Den on Demise of the University of North Carolina v. Brown, 23 N.C. 387, 1 Ired. 387 (1841)

June 1841 · Supreme Court of North Carolina

23 N.C. 387, 1 Ired. 387

DEN ON DEMISE OF THE UNIVERSITY OF NORTH CAROLINA vs. WILLIAM BROWN.

Where an estate had been transmitted by descent, and the blood of the acquiring ancestor had become extinct, upon the death of the person last seized intestate and without issue, the estate . descended to her nearest collateral relations, who were a brother and two sisters of the half blood on her father’s side, the land having descended from a maternal ancestor.

This was an ejectment brought by the plaintiff, in Northampton Superior Court, and tried at Spring Term, 1841, of that Court, before his Honor Judge Settle. The following case agreed, was submitted to the Court. The land described in the declaration, belonged in fee simple, to Mrs. Cocke, the wife of Archibald Cocke, who acquired it by devise. Mrs. Cocke died about the year 1814, intestate, leaving an only child, a daughtei, her heir at law, Elizabeth,who intermarried with John Peter, and died in the year 1817, intestate, leaving an only child, a daughter, the issue of the said marriage, by name Margaret M. Eliza, who intermarried with Colin Peter, and died in 1839, intestate, and without issue, and never having had issue. John Peter, the father of Margaret M. Eliza, after the death of her mother, and during the life of said Margaret M. Eliza, married a second and third time, and had issue, a son and two daughters, who are still living, and under whom defendant claims title, and holds the possession. Archibald Cocke and John Peter both died before the commencement of this suit, and the blood of Mrs. Cocke, the wife of Archibald Cocke, became extinct on the death of Margaret M. FI iza Peter, wife of Colin Peter. The plaintiff claimed the land as escheated.

, , , „ ,. . . . , , And the Court, being of opinion that the plaintiff was not entitled to recover, judgment was rendered for the defendant, from which the plaintiff appealed to the Supreme Court.

W. H. Haywood for plaintiff.

Iredell for defendant.

Daniel, J.

Mrs. Cocke acquired the land by devise ; she is therefore to be considered as the first purchaser. On her death, the inheritance descended to her only child, Elizabeth. On the death of Elizabeth, it descended to her only child, Margaret, who died intestate and without issue, leaving a brother and two sisters (by the name of Peter) of the half blood ex parte paterna. The question submitted was, whether the land had escheated to the University. It is enacted by Rule 5th in the Canons of Descent, Rev. iSt. c. 38, that “ on failure of lineal descendants, where the inheritance lias not been transmitted by descent or derived from an ancestor (as mentioned in the 4th rule,) or where, if so transmitted or derived, the blood of such ancestor is extinct, the inheritance shall descend to the next collateral relations of the person last seized, whether of the paternal or maternal line.” In this case, the land had been transmitted by descent from an ancestor to Margaret, the person last seized ; but the blood of Mrs. Cocke, the ancestor, has become extinct. On this event happening, the inheritance descended, according to the aforesaid rule, to the next collateral relations of the paternal line of Margaret, the person last seized. These persons are her brother and sisters of the half blood, the children of her father, John Peter.

We are of the opinion that the lands mentioned did not escheat. The judgment must be affirmed.

Per Curiam, Judgment affirmed.