Opinion
May Term, 1819.
From Halifax.
Claim of the half blood in the case of a descended estate, prior Laws 1808, Ch. 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 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 the Court of Equity for HALIFAX, against the Defendants, and therein charged that in 1789, Whitmell 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 the said land in fee (411) simple to his brother Henry Hill. That before any conveyance was made, Henry Hill died intestate, leaving Martha, his widow, and Joseph John Hill, his only child and heir at law. That after the death of Henry Hill, Whitmell Hill had the 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 will, 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, and without having applied for or received a conveyance from Thomas B. Hill.
Gaston, for the Complainants.
That after the death of Henry Hill, his widow Martha, who was also the mother of Joseph John Hill, intermarried with Samuel Thorne, by whom she had issue Eliza, intermarried with Benjamin Ballard; William, Samuel and Henry Thorne were all born 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 B. 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.
, SEE 7 N.C. 259.]
To this bill Thomas B. Hill demurred; 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 bill to review the decree; and assigned, for error in the decree, 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 bill ought to be granted; that for this error and imperfection in the (412) decree, they had brought their bill of review, and prayed that they might be relieved therein.
To 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 Ballard v. Hill, 4 N.C. 404, and the reason for it in Hilliard v. Moore, Ib., 392, same book, 590.
The case was submitted on behalf of the Defendant, upon the argument made in Shepard v. Shepard, ante, 333.
The claim of the Complainants arises on a descent from a maternal half brother, of (422) lands which descended from his father, or lands descending from the paternal side; and whether their claim be well founded, depends upon the true construction of the acts of April and October, 1784. The third section of the first act, without the proviso, is in these words, "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 of inheritance in lands, or other real estate in fee simple, and without issue, such estate or inheritance 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 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 respective parts or portions, such estate or inheritance as the intestate died seised or possessed 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 extend to every person dying seised of any inheritance, whether acquired by descent or purchase, whether it descended from the paternal or maternal line; 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, "that when the estate shall have descended on the part of the father, and the issue to whom such inheritance 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 blood: and the same rule of descent and inheritance shall prevail amongst the half blood of the maternal line (423) under similar circumstances, to the exclusion of the paternal 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 line 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 "until," which signifies the same as "to the time that," seems to import, that when the half blood of the favored line gives out, the other half blood shall inherit. The enacting clause has viewed with undistinguishing regard and favor the half blood 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 as on the other, but annexes a condition to the devise, that the paternal half blood 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 the 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 intestate, leaving issue, male or female, such issue shall (424) represent their deceased parents, and stand in the same place, he or she would have done, if living." There is nothing in this proviso, which can have 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 an order to complete the system, the words of the 4th section are, "that the same rules of descent shall be observed in lineal descendants and collaterals respectively, where the lineal descendants shall be further removed from their ancestors than grandchildren, and where the collaterals shall be further removed than the children of brothers and sisters." 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 bloods, 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 preferred. 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 be 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, does 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 principles of (425) the feudal system, which no longer apply in that government, and never can in this State, that the half blood should be excluded from the inheritance, c."
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 section 7 of the act of April, 1784, amended by the act of October, 1784; which provides, that in case of the death of any person intestate, leaving any real estate actually purchased or otherwise acquired and not having any heirs of his body, nor any brother or sister, or the lawful issue of such, then such estate shall be vested in the father of the intestate, if living, but if dead, then in the mother for life, then in the heirs of such intestate on the part of the father, and for want of heirs on the part of the father, then in the heirs of the 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 the 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 favored 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 the third section, to the half blood of the (426) acquiring line; that they, and they only, shall exclude the half blood of the non-acquiring line. A consistent meaning will be thus given to the 3d clause, to the proviso, and its extension by the 4th section, which would then read, "Where any person shall die intestate, without 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 the estate did not descend, the former uncles or aunts, shall exclude the latter."
There is also a declaration in the 3d section of the act of October, 1784, "That the paternal line is favored 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 this declaration relates only to the instances in which the paternal line is favored in the 7th section; 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 be 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 favored in the 7th section, with respect to purchased estates, it was natural to advert to the other cases where it was favored: and in relation to this provision, it was favored "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 preferred in descents; it is not preferred where the estate descends from the maternal line; it cannot be preferred by force of the (427) seventh canon of descents, for that plainly comes within the purview of the 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 whether brothers of the half blood shall be entitled to succeed to the inheritance in the same manner 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 brothers 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; since the rule of law is, that relation shall be had 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 the 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 system, and were unknown to the enlightened republics of antiquity. The system is purely artificial, and, in some respects, repugnant to our notions and the obligations of duty. So far as natural reason suggests any thing on the subject, a law regulating the descent of estates should be founded on (428) the presumed will of the deceased; and 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. Cited: Pritchard v. Turner, 9 N.C. 436; Seville v. Whedbee, 12 N.C. 169; Caldwell v. Black, 27 N.C. 467.
TAYLOR, HALL and MURPHY (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.
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