#### JESSE A. CLEMENT AND OTHERS *against*CHARLES CAUBLE AND WIFE.

In tlie descent of real estate, under the act of 1808, the next collateral relations of the person last seized, who are of equal degree, take *per stirpes,*and not *per capita.**

Peabson, J. *dissentients.*Under the act of 1808, land descends *per capita*among the next collateral relations who are in equal degree. When those more remote bring themselves up to an equality by the right of representation, they take *per stirpes.*

Appeal from'tbe Court of Equity of Davidson County, at tbe Spring Term, 1854, ITis Honor Judge MaNly, presiding.

Eve Clement, bad two brothers, Adam and Henry, both of whom died in her life-time. Adam Clement, left him surviving; an only daughter, Susan, who married Charles Cauble.

Henry Clement, bad seven children, Jesse A. Clement, Mary, tbe wife of "William March, who bas since died without children; Sarah, tbe wife of James Ryan; Henry, who died leaving seven children; Godfrey, who died leaving three children ; Margaret Sain, who died leaving three children; and *83John, wbo died, leaving seven children. Henry, Godfrey, Margaret and John, died prior to tbe year 1851.

Sometime in tbe year 1851, Eve Clement died, without children, seized in fee of several tracts of land. At the*Fall Term, of that year, this bill was filed for the purpose of having the land sold for partition, and the proceeds divided among the heirs at law of Eve Clement. The decree was obtained, the land sold, and a reference made to the Clerk and Master, to report how the funds arising from the sale, should be distributed.

The Clerk and Master reported that the fund should be divided into two equal parts, one of which should be paid to Charles Cauble and his wife, the representatives of Adam Clement. The other, to be subdivided into six equal portions, one of which was to be given to each of the children and the representatives of the children of Henry Clement.

The report was excepted to, and it was insisted that the division should have been equal among the nephews and nieces of Eve Clement, they being her next collateral relations, and that the grand nephews and grand nieces might represent their deceased parents. Hpon the cause coming on to be heard, the exception was sustained, and it was decreed that the fund should be divided into seven parts, and that the distribution be as follows : To—

Jesse A. Clement, one share.

James Ryan and Wife, one share.

The eight children of Henry Clement, Jr., one share.

The three children of Godfrey Clement, one share.

The three children of Margaret Sain, one share.

The seven children of John Clement, one share.

Charles Cauble and wife, one share.

From which decree, Charles Cauble and wife, appealed to the Supreme Court.

*II G. Jones*and *Winston*for the plaintiffs.

*John II. Bryan*for the defendants.

Battle, J.

Eve Clement died intestate and without issue, in the year, 1851, seized of certain tracts of land in the Conn-*84of Davidson, and leaving as lier heirs at law, certain nephews and nieces, and great nephews and nieces, who were the children and grand children of her deceased brothers, Adam Clement and Henry Clement; of these, Susan, the wife of Charles Cauble, is the only child of Adam Clement, and the others, are the children and grand children of Henry Clement. Upon the petition of the heirs at law, the lands were sold for partition, and upon a reference to the Clerk and Master to ascertain how the proceeds should be divided, he made a report in which he declared that Susan Cauble, being the sole descendant and representative of her deceased father, Adam Clement, was entitled to one half, and that the other half was to be divided among the living children of Henry Clement, and his grand children by deceased parents, each of his children taking a share, and his grand children taking a share for each class as representing its deceased father or mother. To this report, the descendants and representatives of Henry Clement, filed an exception, and insisted that “ the division should be equal among the nephews and nieces, they being the next collateral relations of Eve Clement, the person last seized, and the grand nephews and nieces representing their ancestors, and standing in the same place of their ancestors as though they were still living.” The Judge, in the Court below, sustained the exception, and directed a division accordingly; and from the decree, Charles Cauble and his wife, Susan, appealed to this Court.

The question presented in the appeal is, whether Adam and Henry Clement, the deceased brothers of the person who died last seized, are the ancestors from whom, according to our canons of descent, the right of representation is to be traced; or whether their children, the nephews and neices of *the proposi-tus,*who were living at her death are to claim in their own right, without regard to parentage, together with her great nephews,, and nieces, who are to take by classes, representing their deceased fathers or mothers, respectively ?

It is admitted, that if the English canon of descent, which prelates to the right of representation, is not changed or modi•fied in this State by our canons of inheritance, which abolish *85primogeniture among tbe males, and tbe preference of males over females, then tbe exception ought to bave been overruled, and that tbe decree must now be reversed. But it is strongly insisted tbat sucb change or modification has been effected as a necessary consequence of tbe adoption of tbe canons to which we have referred. It is said, and tbat is tbe main basis of tbe argument, tbat tbe English rule is founded upon tbe double preference which their law gives, first to tbe male issue, and next to tbe first born among tbe males; and for this is quoted tbe high authority of Black. Com. vol. 2, page 218,. and then tbe inference is drawn, tbat as we have abolished both preferences, the right of representation in tbe extent to which it is carried by tbe English rule, must fall with them. I do not feel myself bound to admit tbat tbe English rule was founded solely upon tbe two canons, by which Mr. Justice BlacKStoNE has sought to justify it, in opposition to tbe Eo-man law on tbat subject; but if I were, I think I can show conclusively tbat our law, while abolishing tbe English canons of primogeniture, and the preference of males over females, has in all other respects, expressly retained their canon on the right of representation, in its full force and effect.

