Den, on the demise of Swann v. Mercer, 3 N.C. 246, 2 Hayw. 246 (1803)

June 1803 · North Carolina Superior Court

3 N.C. 246, 2 Hayw. 246

COURT OF CONFERENCE,

June Term, 1803.

Den, on the demise of Swann, vs. Mercer.

cause now came on to be argued before this court; arid was argued by JlaywQo4, fop filie defendant, and by Brown* for the plaintiff.

Haywood, for the defendant.

-fWsre it trot for the clauses in 1784, ch. 23, sec, 7, and ch. 10, sec. 3, the mother could have bo pretensions. Before this period she could in no event ’uv herit. Let it he inquired then, how the estate would have descended, had those clauses been omitt'.d, and we shall find the estate would have gone to the father’s sister of the half blood on the mothers side. JL.et it next be inquired, in what cases those clauses admit of the succession of the mother, and it will be found that the case before the court, is not one of those described in the act; and consequently that the claim of the mpthep c^nno£ hinder the succession of the father’s half sister.

In order to discover how the land would have gone, had; the clauses referred tQ been omitted, let it be asked how the landgt would have gone had John Swann died without a child.I Secondly ; how they would have gone, had his son died, not leav-., inga mother? For if in both these instances they would have gone to the father’s half sister, they will still go to her unless-the said clauses warrant the claim of the mother. Thirdly : let it be asked, in what case can the mother succeed under those clauses ? If it be found that the case before the court is not one pf those described in the said clauses, then is the mother’s claim at an end ¡ and that of the father’s sister of the half blood., is. gOOii.

Firsts how would the lands have gone, had John Swann died-without a child? The act of 1784, ch. 22, sec. 3, answers-^-11 Tf »c any person dying intestate, should at the time of his or her *£ death be seized or possessed of, or have any right, title or iq-il terest in or to any estate or inheritance, in lands or other real estate in fee simple and without issue, such, estate or inherif-anee shall descend to his or bar brothers and for want of. brothers, to his or her sisters, as well those of hfdf blood as. those of whole blood, to be divided amongst them equally, 6i share and share alike, as. tenants in common, and not aa joint. tenants, &c. Provided, that when the estate shall have de-4‘scended on the part of the father, and the issue to whom such ss inheritance shall have descended, shall die without issue, tn^le or female, but having brothers or sisters of the paternal side 41- of the half blood, and brothers or sisters, of the maternal lio§ « ¿fco of the half blood, such brothers and sisters respectively of 44 the maternal line, shall inherit in the same manner as brothers “ or sisters of the whole blood, until such paternal line is ex-'s4 hausted of the half blood 5 and the same rule of descent and 44 inheritance shall prevail amongst the half blood of the mater- “ nal line under similar circumstances, to the exclusion of the 45 paternal line.” In other words, John Swann’s brothers and sisters of the father’s side of the whole and of the half b!aoc£, shall succeed ; but if there be none such, then his brothers end sisters of the half blood on the mother’s oide t and who is that 3a the case before us ? The person under whom the defendant claims, his father’s sister of the half blood on the mother’s side, Were it not then for the clauses above mentioned in favor of the parent, tbs lands in cuestión would belong £0 this percent,

Secondly ; to v/hem would they belong, had the sou of Johrs died, not leaving a mother ? The ret of if 84, ch.- 2 Z, sec. 4, answers — >“ The same rales of descent shall be observed when the “ collaterals are further removed, than the children of brother'-} “ and sisters.” What rules of descent ? Why, that the half blood shall take equally with the whole blood, under the restric* íioas contained in the proviso to the third clause ; that is to say* the father’s brothers and sisters on the father’s side, both of tho whole and half blood ; and fot want of such, his father’s brothers and sisters of the half blood on the mother’s side, in the present case, who is that ? The person under whom the defendant claims, the father’s sister of the half Mood on the mother’s side* The defendant then would have been «ntitled, had there been no mother.

