p. 419The complaint states that Dorcas M. Remsen died August 1, 1849, intestate and without lawful issue, or any father, mother, brother; or sister, and at the time of her death was seized of the premises No. 150 Elizabeth street, of which she was first purchaser : that she left her surviving the plaintiff and Ann Eliza Price, children of her deceased sister of the whole blood, her only heirs. That she also left her surviving William L. Burlingham and Philena White (wife of Hartson White), the brother and sister of the intestate of the half blood on her mother's side, being the brother and sister of the intestate by the same mother, but by a different father, who was a former husband of the mother, and who died before the marriage of the mother and father of the intestate, who claim also to be heirs at law and tenants in common, and entitled each to one-third of the estate —that Burlingham’s wife claimed an inchoate right of dower. The plaintiff insists that Burlingham and Philena White have no interest, but that herself and defendant Ann Eliza Price are each seized of a moiety of the property, and pray that the court may declare the rights of the parties, &c.
The defendants, Burlingham and wife, answer, denying that the plaintiff and Ann Eliza are heirs at law, and setting up that Burlingham and Philena White are the only heirs at law and each seized of a moiety, and that if plaintiff and Ann Eliza are entitled to any share, it only can be one-third as representatives of a deceased sister; and admit their own relationship and the other facts as stated in the complaint, except that they aver that the money with which Dorcas M. Remsen purchased the estate was given her by her mother, for the purpose of investment therein.
The case was referred to J. S. Bosworth, Esq., sole referee, who made his report on the 5th day of June, 1851, giving the plaintiff one-third, and Burlingham and Philena White each one other third of the property. From this decision the plaintiff appealed. (Ann Eliza Price was excluded from the inheritance as illegitimate.)
A. R. Dyett, for the plaintiff, made and argued the following points:
I. The referee erred in allotting any portion of the estate to Burlingham and Mrs. White. 1. Dorcas M. Remsen being
p. 420first purchaser, the estate descended ut feudum antiquum, and no person could inherit except he or she were of the blood of the common ancestor, the father of the intestate (2 Black Comm 222; ib. 234, 6; ib. 245; H. Chitt, Des. 3, 123; 3 Cru. Dig. 359). 2. As between brothers and sisters, they do not inherit directly from each other, but as next heir to the common father, whose blood is preferred before that of the mother. 3. Inasmuch as Burlingham and wife must therefore claim, through the father of the intestate, through whom the estate is supposed to have already passed, they cannot inherit unless they be of his blood, and could have inherited, had he died seized of the premises in question (Black. Comm., book ii. p. 204 to 206; ib. 221 to 242; 1 Feud. 182; Redpath v. Rich, 3 Sandford, 81). 4. As Burlingham" and Mrs. White had none of the blood of the intestate’s father in their veins, they could not have inherited from him, and cannot inherit from the intestate. Half blood has been admitted in royal descents—but always they must be of the blood of the “ first conquasstor ” (Plowd. 245; Co. Litt. 15; Hilliard, Real Property, 2d vol. 199, § 78; 4 Kent Comm, p. 403 to 408, and note). 5. Our statute concerning half blood relatives only applies where the party claiming has some heritable blood, but not full blood. It cannot apply where the party has only half blood, and that half not heritable. If in this case, Burlingham and Mrs. White had been children of the same father, but different mother, or had the father’s blood been extinct, they might have inherited. Again it only applies to relatives' in the same degree, which the parties are not here. Should it be said the defendants were nearer ; a distant kinsman of the whole blood is preferred to a near one of the half blood (Black. Comm. 225 to 229; Hallett v. Hare, 5 Paige 315 ; Watts v. Crook, Shower, 108 ; Strahan’s Domat, by Cushing, vol. 2, p. 238, No. 2930-2929; Champlin v. Baldwin, 1 Paige, 562; 3 R. S. p. 604; 1 R. L. p. 53). 6. Our statute of descents does not impair the doctrine of the common law, that the father’s blood shall be preferred, except in the particular instances in which it alters the rules of descent from those of the common law. Beyond that, it expressly leaves all common law rules untouched (1 R. S. 751, §§ 1 to 15 inclusive; 10 Paige, 140; Torrey v. Shaw, 3 Ewd.Ch’y Rep. 361).
