The Arkansas banner., 1845-10-22
DECISION OF TIE CouRr.

blood ot the acquiring ancestor.
 .NasAeiHe CTtm. Banner
 DECISION OF THE CoURT.
 The court is called on for an opinion, and desired to give it in writing, as to who is the lawful heir of Mary Moore, on the facts agreed, and submitted to the Court
 Thos. Finney died in 1907, leaving five children of the whole blood, who inherited his estate of 2560 acres of land lying in Davidson. Mary M., his only daughter, married Augustus Moore; had partitoned to her one fifth part of her fathers estate, and died in 1915, leaving Mary Moore, her only child all heir of said fifth. Mary the daugh- ter, died intestate, and without issue, preyi- $ous 10 the 9th of February 1872
 After the death of hls wife Mary M., Au- gustus Moore married again and had issued a daughter, the wife of Dr. Borland, by the second marriage. Augustus Moore died af- ter his first daughter Mary, leaving his daugh- ter Mrs. Borland living; being his only re maining child, Augustus Moore, Borland and wife, conveyed to John Harding-and this is the defendants title
 James N. Finney, one of the brothers of Mary M. Moore, died in 1913, leaving the lessor of the plaintiff, Fhos. J, Fnney, his only child and heir at law-and in 1915, the three other brothers of James 1I Fiany also died, intestate, and without issue
 Thos. ]. Kinney claims to be the legal heir ol his cousin Mary Moore, daughter of Augustus and Mary NJ. Moore, in exclusion of the half sister of Mary, the issue of Au- gustus Moore's second marriage; on the ground, that as the estate descended to Mary NJ, from her father, Thos Finney; and from her again to her daughter Mary, 1t could not descend on Mrs. Borland, who was a stran- ger to the blood of Thos. Finney, and Mary H. Moore, in exclusion of the plaintiff; al though she was half sister to Mary Moore on the fathers side
 If Mary Moore had acquired the estate by purchase, then her half sister Mrs Borland would have been her heir, in exclusion of the cousins of Mary Moore on her mothers side. The Sd section of the statute of de- scents, of April l78l, by the enacting clause declares such half sister the lawful heir and as the proylso 10 that section does not inter- iere with the enacting clause in such a case, 1t has always been held in North Carolina. that the half sister would take as heir from the first purchaser; And so the Supreme Court of Tennessee held in 1895. in the case of Nichol vs Dupree, Yer. 4l5. The court proceeded on principle of construction, as applicable to the Sd sec. of the act of April l784, which we think must govern the pre- sent controversy, and which we will more distinctly state. IL is this: That the excep- ton found in the proyiso, must be limited to its terms: or in the language of the Supreme Court of the United States in Gardner ys Col llns, (2 Peters, 93} the question is, show much the proylso carves out, and saves from the general rule," established ny the the en- acting clause3
 By the Sd section of the first act of l784, and the 2d section of the act of October, 1781 as they stand modified by theact of Tennes- see of l796, brothers and sisters of the half blood, are let in equally with brothers and sisters of whole blood and this is regardless of the fact, whether the estate descended, had been acquired by the deceased brother or sis ter, by previous descent from parent, or by purchase from a stranger. Such are plain ly the enacting clauses And as the act of l796, only modifes the N orh Carolina sta tutes of descent, so far as 10 do away any priority between males and females, the pro- vlsos to the Sd sec of the act of April, l796. What then is carved out of the enacting clause by the first proviso to the Sd section of the act of April, l7S4 'sThat when the estate shall have descended on the part of the father, and the issue to whom such inheritance shall have descended shall die without issue, male or female, but having brothers or sisters of : ,l, Il ,i, no1G thers or sisters of the maternal line, also of the half blood, such brothers and sisters re- spectvely of the paternal line shall inherit in the same manner as brothers and sisters of the whole blood; and the same rule of de- scent and inheritance shall prevail amongst the half blood of the maternal line, under similar circumstances, 10 the exclusion of the paternal line"
 This is the entire exception. If land de- scends from father, or from mother, on child on that land so descended, the pro- vso may operate, or il may not. If such child dies intestate and without issue, having brothers and sisters of the whole or half blood, or both, on the one side, and brothers or sisters of the half blood also on the other. then the lands of the intestate shall descend to the set of brothers and sisters who are children of the parent from whom the land descended on the intestate The Legislature made the exception to the enacting clause for a reason that lay on the surface. It is most common in family misfortunes for the one parent or the other of family of children to die, and for the surviving parent to marry and to have another set of children; m such event the parent dying first, if a will was made, would ordinarily and naturally pro-