Smith v. Croom

DuPont, J.,

delivered the opinion of the Court:

This cause arose out of the disastrous events connected with the loss of the ill-fated Steamer “ Home” on her passage from the city of New York to the city of Charleston, S. C., on the night of the 9th of October, 1837. Hardy B. Croom and family, consisting of his wife and three children ■ — Henrietta Mary aboutsixteen, William Henry about thirteen and Justina about seven years of age — were passengers on board the steamer and were amongst those that were lost. Mrs. Camack a relative, also constituted one of the family upon that occasion. The bill was filed to determine the succession to such of the estates of Hardy B. Croom as were located in the State of Florida, and upon the hearing before the Chancellor, the bill was decreed to be dismissed. The Complainants have appealed from that decision and this Court is now called on to determine upon its correctness.

For a full understanding of the claims of the respective parties it is proper to state that the complainant Henrietta Smith, is the mother of the wife of Hardy B. Croom, and consequently the grand-mother of the children through whom she asserts her claim, and that the other complainant, Elizabeth M. Armistead, is the sister of Mrs. Croom and the aunt of the children. Mrs. Smith is also the administratrix on the estate of the children. The defendants are the brothers and sisters of H. B. Croom, and Bryan Croom is the administrator on his estate in Florida.

The complainant Henrietta, grounds her claim upon the allegation that the domicil of Hardy B. Croom at the time of his decease was in the State of North Carolina —that all of his children survived him and succeed to his «states, and that by the laws of North Carolina, she as the next of kin of Wm. Henry, the last survivor of the children, became the sole distributee of the personal property of Hardy B. Croom, and by the laws of Florida heiress to one moiety of two-thirds of the real estate in Florida, which descended to Wm. Henry, immediately from his two sisters. The complainant Mrs. Armistead asserts a claim to the other moiety of these two-thirds, under the statute of descents of Florida. To the one-third of the real estate, which William Henry inherited immediately from his father, they make no claim.

The issues made by the pleadings present two questions of fact, upon the solution of which the claims of the respective parties mainly depend1st, whether the father or the children, or either of them was the last survivor ? 2d, whether North Carolina or Florida was the domicil of the father at the date of his decease i

■ In entering upon the consideration of the first question above indicated, the court is not insensible to the painful anxiety which is always engendered, when the'determination of a fact is made to rest in a great measure upon presumption. We do not mean that legal presumption recognized by the civil law, which is founded upon the circumstance of age, sex and physical strength, for it is conceded that the doctrine of the civil law in this respect does not obtain in our jurisprudence, either as a principle of the common law,or as an enactment o-f the legislative authority. But we mean that presumption arising from the attendant circumstances, which results in producing the conviction in the mind that the fact is as it is alledged. We are also admonished by the very appropriate citations of the counsel for the appellees, that the conclusions of the court must be based upon certainty and not be the offspring of vague conjecture, or the balancing of mere probabilities. We would however remark, that the counsel seem to us to have pressed the doctrine upon this subject, beyond the legitimate bounds prescribed by the authorities cited. We do not understand the books which treat of the rules of evidence, as intending to mean that the certainty must reach that point which would exclude the possibility that the fact be otherwise ; but only that it should be of such a degree, induced by appropriate evidence as will produce moral conviction. This is the highest degree of certainty which can ever be reached even where resort is had to positive, in contradistinction to circumstantial evidence, for the witness who swears positively and with the most unhesitating confidence may after all mistake as to the fact or he may wilfully perjure himself. That degree of certainty then based upon appropriate evidence, whether positive or circumstantial, which produces moral conviction is all that is required in arriving at a conclusion which involves a question of fact.

The counsel for the appellees very appropriately insist that the burthen of proof as to the survivorship of the children is upon the complainants, and this position is yielded by the counsel on that side. They also hold that if the evidence of the complainants proves the precise time of the son’s death, they must also show that the father died before that time; that this may not be assumed, it must be proved. Both of these positions are undoubtedly correct, but the line of argument used to enforce their application as rules to govern the investigation of the facts of the case, is in our opinion unsupported by reason or authority. As we understood the argument, it was that' the same kind and degree of proof was required to prove the precise time at which the father ceased to breathe, as should be used to establish the exact time at which the son died. It so happens in this case that the time of the death of the son is proved by the positive evidence of two witnesses who saw him drown.— The precise time at which the father ceased to breathe depends for its establishment, upon a presumption of fact deduced from the attendant circumstances. Now to say that the conclusion upon the evidence adduced in reference to the latter fact is mere conjecture or surmise, because it should happen to differ in kind or fall in degree below that adduced in reference to the former, is to destroy all our ideas of the different kinds anddegrees of evidence which maybe used to elicit truth. Inferences or presumptions of facts are always more or less violent, dependent upon the circumstances which may be detailed by the' witnesses. In this very case the death of the father as a matter of fact, irrespective of the time at which it did occur is wholly dependent upon circumstantial evidence, for no witness testifies that he saw him in that critical moment; and yet that he did perish in that awful catastrophy, is as clearly and as fully proved, as is the death of the son. The citations from the recent case of Underwood vs. Wing, (31 Eng. L. and E. Repts. 297) contained in the brief of the counsel for the appellees, furnish a correct rule for the guidance of the Court, and in our investigations and conclusions we have endeavored to keep within the prescribed limits. The court Say “ the question of survivorship is the subject of evidence to be produced before the tribunal which is to decide upon it and which is to determine upon it, as it determines any other question of fact." “ It is not for the person who claims as next of kin to show that she did not [die first.]— It is not for the person who claims under the disposition to show that probably it might be one way or the other, he must show that that state of circumstances did occur which entitle him according to the language of the will.” If We have comprehended the principle to be deduced from these citations, it is that the question of survivorship in the case of a common calamity is a question of fact, involving the simple enquiry as to which of two or more individuals was the longer liver, and that that fact is to be proved as any other question oí fact, either by positive or circumstantial evidence, as the exigencies of the case might happen to require. By this rule we have been guided to the conclusion which we have reached.

A further citation from the same case is contained in the brief, to the doctrine of which we yield- our cordial assent. It is as follows': “It is not sufficient to show a variety .of circumstances on which it is very difficult. to form your mind ; that if you had to lay a wager you would rather lay it one way than the other. The heir at law is not to be dispossessed unless the devisee can show such circumstances as to displace him — not show that there is a confusion as to what happened and that it may have so happened as to entitle him, but there must be evidence as to who is the survivor.” While according our sanction to the correctness of these views we are nevertheless unable to perceive the force of the argument which was attempted to be deduced from them as applicable to the case before us. It was insisted upon the authority of this citation that the defendant being the heir at law and being known to be such, it would not be permitted to the complainants to oust him of his rights as heir, upon the mere preponderance of probabilities, but that the proof to this point must be such as to produce conviction. In such a case we think' the argument would be appropriate, but here the enquiry as to who is the heir or next of kin, is the very question to be determined.

The citations from the posthumous work of Mr. Feme, relied upon by the counsel who concluded the argument for the appellees, only establish the doctrine that as against the next of kin of the father, legal presumptions drawn from the circumstance of age, sex and health will not be permitted to prevail; and from this postulate the argument is attempted to be deduced that in such a case, presumptions of fact arising from mere circumstances, must also be rejected as matters of proof. We have already stated that these legal presumptions which obtain in and are recognized by the civil law, are not sanctioned in our jurisprudence. But while the mere legal presumption is rejected as the basis of a conclusion, yet it not unfrequently happens that the consideration of age, sex, <fcc., are resorted to in connection With other circumstances as a matte?' of evidence, from which a certain conclusion may be legitimately inferred.— As we understand the doctrine of the common law, it is this, that when several individuals perish by a common calamity and there is no circumstance other than that of age, sex, &c., from which it may be rationally inferred who was the longer liver, in such case, no presumption arises upon which a conclusion can be predicated. But that when the calamity, though common to all, consists of a series of successive events, separated from each other in point of time and character, and each likely to produce death upon the several victims according to the degree of exposure to it, in sucha case, the difference of age, sex and health becomes a matter of evidence and may be relied upon as such. This distinction is based upon sound reason and is not unsupported by authority. (8 Met. R. 371, Coy et al vs. Leach.)

