#### Den ex dem. Jno. Stretch, and others, *against*Jon. Stretch. *(a)*

in ejectment.

THIS cause was presented to the court, by a state of the case, agreed upon between the parties, by which the following facts appear.

Right 0f TM«sy's of the inherit.

*Samuel Stretch*the elder, was seized in fee of certain lands *in the county of *Salem*(including the premises in question) and devised them to his three sons, and only issue, viz. *Joseph,*the eldest, by one venter; and *Samuel*and *Luke,*by another venter; to be equally divided between them, and held in fee simple. *Joseph,*the eldest son, had issue, *Jonathan,*the defendant, *Samuel, John, Sarah, Nathan, David,*and *William. Samuel*died before *208
      *Aaron,*leaving issue a daughter, *Sarah Ann,*who, with *Sarah, Nathan,*and *David-,*are the lessors of the plaintiff. *William*is yet a minor.

*Samuel*died without issue, in 1804. *Luke*died in 1810, leaving a son *Aaron. Aaron*died in *March*1814, while yet a minor, and without issue and intestate.

*Joseph,*the eldest son of *Samuel,*alienated his part of the lands devised by *Samuel.*

*Samuel*before his death, duly executed his will, devising his real estate, being one half of the premises in question, to *Luke*in fee simple.

*Lake*died intestate, and all the premises in question, descended to his son *Aaron.*Upon the death of *Aaron, Jonathan,*the eldest son of *Joseph,*and the present defendant, entered and still remains in possession of the premises ; and claims the whole in exclusion of his brothers, sisters, and niece. The lessors of the plaintiff, as well as the defendant, are cousins of the half blood of *Aaron,*the last tenant in fee of the premises.

*Harrison*for plaintiff.

The plaintiffs claim as the heirs of *Aaron,*under the third section of the act of 1780. *Pat.*43-'. They are of the half blood, and although they could not inherit by the common law, yet by force of this statute, their claim may be sustained. This statute was designed to put an end to the right of primogeniture, and all the consequences resulting from it, as is manifest, from the title, the preamble, and the words of the law itself. *Pen.*219. 2 *Or.*386. The defendant, therefore, resting upon his right, as oldest son, and claiming the whole of the premises, under that right, will not be permitted to succeed in his claim.

*Ewing*for defendant, in answer.

The plaintiff must recover upon the strength of his own title, and he has no pretence of claim, to the premises in question. *Aaron Stretch,*the last ten*ant in fee, died in 1814, leaving no heirs of the whole blood. The lessors must claim as his *heirs at law.*But they are not his heirs at law. They are only cousins of the half blood. As such, they cannot inherit at common law. There would be an escheat. *2092 *Black. Com.*227. Nor can they inherit by the statute of 1780: it does not, in this respect, repeal the law. It extends to the *brothers*and *sisters*of the half blood-, but no further. For this reason, therefore, they cannot recover. But 2. If *cousins*of the half blood could inherit, these lessors could not recover. Among cousins of the half blood, the right of primogeniture exists in all its force. It has only been destroyed by the statute, among children, brothers, and sisters. *Jonathan*is therefore entitled to the whole, being the oldest son.

*R. Stockton*in reply.

If *Joseph*were living, he would be the heir of *LvJce,*and therefore heir of *Aaron.*Now, on the principle of representation, *Joseph’s*children take what their father would have taken. The third section of the act of 1780, destroys the old principle of the common law, and creates a general capacity to take in the half 'blood, and makes all equally capable of inheriting. It is true, that this case is not literally within the words of the statute, but it is clearly within its spirit and object, and the court will so adjudge as to promote its object.

Cited in *Bray vs. Taylor, 7 Vr. 418.*See *Pennington vs. Ogden,*Coxe *192. Arnold vs. Den, 2 South. 862. Den. vs. Jones, 3 Hal. 340.*

Opinion of the court.

Kirkpatrick G. J.

This is an ejectment for lands in *Salem*county, and a case is stated for the opinion of the court, in these words, viz. (see case.)

Upon this case it is manifest, that at common law *Jonathan,*the oldest son of *Joseph,*would have succeeded to the inheritance, if *Joseph,*his father, and *Lake,*the father of *Aaron,*had been brothers of the whole blood. It is manifest too, that in that case the statute of descents would have made no difference. It says, “ if an ancestor shall die without issue, or having issue, and such issue shall die under age and without issue, the real estate shall descend to, and be inherited by the brothers, or •or by the brother and sister or sisters, or by the brothers and sister or sisters, as the case may be, or the issue of such brothers or sisters but it does not respect the cases where the ancestor hath left one brother or one sister only, or the issue of such brother or sister, *as is the case *210here. So that, if *Joseph*and *Lulce*had been brothers of whole blood, *Jonathan*alone, and not in conjunction with his brothers and sisters, would have succeeded to the inheritance at the common law, the statute notwithstanding.

But inasmuch as they were brothers of the half blood only, and therefore, neither they, nor their issue could inherit to one another, by the rules of the common law; let us see whether the statute aids them in this respect. It says, *“*That if any person possessed of, or entitled to, a real estate in his or her own right, in fee simple, shall die without making a will disposing thereof, and without any'brother or sister, or any issue of such brother or sister, of the whole blood, and shall have a brother or brothers, a sister or sisters, a brother and a sister or sisters, or brothers and a sister or sisters, of the half blood, the said real estate of such person shall descend to, and be inherited by such kindred, as the case may be, of the half blood, in the manner and proportions between male and female directed by the first section of this act.” Hence it is seen that this statute, enabling the half blood to inherit, extends only to brothers and sisters, of the half blood, and that it does not extend to the issue of such brothers and sisters, or to any other collaterals related in a more distant degree.

Here *Aaron*was the person possessed of, or entitled to this real estate. He, it is true, died leaving neither brother nor sister of the whole blood, nor any issue .of such brother or sister; but it is true also, that he left neither brother nor sister of the half blood ; and for col-laterals of a more distant degree, and particularly for cousins, such as the children of his uncle *Joseph,*the statute makes no provision. And even if we should suppose *Lulce*to be the ancestor from whom the inheritance should descend (for the preceding clause of the statute seems to give colour to such a supposition) the result will be precisely the same.

I am of Opinion, therefore, that neither *Jonathan*nor any of the children of *Joseph*can inherit this estate, either by the rules of the common law, or under the statute of descents.

*211
      *Jonathan,*however, being in possession of the land, has a right to hold that possession, not only against plaintiffs, but also against all the world, until a better title be shewn.

Judgment for the defendant.