Wiesner v. Zaun , 39 Wis. 188 ( 1875 )

LyoN, J.

I. It seems to be conceded (and the fact doubtless is), that, from the death of Joliann Gottlieb Ahnert, in 1857, the possession by the defendant and his grantor of the land in controversy has been adverse to the claim of the plaintiff. The question discussed by the learned counsel is, whether the same was a possession under color of title, in favor of which the statute of limitations might run in ten years, or whether it comes under the limitation of twenty years applicable to cases in which the claim of title is not founded upon a written instrument purporting to he a conveyance of the land thus possessed. R. S., ch. 138, secs. 6-10 (Tay. Stats., 1622-3).

It was strongly argued on'behalf of the plaintiff, that the deed from the elder Ahnert to the grantor of the defendant does not purport to convey the whole of the tract of land, an undivided share of which is claimed by the plaintiff, but only the interest therein which, the former took as- tenant by the curtesy and as heir of his deceased son Henry. If this be a correct position, it necessarily follows therefrom that the defendant cannot successfully assert an adverse possession of the land by color of title, a continuance of which, for ten years may operate to bar the plaintiff’s claim.

The deed under consideration is, in form, a conveyance of the whole tract therein described. It may well be doubted whether the words relating to the grantor, to wit: “Father of Henry Ahnert, deceased, and husband of Rosina Ahnert, deceased, and sole heir of both,” are anything more than a mere desoTvptio personm. If thej* amount to more than that, when the grantor described himself as sole heir of his wife, who died seized of the land, he thereby indicated an intention to convey the whole interest in such land, and, as we have seen, he used apt words to carry out his intention. We conclude that the deed of 1851 purports, on its -face, to convey the whole tract.

From the foregoing views, two results follow. These are, 1.The possession of. the defendant and his grantor was under color of title, and adverse to the plaintiff; and 2. By virtue of the covenants in the deed from the elder Ahnert, the interest in the land which he inherited as heir of his son August (who died in 1855), enured to the benefit of the defendant’s grantor, by way of estoppel.

II. Ernst Ahnert was of full age when the adverse possession of the elder Zaun commenced in 1857, and his right of action to recover his portion of the land became barred by the statute of limitations in 1867. Hence, when he died in 1873, no such right of action descended to his heirs.

III. Franz Ahnert dying in 1860 under the age of twenty-one years, and never having been-married, the undivided one-sixth of the whole tract, which he inherited from his mother, descended to his surviving brothers and sisters (Karl, Ernst and the plaintiff), in equal shares. R. S., ch. 92, sec. 1, subd. 7 (Tay. Stats., 1170, § 1, subd. 6).

In Perkins v. Simonds, 28 Wis., 90, we held, after much investigation, that in such a case the surviving brothers and sisters inherit from the ancestor and not from tire deceased child. As applied to the present case, the rule there settled is, that the plaintiff took one-third of the share of Franz in his mother’s estate, in the same manner in which she would hare taken it had Franz died before his mother. The amount of the interest which she so took is of ccinrse increased by the death of Henry and of August, after the death of their mother.

Perkins v. Simonds was ruled by the revised statutes of 1839, p. 185, § 39, which is substantially the same as the corresponding provision in the revision of 1858 last above cited. The statute of 1839 was borrowed from Massachusetts, and had received judicial construction in that state before its adoption here. We felt bound by, and therefore followed, the adjudications in that state construing the statute, as will be seen by an examination of the opinion. We must adhere to the rule thus established. We therefore hold that the portion of the lands of which Mrs. Ahnert died seized, which descended to Franz, and by his death to the plaintiff (being one-eighteenth of the whole), is held by the plaintiff in the same manner as she holds the one-sixth thereof which came to her directly from her mother, and is subject to the same rules of law. If she can recover either of these undivided interests or portions in this action, she can recover both; failing to recover one of them, she cannot recover either.

It should be stated in this connection that Mr. Justice Cole reserves his opinion on this point, but concurs in the other points herein decided.

