Ballard v. Hill's heirs, 7 N.C. 410, 3 Mur. 410 (1819)

May 1819 · Supreme Court of North Carolina

7 N.C. 410, 3 Mur. 410

Benjamin Ballard and wife, and others, v. Thomas B. Hill’s heirs.

From Halifax.

Claim of the half blood in the case of a descended estate, prior to the act of 1808, cl). 4.

Henry Hill, being seised of the equitable estate in the lands, died intestate, leaving an only child, Joseph John Hill, upon whom the lands descended. His mother, the widow of Henry Hill, married a second husband, by whom she had issue, who were living when Joseph John Hill, their maternal brother, died intestate. Henry Hill left a brother named Whitmell Hill, who afterwards died, leaving an only son, Thomas B. Hill, his heir at law.

Upon the death of Joseph John Hill, in 1808, a question arose, whether the lands of which he died seised descended to Thomas B. Hill, his paternal cousin, and of the blood of the first purchaser; or to the maternal brothers and sisters of the said Joseph John Hill.

The Complainants are the maternal brothers and sisters — the Defendant is the paternal cousin, and the heir at common law.

Although this be a case of lands which came to the person last seised by descent, yet the half blood of the maternal line are entitled to the lands under the act of 1784, ch. 22.

The Complainants filed their bill in tbe Court of Equity for Halifax county against the Defendants, and therein charged that in the year 1789, Wiitmell Hill and Henry Hill, who were brothers, purchased a tract of land lying in Bertie county, for which they each paid equal moieties of the purchase money, but the conveyance was made to Whitmell Hill alone ¿ who agreed, to convey a moiety of tlic said land in fee simple to bis brother Henry Hill. That before any conveyance was made, Henry Hill died intestate, leaving Martha, bis widow, aud Joseph John Hill, his only child and heir at law. That after the death of Henry Hill, Whitmell Hill had tiie land divided and appropriated between himself and Joseph John Hill, but died without executing to Joseph John Hill a conveyance. That he made and published in writing his last wiii, whereof he appointed his son Thomas B. Hill his executor, and therein and thereby directed him to convey the land so appropriated to Joseph John Hill in fee simple, whenever he should request it. That Joseph John Hill departed this life in 1808, an infant, under the age of twenty-one years, without issue, aud without having applied for or received a conveyance from Thomas B. Hill.

That after the death of Henry Hill, Ids widow Martha, who was also the mother of Joseph John Hill, intermarried with Samuel Thorne, by whom she had issue HU'/,a, intermarried with Benjamin Ballard: William, Samuel aud Henry Thorne were all horn and living at the death of Joseph John Hill, their half brother on the mother's side; and who, since his death, had applied to Thomas 13. Hill, the executor of Whitmell Hill, to make them a conveyance for the lands appropriated to Joseph John Hill; that he refused to make such conveyance, alleging that he was of the whole blood of the first purchaser, Henry Hill, and entitled to the land in exclusion of them (the Complainants.) The bill prayed for a conveyance, &c.

To this bill Thomas B. Hill demurred j and the bill and demurrer were sent to this Court, and, upon a consideration of the case, the demurrer was sustained and the bill dismissed.

The Complainants immediately afterwards filed a hill to review the decree; and assigned, for error in the de - cree, that the land mentioned in the original bill descended to them on the death of their maternal half brother, the said Joseph John Hill, and that the prayer of their hill ought to be granted: that for this error and imperfection in the decree, they had brought their bill of review, and # prayed that they might be relieved therein,

npQ this bill the Defendant pleaded the former decree, and demurred to the opening of the enrollment,* and the case was sent to this Court.

The opinion of this Court upon the original bill is to be found in 2d Law Repos. 602, and the reasons for it in the same book, 390.

The case was argued by Gaston, for the Complainants, and submitted on behalf of the Defendant, upon the argument made in the case of “ Shepard v. Relf,” and to be found in the case decided at this term, of “ den on the de- “ mises of William B. Shepard and wife and others v. sc William Shepard.”

Gaston, for the Complainants.

