Hall v. Jacobs ( 1817 )

Buchanan, J.

delivered the opinion of the Court. It appears from the case stated, on which the judgment of the court below was founded, that Bichara Jacobs, son of Joseph, in the year 1783; died seized in fee of the land for which this suit was brought, having first made his last will and testament, whereby he 'devised it in fee -to his three children, Joseph Jacobs, Dorsey Jacobs, and Rachel Jacobs, as tenanis in common; that after the deatli of the testator, sometime in the year 1800, Joseph and Rachel Jacobs, two of the devisees named in the will, died seized in fee of two thirds of said land, intestate and without issue, which two thirds thereby descended to Dorsey Jacobs, the other devisee in the will mentioned, who being seized in fee of the whole of the land, died sometime in the year 1803, intestate and without issue, having no brother or sister of the whole blood, or descendant of such brother or sister, but leaving three brothers and two sisters of the half blood, to wit, John Ball, the defendant in the court below, Daniel Hall, Richard Jacobs Hall, Elizabeth Hall and Sarah Hall, mm Sarah Cromwell, children of his mother by a second marriage, and also an uncle ami two aunts, who are the lessors of the plaintiff', to wit, John Jacobs, the orother of the whole blood tí) his father Richard Jacobs, the testator, and Elizabeth ftalker and Hannah Fowler, his father’s sisters of the whole blood. And the question for consideration is, to whom did the land descend on the death of Dorsey Jacobs — to his brothers and sisters of the half blood — * to his uncle and aunts of the whole blood on the part of his father equally, or to his uncle John Jacobs alone, to the exclusion of his two aunts Elizabeth Walker and Hannah Folder? And this must depend upon the provisions of the act of assembly of this state, entitled, “An act to direct descents,”-, 1786, ch. 45, Joseph, Rachel and Dorsey Jacobs, having ail died since the passage of the act. It no where appears whether Joseph or Rachel died first, but that is not material, the result is the same. Dorsey Jacobs became seized in fee of the whole of the premises in the declaration mentioned, one. third by purchase under the will of his father Richard Jacobs, and the other two thirds by descent from his brother and sister Joseph and Rachel, under the operation of the act of descents. As to the one third of the land which Dorsey Jacobs acquired under the will of his father, it is contended, that though it was vested in him by purchase in technical understanding, yet that it was not such an estate by purchase, in the meaning of the act of descents, as can descend to his brothers and sisters of the half blood. The act, after providing a course of descents for estates descended to an intestate on the part of the father, aud also for estates descended on, the part of the mother, has this provision: “And if the estate is or shall be vested in the intestate by purchase, and not derived from or through either of his ancestors, and there be no child or descendant of such intestate, then the estate shall descend to the. brothers and sisters of such intestate of the whole blood, and their descendants, in equál degree equally; and if no brother or sister of the whole blood, or descendant from such brother or sister, then to the brothers and sisters of the half blood, and their descendants, in equal degree equally,” &c. And it is said. that the word “purchase,” as here used, is not to be taken in the full extent in a technical or legal sense, but must be considered so far restrained by the subsequent words, as not to embrace estates acquired’ by deed or devise from an ancestor; and the opinion of the court below goes upon the ground that the words, “and not derived from or through ' either of his ancestors,” were used to qualify and limit the words “vested by purchase,”'and to distinguish an estate b) deed or devise früm a parent or other ancestor, from all other descriptions of purchase. And-fifjthat construction of the act of assembly be right, the lessors of the plaintiff are not entitled to recover in this action, for it is manifest that the one third of the land which went to Dorsey Jacobs under the will of his father, was not derived by descent, but was an estate by purchase, and is not therefore within that branch of the act which directs the manner in which lands shall pass from an intestate that came to him by descent; and if an estate acquired by deed o,r will from a parent, or other ancestor, is not an estate by purchase, within the meaning and intention of the act, and cannot for that reason pass by descent from the purchaser to his brothers and sisters of the half blood, it is a description of estate not provided for by the act, and must go as at common law. Hence it would follow, not only that the brothers and sisters of Dorsey Jacobs of the half blood would not be entitled to inherit the one third of the land so acquired by him, but that John Jacobs, one of the lessors of the plaintiff, would take it as heir at law to Dorsey Jacobs, to the exclusion of his sisters, Elizabeth Walker and Hannah Fowler, the other lessors.

But such a construction cannot prevail. The act of assembly employs throughout the technical terms seized, descent, purchase, which must be understood in their legal sense. An estate by purchase is one acquired by sale or gift, or by any other method, except only that of descent. The law knows no such distinction, as is here set up, between a gift or devise by a stranger, and a gift or devise by an ancestor, and there is nothing in the act of assembly to warrant us in sustaining it. It would seem like bending the law to the particular case, rather than the case coming within the provisions of the law.