IY. This brings us to the controlling question in the case: whether the plaintiff’s cause of action is barred by the statute of limitations. Had she been unmarried in 1857, when the adverse possession of the defendant’s grantor commenced, it is indisputable that her right would have been thus barred. But she was at that time, and ever since has been, a married woman. It is claimed for her that the statute has never commenced to run against ber. Tbis position is founded on tbe provisions of tbe R. S., ch. 138, sec. 13 (Tay. Stats., 1624, § 13). To tbis it is answered tbat tbe conditions of infancy, coverture, etc., mentioned in tbe statute, do not prevent tbe running of tbe statute any longer tlian while sucb conditions constitute disabilities/ tbat tbe word “ disability ” is used in tbe statute in its technical, legal sense, meaning only “ an incapacity of action under tbe law,” or “ an incapacity to do a legal act” (Burrill’s Law Die.); and hence, tbat tbe statute concerning tbe rights of married women (Laws of 1850, ch. 44; Tay. Stats., 1195), which gives to a wife tbe absolute control of ber separate estate tbe same as though she were unmarried, and tbe provisions of another statute which permits ber to sue alone in respect to sucb estate (R. S., ch. 122, sec. 15), removed tbe disability of coverture, and set tbe statute in motion against tbe plaintiff, more than ten years before .she commenced her action. If these positions are well taken, tbe action cannot be maintained; and they are sustained by tbe adjudications of several most respectable courts, made under statutes quite similar to ours. Brown v. Cousens, 51 Me., 301; Slater v. Cave, 3 Ohio St., 80; Ong v. Sumner, 1 Cin. Superior Ct. R., 424; Ball v. Bullard, 52 Barb., 141. In tbe first of these cases, tbe principle upon which all of them were decided is tersely expressed, thus: “no disability, no exemption.”

On tbe other band, several other courts of equal resjjecta-bility have held precisely tbe opj>osite doctrine. Burke v. Beveridge, 15 Minn., 205; Bauman v. Grubbs, 26 Ind., 419; Dunham v. Sage, 52 N. Y., 229.

Tbe question has not been jjassed upon by tbis court, although it was raised and argued in Ladd v. Hildebrant, 27 Wis., 135. Tbe conflicting decisions in other states have resulted in no decided weight of authority either way. We must therefore determine for ourselves tbe proper construction of tbe statute, in tbe light of tbe accepted rules of law applicable to tbe case.

It is apparent tbat tbe case turns upon the meaning of the word “ disability,” as used in the statute. The question is* whether it is there used in the restricted sense above mentioned, or has it a larger signification? Upon this question our views will he briefly stated.

1. It seems to us that the definition given by the learned counsel for the defendant, and ■ apparently sanctioned by Bur-rill, is too narrow. The grounds of the disability of a wife are thus stated by Chancellor Kent: “ The disability of the wife to contract so as to bind herself, arises not from want of discretion, but because she has entered into an indissoluble connection, by which she is placed under the power and protection of her husband, and because she has not the administration of property,” etc. 2 Com. (11th ed.), 137. The law giving her the control of her separate estate removes only one of the grounds of disability. She is still under the control and protection of her husband. Tie can lawfully control her domicil and her employment. In these particulars she is now, as she was at the common law, under a degree of duress. Although she may have an action in her own name relating to her separate estate, and may administer the same as if unmarried, yet such quasi duress, which is a recognized element of legal disability, still remains.

2. But the section itself furnishes proof that the legislature did not use the term in the restricted sense claimed for it. One of the conditions mentioned in the section as preventing the running of the statute of limitations is that of persons “ imprisoned on a criminal charge, or in execution upon conviction of a criminal offense, for a term less than for life.” "We suppose that persons in this condition may bring actions in their own names, notwithstanding their imprisonment. "We find no statute to the contrary. "We have a statute which provides for the service of process upon convicts in the state prison. R. S., ch. 188, sec. 23 (Tay. Stats., 1976, § 23). If they can be sued, manifestly their civil rights are not suspended, and they may bring actions. Neither are we aware ,of any law which requires, the appointment of a next friend or guardian for a convict plaintiff or defendant. In the absence of such a law, if the civil rights of the convict are not suspended, it necessarily follows that he may sue or be sued in his own name.

In New York there is a statute which suspends all of the civil rights of a person under sentence of imprisonment in the state prison for a term less than for life, during the term of his imprisonment. 3 R. S. (1859), Title 7, Part 4, ch. 1, § 29; O’Brien v. Hagan, 1 Duer, 664; Miller v. Finkle, 1 Parker’s Cr. R., 374. In the revision of 1830, in which this provision stands as § 19, we find the following note by the revisors relating to that section: “New; taken substantially from Mr. Livingston’s code, p. 29; declaratory of what is probably the law, although we have had no express decisions on the subject.” 3 R. S. (1830), p. 835. It seems very clear that our statute, which provides for the service of process on convicts in the state prison, was enacted on the theory that, in the absence of any statute to the contrary, the civil rights of such convicts are not suspended during their imprisonment.