The Complainants heretofore filed their bill of complaint to obtain from the Defendant a conveyance of lands, in which the Defendant had a legal title, and in which the Complainants alleged an equitable title. Joseph John Hill had died seised in fee of this equitable estate previous to the act of 1808. It had descended to him from his father. The Complainants are his maternal brothers and sisters, and claim to be his heirs at law, because he left no issue, and had no paternal brothers or sisters, or issue of such. There was a general demurrer to the bill. The question arising on the bill and demurrer was sent up to this Court, and there decided at July term, 1816, against the Complainants. Almost immediately thereafter they filed this bill of review, to which the Defendant pleads the former decree, and demurs to the opening of the enrolment. The question arising on this bill, plea and demurrer, is now to be considered.

It may be safely affirmed, that the decision made, sustaining the demurrer to the original bill in this case, was opposed to the uniform construction of the acts of 1784, from their date up to the year 1807, when the caso of She-pawl and Relf was hcavd in this Court. That case as follows l

In the year 1796, Samuel Johnston Swann died, seised of an estate which had descended from his father, and ■which was supposed to have come in a line of descent from remote paternal ancestors. The opinions of Johnston, Iredell, Davie, Moore, Taylor, Woods, Harris and Badger, were taken. They differed on the question, whether the mother had a life-estate ; but all agreed, that the inhe-lieritance went to John Swann’s maternal sister, in preference to more remote collaterals on the side of the father. A suit was brought to try the title, and it will be found reported in 3d Hayw. 115 and 246. — The Court, and the counsel on both sides expressly declare the title of the father’s half sister to the inheritance as indisputable. 2 Hayw. 115, 116, 246, 7, 252, 3, 4, 5.

For the first time, the doctrine under examination was advanced in 1807, when the more distant collateral relations of the paternal side to John Swann, brought suit. This case was known by the name of “ Shepard and “ Relf.” — After suit was brought, it was discovered that John Swann had acquired the lands by purchase, and not by descent ; so that the question now under consideration, was not involved in it. The opinion under examination needed not to have referred at all to ie Shepard and Relf j” and shows that the case itself was not accurately known.

1st. It is an important preliminary enquiry, where is to be found the law of descents applicable to the present case ? Is it partly in the old canons of descent, and partly in the acts of 1784, or is it wholly in the latter ? — This question mainly depends on the enquiry, were these acts designed to amend certain defects in the old law, or to make a new law of inheritance ?■ — There are many reasons to believe that the acts designed to make a new law. — The title holds out the idea of an entire new law; “ to regulate the “ descents of real estates and the title may properly indicate the scope of a law, 3 Crauch 590, Plow. 203.— The different preambles, in connexion with the history oí: the times, strengthens this supposition. A revolution in government had just been effected, and the conquerors , „ , , were desirous to adjust the laws or real property to the principles of the new establishment, they speak of “ the “ spirit of a genuine republic,” in opposition to that of a monarchy; declare their disregard of “ feudal principles,” as having no application here ; their dislike of principles “ tending to perpetuate wealth in families•” of such as were hostile to their notions “ of natural equity“ of *£ maxims not founded in reason, and iniquitous in their “ consequences.” — The circumstances of the country seemed to call for a new code. Here lands were move like moveables ; the objects of daily acquisition and ordinary barter; to be had by entry, subject to bo sold for debts, freed from the incumbrances of dower, entails and survivorship. The spirit of the times was bold and innovating, and not very favorable to British policy or British laws.

Let us also look to the phraseology of the acts. “ 'When “ any person shall die seised of any estate, his estate shall ts descend in the following manner.” — This is the language of laying doivn the rule. Every word is enacting; not one word repealing, amending or modifying.

The mode adopted in the acts is not of referring to ancient canons, repealing some, and modifying others : hut the thing itself, the inheritance, is taken up as being tin-own into their hands by the death and intestacy of the last holder, and is by them disposed of. — By this mode, every possible case is provided for : all the old rules are necessarily brought under review, and what they like of them is taken and enacted. Thus the estate, however acquired, is given, in the first place, to all the sons, and. for want of them, to daughters. The issue of deceased child? en are to represent their parents, and advancements are to he brought into hotchpot. — Next to all brothers, then to sisters'; with two modifications, one in favour of the issue of a deceased brother or sister, and the other pre-fcrring those on the side of the parent from whom the land descended — then to more distant collaterals, with the same rules as to age, sex and representation. This was the whole of the original scheme. But afterwards, on suggestion of a particular inconvenience, a special provision is made for parents in the 7th section, which also affects certain cases of remote collaterals.

