetime."
The second class contains the father, mother, brothers and sisters of the deceased; and likewise, makes a distinction between the heirs living at the time of the deceased's death, and the descendants of brothers or sisters who died in his lifetime. [*552]
The third class contains” the ancestors of the deceased nearest in degree of kindred, living at his death; and makes no mention of the descendants of such ancestors who died in his (the deceased's) lifetime.
The fourth class contains—
“The nearest kin of the deceased living at the death, within the sixth degree of kindred, the nearer degree excluding those more remote."
They take in equal shares, as provided in the next column, of the schedule.
In a nutshell, the case of the plaintiffs (as put to the District Court in an elaborate and carefully considered argument by learned counsel on their behalf and as ably presented to us on appeal upon the grounds in the notice) is that the heirs of the predeceased cousins are legally entitled to inherit the deceased in their own right as heirs in the fifth degree; and that the wording in the schedule to the effect that the heirs nearer in degree exclude those more remote, only means that the surviving first cousins who are heirs in the fourth degree, exclude their own children who are heirs in the fifth degree and thus more remote. But such wording cannot exclude, counsel submitted, the children of the predeceased cousins who are entitled in their own right as kin of the deceased, to inherit from his estate their legitimate part, alongside with the surviving cousins.
In presenting the case of his clients, Mr. HjiGavriel for the appellants went far and deep into the history of the right of inheritance, tracing it back to its origin in Roman Law; and examined the position in different legal systems, particularly the Greek law of inheritance, closely connected with family law, which have the same origin and have had very similar development as the corresponding law applicable to the Greek inhabitants of Cyprus, prior to the enactment of the first Wills and Succession Law in 1895.
Interesting as the presentation of the case for the appellants-plaintiffs may be (as seen in the transcript of the stenographer's notes of learned counsel's submission to the trial Court and as put in his elaborately prepared grounds of appeal) the rights of inheritance in the estate of the deceased, arise under the law in force at the material time which in the instant case is [*553] he Wills and Succession Law, Cap. 195; and are governed by its provisions.
What would be the position if the statute were not there; or, if its provisions were differently worded, is only a hypothetical academic exercise; and rather tends to create confusion, than lead to the correct answer to the question: What are the rights of the parties before us to the estate of the deceased. Also, what would be the position under the law of Greece, or the law of England to which we have been referred, is foreigh to the question which the Court has to answer in this case.
In construing the statutory provisions applicable to the matter in hand, we must look for the intention of the legislator, reading in their appropriate meaning, the words which he used to express such intention. Reading section 46 in its context in the statute, together with the two relevant schedules (the first already described above; and the second which is the table of degrees of kindred as settled by the statute) we can have no doubt that the legislator intended that the estate of the deceased should be inherited as prescribed in the statute, by his heirs within the sixth degree, as set out in the second schedule; and that their respective rights of inheritance should be governed by the provisions in the first schedule, depending on the class where each heir can be placed.
It is, we think, equally clear that the legislator intended that the descendants of any of the deceased's children who died in his lifetime (falling in the first class, in column one, of the first schedule) as well as the descendants of his predeceased brothers or sisters (falling in the second class of the same schedule) should be entitled to inherit, per stirpes, the share of their predeceased ancestor; while the descendants of the heirs falling in the third and in the fourth classes of the same schedule, should not be entitled to inherit their predeceased's ancestor's share.
It is not for the Courts to speculate as to the reasons why the legislator so intended and so enacted. The Courts must enforce and apply the legislation as it comes to them and as they find it to be upon proper construction. That is the law governing the parties' legal rights. If statutory provisions are made to appear that they require any change, it is for the legislator and not for the Courts to bring such change about. [*554]
In the instant case, the surviving first cousins as well as the children of the predeceased first cousins, are persons falling in the fourth class of the first schedule. They are all within the sixth degree; the surviving first cousins being of the fourth degree (according to the second schedule) and the children of the predeceased first cousins, being of the fifth degree. As expressly provided in the first schedule, the nearer degree exclude those more remote. The surviving first cousins, being nearer in degree, exclude the children of the predeceased first cousins as more remote.
The District Court came to the same conclusion; and decided the case accordingly. We uphold their decision; and dismiss the appeal. We also affirm the order made for costs, extending it to cover the costs of the appeal as well.
Appeal dismissed. Costs
out of the estate.
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