Thirdly s In what cases can the mother succeed to a son’s c' . ta'ce under 1784, ch.22, sec. 7, 1784-, ch. 10,sec. á? and is this one of those cases ? This is a case where the lands descended from the father to the son. The first case mentioned in th-clauses, where a parent shall succeed, is where “the estate h?3 46 been derived in fee from such parent 5” 1784, ch. .22, sec. V-, The act necessarily means a derivation from a parent by son-', conveyance ; for it means a derivation by descent or devine iron? a parent: then the parent must be dead before the death ox the child. This is not a case of lands conveyed to the child, but of lands descended from the father ; therefore oat of the clause hi, question, and under the operation of the other parts of the act before spoken of. The next case described, is where the child actually purchased; “Then it shall be vested in the father if “ living, but if dead, then in the mother for life ;- and after the “ death of the mother, then in the heirs of such inti-state on the “ part of the father ; and for want of heirs on the part of the k- “ ther, then in the heirs.cf such intestate- on the part of the mo-44 ther 1784, ch. 10, sec. 3. The prefers-, f<, not a case of lands aci’jollypurchased by the child, and is therefore out of those clauses, and under the operation of the other parts of the'aits The last case described in these clauses, is where the lands were otherwise acquired; then they are to go “ first to the father, if “ living; then to the mother for life ; then to the heirs on the w part of the father ; and for want »f such, to the heirs on the upart of the mother 1784, ch. 10, sec. 3. These Words are put in contradistinction to the two former cases, and are in» tended to describe some case, other than a derivation by conveyance from a parent, and other than an actual purchase by the child. They do not mean acquisition by descent from one parent, so as to enable another parent to take : for these reasons"; First — because the 7th clause contemplates a case where there is an equal chance for both parents to be alive to take : the lands are to go to the father, if living., and tc his heirs; but if dead, to the mother or her heirs ; as much as to say, if both be alive, the father shall take ; if the father be dead, the mother shall take.— The case meant then, is such an one as may occur, both parents being alive ; and that is not the case of a descent from either parent. If the land descended from the father, he must be dead % if from the mother, and the father be dead, she must also* The act speaks of a case where, if the father he dead, she may be alive to take. It shall go to the father, but if he be dead, to the mother. They do not mean acquisition by descent from a parent, because by the clause of 1784, ch. 10, if the father be alive, he is to succeed, and his heirs forever,: then if the estate descended to the child from the mother, and the child die, the father’s family inherits; if it descended from the father, then after the death of the mother, it shall descend to the heirs of the father. This cannot be the meaning of the act; the words ‘4 otherwise acquired,” are intended of some case not involving such unjust and unequal consequences. Such cates there are, and they shall by and by be mentioned. Again s they do not mean a descent from a parent, because by the third clause of 1784, ch. 10, if the father be dead, and the mother succeed and die, the estate shall go to the heirs on the part of the father ; and for want of such, to the heirs on the part of the mother. If then they mean a descent, lands descended from the mother (the father being dead) will go to the heirs of the father. This cannot be; for it contradicts the spirit'and letter of 1784, ch. 22, see. 3 & 4; the rule of descent amongst collaterals further removed than the children of brothers and sisters, namely, amongsfuti-cles and aunts, shall be the same as amongst brothers and sisters ; that is to say, brothers and sisters or uncles and aunts ca the mother’s side, shall exclude those on the father’s side, where the lands descended on the side of the mother. Yet it these words mean a descent, lands descending from the mother to the son, be dying without children or brothers or sisters, will go, if the father be dead, to the heirs on the part of the ii-.thej % '■bnt to r>f»y, to uncle's and aunts on tbe father5? side, in exclusion of the uncles and aunts on the mother’s side. Therefor© tbe construction contended for on tbe other side, is not only unjust and destructive of equality, but also repugnant to other clauses ?o tbe act of descents. Such a construction ought to be avoided, and some other adopted, which will neither operate unjustly nor unequally, nor be repugnant, to the foregoing parís of the act. If such an one can be found out, then that which assigns to the words in question, a signification comprehending the casejjof an acquisition, by descent, from a parent, and consequently a meaning productive of injustice, inequality and repugnance, must be avoided. Again: they cannot mean an acquisition by descent, because 1784, ch. 10, sec. 3, contemplates Such an acquisition as leaves it to accident, whether the father shall be living or dead at the time of the child’s death ; and such a esae as by such accident of the father's death before the child’s, nviy carry the estate to the mother ; whereby the descent may be altered by the accident of death, and the paternal line which is favored in all other instances, be deprived of the inheritance by such accidents Also, the case here contemplated, is such an one, where, agreeably to. the spirit of the act, the father’s- family .ought to have the lands, in exclusion of the mother’s family ; at . least preferably to the mother’s family. Can this be meant of a descent ¶ Is it not agreeable to the spirit of the act, that the mothes’s relations shall have the mother’s estate, preferably to the fathers ; and the father’s relations his estate, preferably to the mother’s relations ? Or can it be said that these words raerá a descent from the father, and not as, descent from the mother ?

The preamble to sec. 8, of 1784, chap. 10, converses about n case,, where the mother is alive, and the father by accident dead, at the time of the child’s death, which accident transfers the estate to tbe mother and her heirs under 1784, chap. 22, sec, 7. Now such an accident could not fail out as an accident, if the lands had already descended from the father to the son dying: k could not be an accident that he was dead at the son’s death ; it could not be an accident that carried the estate to the mother and her heirs ; it must (if the words, otherwise acquired, mean, such a case) go to the mother in spite of all accident. But if they mean lands conveyed or devised or the like, from some person other than a parent, then such accident may convey the estate to the mother and her heirs; for then it may or may not happen that the father is dead at the time of the child’s death. Lands by descent from the father, if included in the words otherwise acquired, were not subject to alteration in the line of descent, by tne accidental death of the father before that of the child, but inevitably went to the mother and her heirs; yet otherwise acquired did isclttde a case, subjected to such ar^jdent and alterad-<i»n ; the preamble declares it therefore not the case of a descent, The preamble speaks of a case where the death of the father may or may not happen before that of the child, therefore, not the case of a descent from him to the child.