A complete system being thus formed, the old one is expressly and in Mo repealed. See 17th section. — 55 Where “ a former law is inconsistent with a latter, it is necessa- “ rily repealed. But where the latter is reconcilcable “ with the former, but legislates on the same subject, and “ repeals all laws within its purview, the former is repeal-ee ed.”^*

If amendments alone had been contemplated, where the old law was approved, the Legislature would have refrained from acting. Instead of this, what they approve in it, they enact; for instance, ie that issue shall represent their ancestors.” ,

The act is the most important one in our statute book, and wTas designed to be universally intelligible. Not one learned or technical phrase in it. Mow is such a design reconcileable with a silent retention of old canons of descent, known only to the learned, and not discovered for twenty-three years afterwards ?

2dly. If the acts of 1784, contain the law, what docs that law say ? — The only enacting part which embraces this case is that of the 3d section of the act of April 1784. This, in plain words, declares, “ that when any person “ shall die seised of any estate of inheritance and leave “ no issue, such estate shall go to his brothers, &c. as “ well those of the half blood, as those of the whole,” &c. And it contains but two exceptions ¿ one, that brothers, &c. on the .side of the parent from whom the lands had descended, shall be preferred to those on the other side; the oilier, in favour of the issue of deceased brothers or sisters.

By the words taken in their obvious and ordinary sense, the Complainants are clearly entitled, and,

Sdly. is there any indication of legislative intention, warranting a construction variant from the words thus understood? — “When the words of a statute, interpreted “ in their ordinary and obvious sense, lead to a gross vio- “ lation of rights, we may hesitate in giving them such a “ construction; but if they produce only what we deem “ political inconveniences, wc have no right to depart “ from them.”^*- The man most conversant in legislation best knows the danger of refined and recondite interpretations.

What are the reasons assigned to require a departure from the plain words of this seetion ? Lot us examine them.

1st. It is objected, that the proviso to the third section shews, that the Legislature did not mean to place the half blood and the whole blood preciscely on the same footing •. for if they did, the proviso is unnecessary. To this it may he answered, that the Legislature intended the equal admission of half and whole blood to be the general rule $ but as this rule was not designed to be universal, they have declared the exception. It is right to construe this exception fairly, and to observe it faithfully, but not to turn it to the destruction of the mile. It proves the general rule it shews that the law-makers were aware that the enacting words did embrace all brothers, &c. of the half blood, and did apply to descended as well as purchased estates. As they meant, in tlie case of a descent from a parent, to give a preference to brothers, &c. on that side, over those on the others, they have said so. Had they meant any fur-viier preference, or any other exception, they would have expressed it. Had it been designed to exclude such half blood utterly from the inheritance, nothing would hare been easier than to have said so. The proviso says, brothers of one side shall be postponed to those on the other 5 and this is thought indicative of an intent that they never shall take, but that the lands shall rather escheat.

2d. It is further objected, that unless such a half brother be entirely excluded, a brother of the half blood on the side of the parent from whom the inheritance came, will be-preferrcd to him 5 but a brother of the whole blood will not. It is denied that such a consequence flows from the construction, for which the Complainant’s contend — the equal admission of the half with the whole blood, is the general rule; but the proviso stipulates an exception, by which brothers, on the side of the ancestor from whom the lands descended, shall exclude or be preferred to those not on that side : and this privilege or preference belongs to the former, whether of half or whole blood. The words are “ to the same manner as brothers and sisters of the whole blood.” The enacting clause had not only declared that brothers should inherit where there was not issue, but had raised the half to an equality with the whole blood brothers : and the proviso declares that in case of a descent from a parent, this equality belongs to those only on that side. This is a fair, natural, and obvious interpretation of the proviso, and removes the supposed necessity for a violation of the text.

The 7th section of the act of April, 1784, is referred to as furnishing an argument in favor of restricting the descent to the blood of the ancestor from whom the lands descended. This reference has been made without due reflection : for there is not a provision in this section, applicable to the case of a descent from a parent. So it has been decided in this Court in the case of “ the Trustees of the iS University v. Holstead.”^*

