James Stewart's lessee vs. Robert Jones, of George, 8 G. & J. 1

.Stephen, Judge, delivered the opinion of the court. This action of Ejectment was instituted in the court below to .recover two tracts or parcels, of land called “ DashielVs Lot” and “ Slovens* Folly.'1'’ The declaration contained two counts, one for the entirety, the other for undivided moieties. The lessor of the plaintiff claims to recover as heir at common law, of a certain Alexander Stewart, who departed this life sometime in the year 1810.

The land in controversy descended to Alexander, from his sister, Jane Stewart, who died seized thereof in the year 1797, intestate, and without issue, leaving the said Alexander, her brother, and only heir at law. The title of Jane, was derived by descent from her father, Col. John Stewart, who departed this life sometime in the year 1794, her brother, Alexander, being her brother of the whole blood, and who was also a son and heir of the said Col. John Stewart. The said Jane and Alexander, being the only children and heirs at law, of the said Col. John Stewart.

The defendant claims title under the commission issued from Somerset county court, on the petition of one of the collateral heirs of the said Alexander, claiming title to a part of said lands under the act of descents of this Stale; the said Alexander, having died as aforesaid, intestate and without issue. The lessor of the plaintiff claims his title as heir at common law, of the said Alexander Stewart, as the oldest son of the said John Stewart, who was the oldest son of William Stewart, who was the only brother of the said Col. John Stewart.

The question therefore to be decided by this court, is, whether on the death of Alexander, intestate and without issue, the lands in controversy descended from him to his collateral heirs under the operation of the act of descents of this State, or to the lessor of the plaintiff as his heir at common law. Capi. John Stewart, the father of the lessor of the plaintiff, departed this life sometime after the death of the said Alexander Stewart, without ever having been actually seized as is alleged, of the lands, to recover which this action of ejectment was instituted.

The solution of the question arising in this case depends upon the nature of the title under which Alexander Stewart, held the property in controversy at the time of his death.

On the part of the lessor of the plaintiff it is contended, that he took it by immediate descent from. his sister, as her heir at common law, and that therefore the lessor of the plaintiff is entitled to recover as his heir, accord ing to the rules and canons of descent as fixed and established by that law; on the part of the defendant it is contended, that although he took it by immediate descent from his sister, yet as it descended to her from their common father, it was a descent to him on the part of the father, and is therefore operated upon by the express provisions of the act of' descents of this State.- According to the principles of the common law of.England, as well as the act of descents of this State, descents are either lineal or collateral, and both may be either mediate or immediate.

The immediate lineal descent at'common law, is. from the father to his son, the .immediate collateral descent is from one brother to another. The mediate, when one derives his inheritable blood to another by the medium of a third person; as in lineal descent, if a son claims as heir to his grandfather, or great grandfather, it shall be mediante patre, though the father be dead at the time of the descent; so in a collateral descent from a nephew to an uncle, or from an uncle to a nephew, it shall be made mediante patre, 3 Comyn’s Digest, 408, 409. In 2 Black.

Com. 223, .it is said “ it must be observed, that the lineal ■ancestors though (according'to the first rule) incapable themselves of succeeding to the estate, because it is supposed to have already passed them,.are yet the common stocks from which the.next successor must spring; and therefore, in the Jewish law, which in this respect entirely corresponds with ours, the father or other lineal ancestor is himself said to be the heir, though long since dead, as being represented by the persons of his issue, who are held to succeed not in their own rights as brethren, uncles, &c. but in right of representation, as the offspring of the father, grandfather, &c. of the deceased.

But though .the common ancestor be thus the roof of the inheritance, yet with us it is not necessary to name him, in making out the pedigree or descent. For the descent between two brothers, is held to be an immediate descent; and therefore, title may be made by one brother, or bis representative to or through another, without mentioning their common father.

If Geoffrey Stiles, hath two sons, John and Francis, Francis, may claim as heir to John, without naming their father Geoffrey ; and so the son of Francis, may claim as cousin and heir to Matthew, the son of John, without naming the grandfather: to wit: as son of Francis, who was the brother of John, who was the father of Matthew.

