#### Tully Bell et al. *v.*Joseph Dozier et ux.

From Currituck.

In the descent of acquired estates, the only qualification necessary to a collateral, is, that he be the nearest relation of the person last seised. In descended estates, he must be of the blood of the first purchaser.

Where an estate was purchased by the father, and descended from him, and the Propositus left a mother, a maternal half-brother, pa. ternal uncles of the half-blood, and other more distant paternal col-laterals : It was held, that the proviso in the 6th canon of descents, ( *act of*18,08 ) applies to cases where a surviving brother or sister cannot inherit, as well as to cases where none are left, and therefore that a life estate in the lands descended to the mother, and the fee to the paternal uncles of the half-blood.

This was an action of Waste, tried before Nash Judge, at the Spring term, 1826, of the Court below, when a verdict was taken and damages assessed for the Plaintiffs, subject to the opinion of the Court as to the right of the Plaintiffs to sustain the action, upon the following case. In 1812, *Peter Barnard*died intestate, seised of the lands on which the waste was committed, leaving two children, *Elizabeth*and Jesse, and a widow; and afterwards in the same* year, *JElizabeth*died intestate, and without issue. The widow had. dower assigned her in this land, and in 1813, intermarried with the De-*334fcntlanf *Joseph Boeder,*by whom, in the succeding year, she had issue which is still alive ; and afterwards, *Jesse Barnard*died intestate and without issue. The lands vvere pUVchased by *Feter Barnard,*and the. Plaintiffs aro his maternal half-brother and sisters and nearest of blood to him ; but he had also collateral relations, the descendants of his father’s nephews and nieces.

The presiding Judge being of opinion, for the Plaintiffs, gave them judgment for treble the damages assessed by the Jury, and the Defendants appealed.

The case was submitted witiiout argument, by *Gaston,*for the Plaintiff, and by *Hogg,*for the Defendant.

Henderson, *Judge.*

Peter *Barnard,*the first purchaser of the lands in question, died seised thereof in the year 1812, intestate, leaving two children, *Elizabeth*and *Jesse,*and a widow, the mother of *Jesse,*I presume, although it is not so stated in the case. The locus *in quo*was assigned to the widow, as her dower. *Elizabeth*died intestate, without issue, in the same year. In the year 1813, the widow married *Dozier,*one of the Defendants; and in 1814, had a child, which is still alive. The Plaintiffs are *the maternal*half-brothers and sisters of *Peter Barnard,*and the nearest of kin to *Jesse,*except the child before mentioned. *Peter Barnard’s*father left nephews and neices, whose descendants are still alive.

The question presented is, on whom did the inheritance descend, upon the death of *Jesse ?*

The second canon of descents, in the act upon the subject, passed in the year 1808, calls the females equally with the males, to the succession. It thereby abolishes the priority of the male over the female line, and places them upon a perfect equality, both as to collateral and lineal descents. The express declaration, whether of the paternal or maternal line, to be found at the close of the fifth canon, was therefore unnecessary. Its omission in *335the fourth canon, under which this case .falls, will not prejudice the maternal line. The only qualification required is, that it be of the blood of the first purchaser. I also think, that the provision made' in the sixth declaring that the collateral relations of the half-blood shall inherit, equally with the whole blood', was also unnecessary, it being an entire enactment upon the subject, and the previous provisions embracing (hem ; the only qualifications required being, that in the case of an estate which has descended, such collateral relations should be of the blood of the first purchaser : for we shall pre sently see, that the words “ *such ancestor”*in the close' of the fourth canon, must be stricken out, and in lieu thereof, the words *“first purchaser,”*inserted. As we had been so long in the habit of considering the paternal line as preferable to the maternal, and tire half-blood as entirely excluded, it w'as perhaps safer, expressly to declare it. This argument is made, that no objection should be taken to calling in the maternal line, under the fourth canon, under which this case falls, because the maternal line is not, in that section, placed 'upon an equality withAhe paternales it is in the fifth, which provides for newly acquired inheritances. The only qualification therefore, required by our law7 in case of a collateral descent, is, that the claimant be the nearest collateral relation ; and in case of a descended estate, that he be of (he blood of the, first purchaser ; the preference of the male over the female line, and the whole over the half-blood, being entirely abolished. I have said, that the words “ *such ancestor,”*in the fourth canon, must be stricken out, and the words *“first purchaser,”*inserted in lieu of them. If those words are retained, had this land descended to *Petey Barnard*from his father, and from *Peter*to *Jesse,*they would call to the. succession *Peter’s*maternal half-brothers and sisters, before- (lie brothers and sisters of his lather, for they are of the blood of *Peter,*and the *inheritance descended from*
      *336/¿jm *£0 jessem*Yet the same principle which excludes this child, before mentioned, (Jesse’s half-blood on the mo- . (her’s side) in favor of *Peter’s*brothers and sisters, in case, would exclude *Peter’s*half-brothers and sisters on the mother’s side (the present Plaintiffs) in favor of the nephews and nieces of *Peter’s*father, the first purchaser of the inheritance.

The case does not expressly state, that *Jesse*was ever-actually *seised;*but I think it may be inferred from the assignment of dower — for it is taken out of his seisin. But if it did not, the first canon of the act, speaking of' lineal descents..declares that a seisin in law, shall make a *Propositus ;*and although no such declaration is made in case of collateral descents, hut the word *seised*only is used, I apprehend that the Legislature intended to make a legal seisin sufficient in both cases. No reason can be given why if it is good in the one case, it is not so in the other.

' Upon the death of *Jesse*without issue, the lands in .question devolved on his mother for life, although he left a brother or a sister. For the words' *“ capable of inheriting the estate,”*must be added to the following words in the sixth canon : “ that in all cases, where *the*person last seised shall have left no issue, nor brother, nor sister, nor fhe issue of such j” for why postpone the mother, where the brother, or sister cannot take? It is certainly the same as if there were none ; for her claims are postponed to *theirs.*When tiiey have no claims, it is the same as if *Ihey*did not exist.

It is unnecessary to say what became of the dower, when ajife-estate devolved on her in the whole land; for she remained a tenant for life, and liable to the action of waste.

1 am of opinion, that the inheritance, subject to the life-estate in the mother, descended to the Plaintiffs, upon the death of *Jesse;*and that the judgment should be affirmed.-Per Curiam. — Judgment affirmed.