McMichal v. Moore, 56 N.C. 471, 3 Jones Eq. 471 (1857)

Dec. 1857 · Supreme Court of North Carolina

56 N.C. 471, 3 Jones Eq. 471

OBED McMICHAL and Eliza his wife and others against HARVEY MOORE and others.

The surviving father or mother of one seized of land, who dies without leaving issue capable of inheriting, or brothers, or sisters, or the issue of such, will take the inheritance under the proviso in the 6 Rule-of the chapter of descents, (Rev. Code, ch. 38) without regard to the question whether such parent is of the blood of the purchasing ancestor.

This was a petition for the sale of a tract of land for partition, heard before MaNly, J., at the last Fall Term of the Court of Equity of Rockingham county.

The petition set forth, that Mary McCollum was the person last seized of the tract of land described in the pleadings; that she died intestate, in the year 1857, leaving no issue, nor brother, nor sister, nor the issue of such, but leaving her father, Ilarvey Moore, her surviving.

Mary McCollum derived the inheritance in question from an uncle, Milton Whitsell, who died intestate in 1852, leaving the said Mary one of his heirs-at-law.

The petitioners are the uncles anct aunts and the children of uncles and aunts of Mary McCollum, that is, the brothers and sisters of Milton "Whitsell, and the children of his deceased brothers and sisters.

Mary McCollum left half brothers and half sisters, the children of the said Harvey Moore by a second marriage with one not of the blood of the purchaser; so they, although next in degree, were not of the blood of the purchaser.

The land was ordered to be sold, and the question was to whom the fund belonged; whether to the uncles and aunts of Mary McCollum, of the blood of the purchasing ancestor, or to the father, or her half brothers and sisters.

His Honor, upon the hearing below, being of opinion that the defendant Harvey Moore, the father, was entitled, so decreed, and the plaintiffs appealed.

Morehead, for the plaintiffs.

Miller and Winston, Sr., for the defendants.

PeaesoN, J.

The fourth canon of descent, Rev. Code, ch. 38, sec. 4, provides that, on failure of lineal descendants, where land has been transmitted by descent, &c., the inheritance shall descend to the next collateral relations of the person last seized, who are of the iloocl of the ancestor.

The petitioners are of the blood of the ancestor from whom the land descended; the defendants, who are the children of the defendant Harvey Moore, and the half brothers and sisters of the person last seized, are nearer in degree than the petitioners; but they are not of the blood of the ancestor; consequently, as against them, the petitioners would be entitled to the land.

But Harvey Moore is th q father of the person last seized, and there is a general provision applicable to all cases, that “ where the person last seized shall have left no issue capable of inheriting, nor brother, nor sister, nor the issue of such, the inheritance shall vest in the father if living, and if not, then in the mother if livinar.”

This general provision, in favor of the father and mother, expressly departs from the principle of keeping the inheritance in the blood of the first purchaser, which, for feudal reasons, was strictly adhered to by the common law, and which is retained in our statutes in regard to collateral relations, except for the purpose of preventing an escheat. The parents are, by the statute, looked upon as lineal relations in the ascending line, and in respect to them, the common law principle is put entirely out of the way. Under the statute, now in force, the inheritance vests absolutely in the father, if living,

' although he is not of the blood of the ancestor from whom the land descended. No words could make the intention of the law-makers plainer than those that are used. In the Nev. Statutes, eh. 38, the provision was, that in such cases the inheritance should vest in the yiarents, for life only, with the right of survivorship ; as" amended, the inheritance vests in the father, if living, absolutely; but in both statutes, there is the same disregard of the blood of the first purchaser or ancestor from whom the land descended.

In our case, the half brothers and sisters not being capable of taking, it follows that the defendant Ilarvey Moore, who is the father of Mary McCollum, the person last seized, is entitled to the land in fee simple.

Pjsr CuRiAM, Decree affirmed.