But however this may be, the exemption in see. 13 of persons imprisoned on a criminal charge, or in execution upon conviction of a criminal offense, extends to persons so imprisoned as well before as after trial, and to persons so in execution who have only been sentenced to imprisonment in a county jail. As a matter of course, the civil rights of such persons cannot be affected or impaired by the criminal charge or conviction. They may still control their property, make valid contracts, and sue and be sued in their own names. Otherwise the civil rights of a person imprisoned on a charge of assault and battery, or any other misdemeanor, whether before trial or after conviction and sentence, would be suspended. This would be simply monstrous. Yet the statute treats a person thus imprisoned as under disability. Manifestly, it does not mean the disability which results from the total or partial suspension of civil rights, but that which results from duress. "We cannot doubt that the term has the same signification when applied to the condition of coverture, which, as we have seen, is also, to some extent, one of duress.

3. The history of legislation in this state on the subject-matter of the statute under consideration, shows that the legislature never supposed that the exemption of married women from the operation of the statute of limitations had been taken away, until it was done directly in actions for the recovery of real estate, by the enactment of ch. 44, Laws of 1872.

Perhaps but little importance should be given to the fact that sec. 13 (which is found in substance in the revised statutes of 1839 and also of 1849) was reenacted in the revision of 1858, without material alteration, although the acts which it is claimed exclude married women from the benefit of that section, were then in force and were reenacted in the same revision. This fact is not, however, without significance. It is worthy of consideration when we are required, as we are in the present ease, to determine whether a statute has been repealed by implication.

But there is another fact much more significant. When the act of 1872 was passed, amending section 13 by striking therefrom the 4th subdivision, so that its provisions should no longer apply to the condition of coverture, the legislature left untouched sec. 29 of the same chapter, which relates to nearly all personal actions, and which, in its effect upon such actions and in form, is very similar to sec. 13. If the legislature of 1872 supposed that the amendment to section 13 had already been made by implication, it could only have enacted ch. 44 for the purpose of clearing that section of useless rubbish; and in such case it would certainly have made the same amendment to section 29, and for the same reason. The failure to do so is strong if not conclusive evidence that the legislature were of tbe opinion ’ that both sections were unaffected by former laws. ITence, for satisfactory reasons no donbt, it amended one section and left the other in its original form.

4. The tendency and obvious purpose of all laws affecting married women which have been enacted in this state during the last twenty-five years, have been, almost without exception, to extend the privileges and immunities of that class of persons without imposing upon them corresponding liabilities and burdens. Keeping this fact in view, and remembering the principle, that repeal by implication is not favored, we are impelled to the conclusion that the legislature, when it removed some of the disabilities of coverture, did not intend thereby to deprive the wife of any privilege or right extended to her by other statutes.

5. It must be conceded that very many of the old rules of law regulating the marital relation have been abrogated or materially changed by modern legislation. Those rules were the results of the wisdom and experience of centuries, and were believed by our fathers to harmonize with the Divine law which founded and sanctified that relation. Whether those rules have been departed from wisely or unwisely, is not for -us to determine. But we are profoundly conscious that such legislation is fraught with danger, and that any errors therein must necessarily lead to disastrous results, the magnitude of which cannot well be overestimated. We have neither the power nor the inclination to advance in that direction only as we are compelled to do so by the clearly expressed will of the legislature. We must not accelerate the process of innovation and change by forced construction of statutes on the subject. Hence, until the legislature expressly so enact, we cannot hold that a wife is no longer under legal disability.

We conclude that the judgment of the circuit court, by which the plaintiff recovered the undivided one-sixth of the tract of land described in the complaint, which she inherited directly from her mother, and the undivided one-eighteenth thereof wbicb she inherited from the same source on the death of her minor brother Eranz in 1860, is correct and should be affirmed.

By the 0 overt.— Judgment affirmed.