The legislature have used- the words, “and not derived from or through.either of his ancestors,” to explain their meaning of the word “purchase.” In doing this they have borrowed the language of the common law, and it is difficult to suppose that they intended to change the legal import, of the term by adopting the legal definition of it. Without using the term “descent” or “descendant,” no set of words could be selected better suited to the purpose of describing an estate by descent than the words “derived from or through an ancestor,” the term “derived” being properly applicable to a case of descent, and the word “through” of necessity implying it, since a purchase cannot be through any one.. The words “and not derived from or through either of his ancestors,” can therefore only be taken to mean, “and not by descent,” leaving the word “purchase” tobe understood in its technical and most comprehensive sense, and the whole clause to be construed as if, instead of the words “by purchase, and not derived from or through either of his ancestors,” the language employed was by purchase, and not by descent. In this view of the subject, the estate which W'as vested in Dorsey Jacobs, by purchase under the will of his father, is embraced by the act of assembly, and on his death descended to his brothers and sisters of the half blood. With respect to the two thirds of the land which were vested in Joseph and Rachel Jacobs, by purchase, under the will of their father Richard Jacobs, there appears to be more difficulty. Whatever the intention of the legislature may have been at the time of the passage of the act of descents, it is very cleat” that they have not in terms provided for more than three classes of cases; first, estates descended to the intestate on the part of the father; secondly, estates descended to the intestate on the part of the mother; and thirdly, estates vested in the intestate by purchase, and not derived from or through either of his ancestors. And there being no other cases provided for, if this case does not fall within cither of these classes, it is not embraced by the act, and cannot descend either to the brothers or sisters of Dorsey Jacobs of the half blood, or to the lessors of the plaintiff equally. To which then, (if to either.) of these three specified classes does it belong? Is it an estate by purchase? In a technical sense it certainly is not; nor is it in vulgar understanding. It is not therefore embraced by the third branch of the act, which provides for estates “vested in an intestate by purchase, and not derived from or through either of his ancestors,” unless that clause can be understood to mean that every acquisition of lands, except by descent, paternal or maternal, shall be held and considered to be an estate by purchase. The general intent of the legislature may often be gratified by construction, where the expressions used are of doubtful meaning, but never when it cannot be done without manifest violence to both the ordinary and legal import of the terms employed. Had they expressly declared that all estates, except those by descent on the part of the father or mother, should be deemed estates by purchase, though that would be giving to the word ‘purchase” a signification not before known to the law, yet it would govern all estates coming within that legislative description. But they have not said so in terms, and there is nothing in the whole clause from which such an intention can be inferred; and to give it such a construction, contrary to the obvious meaning of the words, whether technically or vulgarly understood, merely upon the supposition that it was not the intention of the legislature to exclude from the operation of the act any description of estate, and because no other provision of the act could be found to embrace it, would be arbitrary and dangerous, arid at variance with every known rule of construetion. If it was the intention of the legislature to provide in the third clause by the description of ‘'estates vested by purchase,” for all estates not descended ex parts pater-na or ex parte materna, they have not made use of words to effectuate that intention, and a court of lav/ cannot supply the omission. Nor is it believed that they intended that clause to have such operation. It is not therefore an estate that vested in the intestate by purchase, ami did not descend to the brothers and sisters of Dorsey Jacobs of the half blood j and it is equally clear that it is not an estate which descended to the intestate, either on the part of the father or on the part of the mother, and is not within either of the two classes of cases first specified, and could not therefore descend to the lessors of the plaintiff equally. But it was vested in Dorsey Jacobs by immediate descent from his brother and sister Joseph and Rachel, a course of descent expressly directed by the act of assembly iri the case of a purchaser, who dies intestate, leaving no child or descendant, and is known also at common law. This then being neither the case of ari estate descended to the intestate on the part of the father, an estate descended to the intestate on the part of the mother, nor are estate by purchase, but a descent from brother to brother, it is not within the act of assembly, and is a casus omis-sus, subject to the rules of the common law governing descents. The lessors of the plaintiff cannot therefore take it by descent equally, which they could only do had it been vested in the intestate by descent ex parte paterna. By the common law, if a man purchases land, he is by fiction understood to hold it ut feudum antiquum, not as land descended either ex parte paterna or ex parte mater-na, for the law will not ascertain if, but as an estate derived to him from some unknown ancestor^ and if he dies intestate and without issue, it will go first to the heirs on the part of the father, and on failure of such heirs, then to the heirs on the part of the mother, the males being always preferred to the females, and amongst males the right of primogeniture prevailing. And so in this case, the land in question having passed by immediate descent to Dorsey Jacobs, from his brother and sister, Joseph and Rachel, who acquired it by purchase, on his death intestate and without issue, leaving no brother or sister of the whole blood, it descended to his uncle John Jacobs, the brother of his father of the whole blood, to the exclusion of his two aunts, Elizabeth Walker and Hannah Fowler.

JUDGMENT REVERSED, ^(a)

(a) See Stewart’s Lessee vs. Evans, 3 Harr, & Johns, 287.