The amendatory act of October, 1784, cli. 10, is also insisted oh as furnishing arguments in support of tins de-partore from the obvious soaso of the words of the Sd scc-j^0Ji ((£ j.|ie acj;t This reference is believed to be equally unfortunate. The opinion under review supposes that in the Sd section it is declared as an universal and subsisting rule, that the paternal line is to ho favored over the maternal. There this supposition correct, it might have its influence to prove another and distinct point, (winch, however, the Court has unanimously decided, is unfounded) that in furckased inheritances, blood from male stocks is preferred to that from female stocks : hut it would have no hearing on the present question. The preference referred to as belonging to the paternal over the maternal line, is that existing in cases coming under the 7th section of the act of April, 1784, and such as was liable to be altered by the accident of death. By that section, a preference, where there is no issue, nor brother nor sister, nor issue of such, and the estate has not descended, is generally given to the father and his line; hut- in one instance it is destroyed by the contingency of death. If the father and mother be both living, it goes to the father, if the father alone be living, he takes. If both be dead, then, in the first place, it goes to the heirs on the part of the father; but if the father he dead, and the mother be living, then it goes to the mother and her heirs. That this preference was such only as is given by the seventh section is manifest; for it does not exist where the estate has descended ; and it is liable to be altered by tbe contingency of the death of one of the parents; which alteration can never be, while there is a brother or sister. It is, therefore, a preference limited to the cases specified in the 7th section, and, to secure it, the Legislature proceed to enact that where' the estate has not descended, and the intestate has left no issue, nor brother nor sister, nor issue of such, then the mother shall take for life.

But, in an early part of the opinion, it is intimated‘that rho Legislature have shewn by this amendatory act, that they considered some of the old common law rules of descent yet subsisting,- for they admit the necessity of amending the first act, in order to let in brothers of the whole blood. If the preamble of tins amendatory act be compared with the third section of the first act, it will bo seen that the doubts designed to be removed were founded on over-nice, verbal criticism. It was suggested, that possibly the words “ as well of half as whole blood,” in strict grammatical construction, applied only to the next antecedent, “ sisters and that the admission, in one case might be interpreted into an exclusion in the other case. The doubt was ridiculous enough ,- but from a great anxiety to free their new code from all ambiguity and cavil, they deemed it not amiss to guard against such misconstruction. Is this an admission that the doubt arose from supposing the old canons to exist ? Is it an admission that though the doubt was wrong, the cause from which it arose was right ? Is it an admission that even an amendment was necessary ? It was supposed harmless, though every intelligent man must say it was entirely unnecessary.

The Complainants insist that this amendatory act furnishes a strong argument in favor of their doctrine. Yer-bal critics had been busy with the 3d section of the act of April, 1784. They had suggested doubts the most refined and far-fetched, founded on a literal interpretation of the law. It is conceded, that the interpretation of the Complainants is not only according to the letter, hut is so obvious that it must be adopted, unless abundant reason be shewn to the contrary. It is known that this interpretation was, till 1807, universally adopted by Judges, Lawyers, and people. Is it possible that it had not then occurred to any one ? Or that it did not occur to the lawmakers themselves when revising this section ? if it did occur, and was not the true construction, would they not, while explaining and amending the act, have guarded against it ? Yet, instead thereof, in an act professedly explanatory and amendatory, they declare, in terms more precise, calculated to confirm the error, “ that it ivas the (( intent of the Legislature to let in brothers of the half st blood equally with those of the whole.”

4th. Not only is there a defect of reasons to induce a departure from the obvious sense of the third section of the act of April, 1784, but there are the strongest considerations to forbid it. It cannot succeed, without an interpolation into the text of words like these,. “ they being of u the blood preferably entitled to the inheritance by the “ rules of the common law.” Such an interpolation would not be a construction of law, but an amendment of it — not •a judicial, but a legislative act. In a will, words cannot be inserted to alter the sense' — even to advance what we believe equitable, and conforming to the testator’s wishes. A devise, without some words of perpetuity, was but for life. Judges in England never dared to interpolate words of perpetuity | and here the evil was left for legislative remedy. A devise to A and his heirs, and if he dies without issue, to B. Our Judges have never dared to interpolate “ leaving,” though to make the will effectual. Have they a greater license over the universal will, which the Legislature, with all their wisdom and deliberation, have enacted for all intestates ? The dangers of such a precedent are not to be foreseen and calculated.

Such an interpolation makes the Legislature guilty of the greatest absurdities. The section, so altered, would lay down a rule by which the inheritance is restricted to the blood of the purchaser, and yet a proviso is annexed to keep out that half blood, which the rule will not take in. The section, so altered, would lay down a rule by which the brothers of the half blood on the mother’s side, in a purchased estate, shall be postponed to the brothers on the side of the father, and in an estate inherited from the father, shall not take at all. And the proviso would, in that case, seem to bare been prepared to guard against their taking equally in the latter case only.