But though the common ancestors are not named, in deducing the pedigree, yet the law still respects them as the fountains of inheritable blood; and therefore, in order to ascertain the collateral heir of John Stiles, it is first necessary to recur to his ancestors in the first degree, and if they have left any other issue besides John, that issue will be his heir.

On default of such, we must ascend one step higher to the ancestors in the second degree, and then to those in the third and fourth, and so upwards in infinitum ; till some couple of ancestors be found, who have other issue descending from them besides the deceased, in a parallel or collateral line.

From these ancestors the heir of John Stiles, must derive his descent.” Though therefore, according to the principles of the English law of descent, the descent from brother to brother is held to be immediate, and title may be made by one brother to another without mentioning their common father, yet the law still respects the father as the fountain of inheritable blood.

From these principles it seems to follow, that though the descent from brother to brother is held to be an immediate descent, yet the title of the brother as heir, must be founded upon a descent from the same pair of common ancestors, as the fountain of inheritable blood.

Although therefore, the descent from brother to brother is immediate, yet as the brother derives his inheritable blood by descent from their common father and mother, the descent is also mediately from them; because we have seen, that according to the doctrine as laid down by Comyn, in his digest, a mediate descent is “ where one derives his inheritable blood to another by the medium of a third.” Here wre think we might safely stop, and from the proceeding principles of the common law, legitimately draw the conclusion, that the descent from Jane, to her brother Alexander, though an immediate descent according to the principles of that law was still mediately from the father from whom Alexander derived his inheritable blood, and was therefore on the part of the father, and consequently embraced within one of the classes of the law of descents of this State.

But there are other considerations which we think have a considerable bearing upon this case, to which it is proper we should advert. In the year 1786, the legislature of this State, impressed with a conviction that the rules and canons of descent as established in England, and which originated from the feudal system, were contrary to justice, and ought to be abolished; framed a new scheme or system of descents, in many of its features essentially variant from that adopted and prevailing in England; by that law, new capacities of inheriting was created, unknown to the common law of England.

It provided that on the death of the intestate, and on the failure of lineal heirs in the descending line, if the estate descended to the intestate on the part of the father, the estate should descend to the brothers and sisters of the intestate of the blood of the father, without discriminating between those of the whole or the half blood; so that Alexander, though only of the half blood to his sister, Jane, would have taken as her heir, equally as if he had been of the whole blood under the operation of the law of descents of this State ; and. in such case, as he would have been excluded according to the principles of the common law, it is manifest he could only have taken on the ground of deriving his inheritable blood to his sister, from or through the father, and consequently by the medium of the father.

The descent therefore to him, though immediately from the sister, was mediately from the father, and consequently must be deemed a descent On the part of the father. Under a similar aspect this question has been viewed by the Supreme Court of the United States, in a case reported in 2 Peter's S..C. Rep. 58. In that case as here, the property in dispute descended from the motlier to her three children, who were two sons and a daughter; the two sons died intestate, and without issue, and on their deaths, their shares of the estate descended to their surviving sister.

The sister then died intestate, and without issue, and in order to decide the rights of the parties litigant in the action of ejectment there pending, it became necessary to decide the character of the descent, by which the sister held the two-thirds -which passed to her by descent from her brother, and if it was to be considered as a descent from the mother, under the law of descents of the State of Rhode Island, where the suit was brought, the lessors of the plaintiff had no title, if not, they were entitled to recover. Judgment was given for the plaintiff, and Mr.

Justice Story, in delivering the opinion of the court, uses the following expressions : “ The estate originally came from John Collins, by devise to his daughter, Mary Collins, and by descent from her to her three children, and mediately as to the two-thirds, to the intestate through her brothers.” The descent to the Surviving daughter from her mother, he of course held to he immediate; but as to the two-thirds, which passed to her from her brothers, whom she survived ; he held the descent from the mother to be a mediate descent, and not immediate, and being a mediate descent from the mother, though not an immediate one, it was still a descent on the part of the mother.