In order tbat my argument may be the better understood, I think it necessary to state in full, tbe English canons of descent. They are seven in number, and are as follows :

> *“*1. Inheritances shall lineally descend to the issue of the person who last died, actually seized, *m*infinitum, but shall never lineally ascend.”

> *“*2. The male issue shall be admitted before the female.”

> “ 3d. "When there are two or moré males in equal degree, the eldest only shall inherit, but the females altogether.”

> “4. The lineal descendants *in infinitum*of any person deceased shall represent their ancestors; that is, shall stand in .the same place as the person himself would have done had he been living.”

> *“ 5.*On failuré of lineal descendants or issue of the person last-seized, the inheritance shall descend to his collateral relations, being of the blood of the first purchaser, subject to the .three preceding rules.”

> *86“ 6. Tbe collateral beir of tbe person last seized, must be bis next collateral kinsman of tbe whole blood.”

> “ 7. In collateral inheritances, tbe male stocks shall be preferred to tbe female, (that is, kindred derived from tbe blood of tbe male ancestors, however remote, shall be admitted-before those from tbe blood of tbe females however near,) unless where tbe lands have in fact descended from a female.”

These canons or rules of inheritance, were brought by our ancestors to this country ; prevailed here during the Proprie-tory and Provincial Governments, and surviving the revolution, were firmly established in the independent and republican State of North Carolina. Of this, we have- the most unquestionable evidence in the recitals contained in the Act of the first General Assembly of 1784, by which the first change in our rules of descent was effected, (see Act of 1784, ch. 204 of the Rev. Code of 1820). That Act, after reciting that “whereasit will tend to promote that equality of property which is the spirit and principle of a genuine republic, that the real estates of persons dying intestate should undergo a more general and equal distribution than has hitherto prevailed in this State,” proceeded to provide for an equal distribution of an intestate’s land among his sons, and for want of sons, among his daughters, as tenants in common, requiring advancements to be accounted for, and establishing the right of representation in case any child, son or daughter, had died in the life time of his or her father, leaving lineal descendants. The third section of the same act, after a recital that “it is almost peculiar to the law of Great Britain, and founded in principles of the feudal law, which no longer apply in that government, and can never apply in this State, that the half blood should be excluded from the inheritance,” declared that the half blood should succeed in certain cases, with the following *proviso*in favor of the right of representation: “If any brother or sister of the intestate shall have died in the life time of the intestate leaving issue, male or female, such issue shall represent their deceased parent, and stand in the same place he or she would have done if living, and shall be entitled to the same part or portion of the estate of his or their uncle or aunt, as *87liis or tbeir father or mother would have been entitled unto if living, such part or portion to be divided among such representatives, if more than one, among all the sons, and'for want of sons, among all the daughters equally, share and share alike, as to tenants in common, and not as j oint tenants.” In the 4th section it is enacted “that the same rules of descent shall be observed in lineal descendants and collaterals respectively, when the lineal descendants shall be further removed from their ancestors than grand children; and when the collaterals shall he further removed than the children of brothers and sisters.”

The 7th section, after reciting that “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 doctrine grounded upon a maxim of law not founded in reason, and often iniquitous in its consequences,” enacted that, in such cases, the estate shall be vested in the father, and if he be dead, then in the mother in fee, unless the estate was derived from one of the parents, and then in that parent from whom it was so derived.

These enactments, it will at once be perceived, made radical and important changes in the law of descents in this State. They, after reciting the evils of the existing rules, abolished primogeniture among males; admitted the half blood to inherit in certain cases, and essentially modified the rule excluding lineal ascents. But they did not complain of, nor alter in the slightest degree, the principle of the canon of the right of representation, either among lineals or collaterals; so far from it the Legislature seemed anxious to prevent an inference to that effect. They, therefore, expressly declared the continued existence of that canon by the before recited *proviso*to the 3d' section, and by the 4th section in terms too plain to be misunderstood, and too strong to be resisted:—

> *“If amy brother or sister of the intestate shall have died in the Ufe time of the intestate, leming issue, male or female, sueh issue shall represent thevr deceased parent, a/nd stand in the**88*someplace, he or she would home done, if Tmi/ng, a/nd shall be entitled to the sa/mepa/rt or portion of the estate of his or thei/r uncle or aunt, as his or thei/r father or mother would ha/oebeen entitled unto if liming, suchpeart or portion to be*divided,” *<&o.*

Row it seems to me to be certain, that if this Act lias not been altered in this particular, (and I think I can show that it lias not) Susan Canble, the only child of Adam Clement, who had died in the life time of his sister Eve, can claim under it without dispute, the part or portion of her aunt’s estate, to which her father would have been entitled if he had survived his sister.