The section establishes a rule, by which not only all the relations on the side of the purchasing ancestor, hut that the State shall take before this interdicted class of brothers. Yet, by way of special favor, “ brothers” of the favoured line are to bo put, before whom ? — those who are utterly excluded.

Thus amended, the section compels us to give a preference in purchased estates, to all the relations of the father, over brothers on the side of the mother. Every reason resorted to, for the purpose of proving the 5th canon unre-pealed, shews also that the 7th is in force. Indeed, those drawn from the amendatory act and the 7th section apply only to the former : yet it is now conclusively settled, that in a purchased estate, the brothers on ike side of the mother are on an equality with those on the side of the father.

It is believed and hoped, that we shall return to the old construction unfortunately broken in upon by the former decision. All disputes, and contradictious, and uncertainties, will then he removed forever : raid the law restored to what it was universally understood to be for twenty-three years after its enaction. In all estates, if there were no issue, brothers should take: hut among brothers, in case the inheritance had descended from a parent, a preference should he given to such as were on the side of the parent. But in no instance was the claim arising from proximity, to be postponed, to let in a feudal principle, unknown to all nations where the feudal system had not prevailed, and calculated to perpetuate wealth in particular families.^*

* By Chief-Justice Marshall in 2 Hayvv. 228.

By Judge Haywood in 1 Hayw. 245.

By Supieme Court of the United States in 2 Wheaton 139.

* 2 Cranch 390. 4 Dabas 34, (Note.)

* 2 Raw Repos. 406,

* 2 Hayw. 253. 2 Black. Com. 220.

Tayj.or, Chief-Justice,

delivered the opinion of the Court:

The claim of the Complainants arises on a descent from a maternal half brother, of lands which descended from, his father, or of lauds descending from the paternal sido : and 'vhethcr their claim be well founded, depends upon the.true construction of the acts of April and October, 1784. The Rcction of the first act, without the proviso, is in tiieso words, i( that if any person dying intestate, should, 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 e< inheritance in lands, or other real estate in fee simple, “ and without issue, such estate or inhcrtance shall des- “ ccrul to his or her brothers, and for want of brothers, to s{ his or her sisters, as well those of the half blood as those “ of the whole blood, to be divided among them equally, “ share and share alike, as tenants in common, and not as “ joint tenants $ and such and every of them shall have, “ hold and enjoy, in their x’espective parts or portions, “ such estate or inheritance as the intestate died seised or “ posses,sed of or entitled unto.” Were the case to depend on this enacting clause, the Complainants’ right to the inheritance would be beyond controversy : for the words ex-lond to every person dying seised of any inheritance, whether acquired by descent or purchase, whether it descended from the paternal or maternal line 5 and embrace both sorts of half blood, as well the maternal as the paternal. The clause must necessarily continue to govern every case that is not withdrawn from its operation by some proviso $ and, therefore, it must direct the descent in this case, unless it be prevented by the proviso. The words of the proviso are, 6i that when the estate shall have descended on ’e the part of the father, and the issue to whom such inhe- “ ritance shall have descended, shall die without issue, “ male or female, but leaving brothers or sisters of the “ paternal side of the half blood, and brothers or sisters of “ the maternal line, also of the half blood, such brothers “ and sisters respectively of the paternal line shall inherit, *•' in the same manner as brothers and sisters of the whole “ blood, until such paternal line is exhausted of the half " Mood: and the same rule of descent and inheritance shall es prevail amongst the lialf blood of the maternal line, un- “ der similar circumstances, to the exclusion of the pater-íS nal line.” The proviso then gives a preference to the half blood of the line from which the estate descended, when the competitors for the inheritance are the half blood of that line, and the half blood of the line from which the estate did not descend. But there are no words in it, which are exclusive of the latter half blood, where there is none other in equal degree, and recommended by the reason given for the preference, to claim it from them. On the contrary, the words “ until such lino is exhausted of “ the half blood,” carry with them a strong implication, that when such an event shall occur, the other line of half blood shall be taken into the inheritance. The word <c -until,” which signifies the same as “ to the time that,” seems to import, that when the half blood of the favoured line gives out, the other half hlood shall inherit. The enacting clause has viewed with undistinguishing regard and favor the half hlood of both lines; the proviso has selected a particular case, wherein the preference shall be given to one set: in all other cases, therefore, as well where the reasons of the preference have ceased to operate, as where they have never existed, the other set of half blood must be entitled.

