#### Mary Parke Adams et al., Plaintiffs, *v.*Ann Augusta Anderson et al., Defendants.

(Supreme Court, Albany Trial Term,

June, 1898.)

1. Lapsed devise.

A devise, which lapses by the death of the devisee before that of the testatrix, does not become undisposed of realty, passing to the heirs, but goes to the residuary devisee.

2. Statute of Descents — Eights of collaterals of the blood of the father and that of the mother.

An intestdte, who left no relatives nearer than .first cousins, took a parcel of real estate from his father by descent, conveyed it to his mother for value and subsequently received it' from her by devise. Held, that under the Statute of Descents (2 R. S. m. p. 752, §§ 7-12) the parcel must be deemed to have come to the intestate upon the part of his mother and would descend to those of her blood; and that the statutory provision, excluding those not of the blood of the particular ancestor, referred only to the immediate ancestor from whom the intestate received the inheritance and did not refer to a remote ancestor, who was the original source of title.

8. Same — Property, purchased by an intestate, by mortgaging property coming to Mm on the part of his mother.

An intestate purchased a parcel at a referee’s sale and, in order to procure a part of the, purchase price, mortgaged other realty which had come to him on the part of his mother.

Held, that the parcel could not be deemed, to the extent of the mortgage, to have come to the intestate on the part of Bis mother; that, under 2 E. SI, m. p. 753, § 13, it descended in equal shares to the descendants of the brothers and sisters- of both the father and *706mother of the Intestate, and that no equitable lien, to the extent of the mortgage, arose in favor of descendants, claiming as of the blood of the mother of the intestate.

Action for partition.

Gaylord Logan, for plaintiffs.

Dyer & Ten Eyck, for defendants Crosby and Birdseye.

Charles J. Buchanan, James C. Matthews, Amasa J. Parker, Jr., William S. Elmendorf, Scott D’M. Goodwin, Joseph A. Spratt, E. A. Carley, James J. Mahoney and Edward B. Root, for various defendants.

Chester, J.

Philip Wendell Parke died intestate May 30, 1895, leaving no widow, father, mother, brothers or sisters, nor any descendants. He left certain collateral relatives of the blood of bis father and others of the blood of his mother. At the time of his death he owned a considerable quantity of real estate. The plaintiffs are heirs of the intestate on the side of his father and'have by their complaint sought a partition, or sale and division of the proceeds thereof, among the heirs, regardless of whether the inheritance came to the intestate on the part of his father, or of his mother, or by purchase.' The property in question is described in the complaint in twelve separate parcels: The defendants Edward Crosby and his sister Sarah Elizabeth Birdseye, are the only relatives that the intestate left him surviving of the blood of his mother, and they are both first cousins "of the intestate. The defendant Hannah Crosby is the wife of the defendant Edward Wendell. Crosby. All the other parties to the action are interested in the estate on the side of the father of the intestate. The defendants heretofore mentioned . insist that all of the property, except the second piece described in the complaint, came to the intestate on the part of. his mother or from relatives of her blood*, and ask that the complaint be dismissed as to all the property except that.

It is not disputed that parcel two came to the intestate on the part of. his father and descends, under the statute to the "heirs on his side. Statute of Descents, 1 R. S., p. 752, §§ 7-12, inclusive; Laws 1896, chap. 547, §§ 280 and ,288.

. Without taking time to review the evidence, I think it is entirely clear therefrom that parcels numbers one, three, four, five, *707six, seven, eight, nine and eleven came to the intestate oh the part of his mother, or of relatives of her Mood, and descend under the statute to the heirs on the mother’s side, that is to the defendants above named.

Parcels ten and twelve did not come to the intestate from either parent, but were purchased by him and,, therefore, descend to his heirs-at-law on both sides, in equal shares on each side, as provided by the statute. 1 E. S., p. 753,'§ 13.

The conclusions above stated, as to all the parcels, except numbers five, eleven and twelve, seem to me too plain to require any discussion. A brief statement of the reasons for my conclusions as to the excepted parcels will be added.

With respect to parcel five, it appears that it came to the intestate by devise, one-half thereof from his mother and the other half thereof from his mother’s brother, Philip Wendell, the latter of whom owned an undivided one-fourth interest therein by devise from his father and another undivided one-fourth interest therein by purchase from a sister. Another sister, Elizabeth, owned an undivided one-fourth interest therein. She left a will containing a clause devising her interest to her brother, Philip Wendell, and another clause devising the residue of her estate to her sister, Harriet Wendell Parke, the mother of PMlip Wendell Parke. PMlip Wendell died before his sister, Elizabeth. On the trial a deed was received in evidence from Eurnce Crosby, one of the heirs-at-law of her sister, Elizabeth Wendell, to PMlip Wendell Parke, dated January 30, 1880, which purports to convey the property m question. The grantor, however, in tMs deed had no mterest in or title to this property, for the reason that upon the death of PMlip Wendell, prior to the death of Ms sister, Elizabeth, the real estate devised to him did not become realty undisposed of by her will which went to her heirs, but it was a lapsed devise which fell into the residuum of the estate and went to Harriet Wendell Parke, the residuary devisee named in the will. Youngs v. Youngs, 45 N. Y. 254; Cruikshank v. Home for the Friendless, 113 id. 337 at 353.