Again: If they do not mean lands descending from the father, neither do they mean an estate descending from the mother; for the contemplation of these clauses is, that she may be alive, though the father be dead ; it is to go to her, if the father be dead, for life. This cannot be meant of an estate coming from her by ¿-¿scent.

Again : These lands do not mean a descent from the mother,, and neither do they mean a descent from the father ; for they are predicated upon a case, in which there may be a deflexion of the heritable line by the accident of one person’s dying before another, which deflexion is guarded against by the act, of 1784, eh. 10, sec. 3; if the father be dead and the mother alive, that accident shall not change the heritable line. Is the case of the descent such an one l Take the case of a descent from the mother ; if the child die before the mother, the husband is tenant by ihe courtesy aft-.r her death, and the inheritance goes to the ht-iis on the part of the mother : But if by accident the mother die first, and then the child die, the estate goes to the father and his heirs; if by accident the father die before the mother, and then the die, her estate goes to the son, and on his death without children, ike. to her relations; but if she die before the father, and. then the son die without children, ckc. the estate goes to the father’s relations. If then a descent he included in these words, the act provides indeed against conveying the estate from the father’* family by the accident of hi* death, but it causes the accident of the mother’s death before the son’s to carry the estate from her family: incidit in Scijllam qui vult vitare Charybden.— We take awaj' one evil and plant another in its place. Before the latter act, if the father might succeed to her estate, she also had a chance of succeeding to his, supposing the words in question to mean a descent. But supposing they mean this, the latter act does token* 2,reat injury, by taking the chance from her, r.nd by subjecting her estate to a liability of vesting in the father’s family. The act could not intend this, and therefore the clauses &.pesk of some other case than that of a descent; they cannot wean a casq where it would be inconsistent with the preceding I arts of the act, to carry the estate from the mother’s family to Une father’s, by the accident of her death, before the death of the child. These words must be intended of some case where the general spirit of die act prefers the claims of the father’s family» That case will be presently mentioned, and is not a case of lauds «le&endkig from the mother. The words in question are not meant to comprehend the case of a descent from the father,— Because; on the death of the husband ii there be no child* the,widow Is entitled to one third for life, the brothers and sisters, and for want oí such, the uncles and aunts of the husband, to the ice simple. Why give her the whole, when by the death of the child, after that of the husband, she stands precisely in the satss circumstances, as if there had been no child originally? Once more, they are not meant of a descent from the mother, because if the child die before the father, he is entitled to the estate for life, as tenant by the courtesy ; why then give him the inherit-anee, when by the death ef the child, after the mother, Ire stands precisely in the same circumstances as if at the death of the mother, the child had not been living ? If then these words do not mean an acquisition by descent, what do they mean, consistently with the. other parts of the act, and with the equality and justice we contend for ? They mean an estate acquired neither by conveyance from a parent, nor by actual purchase, nor yet by descent from a parent j they mean an estate acquired by gift and conveyance, or by devise, or perhaps descent from some person other than a parent. Then will it not be unjust, nor inconsistent with the former parts of the act, if the fathers family be preferred to the mother’s. Then the mother’s estate will not be carried into the father’s family, to the exclusion of the mother’s family. Then the uncles and aunts on her side, are not excluded from a share of the estate descended from her. Then the third and fourth clauses, introducing such uncles and aunts into the succession, where the child dies without children, and without brothers and sisters, will not be superseded. Then will the father and mother both stand an equal chance to succeed agreeably to the contemplation of the act. Then will appear the necessity, justice and propriety of saying that the accident of death, shall not carry the estate from the father’s family, which as the act says, ia found in all other instances, meaning in all instance!: except in cases oi lands descending from the side of the mother. And then will not the land descending from the father, be carried into the mother’s family, in exclusion of the uncles and aunts ' on, the father’s side. But such estate will descend to them according to the directions of the former part of the act, without: the absurdity of giving the mother’s estate to the father’s family ira all events ; and without the contradiction of giving the father’s heirs and family an estate, which the third and fourth clauses gives to the mother’s heirs, in exclusion of his. And ihea wilt be satisfied the preamble to the fourth clause, stating the old rule of excluding the parents in all cases,, to be often, not always, injurious in its consequences, thereby intimating that the alteration to be made in the old law, will be comprehensive of some, bat not of all cases, where a child died intestate, without issue, and not leaving any brother or sister. Another idea which may now be mentioned is, that if lands be conveyed by the father to the sen, they shall, on the death of the son without issue, brothers or sisters, return to the parent from whom the same were derived by such conveyance : They cannot in any event go to the mother’s family. And can we suppose that the same law which is so anxious to preserve the acquisitions of the father’s family, in the same family, in the case of a conveyance, would not be equally anxious for the same thing, when the estate came by descent from the father’s family? Why exclude the mother forever in the case of a conveyance, and introduce her in the case of a descent ? This proves the words otherxvise acquired do not mean to embrace the case of lands coming to the son by descent from las father.