A man having issue, and having also brothers and sisters of the half blood on the father’s side, and,brothers and sisters of the half blood on the mother’s side, for peculiar reasons, thinks proper to devise his estate to all his brothers and sisters, as well the half blood on one side a$ on the other, hut annexes a condition to the devise, that the paternal half hlood shall enjoy the estate, until that line be exhausted: Of the intention of the testator in such a case, it does not seem possible to doubt. The legality of tbe devise is another question.

The other proviso is, “ that if any brother or sister of “ the intestate shall have died in the life time of the intes- “ tate, leaving issue, male or female, such issue shall re- “ present their deceased parent, and stand in tlic samo “ place, he or sise would have done, if living.” There io nothing in this proviso, which can hare any tendency to impair the right of the Complainants; the only object of it being to provide for collateral descents as far as brothers’ and sisters’ children.

The proviso of the 2d section had made provision for lineal descendants as far as grand children $ and in order to complete the system, the words of the 4th section arc, " that the same rules of descent shall be observed in lineal “ descendants and collaterals respectively, whore the lineal iS descendants shall he further removed from their ancestor iS than grandchildren, and where the collaterals shall bo “ further removed than the children of brothers and sis- “ tors.” What is meant by “ the same rules of descent ?” Clearly the rules established by the preceding sections, one of which is, that where there are two sets of half blood, the set of that line from which the estate descended, shall be preferred to the line from which it did not descend : Consequently, uncles and aunts, great uncles and great aunts, &c. of the line from which the estate descended, shall exclude uncles and aunts, great uncles and great aunts, &c. of the line from which it did not descend. In other words, where those who claim the inheritance are in equal degree, or represent those who were, the acquiring line, shall be prcfciTcd. Where the claimants are not in equal degree, the proximity of degree shall decide the right to the inheritance. This appears to the Court to he the true interpretation of these sections of the act of 1784, and to arise naturally from the words, as well as being consonant to the views of the Legislature, and to the spirit in which the act was framed. To exclude the maternal half blood for the sake of a remote collateral, or to suffer the land to escheat rather than permit the half blood to inherit, docs not seem to accord with the sentiment expressed in the preamble to the 3d section: “ And whereas it is almost “ peculiar to the law of Great Britain, and founded in 44 principles of the feudal system, which no longer apply 44 in that government, and never can in this state, that the 44 half blood should be excluded from the inheritance, 6a;.”

It is true, that the law of England gives a preference to the male stock; and there is a partial recognition of the same principle, in the 7th section of the act of April, 1704,’ amended by the act of October, 1704 j which provides, 44 that in case of the death of any person intestate, leaving* 44 any real estate actually purchased or otherwise acquired,1 44 and not having* any heirs of his body, nor any brother 44 or sister, or the lawful issue of such, then such estate 44 shall bo vested in the father of the intestate, if living, 44 but if dead, then in the mother for life, then in the heirs 44 of such intestate on the part of the father, and for want 44 of heirs on the part of the father, then in the heirs of the 44 intestate on the part of the mother forever.”

It is to be observed on this section, that the father is called in, only upon the son’s dying* without lineal heirs, and without brothers or sisters, or the issue of such. The preference of the male stock has been confined strictly to the cases enumerated in the 7th section, and its amendment, to-wit, to cases of estates purchased by the intestate. And on this point, the decisions have been uniform, allowing* the half blood to inherit, when the land was purchased, and giving them the preference to the father and tiio male, stock.

A section inserted for the purpose of giving a preference, to the male line, amended to prevent that preference from being* interrupted by the accident of death, is yet so restricted in its terms, and so modified by judicial exposition, admitted to be just, that the favoured stock is called to the inheritance only after the failure of issue in the intestate, and the failure of brothers and sisters of every description, maternal as well as paternal half blood. It appears to the Court, that every reason for thus confining* and limiting* the preference of the male line under this clause, applies with increased strength to prove, that the preference ought to be strictly confined under tlie third section, to the half blood of the acquiring line : that they, and they only, shall exclude the half blood of the non-acquiring line. A con-gjs|en| mcaning will he thus given to the Sd clause, to the proviso, and its extension by the 4th section, which would then read, “ Where any person shall die intestate, without iS issue, and without brother or sister, or the issue of such, “ leaving uncles or aunts of the line from which the estate descended, and uncles or aunts of the line from which •e the estate did not descend, the former uncles or aunts u shall exclude the latter.”