The deed from' Mrs. Orosby, therefore, did not make Philip . Wendell Parke a purchaser of the mterest purporting to be conveyed thereby, and notwithstandmg the deed the inheritance m question came to the intestate by devise from his mother and her brother as above stated.

With respect to parcel number eleven, it appears that Philip Wendell Parke received it by devise from his mother, he having *708conveyed it to her by deed in 1877,-for a valuable consideration. It also appears with reference to this property that it first came to the intestate by descent from his father, but that fact is not material upon the issues presented here, for the reason that subsequent to that time the intestate conveyed it to his mother as above stated for a valuable consideration and thereafter received it by devise Under her will, and for the further reason that the Statute of Descents, which provides that in case an inheritance comes to an intestate by descent, devise or gift from one of his ancestors, all those not of the blood of such ancestor shall-be excluded from such inheritance, refers to the immediate ancestor from whom the intestate received the inheritance, and not a remote ancestor who was the original source of title. Wheeler v. Clutterbuck, 52 N. Y. 67.

Parcel number twelve was purchased by Philip WendeH Parke, the intestate, in 1892, at a referee’s sale and was conveyed to him by the referee for a consideration of $12,100, On the trial testimony was received to the effect that $9,000, of the money used in this purchase was raised by Parke by mortgaging parcel number one, and it is urged, therefore, by .counsel for the defendants Crosby and Birdseye, that.because the latter parcel came to the intestate by devise from his mother’s brother, parcel number twelve, to the extent of the $9,000, should still be regarded as property which came to the intestate on the part of his mother, or-of a relative of her blood; or if this contention is not upheld, that the court-should enforce an equitable lien in favor of said defendants to the extent o'f this $9,000, upon the property so purchased. I do not think either-view can be sustained under the law. The Statute, of Descents, after providing that *“*the inheritance, if the same shall have come to the intestate on the part of his father, shall descend ” to the heirs of the father, and that “ where the inheritance shall have come to .the intestate on the part of his mother ” it shall descend to the heirs of the mother, provides that “ Li cases where the inheritance has not come to the intestate on the part of either the father or mother, the inheritance shall descend to the brothers and sisters, both of the father and mother of the intestate, in equal shares, and to their descendants, in the same manner as if all such brothers-and sisters had been the brothers and sisters of the intestate.” 1 E. S. 7.52, 753, §§ 10, 12 and 13. ■ .

After defining the term “ real estate,” the statute provides that “the term 'inheritance’ as used in this chapter shall be unden stood to mean real estate, as herein defined, descended according to *709the provisions of tills chapter; ” (id. 755, § 27), and that “The expressions used in this chapter *1*where the estate shall have come to the intestate,. on the part of the father ’ or ‘mother,’ as the case may be, shall be construed to include every case where the inheritance shall have come to the intestate, by devise, gift or descent from the parent referred to, or from any relative of the blood of such parent.” Id., § 29; also see chap. 547, Laws 1896, §§ 280-288.

It is entirely clear that the property in question did not come to the intestate by devise, gift or descent, from his. mother or from any relative of her blood, but did come to him by purchase from a stranger to the blood; and it also seems to me clear that the real estate in question — that is the *“*inheritance ” as above defined — not having come to the intestate on the part of either his father or mother, descends as provided in section 13, above referred to, to the heirs of both the father' and mother in equal shares as provided in that section.

It is .true that when the mortgage was placed on parcel number one, that inheritance was lessened to the extent of the mortgage thereon, and the intestate’s interest on that real estate was diminished to the same extent, yet when he received the $9,000 upon the mortgage the money was personal property, no longer subject to the Statute of Descents, but to the Statute of Distributions, and, if he had died intestate with that money in his hands, it would have gone to his administrator, and not to his heirs. Denham v. Cornell, 67 N. Y. 556. And when this $9,000 of value had been so canverted into personalty and, therefore, had ceased to be subject to the Statute of Descents, the use of it as a part of the purchase price of parcel twelve had no other effect, in my opinion, on the title of that parcelj as related to the Statute of Descents, than the use of any other money for that purpose would have had. Champlin v. Baldwin, 1 Paige, 562.

There is, of course, much equity in the contention of these defendants,-but nevertheless the well-known maxim that equity follows the law applies, and no matter h.ow strong the equity, where the law is clear'and fixes the rule of descent, as I think it does in this case, against the contentions of these defendants, the rule of law must govern notwithstanding the equity.

I conclude that there should be an interlocutory judgment in the usual form directing a sale of parcels two, ten and twelve and a division of the proceeds among the parties entitled thereto in ac*710cordance with, their respective interests, after paying the costs and expenses of the action, and that the complaint should he dismissed as to all the other parcels described therein, as the defendants Grosby and Birdseye are the absolute owners thereof,

I suppose inore properly the complaint should be dismissed as to parcel two also, as the defendants Grosby and Birdseye have no interest therein, but as that property is of such small value as to hardly justify the expenses of a separate action for its partition and -all the parties interested therein are in court' and have made no objection to its being sold in this action, that course may be taken.

I have not assumed to state the fractional interests of the parties in the property directed to be sold, as I understand there is no dispute as to the degree of relationship of any of them to the intestate. If there is any dispute as to any of their interests, that will be determined upon the settlement o.f the decree.

Findings and decree may be prepared' in harmony with this opinion, the decree to he settled on two days’ notice;

The question of costs will be disposed of in the final decree.