Opinion · Nclaw North Carolina

SWANN v. MERCER, 3 N.C. 115 (1800)

DEN ON DEM. OF PENELOPE SWANN v. HEMER MERCER., 3 N.C. 115 (Superior Court of North Carolina 1800)

Type: Opinion
Court: Nclaw North Carolina
Jurisdiction: Nclaw
Date: 1800-01-01
Topic: general

SWANN v. MERCER, 3 N.C. 115 (1800) DEN ON DEM. OF PENELOPE SWANN v. HEMER MERCER.Superior Court of North Carolina (Spring Riding, 1800.) A son inherited lands from his father, and died under age without child, brother, or sister, but leaving a mother and a paternal aunt of the half blood. It was held that under the act of 1784 (1 Rev.

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SWANNv. MERCER,3 N.C. 115(1800)

DEN ON DEM. OF PENELOPE SWANN v. HEMER MERCER.

Superior Court of North Carolina

(Spring Riding, 1800.)

A son inherited lands from his father, and died under age without child, brother, or sister, but leaving a mother and a paternal aunt of the half blood.It was heldthat under the act of 1784 (1 Rev. Code, chs. 204 and 225) the estate descended to the paternal aunt of the half blood and did not vest in the mother.

EJECTMENT, and a special case made for the opinion of the Court, which was in substance this: That John Swann died seized in fee of the lands in question, leaving an half-sister on the mother's side, a son and a widow, the now plaintiff the mother of that son. The premises descended to the son from the father, and then the son died on 11 April, 1796. The question is whether the mother be entitled to any and what estate in the lands.

After a lengthy and very able argument on both sides, the Court gave judgment as follows:

HAYWOOD, J.

It is very true, as has been argued, that there is no necessity on the present occasion to inquire into the defendant's title; for if the plaintiff be not entitled to the possession, there must be judgment for the defendant; yet, for the satisfaction of the parties and the bystanders, I will make some remarks also upon the defendant's title, and consider this case in three different points of view. First, supposing John Swann had died not leaving a son; secondly, supposing the son had died not leaving a mother; thirdly, what obstacle the mother can oppose to the descent on the sister of the half blood on the mother's side.

First, then, had John Swann died leaving the defendant, his half-sister on the mother's side, and no child, the case would have been under the government of 1784, ch. 22, sec. 3: "If any person dying intestate, seized or possessed of any estate or inheritance in (116) land or other real estate in fee simple, and without issue, such estate or inheritance shall descend to his or her brothers or sisters, as well those of half blood as those of whole blood, to be divided amongst them equally, share and share alike, as tenants in common," etc.

Secondly, had the son died leaving no mother alive, but the defendant, the half-sister of his father by the mother's side, and without a child, the half-sister in that case would have been entitled under 1748, ch. 22, sec. 4: "The same rules of descent shall be observed when the collaterals are further removed than the children of brothers and sisters." What rules of descent? Why that the half blood shall take equally with the whole blood under the restrictions mentioned in the proviso ofPage 114the third clause:"Provided always, that when the estate shall have descended on the part of the father, and the issue to whom such inheritance shall have descended shall die without issue, male or female, but having brothers and sisters of the paternal side of the half blood, and brothers and sisters of the maternal line also of the half blood, such brothers and sisters respectively of the paternal line shall inherit in the same manner as brothers and sisters of the whole blood, until such paternal line is exhausted of the half blood; and the same rule of descent and inheritance shall prevail amongst the half blood of the maternal line under similar circumstances to the exclusion of the paternal line," etc. The half blood on the mother's side is excluded no longer than there is some of the whole or half blood on the father's side, and by the letter of the act no longer than there is half blood on the father's side. If, therefore, there is neither whole nor half blood on the father's side, the half blood on the mother's side will take in the same manner as if there were no half blood on the father's side. Here the collaterals are farther removed than to brothers' and sisters' children and the half blood, namely, the aunt of the half blood on the mother's side will succeed in the same manner as brothers and sisters, and their children succeed to a deceased brother — that is to say, the half blood equally with the whole, and the half blood alone where there is none of the whole blood. And as the defendant in this view of the case would have been entitled had there been no mother, the third question is, Can the mother oppose any obstacle of the descent on the half-sister of the father? For if she cannot, the half-sister remains entitled. This question must be decided on the act of 1784, ch. 22, sec. 7, and the amending clause in the act of 1784, ch. 10, sec. 3; the first of them in these words: "Whereas by the law of descents as it now stands, when any person seized of a real estate in fee simple dies intestate without issue, and not having any brother or sister, such estate descends to some collateral relation, notwithstanding that the intestate may have parents living — a (117) doctrine grounded upon a maxim of law not founded in reason, and often iniquitous in its consequences: Be it, therefore,enacted, that in case of any person dying intestate, possessed of an estate of inheritance without leaving any issue, and not having any brother or sister, or the lawful issue of such, who shall survive, the estate of such intestate shall be vested in fee simple in his or her parentfrom whomthe same was derived;or if such estate wasactually purchasedorotherwiseacquiredby such intestate, then the same shall be vested in the father of such intestate if living; but if dead, then in the mother of such intestate and her heirs; and if the mother of the intestate should be dead, then in the heirs of such on the part of the father; and for want of heirs on the part of the father, then to the heirs of the intestate on thePage 115part of the mother." The latter act is in these words: "And whereas by the seventh section of the said act real estates actually purchased or otherwise acquired are to descend to the father if living; but if dead, then to the mother of such intestate and her heirs, by which the descent may be altered by the accident of death; and the paternal line, which is favored in all other instances, may be deprived of the inheritance by such accident:Be it enacted, That in case of the death of any person intestate, leaving any real estate actually purchased or otherwise acquired, and not having any heirs of his body nor any brother or sister, or the lawful issue of such, then such estate shall be vested in the father of such intestate, if living; but if dead, then in the mother for life, and after the death of the mother, then in the heirs of such intestate on the part of the father; and for want of heirs on the part of the father, then in the heirs of the intestate on the part of the mother forever."