There is also a declaration in the 3d section of the act of October, 1784, « That the paternal line is favoured in “ all other instances,” and it proceeds to guard against the estate being transferred to the maternal line, by the death of the father before the mother of the intestate, which would have happened in consequence of the phraseology of the 7th section. It is apprehended that tins declaration relates only to the instances in which the paternal line is favoured in the 7th section j to-wit, that in purchased estates, it shall ascend to the father, if living, but if he be dead, and the mother likewise, that it shall descend to the paternal heirs, and continue in that line as long as there are any heirs. So that it is favoured in all cases of purchased estates, except where the father be dead and the mother bo alive : in which case, the heritable line was diverted from the paternal. When the Legislature were about to remedy this only case in which the paternal line was not favoured in the 7th section, with respect to purchased estates, it was natural to advert to the other cases where it ivas favoured ,• and in relation to tisis provision, it was favoured “ in all other instances.” In no other sense can the declaration be considered correct ; for no preference, is given to it in any other part of the act, except in entitling males before females, it is not preferí ed in descents ,• it is not preferred where the estate descends from the maternal line ; it cannot be preferred by force of the scrcnlli canon of descents, for that plainly comes within the purview of tbe 7th section, and the amendatory law, and, as such, is repealed and made void.”

The sixth canon of descents, excluding the half blood, was unquestionably repealed by the third section of the act of April, 1784, for the same reason : from which time the half blood became entitled. In October, 1784, the Legislature say, “ that doubts have been entertained whe- “ ther brothers of the half blood shall be entitled to sue-e< cccd to the inheritance in the same ¡nanne- as .sisters do, “ where there is no brother, nor the issue of any such and they proceed to declare that it was their intention, in the third section of the act of April, 1784, to let in bi-others of the half blood, equally with brothers of the whole blood, &c. This act was passed from abundant caution, and to guard against a construction in opposition to the declared will of the Legislature, and one which it is believed would not be recognized by a Court of Justice j since the rule of law is, that relation shall be bad to the last antecedent, unless it obstruct the sense. The preamble to the third section expresses the intention to admit the half blood; and the construction of tbe words, unless much refined upon, conveys that intention. The Legislature say that doubts have been suggested: to prevent them in future, they declare what their original intention was, and change the language of the third section.

So far as the Legislature have declared a preference for the line of the purchasing ancestor, or the male stock, the Court is bound to execute their will; but it does not feel bound by any considerations of expediency or justice to preserve a preference, where it is not clearly to be collected from the law. The principles are peculiar to the laws of England, and others derived from the feudal sys - tem, and were unknown to the enlightened republics of antiquity. The system is purely artificial, and, in some respects, repugnant to our notions of justice and the obis - gations of duty. So far as natural reason suggests any thing on the subject, a law regulating the descent of, estates should be founded on the presumed will of the de-ceasc<l> ar|d regulate the succession in such a manner as he, probably, would have done, under the united dictates of duty and inclination. The strongest affection is between parents and' children; and the next, the love between brethren, arising from their relation to the same common stock, heightened by youthful association, and the likeness of years and education.

The last owner of an estate is as completely so as any former one; and it is quite as reasonable to consult his' presumed inclination as that of a remote ancestor. It is not probable that he would prefer a distant collateral, because of the male stock, to his maternal brothers ; nor is it certain that duty would require him to do it, because the remote relation was of the acquiring blood. The law-relative to the distribution of personal property has excluded all these principles, and its justice is generally approved.

For these reasons it is the unanimous opinion of the Court that the demurrer be overruled and the bill sustained.^*

* Taylor, Hall, and Murphey, (who sat for Judge Henderson,) composed the Court. Judge Henderson had been of counsel in this case, and gave no opinion in relation to the judgment. His opinion had formerly been adverse to the claim of the half blood; but, after the judgment was rendered in this case, he declared that, upon mature consideration, his opinion had changed, and that he concurred in thinking the half blood were entitled.