Another principle of law equally founded upon reason is, that where the evidence has traced the parties into a common danger which proved fatal to both, the last one seen or heard, within the operation of the cause of death, must be adjudged the survivor, unless there be something in the nature of the circum-tances to rebut the presumption, (1 Cheves’ Eq. R. 108, Pell et al vs. Ball.) The principle is deduced from the doctrine established in the analagouscase of a presumption of death from long absence, and we think it may be appropriately adopted as a rule of evidence applicable to the circumstances of this case.

From these preliminary observations, it will be perceived that while we have discarded mere conjecture as a basis of the conclusion at which we have arrived upon the question of survivorship, and rejected the legal presumptions recognized in the civil law, we have nevertheless felt ourselves at liberty to resort to all. the circumstances attending that fatal catastrophy; to look to the respective situations ■of the parties with respect to locality and consequent exposure to danger, and also to their physical strength as imparting more or less ability to combat the impending peril, if per chance from all of these data we might attain to that degree of certainty which would produce upon the mind a moral conviction as to the real state of the fact.

The first enquiry then is as to the comparative strength of Hardy B. Croom and that of his wife and children. It is unnecessary to extend this comparison beyond the son William Henry and the daughter Henrietta, for there is no room to doubt that as to the balance of the members of his family, they all perished before him.

- There is no controversy respecting the fact that Mr. Croom was a man of delicate constitution, and that his general health was enfeebled by the inroads of a pulmonary affection. This is admitted by the parties on both sides, and it is especially set up by the defendant as one of the controling causes which first operated to induce his aliedgedremoval to Florida. But it is not so much with his general health, as with the state of his physical energies at the moment of the disaster or immediately before, that we have to do. Dr. Hawks says: “ I saw him two or three days before he left here on the Home — the state of his health was feeble.”

Dr. Torrysays: “I considered Mr. Croom a very feeble man, who might be carried off at any moment by a slight increase of his disease. On his last visit to New York he was as feeble as I ever saw him, and on the very morning of his departure in the Home, he called on me, and appeared to be as feeble as I ever saw him. I have made botanical excursions with him, and he always soon became exhausted. From his bodi'y infirmity, I considered him incapable of performing any such service as pumping.”

Dr. McLean says: “ I have already stated that he was in a state of utter prostration when I saw him last, which was a few days before he embarked — incapable of any physical exertion beyond that of mere locomotion.”

Bishop, Quinn, Hassy, Yanderzee, Mrs. Schroder, all testify to his extreme feebleness while on the passage, and down to the time of the disaster. One oí these witnesses states that Mr. Croom assisted in handing the empty buckets used in bailing, and that becoming exhausted, he was compelled to desist.

This testimony abundantly establishes the fact that during the time and at the crisis of the disaster, Mr. Groom’s physical condition was such as to utterly incapacitate him for the exertion of any physical effort beyond such as might be compassed by the decrepitude of old age or the feebleness of early childhood.

On the contrary, the proof is that his daughter Henrietta Mary, a young lady about sixteen years of age, and his son a lad about thirteen years old, were both possessed of good physical constitution and were capable of exerting as much physical effort and of enduring as much bodily fatigue, as might be expected of persons of their age and sex respectively. We have now in this, array of evidence the comparative ability of the father and children for the exertion of that bodily strength and the endurance of that fatigue which the exigencies of the- disaster may readily be supposed to have required.

Before proceeding to ascertain the local positions of the respective parties, at and during the crisis of the calamity, it may be proper tó define the position of the Steamer, with respect to the adjacent coast. The evidence is that she went on the breakers bow foremost, and afterwards swung around so as to bring the larboard wheelhouse next to the shore — she heading a little to the North.

With respect to the local positions of the several indi vidurJs, the evidence is that immediately as the boat grounded» there was a general rush of the passengers from the after cabin to the gangway; that Mr. Croom was amongst those who thus got into the gangway — that he was seen with a lady on either arm — the little daughter Justina in front of the group, and the son William Henry in the rear 5 that at this moment a breaker swept through the gangway, and when it had passed off, none but the son was seen holding on to the tilier-rope. That one of the ladies mentioned as hanging on the arm of Mr. Croom, was his wife, is established by the concurrent testimony of the witnesses. Who the other lady was is testified to only by Mrs. Sehroder— she says that it was Mrs. Camaek, the aunt of Mrs. Croom, and a member of the family. One of the witnesses speaks of seeing Mr. Croom standing near the kitchen with his son, after the passage of the first wave. At this time the breakers had demolished the starboard wheel-house and the pannel work inclosing the engine on that side of the boat. While he was standing in this position, another breaker swept the lower deck, and upon the water passing off Mr. Croom was never more seen — the son still retained his position. From this detail of the facts, it is not a violent presumption to conclude that Mr. Croom was swept overboard by this wave. How long in his enfeebled state of health and exhausted energies he could have survived amid the tumult of waters, will be readily conceived by reference to the testimony of Lovegreen, who says that no man, however athletic, could sustain himself more than twenty minutes, unless aided by some part of the wreck to float upon. This we think fixes with unerring certainty the precise period of time at which Mr. Croom perished.— Now let us see how long this was before the son was seen to drown.

Bishop who testifies to the fact of seeing Mr. Croom near the kitchen door with his son, says that it was after missing Mr. Croom as before stated, that he and the lad stepped upon a portion of the guard of the boat which floated off with them towards the shore, and that the time which elapsed from the parting of the guard, to the time of its grounding, at which time the younger Croom fell off and was drowned, was from a half to three quarters of an hour. Now it being shown that if Mr. Croom, instead of being weak and enfeebled by disease and exhaustion, as he was, had possessed the strength of an athletic and robust man in the full vigor of life, that even with such advantages for sustaining life, he could not survive more than twenty minutes, and that the time which elapsed from the period when the son-got on the portion of the wreck upon which he was floated, to the period when he is known to have perished, was from a half to three quarters of an hour, the conclusion is irresistible, that the son must have survived the father. To this strong presumption of fact, is opposed the vague conjecture-, that during all this time, Mr. Croom might by possibility have been floating upon some portion of the wreck and thus sustained his life to a period subsequent to the death of his son. The conjecture is within the range of possibility, but it is of too vague a character to combat a rational presumption which has been deduced from known facts.

