Opinion
June Term, 1823.
When those who claim the inheritance are of equal degree, and none of them can claim a preference by representing the acquiring line, all are equally entitled, although some of them may be of the half blood.
SPECIAL verdict in ejectment. It was found by the jury that Thomas Symons was seized and possessed in fee of the lands mentioned in the plaintiff's declaration; that the said Thomas died intestate in 1790, leaving a widow, Ann, and leaving, as his heir at law, an only child, Sarah; that Sarah intermarried with Joseph Jordan, and died intestate 2 March, 1808, leaving as her heir at law an only child, Thomas; that Thomas died an infant intestate and without issue on 12 June, 1808; that Joseph Jordan, the father of Thomas, is also dead, and that the lessors of the plaintiff are brothers and sisters of the whole blood to Joseph Jordan; that Ann Symons, the widow of Thomas Symons, after his death, intermarried with Abraham Boswell, and died leaving issue by this last marriage an only daughter, Mary, who was living at the death of Thomas Jordan, the infant; that the defendant claims title under the said Mary, who intermarried with Benjamin Pike, and that the defendant was in possession.
The court on this finding rendered judgment for the defendant and the plaintiff appealed.
The controversy in this case arises between the paternal uncles on one side and a maternal aunt, of the half blood, on the other side. The land descended to Thomas Jordan from his maternal grandfather, no portion of whose blood flows in the veins either of the lessors of the plaintiff or the defendant. The parties on both sides are in the same degree of consanguinity to the intestate; and hence, it appears that the (436) principle governing the decision has been virtually settled in Ballard v. Hill, 7 N.C. 416.
In that case the half blood of the maternal line were preferred to a more distant collateral of the paternal line, although the land descended therefrom; and this construction seemed unavoidable under the several enactments of 1784, which admit the half blood of both lines equally into the inheritance, and declare a priority only where the contest is between those of the acquiring and those of the nonacquiring line. It is also declared that the same rules of descent shall be observed where the collaterals shall be further removed than brothers' and sisters' children; consequently, where those who claim the inheritance are of equal degree, and none of them can claim a preference by representing the acquiring line, all are equally entitled, although some of them may be of the half blood. An uncle of the whole blood, where he represented the acquiring ancestor, would exclude an aunt of the half blood who did not, upon the principle of the case cited, as well as that of Pipkin v. Coor, 4 N.C. 14; but to prefer him where he did not so represent the acquiring ancestor would virtually repeal the law entitling the half blood to inherit.
HALL and HENDERSON, JJ., concurred.
PER CURIAM. Judgment accordingly.
(437)