I think that I have advanced one sure stop in my argument, by showing that the abolition of the right of primogeniture among males, did not either expressly or impliedly produce any change in the principle of the canon of the right of representation. I will now proceed farther to show, that the admission of females into the inheritance on an equality with males, did not have that effect. I will, however, remark in passing, that doubts having arisen as to the proper construction of the Act above referred to, in relation to the admission of half blood and parents into inheritances in certain cases, another act was passed at the next session of the General Assembly, in October of the same year, by which it was explained and corrected. A reference to this amending Act, (see Act of 1784, ch. 225, see 2 and 3 of the Rev. Code of 1820) will show that it did not touch the rule of representation. Females were admitted into inheritances upon an equality with males by the Act of 1795, (Rev. Code of 1820, ch. 435) by this simple recital and enactment: “Whereas, by the before recited Act, (referring to the Act of 1784, ch. 204) the inheritance of land and other real estate in fee simple, descends to males in exclusion of females, contrary to the policy of our government, *“Be it enacted, dec.,*that all females shall be entitled to take by descent, equally with the males, share and share alike, according to the rules of descent upon males in the before recited Act; any law, usage or custom, to the contrary notwithstanding.” The question upon the Act is, can it alone have the extraordinary effect .of essentially changing by inference > *89the principle of tire rule of representation? So far from it, I think that it expressly recognises and confirms that principle. All females shall he entitled to take by descent equal with the males, share and share alike, *according to the rules of descent upon males in the before recited Act.*If I have succeeded in proving, that according to the before recited Act, the principle of the rule of the right of representation remained unaltered, then I have proved that it remained unaltered by the amending Act of 1795. I think that I have thus established, upon a firm foundation, the proposition which I proposed to demonstrate, that the principle of the English canon, on the right of representation, had been adopted in this State, and had not been abolished by our canons which destroyed the right of primogeniture among males, and the preference of males over females. There is but one other Act which aifects the question, and an examination of that, will, in my opinion still further confirm my views. In the year 1808, the whole law of descents was taken into consideration by the Legislature, and was referred to a committee, the chairman of which was the late Judge Gaston, who had at that early day given indications of the eminence, in his profession, which he was afterwards destined to attain. The committee, through their chairman, made a report which it is necessary, for my purpose that I should give in full. “Mr. Gaston from the committee, who were directed to enquire into the expediency of amending the law of descents, reported that having assiduously examined the important subject referred to them, they find that the various Acts which have been passed to regulate the course of descents, áre so replete with ambiguities, that it is difficult to understand the true meaning of the Legislature; whether it was designed to retain a preference in favor of the relations of the blood of the purchasing ancestor? "Whether kindred on the part of the father were to have a prior claim to those of the mother? "Whether the provision in favor of one-half blood over the other, did not apply to the whole blood also; whether the abolition of the distinction between males and females was confined to individuals or extended to stocks; and whether the provisions in favor of parents comprehended the *90case of lands inheiited by tlie intestate, are all questions on which the most intelligent may differ, and which must occasion the most extensive litigation. Tour committee, conceiving that certainty in the law of descents, is of the utmost importance, and of universal consequence, have been anxious to discover whence this ambiguity in the existing law has arisen, that endeavoring to remove it, they might avoid the cause by which it has been occasioned. They believe that all these errors have arisen from the Legislature having undertaken to define with minuteness, the cases which might occur, and having undertaken to make provision for each of them, instead of establishing certain plain and' general principles, which might be susceptible of ajiplication in every instance. Your committee, strongly impressed with this belief, have conceived it their duty to attempt the framing of rules, embracing such principles ; and in making such rules, they have been studious to conform as nearly as might be, to the existing law. The three first rules, it will be perceived, do not introduce any innovation in those which now prevail, and would be altogether unnecessary were it not for the advantage which is derived from bringing together all the rules upon the subject. The fourth rule has for its principal object the securing to the family of the man by whose industry the property was acquired, the enjoyment of such property in preference to those who have no consanguinity with him. The fifth rule is designed to embrace those cases, in which the intestate was himself the first purchaser, and in which reason dictates that his nearest relations shall succeed to his estate, whether on the side of his father or mother. The sixth rule is but a simple affirmation of principles now existing. The *proviso*is founded upon that sentiment of natural affection which has received the sanction of the Legislature in the two acts of 1Y84. The committee have deemed it advisable to avoid all uncertainty, that *the proviso*should embrace every case in which the collateral kindred are more remote than the issue of brother and sister, and to prevent the inconvenience which might result from interrupting the general course of descent, they have proposed that the provision should be for life only. Tour committee, do therefore, *91recommend that the hill accompanying this report, entitled *‘a*hill to regulate descents,’ he put oh its passage, and enacted into a law.” It was accordingly so done, and the hill became a law, and it is said without any amendment. (See note to *Wilkerson*v. Bracken, 2 Ire. Rep. 322, and see the Act among the Acts of 1808, ch. 739, of the Rev. Code of 1820, constituting the first six sections of the Rev. Stat. ch. 38.)