With respect to the survivorship of the daughter Henrietta Mary, there is not that concurrence of testimony which fixes the survivorship of her brother,but we are nevertheless constrained to the conclusion that she also survived her father, though her death preceded that of her brother’s.— It will be noted in this connection that none of the witnesses who speak of seeing the family group in the gangway on the lower deck, make any mention of this young lady, as constituting one of the group. The strong probability isthat at the moment that the rush was made by the passengers from the after cabin, she became separated from her parents, and seeing the impending danger which threatened those who were congregated on the lower deck, she sought safety on the upper deck, and was one of the three or four ladies who are proved to have been on that deck. Only two of those ladies are identified by name, viz : Mrs. Schroder and Mrs. Hussy; the names of the others are unknown. Quinn, however, testifies positively that after he had been driven to the upper deck by the breakers which were continually sweeping the lower deck, Miss Croom and himself sought refuge upon the top of the larboard wheelhouse. Lovegreenand Vanderzee, both concur, that at this point of time no human being could possibly have survived upon the lower deck — that' they must have been either crushed by the falling of the upper deck, or have been swept into the sea. Here then we have it established beyond all reasonable conjecture to the contrary, that the young lady was alive at a point of time posterior to that at which the father must have perished. But in addition to and in confirmation of this reasonable presumption is the further fact, attested by the witness Quinn, who says that she remained with him on the wheelhouse for the space of five minutes and until it was also broken up, when she was cast into the sea and was lost.

Upon a full review of all the testimony bearing upon the question of survivorship, we have been irresistably led to the conclusion, that in the common calamity which overtook this highly interesting and respectable family, whose melancholy fate has brought mourning and grief to a large circle of relations and friends, the father perished before either his daughter Henrietta Mary, or his son William Henry, and that of the sister and brother, the latter was the last survivor.

The next subject that claims our attention is that of domcil. The question presented for our determination is, wheth- or the domicil of Hardy B. Croom, at the time of his death* was in the State of North Carolina, or in the State of Florida. The evidence abundantly shows — and it is conceded that the former State was his domicil of origin — that he was born, educatéd, married and resided in that State down to the date of the removal of his slaves to Florida and the establishment of an agricultural interest in this State, which ¡occurred in the year 1831. It is the fact of this establishment of his agricultural interest here, and a divided residence consequent thereon, that has raised the question with respect to his domicil of succession.

The term domicil has a variety of significations dependent upon its various applications. In common parlance, it is often taken to mean simply the house in which a man may have his abode for the time being. Again a man may have a commercial, a political or a forensic domicil, and all of these may exist at one and the same time, and in different localities. Domicil however, in the sense in which we have to deal with the term, has a different signification. It is here to be understood as furnishing the rule by which the succession to personal property is to be governed. In this sense it is termed the “ domicil of succession.” In the elementary works, as well as in the reports of adjudicated cases, much difficulty has been encountered in circumscribing within the limits of a definition this term, and it has ever been said that it is a term which is not susceptible of a definition. In the correctness of this latter assertion we cannot concur, for it would be a reproach to our language to suppose that its poverty is so extreme that no apt and appropriate words could be found in its extensive vocabulary sufficiently comprehensive to compass the meaning of a legal term of eve: y day use. And it would be a greater libe’1' on the noble science of law to charge it with the use of a term incapable of definition, and consequently unintelligible to the legal apprehension. The real difficulty encountered by writers upon this subject lies not at all in being able to assign a definite meaning to the term itself but the failure to do so has arisen from the vain attempt to circumscribe within certain prescribed limits, and to enumerate-the particular acts which shall betaken to prove the establishment of a domicil of succession. It must readily occur' that no compass of language can ever fully comprehend the variety of acts which shall in any given case tend to prove' the establishment of a domicil; for these acts will ever be as various as are the occupations of men or the emotions of the mind. When the term domicil is used in this connection, the legal apprehension promptly comprehends its full signification, viz; that it is the actual residence of a man, within some particular jurisdiction, of such a character as shall, in accordance with certain well established principles of public law, give direction to the succession to his person-al estate. To determine the character of that residence^ certain criteria are to be resorted to ; and it is the attempt to circumsbribe these criteria within definite limits that has given rise to the assertion, so derogatory to the law as a science, that it deals in the use of a term which is incapable of a definition. This vindication of the law we have' deemed tobe not inappropriate upon the present occasion.

Judge. Story classes domicil under three distinct heads,viz: domicil by birth, domicil by choice and domicil by mere operation of law. The first is the common ease of the place of birth, domicilium originis; the second is that which is voluntarily acquired by a party, proprio marie the last is consequential, as that of the wife, arising from-marriage. (Story’s Con. L. 48-9.) It is with the second of these that we shall principally have to do in the' progress* bf this examination.

The various attempts which have been made to define* this term, amount as before intimated, rather to criteria by which to guide to a conclusion than to the definition itself, and thus viewed, they are certainly worthy of all consideration. Amongst these various attempts to give a fixed meaning to the word we find the following: Denizart says, “The domicil of a person is the place where he enjoys his rights and establishes his abode and makes the seat of his property.” The Encyclopedists say, “ That it is properly speaking, the place where one has fixed the centre of his business.” Pothier says that “It is the place where a person has established the principal seat of his residence and of his business.” Yattel has defined domicil to be “a fixed residence in any place with an intention of always staying there.”- Judge Story says, “ In a strict and legal sense, that is properly the domicil of a person where he has his true, fixed, permanent home and principal establishment, and to Which whenever he is absent, he has the intention of returning, animus revei-tendi" (Story’s Con. L. 39.)

The definition of domicil according to the Roman law, we are told by Mr. Phillimore is as follows: “ In whatsoever place an individual has set up his household gods and made the chief seat of his affairs and interests, from which without some special avocation, he has no intention of departing ; from which when he has departed, he is considered to be from home, and to which, when he has returned, he is considered to have returned home.” The same distinguished author in his recent treatise on this subject, remarks, with marked liberality, as follows : “ Perhaps the American Judges have been the most successful in their attempts, (at a definition,) and from a combination of their dicta upon different occasions, we may arrive at a tolerably accurate definition in designating it ‘a residence at a.particular place, accompanied with positive or presumptive proof of an intention to remain there for an unlimited time.”— Domicil he proceeds to say, “answers very much to the common meaning of our word ‘home,’ and where a person possesses two residences, the phrase, ‘he made the latter his home,’ would point out that to be his domicil.” (Phillimore’s Daw of Domicil 18. We like this conception of the word home, which constitutes the commanding element of the definition given in the Roman law, as well as those given by these two modern jurists. It is the word whose essential meaning comes up fully to our idea of domicil. It is a word which admits not of qualification. To speak of apermanent home is to perpetrate a tautology — to speak of a temporary home is to involve a contradiction of terms. It is a word which finds its true interpretation in the instincts of our nature. It is a word the full meaning of which is of universal appreciation •, it is understood alike by the degraded savage and the classic Greek — by the Republican serf and the refined Roman. Wherever that spot is found there the law fixes the domicil of succession, it matters not whether that be upon the wasted hills of the “ North State” or on the virgin plains of the “ Dand of Flowers.”— The determination of that locality is the sub ject of evidence, and that evidence must establish two points — first an actual residence, and secondly the deliberate intention to make it his home, in the acceptation in which it is used in the foregoing citations. Ordinarily the proof of the first point can never present any very serious difficulty. Not so however with respect to the second. The establishment of the purpose or intent will usually depend on a variety of acts or declarations, all of which must be weighed as we would weigh evidence upon any other subject. These constitute the criteria of intention, and are more or less conclusive according to their character as we shall perceive by reference to the doctrines and rules hereinafter adverted to.

For the purpose of avoiding confusion, and in order tob® able to estimate the value of the numerous adjudicated cases which were cited to the court as authority upon this subject,..it will not be inappropriate to advert briefly to th© extent and origin of the law which, as an incident of domicil, gives direction to the succession to personal property. Upon enquiry we shall find this doctrine of the law is of almost universal acceptanee amongst the nations of the civilized world, and that it owes its paternity to the exigencies of international intercourse and is sanctioned by that comity which- is known as the foundation of the jus gentium. It is very true that every independent sovreignty has the right by local legislation, to withdraw from the operation of this doctrine, the property that may chance to be found within its territorial jurisdiction. But the experience of mankind has demonstrated its wisdom, and it is quite questionable whether any one State could so legislate without bringing herself into direct hostile collision with other nations. This subject is ably treated of by Chancellor Kent in the 2nd volume of his Commentaries at page 344, and his workmay be consulted with profit.

