Jackson ex dem. Roosevelt v. Thurman — 6 Johns. 322

Majority

p. 322

Jackson, ex dem. Roosevelt and others, against R. Thurman.

ALBANY,

August, 1810.

Headnote

]eaving°Blaand c., children of a deceased sister, and D., the son of a deceased brother,his heirs held^that hyThe í/iirJ^scction1 of the act,_regulating descents, B., C., and D. must take per stirpes and not per capita. Where A. died,

THIS was an action of ejectment for land in Johns- l>orouS'lti *n Washington county.

It was admitted that John Thurman, at the time of v . his death, was seised in fee of the premises m question. That he died intestate, the 27th of September, 1809* leaving the lessors of the plaintiffs, Nicholas Roosevelt and ' Elizabeth Gilchrist, the children of Elizabeth Roosevelt, deceased, the sister of the intestate, and the defendant, 7 ' 7 Ralph Thurman, son of Ralph Thurman, deceased, a . . brother of the intestate, his heirs at law.

The cause was submitted to the court, without argument.

The fifth rule, or canon of descent, ill Our statute, regulating descents, (Laws, vol. 1. p. 46. sess. 9. c. 12.) has departed a little from the principle adhered to, in the order of lineal descent, and has carried to an unusual length, the doctrine of inheritance, per stirpes, or by representation. Thus if A. dies seised of land, and his nearest heirs are a brother and two nephews, by a deceased brother, the two nephews must claim by representation, to entitle themselves to a share of the estate with their uncle. But, if A. dies seised of land, and his nearest heirs are a nephew, by a brother deceased, and two nephews by another brother, deceased, in this Case, the claimants all stand in equal degree of consanguinity, being all nephews to the common .ancestor, and might all well inherit equally, or per capita; yet the statute makes them inherit per stirpes, or such share as their patents respectively would have inherited, if living; and, of course, one nephew would take one half of the

p. 323

estate, and the other two nephews the other half. The present is such a case; and it is carrying the doctrine of inheritance, per stirpes, further than it is carried in the case of lineal descent; and further than it was carried in the celebrated novel of Justinian, (118.) from which the " statute of distributions was copied; but it is clearly the language and meaning of the statute. The lessors are, therefore, entitled to judgment, for one equal undivided moiety of the premises, and no more.

Judgment accordingly.