Opinion
December Term, 1827.
From Currituck.
1. In the descent of acquired estates the only qualification necessary to a collateral is that he be the nearest relation of the person last seized. In descended estates he must be of the blood of the first purchaser.
2. Where an estate was purchased by the father, and descended from him, and the propositus left a mother, a maternal half-brother, paternal uncles of the half-blood, and other more distant paternal collaterals, it was held that the proviso in the 6th canon of descents (act of 1808) applies to cases where a surviving brother or sister cannot inherit, as well as to cases where none are left, and therefore that a life estate in the lands descended to the mother and the fee to the paternal uncles of the half-blood.
THIS was an action of waste, tried before, Nash, J., at Spring Term, 1826, of the court below, when a verdict was taken and damages assessed for the plaintiffs, subject to the opinion of the court as to the right to sustain the action upon the following case: In 1813, Peter Barnard died intestate, seized of the lands on which the waste was committed, leaving two children, Elizabeth and Jesse, and a widow; and afterwards, in the same year, Elizabeth died intestate and without issue. The widow had dower assigned her in this land, and in 1813 intermarried with the defendant Joseph Dozier, by whom, in the succeeding (334) year, she had issue which is still alive; and afterwards Jesse Barnard died intestate and without issue. The lands were purchased by Peter Barnard, and the plaintiffs are his maternal half-brother and sisters, and nearest of blood to him; but he had also collateral relations, the descendants of his father's nephews and nieces.
Gaston for the plaintiff.
Hogg for the defendant.
The presiding judge being of opinion for the plaintiffs, gave them judgment for treble the damages assessed by the jury, and the defendants appealed.
Peter Barnard, the first purchaser of the lands in question, died seized thereof in 1812, intestate, leaving two children, Elizabeth and Jesse, and a widow, the mother of Jesse, I presume, although it is not so stated in the case. The locus in quo was assigned to the widow as her dower. Elizabeth died intestate, without issue, in the same year. In 1813 the widow married Dozier, one of the defendants; and in 1814 had a child, which is still alive. The plaintiffs are the maternal half-brothers and sisters of Peter Barnard, and the nearest of kin to Jesse, except the child before mentioned. Peter Barnard's father left nephews and nieces, whose descendants are still alive.
The question presented is, On whom did the inheritance descend upon the death of Jesse?
The second canon of descents, in the act upon the subject, passed in 1808, calls the females equally with the males to the succession. It thereby abolishes the priority of the male over the female line, and places them upon a perfect equality, both as to collateral and lineal descents. The express declaration, whether of the paternal or maternal line, to be found at the close of the fifth canon, was therefore unnecessary. Its omission in the fourth canon, under which this case falls, will (335) not prejudice the maternal line. The only qualification required is that it be the blood of the first purchaser. I also think that the provision made in the sixth canon, declaring that the collateral relations of the half blood shall inherit, equally to the whole blood, was also unnecessary, it being an entire enactment upon the subject, and the previous provisions embracing them; the only qualification required being that in the case of an estate which has descended, such collateral relations should be of the blood of the first purchaser; for we shall presently see that the words "such ancestor," in the close of the fourth canon, must be stricken out, and in lieu thereof the words "first purchaser" inserted. As we had been so long in the habit of considering the paternal line as preferable to the maternal, and the half blood as entirely excluded, it was perhaps safer expressly to declare it. This argument is made that no objection should be taken to calling in the maternal line under the fourth canon, under which this case falls, because the maternal line is not, in that section, placed upon an equality with the paternal, as it is in the fifth, which provides for newly acquired inheritances. The only qualification, therefore, required by our law in case of a collateral descent is that the claimant be the nearest collateral relation; and in case of a descended estate, that he be of the blood of the first purchaser; the preference of the male over the female line and the whole over the half blood being entirely abolished. I have said that the words "such ancestor," in the fourth canon, must be stricken out, and the words "first purchaser" inserted in lieu of them. If those words are retained, had this land descended to Peter Barnard from his father, and from Peter to Jesse, they would call to the succession Peter's maternal half-brothers and sisters, before the brothers and sisters of his father, for they are of the blood of Peter, and (336) the inheritance descended from him to Jesse. Yet the same principle which excludes this child before mentioned (Jesse's half blood on the mother's side) in favor of Peter's brothers and sisters, in such case would exclude Peter's half-brothers and sisters on the mother's side (the present plaintiffs) in favor of the nephews and nieces of Peter's father, the first purchaser of the inheritance.
The case does not expressly state that Jesse was ever actually seized; but I think it may be inferred from the assignment of dower, for it is taken out of his seizin. But if it did not, the first canon of the act, speaking of lineal descents, declares that a seizin in law shall make a propositus; and although no such declaration is made in case of collateral descents, but the word seized only is used, I apprehend that the Legislature intended to make a legal seizin sufficient in both cases. No reason can be given why, if it is good in the one case, it is not so in the other.
Upon the death of Jesse without issue, the lands in question devolved on his mother for life, although he left a brother or a sister. For the words "capable of inheriting the estate" must be added to the following words in the sixth canon, "That in all cases where the person last seized shall have left no issue, nor brother, nor sister, nor the issue of such," for why postpone the mother, where the brother or sister cannot take? It is certainly the same as if there were none, for her claims are postponed to theirs. When they have no claims, it is the same as if they did not exist.
It is unnecessary to say what became of the dower, when a life estate devolved on her in the whole land; for she remained a tenant for life, and liable to the action of waste.
I am of the opinion that the inheritance, subject to the life estate in the mother, descended to the plaintiffs upon the death of Jesse, and that the judgment should be affirmed.
PER CURIAM. Judgment affirmed.
Approved: Flintham v. Holder, 16 N.C. 349; Wilkerson v. Bracken, 24 N.C. 315; Caldwell v. Black, 27 N.C. 463; Lawrence v. Pitt, 46 N.C. 344; Dozier v. Grandy, 66 N.C. 484; Jones v. Haggard, 108 N.C. 181; Paul v. Carter, 153 N.C. 28; Watson v. Sullivan, ib., 247.
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