Before proceeding to the examination of the evidence in this case, it may serve a useful purpose to lay down a few simple rules of easy application. The first principle to which we refer is, that the domicil of origin once ascertained will attach until a new domicil is established facto et animo. Monroe vs. Munroe, 7 Clarke’s and Finnelly’s Repts. 842; Phill. on Domicil, 75.

2nd. The mere intention to acquire a new domicil without the fact of an actual removal avails nothingneither does the fact of removal without the intention. Story’s Con. L., 46.

In entering upon the examination of the evidence touching the question whether Mr. Croom’s domicil of succession was in Florida or in North Carolina at the time of Ms 'death, we have classified it into acts and declarations, and shall proceed in our investigations in that order.

First his Acts :

There is no controversy about the fact that Mr. Croom did actually make large purchases of land in Florida prior to the year 1834, first in the counties of Gadsden and Jackson and subsequently in the county of Leon; that these lands were purchased expressly for agricultural purposes and not for speculation; that they were actually settled and improved by Mr. Croom, and that he removed all of his slaves with the exception of a few house servants, from North Carolina to Florida and settled themnpon these lands; that his principle agricultural establishment and the bulk of his fortune was in Florida; that he annually visited his plantations in person, and during those visits spent a large portion of each year in Florida, sometimes residing in the family of his brother Bryan Croom, and after the settlement of his plantation in Leon county, occupying a house on his premises, where he received company and extended the rights of hospitality to his friends. The evidence shows we think, that after the settlement of his plantation in Leon county, he might be considered a resident or inhabitant of that county, in the common acceptation of those terms. These are all indicia tending to the establishment of his domicil of succession. Here was an actual residence and inhabitancy established, with the bulk of his fortune drawn around him* and the centre of his business fixed.

To these indicia are opposed the fact that his originál domicil in North Carolina had not been abandoned defacto; that his family- mansion had not been disposed of, nor had it been dismantled but that it still continued tobe theactual residence or habitation of his wife and children — the household furniture and decorations remaining the same, as also the accustomed retinue of servants.

Here we have in opposing array the acts which go to establish the matter of fact, and to determine the preponderance it becomes necessary to advert to a few plain rules of law as we find them enunciated in the books: 1st. The original domicil is not gone until a new one has been actually acquired, facto et animo. 2nd. The place where amarried man’s family resides is generally to be deemed his domicil ; but the presumption from this circumstance may be controlled by other circumstances. 3rd. The house of trade or centre of a man’s business in connection with actual residence, raises a strong presumption going to fix a man’s domicil of succession, and may be taken to be conclusive upon his commercial domicil. But in determining a domicil of the former character, when the house of trade and centre of business is opposed by the locality of the vrife andfamily, that locality is deemed the better criterion of domicil.’ Phill. Law of Dom., 82 et passim. Story’s Con. L., 45 et passim.

On the one hand we have the actual residence of Mr. Croom in Florida — on the other we have the equally well established fact that he had not de jacto abandoned his residence in North Carolina, but that he continued to spend a portion of each year down to the time of his death with his ifamily at their original place of abode. On the one hand we have the.strong circumstance that the centre of Mr. Croom’s business and the bulk of his fortune was in Florida. To this is opposed the fact that the locality of his wife and children was in North Carolina, and the weight of that circumstance is greatly increased by the fact that they occupied the original family mansion by his authority and approbation. To account for the want of an abandonment defacto of the family mansion in North Carolina the defendants insist that it was occasioned by the state of MrsCroom’s health. Without undertaking to settle the quéstion of health, which was mooted and so vigorously contested on either side, we think that if the fact be as was insisted by the counsel for the defendants, it becomes a most pregnant circumstance, as a matter of evidence upon the question of intention. Can it be presumed that a gentleman of Mr. Croom’s high social position — a gentleman of education and intellectual refinement — one who exhibits as he does in his voluminous correspondence with his family, so-much of the tender husband-r-the affectionate father— that he, influenced by a sordid appetite for wealth — the desire to find a field of operation which might give a wider scope to the pursuits of his favorite science or even with a view to the restoration of his own health — that he under the operation of these combined influences could ever for a moment, at any time after the first removal of his slaves to Florida have entertained a present intention to desert that afflicted wife who so much needed his sympathy and support. Such a presumption would be a libel on the unconscious dead, and we are well assured would be scouted with merited indignation by the intelligent and worthy counsel who represent the defendants; and yet to our minds the premises being assumed, the presumption is legitimate.— For without a present intention to abandon the domicil of ■origin at all hazards and without any qualification, the fixing of his partial residence in Florida and the occupancy of a house on his plantation during a portion of the year, although these acts might, under the operation of local laws, be sufficient to constitute him a resident or inhabitant, yet under that law which pervades the jurisprudence of the civilized world and finds its only sanction in the comity of nations, they are impotent to establish the domicil of succession. As we understand the doctrine of the books, it isnot the present intention to acquire a domicil in futuro,; that they recognize as. an element of the domicil of succession % but it must be a present intention to acquire it in presentí. And hence the admitted doctrine that where a party abandons the domicil of origin in fact, and with a present intention to acquire a new one, if he dies in itinera and before he has consummated that intention by an actual residence, the domicil of origin ipso facto and eo instanti reverts and re-attaches to the party. We therefore conclude that these acts of purchasing lands, settling plantations and residing portions of the year in Florida, do not of themselves indica* e such a present intention as would warrant us in declaring that Mr. Croom had abandoned his domicil of origin in North Carolina.

The next prominent act of Mr. Groom which claims our attention, is that of the exercise of the political right of voting at a public election in the territory of Florida, coupled with the negative act of ceasing to exercise that right in North Carolina after the date of the first removal of his property to the said territory. While the evidence fully establishes this state of case, we nevertheless think that undue importance is given to these acts, and that they do not indicate an}' intention either to abandon the domicil of origin or to acquire a domicil of choice. In using the term domicil in this connection we intend to be understood as meaning the domicil of succession, as contradistinguished from the other kinds of domicil — such as political, commercial and forensic. This distinction ought always to be kept prominently in view whenever we attempt to investigate the subject, and it is for the want of a proper observance of it that so much confusion and contradiction has crept into the opinions accompanying the adjudicated cases. In many of these opinions there is an utter confounding of the terms residence, habitation and domicil as they are found jin the local statutes of different States, with that domicil, of succession which has its only sanction in the general law which has obtained as a rule of action throughout the civilized world. This confounding of terms is the prolific source of those numerous dicta which serve only to bewilder the honest enquirer after truth. To our minds nothing can be more illogical or less likely to elicit truth than the attempt to apply the legal principles governing the one class of domicil to that of the other. Without dilating further upon the subject, it may suffice to show that we are fully sustained in these views by authority of the highest character.

Phillimore in his recent treatise on the law of domicil, at page 88, et seq., has collated the authorities upon this particular point. He informs us that the possession and exercise of political rights and the payment of taxes have been considered as strong tests of domicil by the Roman law and by the civilians, but that they have had perhaps less weight given them in England than in continental Europe.

In the case of DeBonneval vs. DeBonneval the court observed — “I am inclined also to pay very little attention to the statement as to his exercise of political right in France or his being registered as a voter here; being a house-keeper he was registered here as a matter of course.”

