[Present, Chancellors Rutiedgks, Maiishaxl and James.]

MAY, 1803.

#### Thomas Karwon, Administrator of Catharine Ashby, *vs.*Thomas Lowndes and Wife and others, Francis and Floride Peyre, and the Gaillards and Ashbys.

An intestate dies, leaving' a real *and personal estate.*His nearest relations were an uncle and aunt, of the half blood, and three first cousins of the whole blood; and he left several more distant relations.

The uncle and aunt of the half blood are entitled, under our statute of February, 1791, for abolishing the rights of primogeniture, and for other purposes, to take the whole real and persQnal estate in exclu-' sion of the first cousins of the whole blood.

Bill of Interpleader.

CATHARINE ASHBY being possessed óf a real and personal estate, died in Sept. 1802. intestate, unmarried and without issue, leaving alive many relations, to wit; Mrs. Lowndes and her brother and sister, who were cousins of the whole blood, by the paternal -Ijne, to the intestate. The Ashbys and the Gaillards, who were cousins of the half blood, by the maternal line, to the *intestate;*and Francis Peyre and Floride Peyre, who were uncle and. aunt of the half blood, • by the maternal line, to the in~ testate.

■ The claims set up by these various relations to the estate of the intestate, induced the administrator to file a, bill of interpleader, calling upon all these relations as defendants to set forth their claims, and to obtain and abide by the decree of the court, on their respective pretensions.

The defendants answered and admitted *the*relationship in which they severally stood to *the*intestate, and submitted to the judgment of the court on their claims.

The cause came to a hearing, and it was argued by Mr. Parker and Mr. Des aussure for the first'cousins of the whole blood, that none of the relations of the intestate *211were entitled to any part of the estate, except themselves and the uncle and aunt of the half blood.

•That the cousins of the half blood are not entitled, because the uncle and aunt of the half blood are nearer in degree of kin, according to the mode established by the act of 1791, for ascertaining the degrees of kindred. That as between the cousins of the whole blood, and the unde and aunt of the half blood, they are equally entitled *per capita ;*for by the 4th, 6th and 7th sections of the act for abolishing the rights of primogeniture and for giving a more equitable distribution of the estates of in-testates, a preference is given to the relations of the whole blood, over relations of the half blood, when standing in the same degree, which is substantially removing relations of the half blood one *degree;*which in this case would put the first cousins of the whole blood and the uncle and aunt of the half blood on the same footing; and they would be equally entitled.

The clauses of the statute of February, 1791, applicable to this case, are the following: The 4th clause gives a preference to brothers and sisters of the whole blood; and provides that the children of a deceased brother or ,sister shall take among them respectively the share which their respective ancestors would have been entitled to had they survived the intestate.

The 5th section provides, that if there be no issue, nor father or mother, nor brother or sister of the whole blood of the intestate living, the brother or sister of the half blood, and the children of a brother or sister of the whole blood, shall take the *estate;*the children of every deceased brother or sister of the whole blood taking among them a share equal to the share of a brother or sister of the half blood. But if there be no brother or sister of the half blood, then the children of a deceased brother or sister of the whole blood are to take the estate, without any provision for the children of deceased brothers or siste "s of the half blood.

By the ninth section it is provided that in reckoning the *212degrees of kindred the computation shall begin with the intestate and be continued up to the common ancestor, and tjlence down t0 the person claiming kindred inclusively, each step inclusively being reckoned as one degree,

gy express provisions of the English statutes of distribution of personal estates, no representatives are admitted among collaterals, further than the children of the intestate’s brothers and sisters. But in our statute of Fe» bruary, 1/91, which regulates the descent of real as well as the distribution of personal estate, and puts them both on the same footing, there is no such provision, restricting *representation;*and by the law for the descent of real estate, prior to our statute of 1791, representation was allowed *ad*infinitum, as well among collaterals as among lineal descendants.

