Maxwell v. Seney's Lessee , 5 H. & J. 23 ( 1820 )

Buchanan, J.

delivered the opinion of the court.

Mark Benton, under whom the plaintiff in the ejectment claims, died seized of an estate of inheritance in the land mentioned in the declaration, which he acquired by purchase, leaving no child or descendant, or brother or sister, alive at the time of his death, but a number of collateral relations, the children, grand children, and great grand children, of his brothers and sisters, all of the whole blood. Joshua Seney, the lessor of the plaintiff, is a great grand son of Ruth Benton, one of the sisters, and seeks to recover an undivided part of the land of which Mark Benton died seized; and the question, which lies within a very nai'row compass, is, whether he is entitled to any and what proportion of that land, and it is not necessary to look beyond the provisions of the act to direct descents, (1786, ch. 45,) on which it depends, to arrive at the intention of the legislature. The second section of that act, after directing in what manner an estate descended to an intestate shall go, provides, “that 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 equal degree,” &c. And by the fourth section it is enacted, “that if, in the descending or collateral line, any father or mother may be dead, the child or children of such father or mother shall, by representation, be considered in the same degree as the father or mother would have been if living, and shall have the same share of the estate as the father or mother, if living, would have been entitled to, and no more; and in such case, where there are more children than one, the share aforesaid shall be equally divided among such children.”

It is contended, on the part of the appellant, that in the collateral line, only those in equal degree, and none more remote than the children of brothers and sisters, can take, and that they must take ‘■‘per capita,”and not “per stirpes^ and the argument in support of these positions, as applicable to the first section of the law of descents, was very forcible. But whatever would be the true construction of that branch of the act, if it Stood alone, the fourth section, the office of which is to ascertain who shall be considered as standing in the same degree, and the proportions to which they shall be respectively entitled, furnishes an interpretation that cannot be resisted, and is a frill answer' to any argument that can be drawn from the Second section. If none could take but thqge in the same degree,, it would follow, that where there are brothers and sisters, and children of a deceased brother qr sister, as the brothers and sisters could alone stand ip equal degree, they wquld take the whole estate, to the exclusion of the nephews, and pieces. But this, is obviated by the fourth section of the act, which, if it has any meaning, contemplates apd provides fdr such case, by declaring the children of a deceased father, or mother, tq be in, tifo same degree, by representation, as the father or mother would have been if living,, and giving- tq them the same share of the estate that their father or mol titer, if alive, would have beep entitled to,.: and thus the nephewp and nieces, in the case put,, are placed, not in fact, (which cannot be,) but by representation, ip the same degree of relation to the Intestate, with the surviving bvqth'ers and sisters,, and are not excluded from a participatiin the estate, but are entitled to whatever ivould have beqn the proportion of their father or mother.

The argument, that among collaterals none beyond the children of brothers and sisters can take, however ingenious and well urged, cannot-be sustained. The words, “any father or mother,’-’ in the. fourth section of the act, cannot be restricted to the brothers and sisters of the intestate; that would be an arbitrary interpretation, not warranted by any tiling to.be. found in the law itself, and contrary to any known rule of construction, but are unlimited, and must apply to any father or mother in the descending or collateral line, in any the remotest degree. Thus, if there be a brother and a nephew, the son of a deceased brother, the nephew-, by representation, stands in the same degree with the brother, and will take one half of the estate, being the share to which his father would have been entitled, if alive; md if the.nephew be dead, leaving a child, that ” child is considered by representation, in tire same degree as Ms father would have been, if living, and so on act infinitum; and as the same section directs, that where there are more children than one, the share of their deceased father or mother, and no more, shall he equally divided among such cMldren, it follows that they must take “per stirpes” and not “per capita,” and that was settled in the case of Collier and Stewart; for no matter on what ground John Stewart, the defendant, claimed, Helena Collier could on no other principle have been entitled to one eighth part of the estate of the intestate, the proportion th^t was adjudged to her in that case; and the same principle governs this case. The collateral relations of Mark Benton were the descendants of two brothers and three sisters, making five stirpes; there were six grand children of Ruth Seney, one of the five stirpes; and Joshua Seney, the lessor of the plaintiff, is the only child of Joshua Seney, who is dead, and was one of the six grand children of Ruth-, he therefore is entitled to a sixth part of a fifth of the land mentioned in the declaration, being one thirtieth of the. whole.

JUDGMENT AFFIRMED,