It is to be observed, that the question arising in this case, does not now for the first time come before this court for its decision. More than twenty years ago, the very point now in controversy was presented to this court for adjudication; the case in which it arose may be found reported in 3 Har. and Johns. 287, and we are happy to find, that under all the lights we have since received, we discover no cause to dissent from the opinion there given, and that the rule of property then established, may consistently with principle be still held sacred and inviolable.

It is much to be regretted, that in deciding the above case, the court gave no reasons for the judgment which was rendered; but we have the argument of the counsel for the appellee, who was the successful party; by whom it was contended, that the rules and principles of the common law had nothing to do with the case, but that it depended on the true construction of the act to direct descents, meaning the act of 1786, ch. 45.

They contended, that the land descended immediately from the sister, and mediately from the father, and that although the descent was not from or through, yet it was on the part of the father. Whether this argument of the appellee’s counsel was adopted by the court to its full extent, the report of the case does not inform us ; but it is clear from the result, that the decision was founded upon the principle, that the descent from the brother, who last died seized, was .not governed by the doctrines and principles of the common law, but was controlled and operated upon by the act of descents of this Slate.

It has been contended in the argument of this case, that the decision of the court in that case, is in conflict with the decision since made by this court in the case of Hall vs. Jacobs, reported in 4 Har. and John. 245. But we cannot acceed to this proposition; and we think that the two cases so far from being identical, are essentially dissimilar in a most prominent feature.

In the case last mentioned, Joseph and Rachael Jacobs, from whom the property descended to their brother, Dorsey Jacobs, the intestate, acquired it by purchase as devisees under the will of their father Richard Jacobs; it was not therefore as here, a case of descent, but of purchase; and upon that ground the opinion of the court seems to have been founded; for we find, that the present chief judge, by whom the opinion of the court was delivered, after deciding that the estate which was vested in Dorsey Jacobs, by purchase, under the will of his father was embraced by the act of descents, and on his death descended to his brothers and sisters of the half blood, uses the following language,£C with respect to the two-thirds of the land, which were vested in Joseph and Rachael Jacobs, by purchase, under the will of their father, Richard Jacobs, there appears to be more difficulty,” and after adopting a course of reasoning to shew that they did not vest in Dorsey Jacobs, by purchase, and consequently did not descend to his brothers and sisters of the half blood, he comes to the conclusion, that it was not an estate which descended to him either on the part of the father, or on the part of the mother, and wras not therefore within either of those two classes of cases, and could not consequently descend to the lessors of the plaintiff equally.” and he ultimately came to the conclusion, that the land in question passed by immediate descent to Dorsey Jacobs, from his brother and sister, Joseph and Rachael, who acquired it by purchase, and on his death intestate and without issue, leaving no brother or sister of the whole blood, it descended at common law to his uncle, John Jacobs, the brother of his father of the whole blood, to the exclusion of his two aunts, Elizabeth Walker and Hannah Fowler.

In another part of the opinion he says, “ by the common law, if a man purchases land, he is by fiction understood to hold it ut feudum, anti-quum, not as land descended either ex parte paterna, or ex parte materna, for the law will not ascertain it, but as an estate derived to him from some unknown ancestor, and if he dies intestate and without issue, it -will go first to the heirs on the part of the father, and on failure of such heirs, then to the heirs on the part of the mother, the males being always preferred to the females, and amongst males, the right of primogeniture prevailing.” And he finally decides, that the land in controversy having passed by immediate descent to Dorsey Jacobs, from his brother and sister, Joseph sná 'Rachael, who acquired it by purchase, on his death intestate and without issue, leaving no brother or sister of the whole blood, it descended to his uncle, John Jacobs, as his heir at common law.

From the preceding view of this case we think it clear, that the opinion of the court in Hall vs.

Jacobs, was essentially placed upon the fact, that Joseph and Rachael Jacobs, from whom the estate descended to Dorsey, having acquired it by purchase, and not by descent from their father, it could not be considered as descending to him mediately from the father, and consequently was not embraced by the act of descents of this State, as property descending on the part of the father ; we therefore think, that the two decisions of this court, reported in the third and fourth'of Har. and John, so far from being in conflict, are in perfect harmony with each other, and that there is no discrepancy between them.

JUDGMENT AFFIRMED.