These, if any, are the clauses which support the claim of the mother. She was not entitled as the law stood before these acts; and if she was not entitled under them, her claim is unfounded, and the case is then just the same as if the child had not left a mother; in which case the father's sister of the half blood on the mother's side succeeds.

Now, the preamble to the seventh section of the first act states the old rule excluding parents in favor of collaterals to beoftennotalwaysiniquitous in its consequences, from whence it is to be inferred that it was not the intention of the Legislature to make the parents capable of succeeding to their children in all cases of a child's dying without children and without brothers and sisters, but in some cases only. These cases the act goes on to describe.

The first of them is where the child hasderivedhis estate from the parent, that parent shall succeed. This necessarily means a derivation from the parent by some deed executed; it cannot mean a derivation by descent or devise; for in either of these cases the parent must be dead before the estate vests in the child; whereas the act supposes the parent will be alive at the death of the child. In the case before (118) us the lands came by descent to the child from the father.

The second of them is where the child actually purchased the estate; and that is not the case before us.

The third of them is where the child otherwise acquired the estate.

These words cannot include the two former cases, for then the specifying the two former were useless. It is intended to express some case different from these. They do not mean to comprehend the case where lands have descended from a parent to a child, because the seventh clause of the first act speaks of such an acquisition as either parent may possibly be alive to take, "It shall go to the father if living, andPage 116his heirs; but if dead, to the mother and her heirs" — tantamount to saying, if both parents be alive, the father shall take; but if the father be dead, the mother shall take. How, then, will this idea comport with the other, of the estate having come from a parent by descent? Suppose the estate descended from the father; he must necessarily be dead, though the act contemplates a case where he may possibly be living. Suppose the estate descended from the mother, then, if the father be dead, she must be so also, and yet the act supposes she may be alive to take. The words "otherwise acquired" probably do not mean to include an acquisition by descent, because the third clause of the latter act says, if the father be alive he is to succeed and his heirs after him: so that if the act means to comprehend the case of a descent, then an estate descended to the child from the mother will be included. Then, suppose the child dies; the father's family inherits. Suppose the estate descended from the father, his family also inherits, leaving no chance for the mother's family in any event to succeed either to an estate coming from the father or from the mother, but making the father's family in every event to succeed to the mother's estate. No reason can be assigned for any such intention. Again, under the third clause of the latter act, if both father and mother be dead, or when the mother shall die, the father being not alive at the death of the child, the estate is directed to go to the heirs on the part of the father; and for want of heirs on the part of the father, to the heirs on the part of the mother. This, supposing it to mean the case of descent, and that of a descent from the mother as well as a descent from the father, contradicts the spirit and letter of the proviso contained in the third and fourth clauses of the first act; for by them the rule of descent amongst collaterals farther removed than the children of brothers and sisters — that is to say, amongst uncles and aunts — shall be the same as the rules prescribed for descents amongst brothers and sisters; that is to say, brothers (119) and sisters on the mother's side of the whole and half blood shall exclude those of the half blood on the father's side; yet, according to what is contended for, if lands descend from the mother to the son, and the son die without children and without brothers and sisters, and the father be dead, the heirs on the part of the father, namely, uncles and aunts on the father's side, shall exclude uncles and aunts on the mother's side, which in the case of a descent from the mother is expressly negatived by these clauses, the words of which are: "And the same rule of descent shall prevail amongst the half blood of the maternal line under similar circumstances to the exclusion of the paternal line; and the same rule of descent shall be observed in collaterals where the collaterals shall be further removed than the children of brothers and sisters." By these clauses the uncles and aunts on the father's side can at best sharePage 117only equal parts of the estate with the uncles and aunts on the mother's side; yet by the construction contended for, and allowing the words "otherwise acquired" to mean an acquisition by descent from the mother, the uncles and aunts on the father's side will in the case above supposed exclude the uncles and aunts on the mother's side entirely; for the words of the third clause of the second act are, "After the death of the mother, then in the heirs of such intestate on the part of the father; and want of heirs on the part of the father, then in the heirs of the intestate on the part of the mother." Again, the third clause of the latter act contemplates such an acquisition as leaves it to accident whether the father shall be living or dead at the time of the child's death, and supposes that such accident may carry the estate to the mother, saying, "By which the descent may be altered by the accident of death and the paternal line deprived of the inheritance by such accident." Then it cannot be meant of an estate which had descended from the father, for, he being dead, it could not be in the power of accident to effect what the act complains of; and if not meant of such an estate, neither is it meant of an estate descended from the mother, for it supposes her also to be alive; it being now to go "to her, if the father be dead, for life." Moreover, the act meant to prevent a deflexion of the heritable, line by the accident of one person dying before another, and to provide that if the father be dead and the mother alive, that accident shall not change the heritable line. Suppose, then, the child die before the mother, and the wordsotherwise acquiredbe intended of an estate descending, the father is entitled to be tenant by the curtesy, and the inheritance goes to the heirs on the part of the mother; and then she dies, her estate will go to after the mother, it goes to the father and his heirs. If by accident the father dies before the mother, and then she dies, her estate will go to her son; and upon his death, without children or brothers, to her relations. But if she die before the father, and the lands descend to her son, who dies without children or brother, then the estate will (120) go to the father's relations.