If then the True meaning of the words otherwise acquired,, only comprizes lands acquired by gift or conveyance, or by devise, or perhaps descent from some person other than a parent; and the other words in the clauses in question, only comprize lands conveyed by deed from a parent to his child, or actually purchased by the child; and if the case before the court be none of those, it follows, that the claim of the parent being not supported by either of the clauses of IT84, cb. 23, sec. 7, or 1784, ch. 10, sec. 3, is not supported by any law whatever 5 and that ibis cas’e must be regulated by the other parts of the act, in the same manner as if the clauses in favor of the parent had not been introduced : and in that case we have seen that the land in controversy belongs to the defendant.

I am not apprised of the course which Mr. Brown’s argument will take, and therefore I cannot say any thing to it: But I trust it cannot be of force enough to shew that the reasons we offer are not deserving of some attention.

Brown for the plaintiff.

The great importance of this case, and the still greater importance of the question, demand that a’ circumspect and comprehensive view of the subject should be taken, and will excuse a slight reference to some common learning. The legislature, no doubt, have a right to regulate the succession to intestates estates, in such manner as will most promote the interest of the community'. But if the public policy does not point out any particular rule, some of the relations of the deceased have claims which ought not to be disregarded.— Of these, the claim of the parentis conspicuous, others are volunteers; but they appear as purchasers for the mosl valuable of considerations. They, and particularly the mother, have nursed the intestate in his infancy, watched over him in his sickness, and with great care, anxiety and expence raised him perhaps to manhood; The child then owes them gratitude and compensation, and if he dies without Issue, it would be hio duty, and we may presume, that it would be his inclination also, to leave them hi?, property, ' Accordingly, we fiad that in England and in this country, the statutes of distribution which are founded upon the duty and supposed incUaali,on of the deceased, places the succes-■v’&s'j of fee parents of the intestate imniedisteiy after that of Ida children, and in Germany, vesusa wraa unable to decide. benvet-ra ■¿a equal pretensions of the isstostait’s parents and child»an, and therefore referred it to the chance of a battle. 3 EL Coir. 5C4, "With regard to lauds however, the mother and the half blood vtcre cxciud-d iVt'ia the succession by she feudal policy, which regulated the descent of real estacas, in ihle country, till the year if8% and continúes to do so in England at this day.