The report says: “ *That the three first rules do not introduce a/iy i/nnovation i/n those which now prevent.”*The third rule is that which provides for the right of representation, and it is to be remarked, that it is substantially the same as the English rule on that subject. Indeed, it is almost a *verbatim*copy of the English canon. The most astute of critics cannot say •that leaving out of our rule the words m imfinitum, and inserting the conjunction “and” instead of “that is,” makes it different in signification from the ¿English. The term “descendants”, signifies “persons descended from an ancestor in any degree,” and embraces grand-children, great grand-children, &c. as well as children. This is so, independently of the fourth section of the first Act of 1Y84, (Rev. Code of 1820, ch. 204) which extends the right of representation to lineal descendants further removed from their ancestors than grand-cliildren, and to collaterals further removed than the children of brothers and sisters. Such being the case, I feel bound to adopt the construction put upon the English canon. I can hardly conceive it possible that the learned author of the report, and draftsman of the Act of 1808, should, in framing rules of descent for the express purpose of removing ambiguities and producing certainty, have used the very language of a pre-existing rule unless he intended that it should have the same signification. I feel bound to contend further, that such is the only natural and proper construction of which the language of the rule is susceptible. If the number of the descendants of several deceased persons be different, is it not obvious that those of any one of such deceased persons will not stand in the place of their ancestors, if they take with others *per capita*instead of *per stwpes ¶*Eor instance, if the *propositus*had two sons and a daughter, all of whom had died in the life time of their fa-*92tlier, leaving- the first son, six children, the second, one, and the daughter, ten; now, if upon the death of the grandfather, the grandchildren take *per capita,*the only child of the second son will get but a seventeenth part of the estate, instead of the third to which his father would have been entitled, had he survived his father, the *propositus.*A similar instance would show alike operation of the *per capita,*rule when applied to the descendants of collaterals. That, it seems to us, is in direct opposition to the plain import of the words of the rule, and we therefore, cannot adopt it.

The result of my argument, when applied to the case before us, is, that when Eve Clement died, her lands descended, one half to her niece, Susan. Cauble, as the sole descendant of her deceased brother, Adam Clement, and the other half to her. nieces and nephews, and the children of her deceased nieces and nephews, as the descendants of her deceased brother, Henry Clement, to he divided among them, *per stvrpes.*In coming to this conclusion, I have not relied upon the authority of *Ward*v. Stowe, 1 Dev. Rep. 67, because it is not directly in point, though the language of the Court favors the view which I have taken. Nor have I sought to sustain myself by the high authority of that eminent Judge and distinguished law-writer, Chancellor Kent, (4 Kent Com. 391,) because, with all due deference to those who entertain a contrary opinion, I think the argument upon these various provisions of our statutes is so clear, that it does not require, it.

As the Chief Justice concurs with me, the decree must be reversed, the exception to the master’s report overruled, the report confirmed and a decree be entered accordingly.

Decree reversed.

Hash, C. J.

I concur with Judge Battle, in his view of the case, that the descent is *per stvrpes*and not *p&r capita.*It is not my intention to enter into an. elaborate investigation of the subject; that has been already done; but to express in few words, my reasons for the conclusion at which I have arrived.

*93The main prop for the argument for the descent *per capita*is, that our canons of descent have removed the ground upon which the descentj?<?r *sti/rpes*rests, and under the maxim, *ces-sante ratione cessat lex,*the rule itself ceases. The maxim is a just and proper one when properly applied, but approaches so near to legislation, that it ought to be resorted to with great caution. *We*must recollect that all rules of succession to estates are creatures of the civil polity and *jtvris positim*only, 2 Bl. Com. 211. There is certainly then no injustice done to any person whatever by the path of descent marked out by the municipal law. The English rules or canons of inheritances continued to be the law of this State down to the years 584 and ’95, when they were materially altered. The 2nd section of the act of ’84 abolishes primogeniture, and lets in all the sons; the third section lets in the half blood, and the last proviso provides for the succession of collaterals. Justice Blacltstone, in commenting on the 4th canon of descents, which establishes the doctrine of representation, observes that — “ This mode of representation is a necessary consequence of the double preference given by our law, first to the male issue, and second to the first born among the males,” 2nd vol. 218. Hence it is deduced as a corollary, that as the act of ’84 abolished both .rules, the maxim, *cesscmte ratione cessat lex*is applicable; but the maxim cannot apply; for in the 3d section of that Act which lets in the half blood, in the proviso, the Legislature declared, “that if any brother or sister of the intestate shall 'have died in the life time of the intestate, leaving issue, male or female, such issue shall *represent*that deceased parent, and stand in the same place he or she would have done if living, &c.” Here there is an express declaration, in the same Act abolishing the feudal principles of males of the whole blood, taking in exclusion of the half blood, and of primogeniture, that the right of taking *per stirpes*shall exist independent of the 2d and 3d canon of the English law of inheritance; such was the *will*of the Legislature, *mientas stat*ratione.-— "When at the session of 1808 the whole subject was revised and new modeled, and new canons established, the 5th canon declares that “onfailure of lineal descendants, &c., theinheri-*94tance shall descend to the next collateral relations of the person last seized, &c., subject to the second and third rules.”- The 2d rule places females upon an exact equality with males, and the 3d is as follows: “ the lineal descendants of any person deceased shall represent their ancestor and stand in the same place as the person himself would have done had he been living:” now incorporate into the 5th section, the 3d section, and it will read as follows, on failure of lineal descendants, &c., the inheritance shall descend to the collateral relations of the person last seized, who shall represent their ancestor and stand in the same place as the person himself would have done had he been living. You then have substantially, and in the last two lines where representation is provided, nearly the exact words of the ordinance of ’84. Can there be a doubt then, that the Legislature, both in ’84 and in 1808 intended to preserve the right of representation among collaterals, although the feudal grounds for the rule were removed? It is.said further, that an adherence to the letter of the cannon will be sticking in the bark: Hotso: when the Legislature has plainly expressed its will upon a matter within its jurisdiction, that will must be observed, and the Courts have no right to depart from it, except when it commands that which is in itself immoral or absurd. It is further said, the word *shall*used in the canon, is not imperative; it certainly is imperative on Courts of Justice in deciding, upon conflicting claims of parties before them to an inheritance. It is not necessary for me to pursue the argument any further. Judge Battle has gone fully into it, and I concur with him in the conclusion to which he has arrived.