On a motion for a rehearing as to so much of the foregoing decision as relates to the one-eighteenth claimed by the plaintiff as derived through her brother Franz, Mr. Winkler argued that the decision rested on Perkins v. Simonds, 28 Wis., 90, and that in turn upon certain Massachusetts decisions; and that the conclusion reached is not sustained by Perkins v. Simonds. The doctrine of the latter case is merely this: that where one of several children, heirs of a common parent, dies under age and intestate, his brothers and sisters shall be entitled to his property inherited from such parent, in the same proportions as if they had taken it from the parent directly; and the law calls this, technically, taking as heirs of the parent as the ancestor, and not taking as heirs of a deceased brother or sister. That case turned on the meaning of the word “ ancestor ” in sec. 4, ch. 92, R. S. Nash v. Cutler, 16 Pick., 491 (which is chiefly quoted in Perkins v. Simonds), simply decides that the statute and doctrine in question do not apply where the children take by voill from the father, but that in such case a mother inherits from a deceased minor child. Sheffield v. Lovering, 12 Mass., 490, merely states the effect of the statutes as to who take under it. McAfee v. Gilmore, 4 N. H., 391, holds that it does not apply where there is a will. Crowell v. Clough, 3 Foster, 207, and Prescott v. Carr, 9 id., 453, hold that under such a statute, upon the decease of one of the children unmarried and under age, brothers and sisters of the half bíood do not participate in his share of the inheritance. This fully supports Perkins v. Simonds. But the doctrine of these cases, and the statute on which it is founded, are merely a rule of descent, designating who the heirs shall be upon the decease of a person; saying, if you please, that his heirs shall not take, hut the persons who would have taken if he had never keen. But the fact remains that he has leen. And if the statute requires this fact to he left out of view in determining vcho shall be the heir, it does not follow that it must also he left out of view in determining the ncotwre of the title these heirs take as against third persons. When an heir takes from his ancestor, he takes the title just as the ancestor leaves it. But the subject of inheritance here, although derived from the ancestor, is not what the ancestor left, hut what the child left. It is not, therefore, true that the surviving children take i/n the same ma/rm&r as they would have taken if the deceased child had died before the ancestor. During the ownership of the child, the title may have been impaired, alienated or lost. It may have been mortgaged or sold through a guardian; sold for taxes; or lost by adverse possession, where his disability does not save it, as in Woodbury v. Schackleford, 19 Wis., 55. Indeed, where it is adversely possessed for ten years under color of title, his disability alone can save it. If sec. IS of the limitation act did not include infants, it would be gone, though every other member of the family were a married woman or confined in the state prison. Is not this alone conclusive that his is the ' one disability which alone can interrupt the statute of limitations? 2. Suppose that Franz had been nine years old when his father died and defendant’s possession became adverse, and had lived till he was twenty, then died leaving the plaintiff, his married sister, and his two brothers, both over twenty-six years of age: what would be the consequence under the doctrine of the opinion? Each would be held to have taken his share of Franz’s portion from his mother, just as he took his own portion, and it would be governed by the same rules of law. The sister, therefore, having been under the disability of coverture when the title accrued, which disability still continues, can bring her action at any time during this coverture, and within five years after it shall cease; but the brothers, being more than five years removed from their own disability, are barred of their own original interest, and therefore also of this. Here, then, an estate is barred, against which the statutes of limitation have never run! 3. How can this rule be harmonized with the express provisions of sec. 13, ch. 138 % It is conceded that the adverse possession commenced in 1857. The statute declares that if a person entitled to commence any action for the recovery of real property (as Franz clearly was), be, at the time such title shall first descend or accrue (it jvrst descended and accrued to Franz), within the age of twenty-one years (as Franz was), the time during which such disability shall continue shall not be deemed, etc.; but such action may be commenced (no matter by whom) after the time limited, and within five years after the death of the person entitled (clearly Franz) who shall die under such disability; and that such action shall not be commenced after that period. This statute applies to the title descended to Franz, and to any one who may succeed to his title, whether called his heir,'or, by a legal fiction his mother’s heir. 4. The decision gives the plaintiff one-thvrd of Franz’s share. The opinion says: “ The amount of the interest which she so took is of course increased by the death of Henry and of August after the death of their mother.” But the doctrine of Perkins v. Simonds, as quoted from Nash v. Cutler, in 28 Wis., 95, is, that the inherited portion of a person dying as Franz did, “ shall go just-in the same manner as if such child had died during the lifetime of the ancestor, or, in other words, to those who would have taken the same share if such child had not existed.” If Franz had died before his mother, or had never existed, each of the other children would have taken one-fifth of the estate, one-thirtieth more than they did take; and these one-thirtieth shares of Henry and August, by their deaths, have vested in their father, and by his conveyance and covenants have become the property of the defendant.