The northern adventurers who overthrew the Soman Em-pi re, found tin: they had by conquest, got possession of countries, the inhabitants of which were far more numerous than themselves and in order to preserve both themselves and their conquests, they established that polity, to which we have given the name of the feudal ovate us ; the object of which was to ;.„>ve £ti at my oí their own countrymen, always ready to defend u»« state against domestic insurrection, or foreign invasion. For this purpose, they seised and pas celled out the lands among themselves, f.o bs held by the tenure of military services, mu condition that the possessor should hold himself in readiness to “■■.-we la the army when called upon. Tins was sufficient provision for <he time then present} but in order to provide for th„i.,.i.á ther¿ to come, it was also necessary tlyat they should cecr. . -;-.3 -hs inheritance of those feuds in their own family; fomidi-.e eude passed into the hands of the conquered, it would be wu'ding; arms in tiwir hands also: And as those adventurers v/er: TEut under the necessity, or chose to marry with the cvnqwrr á, iLiy easily foresaw 'that if che mother or her children, by ¡raothtr husband, perhaps of- the conquered, could in any cm 1 csiocoT, it would carry those lands, and wish them, railkaiy peyrur, iuc* the families of the conquered. To guard against C-E,, (Ley established a number of very unnatural, but for them vary po'b tic, canoes of descent 5 one of which relating to ib»; present cub* ject, was, that the heirs skould be of the blood cf tfeo first purchaser, who was their countryman, and was supposed to hiva gcquhv.d the feud on account of his personal inesi-: ■„ This; guarded Luida which had descended to ¡he person last seised ; ;y,l then that la. the eolkteral inheritance, the male stock should La p-eia.-red to the fesmla, guarded all cases where the persust i/i,t s-kud ha*l pui'cliasoh if then, in England, the conquerors and conquered got amalgamated, and all distinctions between them lost, the reason of the rule ceased j and the rale itself ought to Is?,ve ceased also. The reason never applied to this country, noe ought the rule. These truths are acknowledged and verified by the preamble to the 3d and fth sections of lí'3-L, efe. 22 j and also by the most intelligent and enlightened modem English ws iters :: Paleyk Mor. Phil, page 228, 9, 3. That spirit of inquiry and reformation which led to, and had beers excited by fee re v olution, iudqsed the legislature of this country, as so wt ;>s the reformation of the government had been achieved, f<i> get about reforming the law oí succession to intestates. 1 he duty and the presumed inclination of the deceased, had long been the governing principle in the succession to personal property $ ¡and there was now no reason why the succession to real property should not be governed by it also. Accordingly, the legislature, in April, 1784, cb. 22, in effect, enacted that we should no longer regard the blood of the first purchaser, or the dignity of the paternal line, but should be solely governed by proximity of blood, to the person last seized. This I tbirk myseb warranted in saying j although in some points, their prejudices seem to have got something the better of their principles. In support of this, I observe, that the act of April, 1784, ch. 23, sec. S, enacts,. “ That if any person dying intestate, at the time of his or her “ death, be seised or possessed of, or have any right, title, or “ interest, in or to any estate or inheritance, in lands or other “ real estate, In fee simple, and without issue ; such estate or in- “ heritance shall descend to his or her brothers ; and for want of “ brothers, to his or her sisters, as well those of the half blood “ as those of whole blood, to be divided amongst them equally, “share and share alike, as tenants in common, and not as joins “ tenants ; and each and every of them shall have, hold and en« “joy, in their respective parts or portions, such estate or inherit- “ anee as the intestate died seised or possessed of, or entitled “ unto.” This part of this section enacts, that where any person dies without issued and intestate, seised of any estate or inheritance, without making any difference whether that estate ivas acquired by descent or purchase, it shall descend to the intestate’s brothers, as well those of the half blood, as those of the whole blood, without giving any preference either to the paternal line, or those who are of the blood of the parent from whom the estate descended to the intestate. Then passing over for the present, the clause, providing always ; in the latter end of the sa’ d section, it is provided also, that if any brother or sister of the intestate should have died in the lifetime of such intestate, h aving children, then those children shall stand in the place of thtir deceased parent. Then sec. 4 enacts, that the same ru’c oí descent shall be observed amongst distant claimants and collaterals. The same rule of deseen!.; that would be, giving no. preference either to a paternal or maternal relation, or to the blood of the first purchaser, but solely regarding the proximity-of kindred. Then tv hat difference does the clause, beginning, provided always, make ? I sa}T, it proves the general principle, at the same time that it operates as an exception to [it- — Except iio prebat regidam. It provides only where the estate descends ir mu one of the parents, and there are brothers and sisters of the half blood of the paternal ar.d maternal line, that those who ase ui the I alf blood of the line from which die estate descended, ab,u’ inherit triply to the exclusion of the ether half blood. But it nuhes no further alteration; and therefore, it ihtro were u<> half or whole blood brothers of the line from which the esmos descended io the intestate, but half blood of the other Hu;:, flint half blood would inherit, by virtue oí the prior part of the caction, to the exclusion of uncles and other relations of the hue from which tbe estate descended : So that in cases where the laud has descended from a parent, it respects the blood o! doe first purchaser —for example, an estate descends to J. E.. from his father ; J. 8. dies without issue, leaving brothers of the peterne.'1 hits; oi' the half blood ; in such a ease, the brothcis of the paf-rae! line of the half blood, would inherit auls-hq u> «.he «xclu«O0 of toe brothers of the maternal luu- oi the half blood 5 but if J, C. bad left brothers of the matt-nial line, end 2,0 h,r-thors oi the paternal line, then the matesaal half brothers, v* o: A1 inherit, to the cr.ciur.ion of the paternal uncles, and! ail other:-,, But in cases "where tee intestate had acquired the estate by ' lu-chase, this clause snakes sso alteration; co that there, proxiiiiitv of kiadred solely is regarded, and both half bloods inherit blurts curd share alike, according xo the first part of the section. Then ‘.section 4 enacts, that the same rule oi descent shad be observed among distant lineals snd collaterals ; that io, that ia cases where the intestate has acquired the estate by descent, and where tbe (L.b,ina?.ats are in equal degrees of Liadred, the blood oi' the first purchaser shall preval:; but where the claimants are not in equal degrees of kindred, then proximity of kindred shall be preier-rred, without any regard to the blood of the first purchaser s and 5n ail cases where the intestate has acquired the estate by purchase, proximity of kindred shall prevail, without yrriieg ray preference cither to the paternal Hue, t-r to tbe blood cl the ;’:r.K purchaser. — For example; J. S. dies intestate, v.'rikmri 3s>mr„ end without brothers or sisters', or the issue of sucii; being :*t: the time of hie death, seised in fee simum, oía i-iaí eeut. , which had descended to him from his lather, and of mother Wiiich he had purchased ; having one paternal and one matero.'! uncle 1 in such a case by this law, the paternal nude would take the whole of the estate which J. S. had inherited from bis tether ; and the one which V. 'J. Ur-.d purchased, would be cqnriiv divided i:er Lis said two uncles'. But suppose there L h.i'ci'i no paternal uncle, and a grand uncle had Leen die ntr.tvst js-fUiion of the paternal line ; ia such a case the maternal ,u-ch; would have inherited the whole of the real estate oí J. T a..' v/cil that which he had inherited from his father, as diet who h Lt had purchased. 'J 'his I take to be the true exposition of 8-.,c. 3 !x 4.1 and it so, it will by shewing the principie which tbe ¡L'iiLLituie bed adopted, and the spirit by which it was actuated, be of use in the tutu re tonsttuefion <<!’«« -.ion /, on which iho p-vseui question arises ; luiUitejg': u..: ,\.q i hope u \/¡ll Lf- ic:;.d not to be absolutely necessary: but the censa uctíon I shall coa-tí nd for, sír.ud.ü o,.¡on other plain am! firm grounds — so that ií Í should be mista! in in what I have hi the; to advanced, still the pTInilft will be entitled to recover. The legislature, having by V-cions 2, S and 4, regulated the succession of lineal descendants and collaterals ; it then only remained to arrange the succession of the parents, which is the declared object of section 7; which, in a preamble, recites the mischief intended to be remedied, “ That zuñere any person seized cf an estate oj inheritance, (no matter whether that estate was acquired by purchase or descent) dies in*estate, and without issue, and not leaving any brothers or sisters, such estate descends to some collateral relation, notwithstanding that the intestate may have pat cuts living This the legislature consider as a thu.g not founded in reason, and iniquitous ; and therefore propose remedying it in the enacting part, which follows immediately in the same section, before their idea got cold ; and enacts, u That in case of any per- “ son dying intestate, possessed of an estate of inheritance, “ without leaving, an issue, nor having any brothers or sisters, “ half blood, or whole blood, or the lawful issue of such, who “ shall survive, the estate of suah intestate shall be vested in fee “ simple, in his or her parent from whom the same was derived.