PsARSorr, J.

*dissentients.*Eve Clement left her, surviving, a niece, the only child of her deceased brother Adam, and a niece and nephew, children of .her deceased brother Henry, and many great nieces and nephews, the children of four deceased children of her brother Henry:

Is the real estate to be divided into two equal parts, the child of Adam, taking *one*part, leaving the other part to be divided and subdivided among the children of ITenry who are *95living, and the representatives of those who are dead? or is it to he divided into seven equal parts? — the two nieces and nephews taking each one part and the children of the four deceased nieces, and nephews, by classes or *“p&r*súripes,” each class taking one part?

.The question is an open one, for it has so happened, that the point has never before been presented to this Court for decision.

It is a principle founded on natural feeling, that upon the death of the owner, without making a disposition of it, his estate shall belong to his “next of kin.” It is also a principle, which, although subservient to the former, is likewise founded on natural feeling, that one should not he excluded from a share of the estate of his deceased kinsman, if by representing an ancestor he can bring himself up to an equality with those who are the “ next of kin.” Upon these two general principles the distribution of estates, both real and personal, is based as the “ corner stones.”

That the first is founded on natural feeling all concede. If one dies, leaving seven children, this feeling suggests that they should share his estate equally, because they are all his children, so if one leaves as his next of kin seven grand-children, the same feeling suggests that they should share his estate equally, because they are all his grand-children — equally near to him, and for that reason presumed to be equally the objects of his affection without reference to the fact that some of his children, all of whom are dead, were blessed with more children than the others; for our affections, and the law which follows them, deal with the living, not with the dead. This is the presumption always acted on unless there be something to show to the contrary. For the same reasons, if one leaves as his next of kin, seven nieces and nephews, natural feelin g suggests that they should share his estate equally, in the absence of anything to show that he intended to give a preference to those whose parents had the fewest number of children.

That the second is also founded on natural feeling all concede. If one dies leaving three children and many grandchildren by deceased children, nature suggests that the off*96spring of the children who are dead, should not he excluded by the children who are living, with whom their parents, if living, would have been entitled to share — so if there be two nieces and a nephew and many children of four nieces and nephews who are dead, nature suggests that the children of the deceased nieces and nephews should represent them: In these cases, reference is made to the dead, not upon the idea that they had rights which were transmitted to their offspring, but upon the feeling that the offspring of the *dead*should not bo excluded by the living from the share to which their parents, if alive, would have been entitled as the *equals*of those who are living.

In regard to personal estate, these principles, both by the law of England and of this State, have full operation, with a single exception ■: among collaterals the right of representation is not admitted beyond brothers’ and sisters’ children: This is arbitrary, and was adopted *to*prevent, as far as possible, minute sub-divisions.

In regard to real estate, three considerations founded upon policy originating in the feudal system, are allowed by the laws of England, most materially to effect the operation of these principles, *i. e.*land should be kept in the blood of the first purchaser; males should be preferred to females: and the eldest son should alone inherit. Those much famed rules of that system are, from considerations of policy, so engrafted into the English Canons of descent, as to form their most prominent features, and cause them to be *rules for findmg who a/mony the kmsmen of a dead tencmt is most fit to malm a good*soldier, rather than rules of descent by which the estate shall devolve upon those most nearly connected to him by the ties of nature. In fact by that system, the property was considered as being in the sovereign and the tenant was seized “ as of fee” in consideration of performing services: But in the progress of civilization these' notions have changed and with us land is considered as the property of the individual, much the same as a horse or other thing. Accordingly, the rules of descent have assimilated very nearly to those by which personal property is distributed, and the two great lead*97ing principles are permitted to operate witb but little restraint.

The policy of keeping land in the blood of tbe first purchaser, although retained, is greatly modified by our rules of descent, but it has no bearing upon our case : The claimants are all in the same line, so there is no conflict between the paternal and maternal lines, and the case is not complicated by the difference between descended and acquired land.