p. 421II. The referee erred in excluding Ann Eliza Price. Her relationship was admitted by plaintiff, and the other defendants, not being interested, had no right to contest it.III. The plaintiff and Ann Eliza Price, being of the blood of the intestate’s father, and sole heirs at law in equal degree to the common ancestor, took per capita each a moiety, and the judgment should lie modified accordingly.Beebe and Donahue contra :
William T. Burlingham and Philena White, being the brother and sister of the half blood of the decedent, Dorcas M. Remsen, inherit each equally with the sister of the whole blood, or with Catherine Brown, the plaintiff, who is her sole representative (R. S., part 2, chap. 2, §§ 8, 15, vol. 1, p. 144, 2d ed.; R. L., chap. 12, § 4, vol. 1, p. 53; Chaplin v. Baldwin et al., 1 Paige, 562; Bond v. Bergh, 10 Paige, 140; Den v. Jones, 3 Halst. 340; Karwon v. Lowndes, 2 De Sauss. 210).By the Court.
It was insisted by the counsel for the plaintiff, that although the R. S. have abolished the distinction between the whole and the half blood, so as to render the latter capable of inheriting, they have not abolished the rule of the common law, which declares that when the intestate was the first purchaser of the inheritance, relatives on the side of the father shall be first entitled to take, so as to exclude those on the side of the mother, until the blood of the father shall be wholly exhausted. The counsel enforced this position with much ingenuity and learning; but it is difficult to be reconciled with the terms of the statute, and, in our judgment, is plainly inconsistent with its intent and spirit.
It would be a sufficient reply to the argument of the counsel to say that, admitting the rule of the common law upon which he insisted to be still in force, it could never be applied .in a case like the present. It was only applicable when the descent, from the want of nearer relatives, could only pass to collaterals on the side of the father or mother, and when, consequently, those only could be entitled to take who were able to trace their descent from a common ancestor. But as between brothers and
p. 422sisters it is settled law, that the descent is not necessary to be traced from a common ancestor, but is immediate, in the same sense, as that from a father to a son, and, in an elaborate judgment, the court of appeals has recently determined that this doctrine is not confined to.brothers and sisters, but extends to and embraces their descendants
(McGregor v.
Comstock, 3 Cow. 408 ).
The words “ relatives of the half blood shall inherit equally with those of the whole blood in the same degree,” in § 15 of the statute, plainly mean, that such relatives shall inherit precisely as they would have done had they been of the whole blood ; nor can it be doubted, that they must be applied, in this sense, to every case of descent, for which the preceding sections in the statute were meant to provide.
Apply them thus construed to § 8, which declares that “ if all the brothers and sisters of the intestate be living, the inheritance shall descend to such brothers and sisters. If any of them be living ; and if any of them be dead, then to the brothers and sisters and every of them who are living, and to the descendants of such as shall have died, &c., &c.,” and it is at once seen, that the argument which has been addressed to us needs no further reply. In all cases of a newly purchased inheritance that can arise under § 8, all brothers and sisters and their descendants of the half blood are to take as relatives of the whole blood.
We have said, that the rule of the common law, which gives a preference to the blood of the father in the descent of a newly purchased inheritance, applies only where there are relatives on the side both of the father and mother, and it merits observation, that in the only case of that kind, for which our statute provides, that of the brothers and sisters of the father and. mother of the intestate, and their descendants, this rule of the common law is expressly abolished (1 R. S. p. 753, § 13). It would be absurd to suppose that while in all cases under the section referred to, relatives of the half blood of the mother would be entitled to take, there can be any in which the nearest relatives of the half blood of the intestate himself were meant to be excluded. The effect of such a construction might be to give the whole inheritance to a second or third cousin of
p. 423the half blood, to the exclusion of a brother or sister ; an effect which it is impossible to believe could have been intended by the legislature.
The provisions of the statute are not incongruous, but entirely consistent. In respect to brothers and sisters of the father and mother of the half blood, the rule of the common law was necessary to be abolished, since otherwise it would certainly have applied.
In respect to brothers and sisters of the half blood of the intestate, its abolition was unnecessary, since by removing the disability of the half blood it ceased to be applicable.
It may be true that, in those cases of descent, for which our statute has omitted to provide, the rigid and technical rule, that we have been urged to follow, retains all its authority, and it may also be true that, in these cases, the common law incapacity of the half blood, has not been removed; but these are questions that do not properly arise in the case, and we shall therefore decline to answer them.
The judgment at special term confirming the report of the ¡referee is affirmed, with costs.