In the case of the ship “Ann” the question was whether, from the residence and employment of the owner and master, be was quoad the vessel to be consided a British subject. Sir W. Scott in pronouncing judgment observed: “The question therefore comes to this, whether the claimant-is quoad this property, to be considered as a British subject. For some purposes he is undoubtedly so to be considered. He is born in this country and is subject to all the obligations imposed upon him by his nativity. He cannot skake off his allegiance to his native country or divest himself altogether of his British character, by a voluntary transfer of himself to another country. For the mere purposes of trade lie may indeed transfer himself to another State and may acquire a new natitional character.” * * “ Now the account which he gives of himself is that he was born at Falkirk in Scotland — that during the last seven years he has been chiefly at sea, but when at home he has lived and still lives at Bathgate, in the shire of Linlithgow, in North Britain — that he is a subject of our sovreign Lord the King, but about sixteen years ago he was admitted a citizen of the United States of America for the purpose of commerce only. Why this transaction is for the purpose of commerce ! According to his own account then, he ceased to be a British subject for commercial purposes.” (Cited in Phill. on Dom., 90.)

This case bears with peculiar weight upon the distinction which we have taken between the different kinds of domicil, for while it is strenuously maintained agreeably with the English doctrine upon the subject, that a British subject cannot voluntarily throw off his national allegiance, yet it is ruled that for the purpose of commerce he may cease to be a British subject.

The same distinction is recognized in our courts. In the case of Guier vs. O’Daniel, (1 Binn. R. 364,) Rush, Pres, said — “ It is I think extremely doubtful whether voting and paying taxes, are in any way necessary to constitute a domicil, which being a question of general law cannot depend on the municipal regulations of any State or nation.” The citation of authority on this point might be indefinitely extended, but this will suffice to show that upon the question of a domicil of succession, the act of voting if at all adrtiissible as a criterion of intention, is at best of a very dubious character, and entitled to very little weight.

Having thus examined the various criteria of intention as classed under the head of acts, we now proceed to consider those coming under the head of Declarations..

1st. Oral Declarations : — We have scrutinized with much care the testimony of the numerous witnesses who have spoken with respect to the oral declarations of Mr. Croom concerning the place of his domicil, and the result of our investigation is, that the evidence thus deduced is so vague in point of date and expression, and so very contradictory in terms, that we are constrained to reject it entirely from the consideration of the cause. This vagueness and con* tradiction could be glaringly exhibited had we the time and space to refer to the depositions of the respective witnesses in detail, and would fully justifiy the assertion to be met with in the books, that “ of all kinds of evidence it is the most unreliable.” 1 Stark, on Ev. 460. Phill. on Dom. 77.

2nd. Written Declarations : — Under this head may very appropriately be considered the entries in the register of the “ Marshal House, ” a hotel located in the city of Philadelphia. There are two entries made in the 'hand writing of Mr. Croom, at two different dates, the former describing himself as of Florida, the latter as of North Carolina.— Were there not this palpable contradiction in the two entries, they could have but very little weight in determining the question of domicil, when it is recollected that [Mr. Croom had a divided residence, and he might well have described himself as of either place.

Under the same head may be considered the description' which Mr. Croom gave himself in certain hills of sale, executed between the date of the removal of his slaves to Florida, and the date of his decease. In these he is described as of the State of Florida. The authorities are' somewhat conflicting as to the weight to be given to descriptions in legal documents; but the better opinion seems to be that the weight due to this species of evidence must' very much depend upon the particular circumstances of’ each case, and that it would rarely be safe to discard altogether the consideration of it. Phill. on Dom., 87-8.

A circumstance connected with the execution, of one of these bills of sale, was strenuously pressed in the argument, as entitling it to great weight; that circumstance was the fact, that it was executed in North Carolina. Ordinarily, the presumption of an executed intention to fix the domicil of succession, arising from such a circumstance, would be very strong ; but in this case, and with respect to this particular document, it is encountered by this controlling fact, that whatever may have been his intention prior to the date of that instrument, it is not pretended to be controverted, that, at that particular period of time, he had given over any intention to make Florida the seat of his family establishment. As bearing upon this point, amongst others, we are not insensible to the position assumed by the counsel for the defendants, viz: “That the issue being as to whether H. B. Croom did, or did not, acquire a domicil in Florida in the year 1832 or 1833, the evidence must be confined to the period of time indica, ted.” If the premiss assumed in this proposition be granted, then the conclusion is undoubtedly correct, and the argument deduced from it would apply with force, not only to the point now particularly under consideration, but to others to which it was sought to apply it. But we do not agree that the issue is as stated in the proposition. The chief obstacle, which the defendants have had to encounter, in order to make good their defence, and thereby defeat the claim of the plaintiffs, is the fact of the non-abandonment-, defacto, of the domicil of origin. The evidence shows that this non-abandonment continued down to the very period of Mr. Croom’s death. Under these circumstances we think that the true issue is, not whether a domicil of choice had been acquired at any particular period of time, but whether at any time, from the date when he first purchased land in Florida and removed his slaves there, down to the date of his decease, he-had so acquired a domicil in that State. If we be correct in this, then it is manifest, upon every principle of sound reason, that the evidence bearing upon the question of intention, through. out that entire period of time, must all be resorted to, and that each particular circumstance occurring within those limits, becomes a part of the res gestee.

Under the head of written declarations, we now approach the portion of the evidence which is contained in the very voluminous correspondence, consisting of letters written by and to Mr. Groom, during a period immediately anterior to the date of .his first visit to Florida, down to the date of his departure from New Tort on board the ill-fated “Home.” From a careful examination of this correspondence, aided as we have been by the abstracts kindly furnished us by the counsel on both sides, we have been irresistibly driven to a conclusion respecting Mr. Groom’s intentions, throughout the entire period of that correspondence, which leaves not a lingering doubt upon our minds. No impartial mind can fail to arrive at the conclusion that, in the first visit of Mr. Croom to Florida, stimulated by the prospect of health, wealth, and the pursuit of a favorite science, he did entertain a 'present purpose and a present intention to make his future home and that of his family in that State. But the conclusion will be equally irresistible that this purpose and-intention remained but for a brief space of time, and.certainly was' abandoned before he had fitted up, or even procured a house for the accommodation of his family. This vacillation of purpose is the marked characteristic of the entire correspondence; and to show what little reliance ought to be placed upon his declarations in the earlier portion of the correspondence, connected with the removal of his-slaves to Florida, it is only necessary to refer to that correspondence. - It will' be remembered that the removal of the slaves to Florida was in the fall of 1831, and we find that as early as the 13th. of May.of the next year, in a letter of that date, he intimates ,a desire to transfer a' portion of his planting interest in Florida to another State. In the letter of .that date to his brother, Mr. Bryan Croom, he says : “If our place on .Apalachicola could be sold at a fair price, I would be willing to transfer a part of our negroes to this State.”

- To show that the defendant, Bryan Croom, himself did not consider that his brother had designed, by the act of removing his slaves, to establish his residence in Florida, .we refer to his letter of the 14th of August, 1832, in which .this.passage occurs : “ Write me when you will probably come to Florida, and I would impress you with thinking .seriously of moving to it.” Now if the defendant, when -he wrote this letter, had deemed that the removal of his .negroes to Florida had been made with-the. intention of .making that State the residence of himself and family, why .this solicitation ?

. On the 17th August, 1832, H. B. Cr.oom writes tp his brother Bryan — ■“ I expect to go to Florida with Mrs. Smith f (his wife’s mother.) “ If she does not like, it we will look at Alabama.”