Both parties are agreed that this provides evidently for the case of a gift by a patent; for the estate is to revest in the parent from whom the same was derived, on the sup-position that that parent would be alive ; which could not be in any other case but that of a gift by a parent. If the lands bad descended from a parrar, that parent must have been first dead. The expression is derived, not descended, and vests in the parent, not in the heirs oi.tbe parent. This re-vesting was only to take place where the intestate died, without leaving any issue, or any brothers or sisters, or the lawful issue of such who should survive ; so that if the land had been giren by the father, and there had been a brother or sister t-f the maternal line of the half blood, that brother or sister would Lave taken, in exclusion of the father: and so, if the lands had been given by the mother, &c. Ho much was the legislature disposed to regard proximity of blood, to the personst seised, and to look r.o further than follows; “ or if such estate st act'.’cliu purchased, or otherwise acquired by such iniesU.de, ík titea lite , e shall be vest. J in the father of such, intestate, if living, but if deed, then in the mother of such intestate, and her “ heirs T id "would be mispending time to dispute about the me?inner of d.e expression, actually purchased; suffice it to s»v, that it is erne means oí acquiring •; real estate; and ú desetnt ;s another mt-aas of acquiring s real estate, the present care is ;ure-within the words otherwise acquired, being an estate acquired othe rwí«e than by actual purchase ; and under the present civ cu tutu antes die mother ought to succeed. First, because the words sre cl-'ensiv’e enough, to include the case of desccr-íc snd all o-fher cases ; and are so used by the most correct and approved law writers — =*2 BL C, 200, 241. 2 Wood. Vin. Lee. S5Q, 26S. L. Hardwick law of forfeiture, 7. See. These three authors may with propriety be said to be the most accurate, scientific and el.--gmt writers os the English law, snd .«hew in the places cited, iuid others, that acquiring an estate signifies getting by any means whatever, and doer, expressly include descents. If necessary, tx.<iny others may he cited. Then the maxim, expressio gencrelh ivteWgetir generaliter applies, and the courts both of lawand equi-e% will tiot restrain a general expression even in the case of a will, unless they see abundant cause to think it was used in a restrained sense. 2 BL Re. 79. 1» H. Bl. Re. 226. If this rule obtains in the construction of w’lls, it ought surely to govern ;n the coa» siruction of statutes, where the legislature can never be presumed to use an expression, without knowing and intending its utmost legal import. Secondly; that construction is to be put upon r. statute which will suppress the mischief and advance the remedy. í BL Com. of. Then what was the mischief which subsisted at the common law, asid which it war. the intention, of the legislature to remedy, by the enacting part of this section ? The legislature itself has in the p¡ estrióle declared, that the mischief was, when any person seised of a real estate in fee simple, diets without issue, intestate, and not leaving any brother or sister, suck estate descends to some collateral relation, notwithstanding that the intestate may have parents living. This being the mischief, the plain remedy of it would be, to s?,y that -’.'.-aere any person seised of a real estate in fee simple, dies intestate, without issue, not leaving soy brother or sister, that the estate shall siot descend to a collateral relation, where a parent is living, but shall vest in the parent. I hope I have already shewn that tba words of the enacting clause do m effect, say so 5 that they not only admit, but require such a -weaning ; and I now add, that if there was a doubt of it, it ought to be allowed them, in order to suppress the mischief, and advance the remedy. If it should be held with the counsel for the defendant, that the enacting danse does not extend to cases where the real estate accrued to the intestate by descent; then in a great majority of cases, where 3 person seised of a real estate in fee simple, dies intestate, without issue, and not leaving brothers or sisters, or issued stub, such estate tvoukl descend to some collateral relation, notwithstanding that the intestate might have parents living — which is the very mischief intended to be remedied. Such a construction would be applying only a panial remedy, to a genera? mischief denounced by the legislature in the most comprehensive terms. Thirdly 5 because if the case where the intestate acquired the tétate by inheritance or parchase, are both comprehended, as I contend they ought, within the expression, otherwise acquire#, then the Whole section will amount to this : where the lands have been derived from a parent, they should revest in that parent, if living, to the exclusion of the other parents ; and so both parents arc considered nearer in blood than uncles, Sec. The estate, however acquired, shall vest in either parent in preference to an unde, or any mote di.taat relation, which is in the same spirit and consistent with the general principle which 5 have already attempted to shew, that the legislature had adopted in the act, that of regarding tbs blood cf the parent from whom the estate came to the intestate, when the claimants were in equal degree, of proximity as both parents ; and of solely regarding proximity of kindred, where one of the claimants was nearer in kindred than the others, as in a contest between a parent and a. collateral relation. Fourthly; if lands which have been inherited by the intestate, are, with the defendants counsel, held not to be comprehended undsr the expression, otherwise acquired, many flagrant absurdities will ensue; as if the mother in the present case had married again, and had a child before the death of her son, S. J. S. her child by the second husband, would unquestionably have inherited, although it was not of the paternal line, nor of the blood of the first purchaser; which, I think, ought to silence ail clamours on these two favorite topics^ And would it not be a flagrant absurdity to permit the child to succeed on account of the inheritable blood it derived from its mother, and still to say, that that mother cannot succeed on account of her not having any inheritable blood? Again; suppose, what is really this case, that the estate now in dispute, descended to S. J. S. from his paternal grandfather ; the defendant is ¡áster of the half blood, by the mother’s side, to John Swann, the father of the said S. J. S. — the mind can scarcely trace the relationship ; she is no relation whatever to his grandfather ; is not of the paternal line, nor of the blood of the first purchaser í and if she succeeds as according to their construction, she must, it must be solely on the score of his proximity of kindred to S. J. S. the person dying,last seised; would it not be a flagrant absurdity to say his grandfather’s daughter on the score ol proximity of kindred to S. J. S. should succeed to him in preference to his own mother ? It would in effect be saying that his grandmother’s daughter was more nearly related to him than bis own mother; than