Den on demise of Seville v. Whedbee, 12 N.C. 160, 1 Dev. 160 (1827)

June 1827 · Supreme Court of North Carolina

12 N.C. 160, 1 Dev. 160

Den on demise of Ambrose Seville v. Addison Whedbee.

From Pasquotank.

The next collateral relation to the person last seised, thoii'di ex parte paterna, shall inherit und. r the act of 1784, an estate descended ex parte materna, And the same rule is, though this collateral relation be of the half blood, and come in ease after the death of the person last seised.

EjectmeNT. — The Jury iri the Court below, found a special verdict, the material facts of which are — that the premises in dispute were devised in 1791, by the will of Thomas Davis to his wife Rebecca, who afterwards intermarried with one Robertson Seville, liad issue by hita a son called William, and died in 1804, leaving the son surviving, upon whom the premises descended. Robertson Seville the husband, also survived bis wife, and intermarried with another, by whom he had issue the lessor of the Pigimilf, born in October, 1805. William the sou of Rebecca, died seised in August preceding (he birth of his'half brother the. lessor of the Plaintiff, and Robertson the second husband of Rebecca died in 1810. Upon these facts, the jury prayed the advice of the Court, if the Plaintiff was entitled, &c. and in the'Court below, by PASTAN, Judge, judgment was rendered for the Plaintiff, from which the Defendant appealed.

Tayjuor, Chief-Justice.

In the principal feature of this case, it is not distinguishable from Ballard v. Hill, where the maternal half brother was preferred to a more distant collateral, though the estate descended upon the brother, under whom he claimed, from fhe father. It was a contest between the maternal brothers and sisters, and the paternal cousin who was heir at common law. In this ease, the lessor of the Plaintiff is paternal half brother, and the estate descended to his brother from his mother. The record not disclosing that there are any |)P¡r,s neam. in degree on the side of the mother, the p[a¡nlj¡f¡¡, e„titied to recover.

The other question arising out of the facts stated, has also been adjudged in the case of Cutlar v. Cutlar, (2 Hawks 329.) There, the lessor of the Plaintiff was bom after the death of his brother ; but upon his birth, he became heir to him, and is consequently entitled according to the principles of the common law.

Per curiam. Judgment affirmed.