On-the 6th of October, 1832, he again writes to his brothel’ — “ I am very anxious to be with you, and am resolved to remain 12 or 18 months at least. Mext May I think of looking at Alabama, and perhaps you will accoinpany me.”

Now, in the face of these written declarations, will it be seriously insisted that at this date, (Oct. 6th, 1832,) Mr. Croom entertained that fixed intention of remaining permanently in Florida, which the law requires to establish the domicil of succession ? But the argument is, that at a later date, to-wit: in May, 1833, his domicil was established by the act of voting for Delegate to Congress. Now when it is remembered that his presence in Florida at the time of the election in 1833, was in accordance with the contemplated visit referred to in the letter of the 6th of October, we submit to any candid legal mind what value can be attached to this act of voting.

But how was it in 1834, when he again voted for members to the Legislative Council ? Did this act fix his domicil then ? To determine that point, it is only necessary to refer to the letter of his wife, addressed to him under date of the 9th of February, 1834. In that letter she says— “Mr. B. recommends Mobile. Suppose, lefore you settle permanently, you give yourself time to judge.” From this remark it is quite evident, that at this date, his wife did not consider him permanently settled in Florida ; and 'of all persons she most assuredly ought to be deemed to have best known his mind on the subject — a subject which was so intimately connected with her comfort and happiness.

Here we might with propriety close our reference to the evidence disclosed in the correspondence, inasmuch as it seems to have been conceded by the position assumed in the argument, and which we have before noticed, that unless the domicil of succession was established in the years 1333 and 1834, it never was established after that date.— But as we have before expressed the opinion that every part of the evidence, covering the whole time that elapsed between the first removal of the slaves to Florida, down to the period of his death, was to be taken to form a part of the res gestee, we will proceed briefly to refer to such of the later letters as may serve to throw any light upon the subject.

On the 6th of October, 1835, Mr. Croom writes from his •home in Newbern, N. C., to Dr. Torrey of New York, “ I am about to leave on my annual peregrinations South.” Who can mistake the import of this language ? Would a man of Mr. Groom’s education speak of “peregrinating” •o his home — his fixed place of residence — his domicil of succession % In marked contrast witb. this language, is that which pervades and runs through the whole correspondence whenever a visit to Newbern is mentioned. Then the language is, “ I am anxious to retyurn home,” and with the word home is frequently coupled the endearing associations of “ wife, children and friends.”

On the 8th November, 1835, he writes to his wife from Florida, “It is a good country for planting and merchandize, but I cannot say it is a desirable country to live in ; indeed, I have pretty well concluded not to settle here, but to make all the money I can, and lay out none of it in building.”

On the 17th October, 1836, he writes to Dr. Torrey, of New York, from Newbern — “I am about to break up my establishment here and transfer my family further South. I do not propose to settle them in Florida, but probably in Charleston, where I can more easily visit my plantations in winter, and where I shall enjoy a more cultivated society, and greater literary means than I can elsewhere find at the South.”

On the 7th of February, 1837, he writes to Dr. Torrey, informing him that he had obtained Mr. Poinsett’s late residence in Charleston.

We have thus collated and considered the various circumstances relied upon for the defendants as criteria by which to determine the domicil of Hardy B. Croom. These have been encountered, on the part of the complainants, by the overwhelming presumption arising from the pregnant circumstance of the non-abandonment defacto of his domicil of origin, and the continued residence of his family there, surrounded by the entire domestica instrumenta of a gentleman’s establishment; and whether we adopt the one or the other of the numerous definitions assigned to the term, we are constrained to decide that his domicil of succession, at the time of his death,was located in the State of North Carolina, and not in the State of Florida.

We now proceed to the consideration of the third point made in the argument, and which involves the interpretation and construction to be given to the 10th clause of the act regulating Descents, approved 17th November, 1829. The necessity for this adjudication" arises from the conclusions at which we have arrived upon the question of survivorship. The conclusions upon, that point are, that Henrietta Mary and William Henry both survived their father, Hardy B. Croom, and that of the two children William Henry was the survivor. It will be noted that the two children were minors at the time that they perished, and that both of them died without issue. The question for our adjudication is, which, in the contemplation of this clause of the statute, was intended — an immediate or a mediate descent from the father % The clause is in the following words : — “ That whenever an infant shall die without issue, having title to any real estate of inheritance derived by gift, devise or descent from the father, and there be living at the death of such infant his father, or any brother or sister of such infant on the part of the father, or the paternal grandfather or grandmother of the infant, or any brother or sister of the father, or any descendant of any of them, then such estate shall descend and pass to the paternal kindred, without regard to the mother or other maternal kindred of such infant, in the same manner as if there had been no such mother or other maternal kindred living at the death of the infant, saving,” &c.

It is contended by the complainants that the 10th clause of the act of 1829, regulating descents, must be limited and confined in its application to cases of immediate descent from the father; while, upon the other hand, it is contended by the defendants, that it is sufficient to show that the estate was derived mediately, or through an intermediate descent from the father, in order to let into the inheritance thq paternal to the exclusion of the maternal kindred.

It may he well, in the very beginning of this examination, and before particular reference shall be had to reported cases, to state some of the general and elementai'y principles which have long been received and sanctioned as sound and safe rules to be observed in the interpretation and construction of statutes ; for if the application of these rules to the statute now under consideration shall lead us to an interpretation of its meaning which shall be in itself satisfactory, and we should further find such interpretation fully and strongly supported by the authority of well considered and adjudicated cases, we shall have arrived at a conclusion under circumstances which can leave but little room for the apprehension of error or the anxieties of doubt.

The first of these general rules which we lay down is — ■

1. That in the exposition of a statute, the leading clue to the construction to be made is the intention of the Legislature. This intention may be discovered from different signs. Dwarris on Statutes, top p. 42.

• 2. As a primary rule, the intention of the Legislature is to be collected from the words, and it is only where the words are not explicit, that we will be permitted to gather the intention from the occasion and necessity of the law, as the causes which moved the Legislature to enact it. Dwarris on Statutes, 42.

• • 3. The words of a statute are to be taken in their ordinary and familiar signification and import, and regard is to be had to their general and popular use. And, indeed, so much deference has been paid to this rule, that it hath been declared, that although it may have been the usage to construe the words of a statute contrary to their obvious meaning by the vulgar tongue, and the common acceptation of terms, such usage is not to be regarded, it being rather, say the books, an- oppression of those concerned than a construction of the statute. Dwarris on Statutes, 47, and note (x.)

We will now set out “in Time verba” the language contained in the tenth clause of the act' of 1829, which this Court is called on to construe./ They are as follows: “ Whenever an infant shall die without issue, homing title to amy real estate of inheritance,- derived by gift, devise or descent from thefather,” et&.

Now the question is, what was the intention and meaning of the Legislature, in the employment of the above language, “ gift, devise or descent from the father.”

It has been seen, from a rule above laid down, that the proper course, in all cases where the intention of the Legislature is brought in question, is to;adhere to the words of the statute, construing them according to their nature and import. Now, if in the application of this rule, it shall be found that the words used in the Act, and now requiring construction, are of a plain and definite import, then we are bound to understand and construe' them according to such import, and we cannot be allowed to enter into any speculations or conjectures as to the supposed intention of the Legislature who. framed the act. For ■ in the first application of the rule, the Courts, it has been said, will not be .allowed to presume the intention of the Legislature, but will be required to collect such intention from the words of the act. See Dwarris on Statutes, 48.

While the words of a statute.are to be adhered to, and they construed according to their nature and import, it would be unsafe to disregard the order in which they stand in the Act, their connection with each other, and their common reference, (if the fact be so,) to the same subject matter.