E. P. Smith, for tbe respondent:

Tbe subject matter of descent spoken of in subd. 7, sec. 1, cb. 92, E. S. 1858, is “ all the estate ” tbat came to tbe deceased child by inheritance from bis deceased parent — not tbe remainder of tbe estate, or such as may be unalienated or undisposed of at tbe death of tbe child. Tbe statute clearly recognizes a distinction between this case and tbat of a person dying intestate, leaving but one child and no issue of other children. In tbe latter case tbe inheritance would be absolute; but in tbe former case it would be conditional, depending on tbe child’s marriage or bis attaining bis majority. In such a case tbe estate may be sold and tbe fee divested for debts of tbe ancestor (E. S., cb. 92, sec. 1), but not for those of tbe infant. On tbe father’s death, tbe estate becomes as to bis minor children a base or qualified fee, determinable as to each on bis dying unmarried and a minor. If be survive tbat period, tbe condition is gone, and tbe estate becomes perfect. Oilman v. Reddvngton, 24 N. Y., 16. It is what may be called a fee simple contingent. Hubbard v. Bawson, 4 Gray, 246. If it or its possibility of ripening into an absolute fee could be conveyed or in any way alienated before tbe minor’s marriage or majority, tbe determinable quality of tbe estate would follow tbe transfer, and on bis death before marriage or majority, it would descend free from tbe alienation, as if tbe minor never bad an existence or an inheritance. Memo potest plus jw'is i/n aTA/mn tra/nsferre quam ipse habet. 4 Kent, 10. And even if tbe child’s share could be alienated in any manner .while be remained an infant and unmarried (which we deny), our rights would be tbe same, subject to tbat destruction. Doe v. Martin, 4 Term, 39. Tbe result would not be tbe same to tbe surviving brothers and sisters in this case, if tbe property bad descended directly from the deceased minor; for then it would have descended to him in fee simple absolute, and so our title would have been barred by adverse possession, or at least our action must have been brought within five years after the death of the infant ancestor. In Wash v. Outler, 16 Pick., 491, it was distinctly held that if the estate of the deceased infant had been received by inheritance (and not by devise), then by operation of the statute it would have descended from the father to the other children then living. The case holds that the whole purpose of the statute is the descent of the intestate father’s estate to his children, and so, necessarily, that the heirs who ultimately get the fee simple absolute, derive it directly from the father. So in Sheffield, v. Lovering, 12 Mass., 489, the court declares that the effect of the statute was “ to place the estate in the same situation as if that child had died before the parent; * * * as if the parent had devised all his estate to such of his children as should arrive at full age or be married.” In MeAfee v. Gilmore, 4 hi. H., 391, the doctrine is reasserted, and Sheffield v. Loverimg approved. So in Orowell v. Clough, 3 Poster, 208, the court says -that the statute “ looks to the source from which the estate is derived, and for this purpose regards the estate of the father as still im the eowrse of distribution;” and that “ the surviving children do not take under the general rule of descent as heirs and' next of kin to the deceased brother or sister, but they take, under the special provision of the statute, the share of the deceased brother or sister, as part of the parent's estate.” It follows that the survivors take the same title and in the same condition as if they had received it directly from the deceased parent. 2. Treating the estate of Pranz Ahnert as a contingent estate, there could be during its continuance no adverse possession as against us; since our right of entry did not accrue until that estate terminated. JacTcson v. Harsen, 1 Cow., 327. 3. The remark as to the increase of plaintiff’s interest by the death of Henry and August, if error, doubtless crept into the opinion from the fact being overlooked that August and Henry were of full age when they died; but it was in any event a harmless error, as the judgment below made no allowance for their interest.

A rehearing was granted, and tbe canse was reargued at tbe August term, 1875.