But the policy of preferring males to females, and of giving the whole real estate to the eldest son, is repudiated by our rules of descent, and the two English canons by which that policy was carried out are superseded by a rule putting females upon an equality with the males, and taking from the first born son any kind of preference. This is done expressly on the ground that the policy of the feudal system does not obtain here, and that natural feeling and justice require that there should be an equality among all the kinsmen of a deceased owner, who stand *in equal degree.*

These general remarks are made for the purpose of showing that the object of the Act of 1808, upon which we are to put a construction, has not been accomplished, if, according to that Act, one niece be entitled to *one-half of the estate,*while another niece who is also one of the “next collateral relations of the person last seized, and stands in equal degree ” with the former, is to receive only one-twelfth part. Any one will admit that all in equal degree ought to stand on the same footing, and that if the law be not so, it ought to be so ; and I will remark that if it is not so, it must be ascribed to a singular oversight in the framer of the Act of 1808, and that if, by using nearly the same words, in which the English canon, in regard to the right of representation is expressed, the necessary effect is to produce this inequality, then he marred his Own handy-work, and much will be taken from the meed of praise that has been heretofore universally accorded to him for framing an Act, which it was believed, relieved ns from all of the inequalities and peculiar effects of the English canons of descents, originating in the feudal system, and put our rules of descent upon the “great principles suggested by natural feeling and justice.”

*98It is true this Court cannot make laws, but it is its duty to put a reasonable construction upon tlie laws that are made, and to enable it to do so, the obj ect for which a law is made should be taken into consideration, as well as the words in which it is expresssd.

The question depends upon the construction of the 4th and 5th rules of descent, “ on failure of lineal descendants, the inheritance shall descend to the *next collateral relations*of the person last seized subject to the 2nd and 3rd rules.” The 2nd is, females shall inherit equally with males and younger equally with other children. The 3rd is, *“*the lineal descend-, ants of *any*person deceased, *shall*represent *their cmcestor*and stand in the same place as the person himself would have done, had he been living.”

"Who are the next collateral relations of Eve Clement ?— Her two nieces and nephew occupy that position on *thei/r ownfootvng.*The children of her deceased nieces and nephews occupy that position by the right of representing their parents — so her two nieces' and nephew, and the representatives of her deceased nieces and nephews are her next collateral relations subject to the 2nd and 3rd rules; ‘for the 2nd has its operation' — -females and younger children being put on equality with the eldest male; and the 3rd has its operation— the children of the deceased nieces and nephews being allowed to take the place of “ their ancestors.” I think it clear that this construction gives full force and effect to the words of the statute, and carries out its full meaning and intent. It is said this construction does not give to the 3rd rule full operation, and to do so, it is necessary for the two nieces and the nephew likewise to represent their ancestors as well as the great nieces and nephews; I ask for what reason are the nieces and nephews to be called on to take by representation? They are entitled on *their own footi/ng*as “ next collateral relations” of their aunt, and not as descendants of any person deceased, who must represent their ancestor in order to entitle themselves to a share. To this two replies are made. 1st. The 3rd rule uses the words *shall represent*their ancestor, so it can make no difference whether it is necessary *99for them to do so in order to gain an equality witb others or . not, thewords/Wibeingimperative. If this Avas the literal import of the word, the construction contended for would fall under the maxim, “ *hmret v>% litera hmret im, cortiee*y” because there is no reason for such a construction, and it is inconsistent with the general scope of the statute. But such is not the literal import of the word, — “ shall” is not used in the sense of a command, but as declaring a right. It is apparent the object of this rule was to give the right of representation to descendants, however remote, and the words are used in contrast to the statute of distributions which provides “ there *shall be no representation admitted*amongst collaterals after brothers’ and sisters’ children,” and the import of this rule of descent is, “ the right of representation shall be admitted *in infinitum.”*

The idea that a person who is entitled to a share of an estate, as one of the next collateral relations on his own footing, *must*represent his ancestor and take, not the share to which he is so entitled on his own footing, but that to which his ancestor would (if living) have been entitled, can only be supported on the ground that *“*representation” is an' *“*obligation” andnot a *right.*

That representation is *bright,*andnot an obligation, is manifest from any book treating on the subject that has ever been published, either in England or America.. In the English books, representation is put on the ground that the offspring of one ought to be allowed to take the share that his ancestor (if living) would have taken, BlackstoneB. 2, page 219 — “ The same *right*of representation,” &c.: “ yet this *right*does not appear to have been thoroughly established in the time of Henry 2nd, when Glanville wrote.” .The idea that representation is an *obligation*imposed by law upon those who are entitled on their own footing, is new, and the expression, the “ obligation of representation” isbynomeansafamiliarone. So (as I conceive) this reply to the position taken by me,, has no sufficient ground to support it.