which, nothing could be more ridiculously absurd. Other absurd consequences might be pointed out, but let these suffice. An objection has been taken to our construction, and founded on the provision, that the lands shall be vested in the father, if living, hut if dead, theji in the mother of such ini estate, and her heirs. It has been said, that from this it appears that in the esses intended, to be provided for, both parents might. t. a!lve *t tbs death cl the child dying »eva<a. which caaaotbft in any case of descent, as oae cf the parents most bs dead before the descent takes place j aud that therefore the legislature could not mean to comprehend cases where the lanes had descended to the intestate under the expression, otherwise acquired. The answer to this objection appears to be easy. In the first place, it is not correct to say that both parents cannot possibly be alive when a child dies seised of a real estate which it had inherited; far suppose baron and lente have issue; two sous-— one of whom having acquired a real estate, dies seised thereof, in fee simple, intestate, and without issue, this estate unqestion-ahly descernís to his brother, who may in the life of both his parents, die intestate, sod without issue, being seised of the estate which he inherited from his brother. As this is a case which may happen very often, the legislature must have for-seen it j and it would have been unpardonable in them not to have provided for it, as they have ia this provision. Another answer to this objection, is, that the legislature had in the preamble, remedied a mischief which happens when any person is seised, either by puchase oí descent, oí a real estate, in fee simple, &c. Then Li the ejactuig clause, after making particular provision for the case viueve a poison being seised in ice simple, of a real estate, which had been derived by a gift from i parent, dies mtvstate, and without issue in the lifetime of that' parent, the legislature proceeds to provide for cases, where such estate was actually purchased or otherwise acquired by such intestate ; by which we contend, they meant, it was acquired either by descent or purchase, except by a gift from a parents, and thus, having it in contemplation to regulate the succession in every possible case where the lands had been purchased or inherited, except the case of a gift from a parent, where the patent is alive, and at the death of the intesute it was necessary to direct how the estate should descend, when both parents were alive at the death of the child, as well as where ose only survived. In all cases where the intestate had. purchased the lands, and in many where be had inherited them, both parents might be alive at his death 5 and surely these must be provided for, although in other cases of descents, one of them only could be alive. The legislature was making a general provision both for the. one and the other. Anothsr objection has beca (¡straeted from the proviso, in the latter part of section 7 \ “ ond if the mother of such infectáis be “ dead, then i,z ike heirs cf such intestate on the part of thefather? (,t and fir want of heirs «v; the part of the father, then to the ke 'tre “ of the intestate on the part oj ike mother” It has been said, that if the case where lands had descended to the intestate, aro included in the expression, otherwise acquired, then, by this chuce, if the intesiaw Lid inherited lauds i;:oiu his moliscs. atad! his father is dead as well as his mother, then on the death of the intestate, these lands would vest in the heirs on the pan of the father, to the exclusion ol the heirs on the part of the mother; which would be contrary to what the legislature had just enacted in sec. 3 and sec. 4, by which when the claimants are i.i equal degrees of proximity of kindred, the blood of the parent from whom the estate descended, is to be preferred: And then it is added that such a construction ought, if possible, to be made as to prevent two parts of the same act contradicting each other. And all this is true ; but of this clause I would observe that it was not necessary to effectuate the object which the legislature bad in view, when they passed the section, of which this clause is a part. The legislature have, in the preamble, ia effect declared, that their sole view in passing this section, was to regulate the succession of those heirs in the distant collateral relations of the intestate. Secondly; this clause is not necessary at all, for its object had been completely pjovided ia section 4, where the succession of descents to collaterals is in every possible case-provided for. Thirdly; if this clause is allowed any operation, there will bs no general uniform principle of succession to intes-tates ; for in the succession of brothers and sisters and the issue, no preference will be given to the paternal line, and the mother's son will succeed equally with the father's; but in the succession of more distant collateral relations, preference will be given to the paternal line, and the mother's brother will be postponed to the most distant relation on the pan of the father. Fourthly y this provision is repugnant to the spirit of the whole of the rest of the act, inasmuch as it gives a preference to the paternal line j whereas the rest of the act places the maternal line on a perfect equality with it. Fifthly; this provision ia repugnant to the other positiye regulations of this act. We have seen that section 3 and section 4 had enacted, that the nearest relation, whether paternal or maternal, should in all cases succeed; and where they were in equal degrees of proximity, they, both paternal and maternal, should succeed, share and share alike, unless where the estate came to the intestate by descent, where the blood of the parent from whom the estate descended, was to succeed. Eot this clause enacted that the paternal line shall in all cases inherit, to the exclusion of the maternal line. — -For example, if the heir on the part of the father is the nearest relation of the intestate, then he would be entitled to the whole by sections 3 and4, without the aid of this clause; if the heir on the part of the mother, then according to this clause, he would be entitled to the whole; but according to sec. 3 and 4, only share and share alike, with the heir on the part of the mother; unless in the case of a descent from a parent, where the blood of that parent shall succeed; and if the heir on the part of the father is a more distant rehu-s-n to tbc 3;i'.-'¿í-:;.te, than heirs on the part of the mother, still, according to thin'clause, he would be entitled in every case to succeed to the whole» But according to sections 3 and 4, he would in no case be entitled to succeed to any part; and then they are hi every case where this clause can have any operation whatsoever, directly at points. If X might be permitted o has&rd a corjectur*» I would say that under these circumstance*, this ckur.'i ought to be looked «pon as an amendment, proposed by some busy, conceited ignoramus, and passed by the Itgisla-titre without due consideration ; and that it ought to be eovssiU dered as void, on account of its repugnance ; 1 Bl. Com. and if considered as void, then any argument drawn from it fails to the gsouudu