Fred. 0. Wvnhler, for appellant,

contended that the cases followed in Perlcms v. Sim-onds have never been understood as holding that where there are several children of' the deceased intestate, the minor children do not take the fee simple, but merely an estate defeasable by their death in infancy unmarried. Guardians’ sales made for the benefit of the infant ward under chaps. 93 and 96, R. S., have hitherto been universally supposed to convey titles in fee simple. If resjoondent’s theory be correct, every such deed, where the property came from a parent by inheritance and there was more than one child, conveys but a contingent fee, which would determine on the death of the ward under age and unmarried. It would also follow from this view that the law in force at the time of the parent’s death must control the descent upon the death of the child long after, although the law may at that time be wholly' different, and may provide that the same heirs of the child shall take as in other cases. All that the statute, or the construction placed upon it in the cases cited, amounts to, is, that this inherited property is to go by a different rule of descent from property acquired by the child from other sources. The mere fact that the persons to whom it goes are the heirs of a deceased parent, may justify the construction, already somewhat artificial, that what they receive they take as heirs of the parent; but it certainly cannot be extended into the doctrine that they take a different estate, or, for the purposes of their own enjoyment, take with different rights from those which the heirs of the child would have if the statute did not exist. Our statutes of descent, like all statutes of that character, simply operate upon the property left, and as it is left, at the time of the death upon which they take effect. If there is any language in the Massachusetts cases which seems to go farther than this, it is purely obiter, and wholly unnecessary to support the decisions made in those cases. 2. "Whatever theory be adopted as to the statute of descents, the facts remain undisputed, that the adversely possessed title first descended and accrued to Franz; that he died under disability; and that the language of the statute therefore applies, that the action must be brought within five years. The statute was undoubtedly intended to apply, as it does in terms, to all cases where an heir dies under the disability. If, by an artificial construction, it shall be held not to apply to property descended from a parent to one of several children,' it stands repealed as to a majority of cases occurring in actual life. 3. Upon the principle stated in the opinion filed in this case, Franz’s one-sixth descended upon his death just as it would have done if he had never existed; therefore the two-thirtieths of ITenry and August went, like their own original shai’es through their father, to the defendant; two other thirtieths went to the two surviving brothers; and only one-thirtieth to the plaintiff. The same result follows on the respondent’s theory; each child became vested with a contingent reversion in Franz’s share immediately upon the mother’s death; the reversionary interests of Henry and August went to the father, and both became vested in defendant by the father’s conveyance and covenants. The judgment below cannot be sustained on either of these theories; since either would give to the plaintiff only six-thirtieths or one-fifth of .the land.

Cole, J.

The counsel for the defendant criticises the language used in the former opinion, where it is said that the plaintiff' took one-third of the share of Franz in the same manner she would have taken it if Franz had died before his mother. He insists that this statement of the rule of descent, if adhered to unqualifiedly, as laid down, will tend to shake all confidence in titles held under guardians’ sales, and will startle the profession when authoritatively announced as the law of the state. For he argues that it is the logical result of the rule, where the heir takes from the ancestor, that be takes tbe title just as tbe ancestor left it, while in tbe case under consideration tbe estate inherited is just what tbe minor child left at bis death.

Tbe language criticised by counsel is quite similar to that used by C. J. Shaw in Nash v. Cutler, while speaking of tbe purpose of a section of tbe statute of that state regulating tbe descent of intestate estate to children where one of them happens to die in infancy. And be said in that case that tbe provision intended that tbe infant’s portion of tbe intestate’s estate should go just in tbe same manner as if such child bad died ■ in tbe lifetime of the ancestor, or, in other words to those who would have taken tbe same share if such child bad not existed This language is sufficiently accurate when speaking of tbe general purpose of tbe statute. But while determining as to what estate was taken by tbe plaintiff on tbe death of Franz, it was not intended to affirm as an absolute rule that tbe other children would take tbe title on tbe death of tbe minor unaffected by any conditions, as though such minor bad never in fact existed. That is to say, it is not decided that if tbe estate of Franz bad been sold for his-suj)-port and maintenance, or for bis education, as it might have been under tbe statute, tbe purchaser would not have acquired a perfect title. Tbe purchaser at tbe guardian’s sale would take tbe title, and that title would not be divested on tbe infant’s death, so as to go to tbe surviving children in tbe same manner as if such infant bad died in tbe lifetime of the ancestor. So that it is quite true, as argued by counsel, while we regard tbe inheritance as coming from tbe ancestor in order to give it according to tbe statute to tbe other children, still we must and do consider whether there are any facts and circumstances affecting tbe share which descended to'tbe infant, which take it out of tbe rule. Tbe existing condition of tbe title is regarded; and when tbe property has been sold at a guardian’s sale for tbe benefit of tbe infant, tbe provision regulating descent does not apply.

But it is further said that if" the rule of descent stated in the opinion be correct, still the fact remains undisputed, that tbe adversely possessed title first descended and accrued to Eranz; that be died under disability; and that therefore the action in respect to his share of the inheritance must be brought within five years, under sec. 13, ch. 138, E. S. Under the construction which we were compelled to place upon the statute of descent, we are unable to see how the statute of limitations can apply to the case. This may result in inconsistency and a want of harmony in the law. I have already stated (Wescott v. Miller, unreported), that if the question were unembarrassed by the doctrine of the Massachusetts cases, I never could give the statute of descent the construction which has been placed upon it by the courts of that state. But, for reasons already given in other cases, we feel bound by the judicial interpretation which the statute had received before it was adopted here.

It results from these views that the decision of the circuit court must be affirmed.

By the Court. — Judgment affirmed.