But the reply in the second place is,' *“*we derive our laws from those of Englandit is well settled there, that real estate descends *“per*stirpes,” and according to that mode of descent *100the estate in *controversy,*must be divided into two equal parts, of which the child of Adam takes one part, and the adoption by the Act of 1808, as one of our rules of descent of the English canon in reference to representation in almost its very words, although it may be inconsistent with the general intent as evinced by the other rules, is .obligatory upon the Courts, and we are forced, although it may be against the reason of the thing, to put the same construction upon these same words, as had been before put upon them by the English Courts. This is the point upon which the question rests.

I admit that, if the rule in regard to representation was expressed in direct terms, so as not to admit of any construction other than that positively exjuessed by its terms, this Court Would be bound by it, although it should be of opinion that the law, as so expressed, was inconsistent with the general scope of the other rules in the statute. For instance, if the the 6th English canon had been retained, “ the collateral heir of the person last seized, must be his next collateral kinsman of the *whole*blood,” there would have been no room for construction ; and although such a rule was inconsistent with the general scope of the statute, and in the opinion of the Court the reasons upon which it had been originally adopted had ceased, still the Court would be bound to carry it into effect.

But the rule in regard to representation is not expressed in direct and positive terms; on the contrary, it is expressed in general terms, and requires a resort to construction in order to give it any meaning at all; in fact the only meaning that can be given to it depends upon the other rules with which it must be taken in connection. It was taken by the English Courts from the Roman law. Blackstone tells us that it was not fully established in the time of Henry II, when Glan-ville wrote.” As construed by the Roman jurists, the right of representation only applied when it was necessary to take the place of an ancestor, in order to be put on an equality with others who we re nearer in degree; and yet when it was finally adopted in England, although the same words are used to express it, the English Courts felt at liberty to put upon it a different construction, because of its connection with their *101other canons of descent; and nevertheless, afterwards, in the statute of distributions, where the same law was adopted from the Romans in regard to personal property, the Courts also adopted the construction of the Romans, and not that which they had given to it in reference to real estate. Bladkstone accounts for this difference of construction in the following way: After saying that by the Roman law, land descends *per capi-ta,*except where it is necessary to resort to representation, he adds, *“*this mode of representation is a necessary consequence of the double preference given by our law, first to the male issue, and next to the first born among the males, to both which the Roman law is a stranger: For, if all the children of three *sisters*were, in England, to claim *per capita*in thei'r own right, as next of ldn to their ancestor, without any respect to the stocks from whence they sprang, and those children were partly male and partly female, then the eldest male among them would exclude not only his own brothers and sisters, but all the issue of the other two daughters, or else the law in this instance must be inconsistent with itself, and depart from the preference which is constantly given to the males and the first born among persons in equal degree, whereas by dividing the inheritance according to the roots or stirpes, the rule of descent is kept uniform and steady: The issue of the eldest son excludes all other pretenders, as the son himself (if living) would have done; but the issue of *two daughters*divide the inheritance between them, provided their mothers, (if living) would have done the same; and among these several issues or representatives of the respective roots, the same preference to males and the same right of primogeniture obtain as would have obtained at the first among the roots themselves, the sons or daughters of the deceased.” Blackstone 2 B. Ch. “ descents” page 218. This (it seems to me) is conclusive of the question: it shows that the construction put on this canon by the English Courts was a consequence of its connection with the *two ccmons,*giving preference to males and to the eldest male. *We*have adopted the rule in reference to representation, in almost the same words in which it is expressed both in the Romanlaw and in the English law. Iiow can we adopt *102the construction put upon it, in the latter, when, with us it is not connected with two canons like those of England, hut is connected with a canon abolishing these two canons, and announcing the very reverse of them to he the law of this State? *Oessante rations eessat lex:*and how can we refuse to put on it the construction that obtained in the former country, where, like with us, there was no feudal policy to prevent the application of the two general principies before stated? Neither the Boman law nor the English canon, nor our rule designates *whcot ancestor*the descendants are allowed to represent. Is it the father or the grand-father or the great grand-father ? This is left open and must be fixed by construction. The proper construction evidently is, “ *that ancestor whom it is necessary for the descenda/nt to represent in order to prevent his exclusion from a sheere of the estate according to the other*canons.”

If this case stood for decision in England, it is clear that the eldest son of the eldest brother would take the whole estate, or if he be dead, his only daughter or eldest son would take' the whole; for this peculiar English mode of representation has no application except *wh&re the nernest of Mn*are all females, as in case of deceased daughters or deceased sisters : our rules abolish the distinction between males and females. So if the English construction obtains here, it will not only apply to cases where the nearest of kin are all females as in England, but will apply to all cases, although as in our case, that of two deceased brothers, in England, it had no application. The result is that, contrary to the general scope and the particular intent of our Act of 1808, framed by a very wise man, after due consideration, the English construction is to prevail, nut only in cases where the nearest of kin are all females, but is to be extended to all cases whatever: and our rules, by which the preference of males and of the eldest son is abolished, (which constitute the only ground upon which the English construction of the canon, in reference to representation is based,) are to be so interpreted, as to extend the application of that mode of representation to cases, to which it does not apply in England.

