Haynes v. Johnson, 58 N.C. 124, 5 Jones Eq. 124 (1859)

Dec. 1859 · Supreme Court of North Carolina

58 N.C. 124, 5 Jones Eq. 124

WILLIAM HAYNES AND WIFE AND OTHERS against WILLIAM JOHNSON AND OTHERS.

In the descent of real estate, under the act of 1808, the next collateral relations of the person last seized, who are of equal degree, take •per stirpes and not per capita.

(The case of Clement v. Cauble, 2 Jones Eq. Rep. 82, cited and approved.)

Appeal from the Court of Equity of Rutherford county, sent to this Court by consent of both parties.

On a petition, filed by the heirs-at-law of ’William Johnson, deceased, for a sale of his real estate, a decree was made, the land sold, and the money collected by the master; whereupon, an order of reference was made for him to ascertain and report to the Court “ the names and number of the heirs-at-law of the late William Johnson, entitled to partition in the real estate, in the pleadings mentioned, and the amount coming to each,” who reported that the said William died intestate in the county of Rutherford, in the year, 1856, without issue or lineal descendant, and that he had had one brother and three sisters, who all died in his life-time, each leaving-issue. The names of the brother and sisters, were John, Martha, Amia, and Sarah;. John had eight children, Martha, three, Amia,, three, and Sarah, three; that Milly, one of the children of Sarah, was dead, and left seven children. The master reported that the- relatives of William Johnson were entitled to have a distribution of the fund per stirpes,. that is: the children of each of the four, (naming them) were-entitled to a fourth among- them, and that the children of Milly, the daughter of Sarah, were entitled to her share among them.

An exception was taken, to- the confirmation of the report by the children- of John, who contended that the division should be mad-e per capita among all the children of the four brethren of the said William, equally. The Court overruled the exception, and ordered the report to be confirmed, from which order, Willie Johnson, and others, the children aforesaid of John, appealed to this Court..

Jones, for the appellants.

No counsel appeared for the appellees in this Court.

Battle, J.

The facts of this case present the same question which was decided by this Court, in Clement v. Cauble, 2 Jones’ Eq. Rep. 82. In that case, the decision was not unanimous, a dissenting opinion having- been filed by the present Chief Justice; but since that time-, the rule of descents, of which it was a construction, (see Rev. Stat., ch. 38, Rule 3,) has been re-enacted in the Revised Code in precisely the same language, (see Rev. Code, chap. 38, Rule 3.) "We must, therefore, consider the Legislature as having given its sanction to the construction which was adopted in the case above referred to ; particularly, as that case is inserted as a marginal reference to the rule in question by the commissioners of publication, under the directions, given them in the 9th section of the act “ Concerning the Revised Codesee Revised Code, ch. 121, sec. 9. The decree made in.the Cotart below must be affirmed.

PeR Cobiam, ' Decree below affirmed.