But even suppose the court should think that this clause ought not to bo considered as void, but that section 4 should be held to bo void 5 for if of two contradictory parts of the same act, one must be void, then I say that the operation of this clause, when applied to cases where the estate had been purchased by the ia-tesnste, is, and has bees shewn to be, as contrary and repugnant to section 3 aud 4, as it is when applied to cases, where the in-icctite bad inherited the estate; yet the construction admití, atiJ every construction must admit, that its operation extends to all cases of purchase, so that their own argument militates just as much against their cani&ticticn as ours, and of course the court ought nos to establish that construction drawn from this clause, to the prejudice of either side, as it equally operates s- ¿ mus i. both- All tbit has been said about the hardship of the cátate passing fieri one family to another, is considered by me o- .Mere de cismáticas s.% a song of prejudice, which might be jtk&i: ts easily Irasameci over against the tenant in fee simple having power to alien in hh life time, or to devise at his death s it certainly oppugns their claim, fully as much as it does ours. The hearts of a family cannot be more attached to a piece of land than to their negroes, who have been the humble companions of their iníhs-.y and youth; yet negroes are every day pas-frosn one iam"«ly to another, in the manner we contend this land ought to pass j and it is very oeldorei we meet with a person w wrong-headed or prejudiced as to complain of it» Some other objections were urged against our construction, huí they were so subtle and taetaphycicai that some of them exceeded say comprehension, and die rest I have forgotten. — However, I’ believe those which I have attempted to answer, are the most specious, and were most relied on. Some fine span arguments might be drawn, from the act of i'/£4,c. 10, s. 3, but I think it unnecessary in trouble the court with them,because I think a question of this rci.'piutsdc should not be '.Iccidedon refinements andcub-cLuiirte 2d!y becausethat section is too inaccurately dr;íT'\» to í¡-rvc as any good guide. The enacting clause only lessen» the m-rther1'*» «sute, f:om an estate in fee simple, to an estate for life ; and ihc preamble ck-c-: not declare what the legislature in-i'. rids to do, so ranch as it deeku-s in a d;uk and obscure man-l»<r what that legislature thought the preceding legislature had «lone, a subject oa which if that legislature had expressed an o-plnion ever so idly and muquivocailv, still that opinion would have been nisconsutiuion.il, and entitled to no weight.

For these seasons, k appears that according to both the letter and spuk of the before mentioned statutes, the mother is entitled to an estate for life at least, and consequently that there ought to be judgment for sh* plaintiff.

Curia advetari vult.