The only thing that can be relied on, to give color to the po*103sition that the English doctrine of descent *per simpes*obtains in this State, is a passage in Kent’s Commentaries in the lecture on descent, vol. 4th, page 391. After showing that, by the law of New York, those in equal degree, taken *“joer capi-ta,”*he says, “ Inheritance *per stirpes*is admitted when representation becomes necessary to prevent the exclusion of persons in a remote degree, but when they are in equal degree, as are, for instance, his grand-sons, representation is not necessary, and would occasion an unequal distribution of the estate, and they accordingly inherit *per capita.*This is the rule which prevails throughout the United States, with the exceptions of Rhode Island, North Carolina and (four other States,) and it agrees with the general rule of law in the distribution of personal property.” lie cites no case as authority for thus putting North Carolina in the unenviable position of being one of the very few States whose laws, as construed, occasion an unequal distribution, and conflict with the general principles founded on natural feeling, and we are left to conjecture that he adopted his conclusion hastily, from some general expressions used *arguendo*in *Ward*v. Stowe, 1 Dev. 67, decided 1826. The case turned upon the construction of the word “heirs” in a will: HeNdebsoN, Judge, uses the general expression that land descends *per stirpes*and not *per*capita, and says this was never doubted for a single moment as far as he can collect from authorities. Judge Kent’s 4th vol. was published shortly after this decision, and he adopted the general expression without noticing that its meaning was qualified and restrained by the instance given.' “ A has a daughter and two grand-daughters, daughters of a deceased daughter: his land descends one-half to his daughter and the other half to his two grand-daughters.” This case was overruled in 1834, 1 Dev. Eq. 509, but the question of descent *per stirpes*and *per*capita, was not involved in the decision. It is true, that in the instance, put by Judge Henderson, the grand-daughters take *per*simpes, and this falls precisely within the right of representation according to the second general principle above stated, because it was necessary for them to represent their mother in order to bring themselves up to an equality with *104their aunt, so as to entitle themselves to a share of the estate: but it is very far from showing that in despite of our statute, abolishing the two English canons, we still sustain a doctrine which is based on them. The learned commentator evidently lost himself in the vast field over which he was.attempting to ■run. Nor is it a matter of surprise that there should be some inaccuracies and some conclusions hastily drawn by an author who attempts, in a single lecture of some fifty pages, to give the law of descents in the State of New York, to which his attention is particularly directed, and the law of the Jews, and the Athenians, Romans, Arabs, Gentoos, and also the law of descents in England, Prance, Spain, Germany, and all of the several States of this Union. Indeed, it is doing injustice to the memory of that very learned man to suppose that he ever expected that such general statements, made by him for the sake of illustrating the subject upon which his attention was particularly fixed, would ever be cited as an authority to show the law of any State save that of New York.

It remains only to make an application of the construction fixed on, to the case before us, by way of further illustration of the subject.

The descendants of the deceased children of Henry have the right of representation, because otherwise they would be excluded, not being in equal degree with their uncle and aunts, and their cousin, the daughter of Adam. Their parents are the “ ancestors” to be represented, because it is *necessary*for their descendants to represent them in order to gain an equality with the next collateral relations, and thereby entitle themselves to a share of the estate; by so doing, they take as “ classes,” one-seventh part respectively, but there is no necessity for them to go higher and represent their grand-father: so he is not the ancestor to be represented, and there is no reason, according to our rule, why they should be *reqm/red*to make this double representation, first of their parents, and then of their grand-father, and take a twelfth instead of a seventh part of the estate.

The two children of Henry who are living, are *“ next collateral*relations” and as such, are each entitled to a share in their *105*own right',*there is no necessity for them to represent any one, so there is no ancestor of theirs to be represented; they each take a share under the 4th and 5th rules — the nephew talcing subject to the right of the female and younger children, and all taking subject to the rights of the descendants of their deceased brothers and sisters under the 3rd rule. Thus each takes a seventh part, and no reason is suggested why they -should be *required*to represent their father and take only one' twelfth part.

The daughter of Adam is entitled to a share in her own right as a next collateral relation, subject to the 2nd and 3rd rales as above stated, that is one-seventh part. No reason can be conceived, under our rules, why it should have been the intention of the law-makers to *require*her to represent her father and take one-half of the whole estate.

Suppose the daughter of Adam had died leaving a child, under the 3rd rule it would have the right to represent its mother and take a seventh part, but can it be supposed that it was the intention of the law-makers to *require*the child to represent its grand-father and take *half?*

The acts of 1784 and 1795, which are pressed into the argument, have (as I conceive) no bearing on the question — the act of 1808 expressly supersedes all prior legislation, and the words “ If any brother or sister of the intestate shall have died in the life-time of the intestate leaving issue, such issue shall represent the deceased parent, &c., and shall be entitled to the part of the estate of his or their uncle or aunt, as his or their father or mother would have been entitled, to if living,” &c., are fully satisfied by giving to them the effect of preventing a *liming*brother or sister from excluding the issue of a deceased brother or sister; there is no authority or reason for extending this application so as to produce inequality among those who are in equal degree and may claim, in their own right, as next collateral relations.