By such a construction, when we avoid one mischief we fall into a greater. We avoid the operation of the accident as to the father, but establish such accidents and give them efficacy against the relations of the mother. In the case of a descent from the father, if there be no child, the widow is entitled to one-third, and the father's relations to the residue. What reason, then, to give her the whole when by the death of the child she stands in the same situation as if there had been no child originally? In the case of a descent from the mother, if the child die before her, the father is entitled to the whole for life. What reason, then, to give him the inheritance, when by the death of the child after his mother, his situation is precisely the same? All these considerationsPage 118prove the words "otherwise acquired" not to be intended of a descent from either parent; and then they must mean an estate acquired by gift, devise, or descent from some person other than a parent.

If it be objected that the third clause has in view the estates last mentioned, and in respect of them supposes the possibility of the father and mother being alive to take, and also had in view the case of an estate acquired by descent, in respect of which, not that supposed possibility, but only the general words directing the descent to the parent living are applicable, the answer is, that such a position involves this dilemma; either the words of the third clause, keeping the estate in the father's family, in all events goes farther than the spirit of the clause warrants, which was only to keep in the father's family estates acquired by gift, devise, or descent from a stranger, and then the generality of the words should be restrained to such estates only; or these words do not at all contemplate estates descending from parents, and then such estates are out of this clause. It may be said, the wordsotherwiseacquired, as used in the seventh clause of the former act, do extend to an estate coming from a parent by descent; and such estate, not being within the amending clause, must be governed by that seventh clause. Such mode of considering the subject will avoid the mischief of carrying the mother's estate into the father's family, and of contradicting the rules established in the foregoing part of the act; but then it will lead us to as great an absurdity on the other side, for by the seventh clause of the former act the estate there spoken of as falling under the wordsotherwiseacquiredis to go to the father, if living, and his heirs; and if dead, to the mother and her heirs. Then, suppose that lands have descended to a son from the father, and the son die intestate and without children, and without brothers and sisters, the mother and her heirs will succeed to the estate descended from the father, although the third and (121) fourth clauses of the former act expressly carry such estate to the uncles and aunts of the father's side, if not exclusively, at least jointly with uncles and aunts of the mother's side. It is impossible to avoid absurdity and contradiction if we suppose the wordsotherwiseacquiredto be intended of an estate acquired by descent from a parent; but if we suppose them to mean an estate acquired by gift, descent, or devise from a stranger, then there is no injustice in preferring the father's family. The mother's estate is not carried into his family; uncles and aunts on her side are excluded from a share of the estate descended from her. The third and fourth clauses introducing such uncles and aunts into the succession where the child dies without children and without brothers and sisters is not superseded; the father and mother both stand an equal chance to succeed according to the words of the act. The estate descending from the father is not carried into the mother'sPage 119family, in exclusion of the uncles and aunts on the father's side; for such estates by gift, descent, or devise from a stranger may descend without any such absurdity or contradiction; and we satisfy the words of the preamble to the fourth clause, stating the old rule was often iniquitous, and steer clear of the iniquitous and unjust consequence of excluding the mother's relations from sharing in the estate descended from her, and of excluding the father's relation from the estate descending from him; and therefore I am of opinion that the genuine meaning of the wordsotherwise acquired, as used in the seventh clause, is attained by understanding those words to comprehend an estate acquired by gift or devise from a stranger, and not by descent from a parent. And as the estate in the case now before us did actually descend on the part of the father, that therefore the present is not such a case as entitles the mother to succeed within the meaning of the before mentioned clauses, and consequently that the estate descended on the death of the son to his paternal aunt of the half blood on the mother's side.

Judgment for the defendant; but at the request of the plaintiff's counsel, it was sent to the Court of Conference for their consideration.

NOTE. — This case was taken to the Court of Conference, and there argued at great length at June Term, 1803, byHaywoodfor the defendant andBrownfor the plaintiff, upon which the Court took anadvisari, and it does not appear from any of the reporters of that day what became of it. Seepost, 246. The rules of descent have been since altered by the act of 1808. (Rev. Stat., ch. 38).