A considerable change has been made by our statute respecting the rights of the half blood. By the common law of descents, the half blood could not inherit real estate at all. But by the construction piit upon the statute of distributions, the half blood might take personal estate equally with the whole blood. By our statute of February, 1791, the half blood are let into take real estate by descent, but both with respect to real and personal estate, brothers and sisters of the half blood are postponed one degree — that is, they cannot take at all whilst there is any brother of sister of the whole blood alive. But if none such be alive, then brothers and sisters of the half blood are let in equally with the children of brothers and sisters of the whole blood. And doubtless it was the 'intention of the law to extend this postponement of the half blood one degree (in the reckoning the degrees of kindred) in all the remoter degrees. If this be *correct,*then the defendants Mr. Peyre and Miss Peyre being uncle and aunt of the half blood to the intestate, are in the third degree of relationship, and being postponed one degree, they are to be reckoned in the 4th degree. Mrs. Lowndes and her brother and sister ai e also in the 4th degree *;*arid these are equally entitled to the estate of the intestate. All the *213other relations being more remote, cannot take any share.

Mr. Gaillard and Mr. Pringle for tbe other reía--•fions,

argued, that the case which has occjired is not provided for specifically by our statute of February,’ 1791. The last part of the 4th section of the statute does provide that the children of brothers and sisters of the intestate shall take by representation the shares to which their respective ancestors would have been entitled had they survived the intestate. But this representation extends' no further. And the priority given by the act to brothers and sisters of the whole blood, is not carried any further. *Now*the statute of distributions is not repealed. Of course it is abrogated only so far as the provisions of the new act contravene it. The case under consideration does not come within the express provisions of the new law; consequently the old act of distributions applies, and the uncle and aunt of the half blood being one degree nearer of kin, are entitled exclusively. The words of the act are not to be extended by analogy.

In the case of Poaug, the doctrine was recognized that there shall be no representation among collaterals beyond brothers and sisters children.

In the case of Carson and Stuart, it was contended that the act intended to put real and personal estate on the same footing. But the court thought differently. See 4 Burns’ Ecclesiastical Law, 355, ’ 6, 357, 8. Also 1 P. Wms. 26, 53, 594. 2 Vem. 124. 2 Ves. 213, 215.

Chancellor Marshall

afterwards- delivered the decree of the court.

This case is not provided for in any of the specially enumerated cases of the act for the abolition of the rights of *°*primogeniture, &c. passed the 19th day of February, 1791, but comes within the provision of the 7th clause of the 1st section of that act. It is in these words l — “ If the intestate shall have no’lineal descendants, father, mother, brother or sister of the whole blood, or their children, or brother or sister of the half blood, or lineal ancestor, then the *214widow shall take two thirds of the *estate;*and the remain* der descend to the next of kin.

The single question.in this case is, who are the next of kin-to Catharine Ashby the intestate? Whether Miss |¡qori¿e peyre the aunt of the half blood, and Francis Peyre,the uncle of the half blood ? Or Mrs. Lowndes, Mrs. Wragg, and Jacob Bond I’on, the first cousins of the-whole blood ?

In computing the degrees of kindred, the act above quoted directs in the 9th clause of the 1st section, that “ in reckoning the degrees of kindred, the computation shall begin with the intestate, and be continued up to the common ancestor, and thence down to the person claiming kindred inclusively, each step being reckoned as one degree.” By this mode of computation, Miss Floride Peyre, the aunt, and Francis Peyer, the uncle of the half blood, stand in the third degree.

The children of Mary Ashby, (Mrs. FQn) viz. Mrs. Lowndes, Mrs. Wragg and Jacob B. I’On, stand in the fourth degree. It is evident therefore, that Miss Floride Peyre and Francis Peyre, the aunt and uncle of the half blood of the intestate Catherine ' Ashby, are the next of kin, as being in the third degree; and that they áre entitled equally to the estate of the said Catharine Ashby in exclusion of the others.

Costs to be paid out of the estate.