“ Gift, devise, or descent from the father.” It is not difficult to determine, from the reading of the clause of the statute, of which the above quoted words form a part, that it was the intention of the Legislature to preserve to the paternal kindred the inheritance of real estate, of which an infant died siezed, leaving no issue, and which the infant had derived from the father, in the manner pointed out in the statute. The Legislature did not simply provide, in the enactment under consideration, that real estate derived from the father by an infant who died siezed without issue, should go to the paternal kindred in exclusion of the maternal kindred; but it undertook to point out and declare, and did, as we think, in clear and definite terms, designate the particular modes by which such estate should be derived from the father, so as to preserve the inheritance to the paternal blood. “ Derived by gift, devise, or descent from the father.” Interpreting these words according to their plain signification and import, it is impossible to conclude, that, in the case of a “gift,” within the operation of the Act, the Legislature could mean any other than immediate gift from the father. To say that a gift in this case by Hardy B. Croom, in his life time, to Henrietta, his daughter, and a gift of the same estate in her life-time, by Henrietta to William Henry, would be a gift from the father, Hardy B. Croom, to William Henry, within the meaning of the statute, so as that William Henry, dying without issue, and a minor, the inheritance would descend to the paternal blood, would be a proposition so utterly opposed to the clear and explicit import of the words-of the act as not to bear examination, or survive the test of the well known and established rules of construction. It would not do to say, that a gift from Hardy B., the father,, to Henrietta, the daughter, and the donation of the same subject matter of gift by Henrietta to William Henry, her brother, would be, in any view which can reasonably be taken of the question, a gift from Hardy B. to the lattey. So it would be in the case of a devise from, one to another. It is, “ ex rei necessitate,” an imme- ■ diate transmission of an estate by last will and testament; so that if Blackacrebe devised by A~. to his son B. and A. dies, and B. devises Blackacre to his brother C. and dies, the estate, upon the plain and obvious import of the language of our statute, cannot be said to be derived by devise by C. from his father, A., so as to commit it to the course of descent, which, in the event C. died an infant, without issue, would secure the inheritance to the paternal blood in exclusion of the maternaUkindred. This is too plain to admit of argument, and we might consider it unnecessary to give any reason for our conclusion upon this point, “ dehors ” the plain, clear, definite and unequivocal import and signification of the words employed — gift, or devise from the father.

But it is contended, that in the construction of the words “ gift, devise, or descent from the father,” the word “ descent ” is not to be limited and confined to the case of an immediate des cent from the father, notwithstanding the words “ gift ” and “ devise ” are, by their plain and necessary import, confined and limited to cases of immediate gift, and immediate devise from the father to the child. This distinction, we suppose, is mainly based upon the idea, that a gift or devise must always, and necessarily be, by the act of the parties, while descent is by operation of law. Yet we cannot see how this can enable us to escape from that imperative rule of construction which compels us to interpret the words of a statute, when plain and explicit, according to their natural and obvious import. "What is the natural and obvious import of the words, descent from the father ? ” -Under this rule of interpretation, they cannot be taken to mean a descent from the sister; for the words “ descent from thefather,” naturally and obviously import an immediate transmission of an inheritance from the father, and therefore necessarily exclude the idea of intermediate descents.

If Henrietta Mary survived her father, Hardy B. Groom, then that portion of his estate which descended to her became vested in her by an absolute fee simple title, so that if she had labored under no personal disability, such as infancy, etc., she could have disposed of the same by gift or devise, or any of the various modes of transfer and alienation which are the necessary legal incidents to an absolute dominion over property.

Being thus invested with an absolute title to the estate which she inherited from her father, she became and was legally constituted a new substantive and independent source of inheritance, to which, upon her death, the descent must be traced. And, accordingly, upon her death, the estate descended from her to William Henry, who survived her; and still keeping in view the rule which requires the interpretation of the words of a statute in their most common acceptation and obvious import, we are compelled to say, that, in the meaning of the statute, the descent was from Henrietta to W illiam, and not from Hardy B. Groom, the father, to the latter.

That the Legislature, in the tenth clause of the Act of 1829, did not intend to embrace within its provisions mediate descents, or such descents as have come to the infant last seized through the devolution of intermediate descents from the father, we think may, independent of the natural and obvious import of the words of the statute, be most strongly inferred from the order in which the words “ gift, devise and descent,” stand in the statute, their close connection with each other, their common and simultaneous reference to the same subject matter, and the clear and unembarrassed philological construction of the clause of the statute in which they are employed. We herefore come to the conclusion, that by a true interpretation of the tenth clause of the Act of 1829, the Legislature, in the employment of the words “ gift, devise and descent from the father,” meant and designed an immediate descent from the father, just as they must and did mean an immediate gift, and an immediate devise, from the father.

Having thus considered of this question in the light of the known and established rules governing the construction of statutes, and which are above set out, we will now proceed briefly to refer to and bring forward some of the adjudicated cases, which bear upon the question now under the coneration of the Court, and see whether the interpretation which we have given to the words “ gift, devise and descent from the father,” is sufficiently supported by the authority of such cases.

In the case of Duncan vs. Lafferty’s Adm’rs., &c., reported in 6 J. J". Marshall, 46, the Court was called upon to construe the 6th section of the Act of the Legislature of Kentucky of 1796, which section provided that “ where an infant dies without issue, having title to any real estate of inheritance, derived by purchase or descent from the mother, neither the father of such infant, nor any issue which he may have by any person other than the mother of such infant, shall succeed to or enjoy the samo,” &c.

The facts in this case were as follows : Abijah Brooks died leaving a tract of land, part of which descended to his grandson, Abijah Duncan, whose mother was a daughter of Brooks and wife of the plaintiff in error; but she died before her father, and consequently the estate was cast upon her son, by descent, directly from the grandfather. — . Abijah Duncan died when a minor, leaving neither wife nor child. The question presented to the Court was whether, under the 6th section of the Act of 1796, the estate of the deceased infant would pass to .the maternal kindred, and the Court decided, that in order to let in the maternal kindred in exclusion of the father of the deceased infant, the estate must have come from the mother herself. The Court, in delivering their opinion, say, that it would require great latitude of construction to make the term mother include grandfather/ and so in this case, we are of the opinion that it would require as a great latitude of construction to make the term father include sister / for, as said by the Court in the case cited, the term father might with equal propriety be made to include uñóles, aunts and cousins.

The case of Gardner vs. Collins et al., 2 Peters’ Rep. 58, furnishes the construction given by the Supreme Court of the United States upon the following words contained in the Statute of Descents of Phode Island, of 1822, to-wit: “ When the title to any estate of inheritance, as to which the person having such title shall die intestate, came by descent, gift or devise from the parent or other kindred of the intestate, and such intestate die without children, such .estate shall, go to the kin next to the intestate of the blood of the person from whom such estate came or descended, if any there be.”

The facts in this case were briefly as follows: John Collins, deceased, in the will which he left, devised the estate in question to his daughter Mary Collins. Mary Collins intermarried with Caleb Gardner, and subsequently died intestate, leaving issue of said marriage, John C. Gardner, George Gardner and Mary C. Gardner, who took the said estate by descent from their mother. John C. Gardner died intestate and without issue, and his part of the estate descended to and vested in his surviving brother and sister, viz: George Gardner and Mary C. Gardner. George Gardner then died intestate and without issue, and his part of the estate descended to and vested in his surviving sister, Mary C. Gardner. Last of all, Mary 0. Gardner died intestate and without issue. Caleb Gardner, by a former marriage, had children, who survived Mary C. Gardner, the last surviving child of the marriage of the said Caleb Gardner and Mary Collins, which children of the former marriage were of course the brothers and sisters of the half-blood of the said Mary C. Gardner. As to that portion of the estate which came by immediate descent to Mary C. Gardner from her mother there was no dispute, but as to the two thirds which she inherited from her two brothers who died intestate, ai, dispute arose between the brothers and sisters of the half-blood and the uncle and aunt of the intestate, Mary C. Gardner, the latter asserting that the whole estate, as well the .two thirds which she inherited from her two brothers, as the one third which fell to her by immediate descent from her mother, was such a descent from the mother as entitled them as the nearest of kin of her blood, in exclusion of brothers and sisters of Mary C. of the half-blood, who were the nearest of kin of blood to the said Mary C.

