The opinion
On Motion for Rehearing.
Appellants have directed our attention in their motion for rehearing to language in our opinion which seems to hold that the last provision in Sec. 38(a) 4 of the Texas Probate Code does not recognize two separate moieties which must be distributed separately. Our language is subject to such construction and hence requires explanation. While such provision does not mention the word “moieties,” it is our view that in referring to “the whole of such estate,” such provision was actually intended to include only the whole of the moiety going to the paternal or maternal kindred, if any, as explained in McKinney v. Abbott, 49 Tex. 371 . As stated in that case, the tenth section of the Act of 1840 was entirely omitted in the Act of 1848, presumably “ * * * because in the latter act an entirely different and more beneficial provision was made for the descent of the inheritance upon the wife or husband.” It seems reasonable to presume that no change was intended by the omission except to prevent the spouse from taking where there were no heirs to take either moiety. We can perceive of no good reason for repealing the provision directing that if there should be “ * * * no SUch kindred on the one part, the whole shall go to the other part; * * *»
We think the Legislature, in providing in Sec. 38(a) 4 that the estate shall be divided into two moieties, one of which shall go to the paternal and the other to the maternal kindred, contemplated such division only in the event of kindred on both sides. If there are kindred on only the one side, then there could be no object in dividing the estate because there would be none to take on the other side. The title to the entire estate of the deceased must vest somewhere. It cannot rest in nubibus or in gremio legis, and it cannot escheat to the State under Article 3272, V.A.T.S. The disposition of the property made in this case is in accord with the presumed intention of the Legislature to regulate the distributing of estates among heirs of decedents so long as there are heirs on either the paternal or maternal side.
Motion for rehearing is overruled.