To determine this question, it became necessary for the Court to examine and construe that portion of the Statute of Descents of Nhode Island, of 1822, as above set out, to-wit: “ When the title to any estate of inheritance, as to-which the person having such title shall die intestate, came by descent, gift or devise from the parent or other kindred of the intestate, and such intestate die without children, such estate shall go to the kin next to the intestate of the blood of the person from whom such estate came or descended.” This case, and the one now before the Court, in their more-important features, bear a striking- resemblance to each-other. In that case, the estate came by descent from Mary Gardner to her three children. In this case, the estate-came by descent from Hardy B. Croom to his two children, William and Henrietta, who survived him. In that case, the two brothers died before their sister, Mary 0.,. and their part of the estate which they had inherited from their mother, descended to the said Mary C. In this case, Henrietta died before William Henry, and the part of the estate which she had inherited from her father descended to William Henry. In that case, Mary C. died without issue and intestate. In this case, William Henry died an infant and without issue. In that case, the defendants claimed to be entitled to the two thirds of the estate inherited by Mary C. from her two brothers whom she survived, under the Statute of Descents of Hhode Island, of 1822, because, as they contended, it was a descent from the mother, in the meaning of the act, so as, upon the death of Mary C., to cast the descent upon the next of kin of the blood of the mother, as well as to the said two thirds as the one third which descended directly to her from her mother. In this case, the defendants claim to be entitled as well to the one half of the real estate which William Henry inherited from his sister, Henrietta Mary, as the one half which descended to him immediately from his father, upon the ground that the whole of said real estate, both that which came directly from the father, and that which descended from Henrietta, so came within the meaning and operation of the 10th clause of the act of 1829, regulating deseents3 as to entitle the paternal kindred to the inheritance, in exclusion of the maternal kindred.

It is not often that two cases are found to present, both in the facts and in the legal questions involved, so strong a resemblance; and we have only traced that resemblance in order that the force with which the decision of the Court in that case applies to this case, upon the question we are ■now considering, may be fully perceived and acknowledged.

In that case, Judge Story, in delivering the opinion of the Court, says : “ As to descents, as well as gifts and devises from a parent, it is plain that the act looks only to the immediate descent or title. A deseentfrom a parent to a child, cannot be construed to mean a descent through and notfrom a parent. So a gift or devise from, a parent, must be construed to mean a gift or devise by the act of the parent, and not by that of some other ancestor more remote, passing through the parent.”

That the words descent, gift and devise may be construed distributively, so that in cases of descents, the party who shall inherit is to be of the blood of the first purchaser,from whom by intermediate descents it was passed to the intestate, and that cases of gifts or devises, the donor or devisor shall alone be the person whose blood is to be enquired for, is a construction, says Judge Story, which the clause may be admitted to be susceptible of, without any great violation of its terms. But, he continues, “ we do not think that such is the natural construction of the terms, nor' is any legislative intention disclosed which would justify us in adopting it.” He further says, “As to the. distinction between descents, and gifts and devises, it is true, that in a sense an estate may be said to come by descent from a remote ancestor to a person upon whom it has devolved, through many intermediate descents. But this, if not loose language, is not that sense which is ordinarily annexed to the term. When an estate is said to have descended from A. to B., the natural and obvious meaning of the words is, that it is an immediate descent from A. to B.”

The learned Judge proceeds to say, that “if other words of a statute should seem to- require another and more enlarged meaning, there would be no absolute impropriety in adopting it, but if the' true sense is to be sought from the very terms, jper se? that which is the usual sense would seem most proper to be followed. It is not for Courts of Justice to indulge in any latitude of construction, where the words do not 'naturally justify it, and there is no express legislative intention to guide them.But,?’ says the learned Judge, “ we think that the connection in which the words stand, justify us in adhering to the ordinary interpretation. If in cases of gifts and devises, the blood of the proximate donor or devisor is alone to be regarded, there being no distinction pointed out in the words of the Act, between those cases and that of descents,. the very juxta-position of the words affords a strong presumption that the Legislature intended to apply the same rule as to all. If the object was to regard the blood of the party from whom the estate was derived, what reason is there to suppose that the Legislature intended less regard to the blood of a devisor or donor than to that of an ancestor? The mischief might be as great in suffering the estate to pass into the hands of strangers, when there were next of kin of the blood in the one case as in -the other.”

The decision in this case is so strongly in point, and so directly applicable to the question now under consideration, that if it be based upon sound reason and law, as we think it is, its authority cannot be easily denied or resisted.

It is becoming here to remark, that the case of Stewart vs. Jones, 8 Gill, and Johnson Rep. 1, cited and relied on by the defendants, does indeed decide that mediate descents are embraced in the act of descents of Maryland, of 1'186, but it is. to- be observed that the Maryland statute employs the words, “ estate descended to the intestate on the pa/rt of the father,” while our statute employs the terms “ descent from the father.” So it may be very well conceded that the case of Stewart and Jones affords a sound construction of the statute of descents in Maryland, while the case of Gardner vs. Collins may be considered as affording a safe and satisfactory rule for the construction of our statute of descents.

For the reasons above set forth, we are of the opinion that the words “descent from the father,” as employed in our statute of descents, must be construed to mean an immediate descent from tbe father, and that the real estate which William Henry Groom derived by descent from his sister, Henrietta Mary, does not come within the operation of the tenth clause of the Act of 1829, regulating descents, so as, upon the death of William Henry, without issue, to secure the descent to the paternal, in exclusion of the maternal kindred.

In view of the conclusions already announced upon the question of survivorship, it becomes unnecessary to consider the point presented, which involves the interpretation of our statute of distribution. It remains, therefore, only to enunciate the rulings of the Court, upon the several points made in the pleadings. They are as .follows :

1. That in the common calamity, by which they all perished, Hardy B. Groom survived his wife Frances, and his daughter Justina; that the daughter Henrietta Mary, and the son Wm. Henry, survived their father, and that William. Henry survived his sister Henrietta Mary, and was the last survivor of the family, who all perished.

2. That the domicil of succession of Hardy B. Groom, at the date of his decease, was in the State of North Carolina, and not in the, then, Territory of Florida, and that the domicil of the father at the time of his death, was the domicil of his two children, who survived him — Henrietta Mary and William. Henry.

3. That the words contained in the tenth clause of the statute regulating descents, in tin’s State, aro to b^ c,,iptl'i-J.-wl T>ci’" -' , .... , of ¿he Chancellor ordering the bill in this cause to be dismissed, be reversed, and that the cause be remanded, with direction to proceed therein in accordance with the rulings contained in this opinion.

Note By Justice DuPont. — It is due to the Hon. J. J. Finley, the Circuit Judge of the Western Circuit, who sat at the hearing of this case in the place of the Chief Justice, who was disqualified, to state, that the entire argument upon the construction of the statute of descents, contained in the foregoing opinion, was prepared by him.