The Arkansas banner., 1845-10-22

l and with still more proprety for the wife, who could usually make no will. But where single child was left, as in the instance be- fore us, the dying parent could have no mo- tive for such provision; and therefore the Legislature in the exception made to the en- acting clause carefully provided that the pa- ternal line of children of the half blood, should be exhausted when the land descend ed from the father; and that the same rule should prevail if it descended from the mo- ther. But here the exception ends Then, the land must go otherwise, the proyiso does no! say how it shall 20, and the enact ting clause does.
 Before the proviso can apply in any in- stance, on a second descent being cast, there must be two sets of brothers or sisters stand ing Tn the relation of half blood. But if the preferred line Was exhausted, or none could exist, as here, al the time of the second death, the proviso could have nothing for its opera ton So far from the Eth section of the act of April, l7S4, being favorable to the plain tii2s claim to be heir of Mary Moore, 1t IS as we think decidedly uniavorable It prefers her brothers or sisters first, without excep- ton, if there be any if none, then parents !; and lastly, uncles and aunts, or their deseen- dans
 We have thought 1t dne to the question presented, briefly to give our own impress Ions ol the true construction of the statutes i ot descents on the case made. because we suppose il is the first time the precise ques- ton has come up for decision before court Ill Tennessee: Not that it Is a new question l Q tNVn 1ctc If l., N 4I II has received depth of consideration rare ly equalled, both at the Bar, and by the Su- preme Court of that State; and after the most eNhaustng litigation, was met in the case of Ballard and wife ys. Hill, @ Murphy's rep. 4I00 by decision, Gin 1Sl9,9 in which all the Judges of the Supreme court agreed, con- cluding all controversy there. Other cases in North Carolina have followed the leading one of Ballard vs. Hill; these it IS useless to notice, as tine first one put at rest, the harass- Ing controversy, and established-that where father died leaving en only son, on whom his estate descended; and the widow, and mother of that son, again married, and had other children by the second marriage, and then the first son died intestate and without issue; that the half brothers or sisters of the
 
 true construction of the acts of 1781, in ex- clusion of paternal cousin, son of a pater- nal uncle, as here. This construction emi- nent counsel of Tennessee, fpreviously no doubD thought the true one, as appears by the opinion of Mr. Whiteside, given on the facts of this case 10 Augustus Moore in 1920; and now adduced 10 lis. To say that Mir. Whiteside was at the head of his profession in Tennessee on questions appertaining to titles, would be doing him bare justice :; and therefore his opinion is not without value
 That Judge Haywood entertained different views IS we'll known; some of them will be found in the case of Butler vs King @ Y CT. ll5,) which came before the Supreme court of Tennessee in 1926 on proceeding for partition in form, but obviously designed 10 try title. The opinion in that case is stated by the reporter to be that of the whole court, and is now relied on as authority for the plaintiff. King died leaving two sons and widow their mother She afterwards married Butler, and had issue daughter,- Then one of the sons died intestate. and un- married, The elder King had made will and thereby devised his land to the two sons and the main question was whether the descent was broken by the will; if so, then It was insisted for the half sister, the plaintiff, that she took equally with her surviving brother, the estate of the dee'd one. It was also question whether the act of l796 had repealed so much of the act of April, 17Y4, as gave priority to the brother who was in the line of descent from his father, by the N Carolina act; provided the descent was not broken by the elder Kings will In the State of Tennessee the rule had been not to try a question of disputed title on petition :; but 10 turn the parties out of court, and send them to law to settle the title first, by an ac- ton of eectment. Three of the Judges then on the Bench with Judge Haywood, thought the court had no jurisdiction to try the tite, and that Butler must go out of court: But on coming into conference on the cause, Judge Haywood produced his opinion as it is pub lished in , Yerger; neither of the other Judges either concuryed or non concurred with it; thinking it was improper to forestall the question of title by throwing out an opin- ion, where they had no power to bind the rights of the parties litigant; and when they were turned out of court, for the purpose of again coming before it, in legal form to try the title. The error in the report of the case was corrected in Nichol vs. Dupree The case of Butler vs. King can have but little consideration accorded to it: First, il is not like this; there brother was found or the fathers side conesting with his half sister on part of the mother.
 ?. Judge Haywood's individual opinion can only have the respect accorded to it, which is due to that of an eminent lawyer.
 ,. Although this court is bound, as IS the Supreme court of the U. S, by the settled construction of the State courts given to sta tues of descents and other State laws, regard ing titles to lands; still they are not bound to follow single unsupported opinion of State court of last resort, and Supreme, Sup posing all the Judges to have fully concur red) in case where such Stale court declares it has no jurisdiction to determine the contro- versy, or to bind the parties litigant, and therefore dismisses the proceeding; and this was done in the case of Butler vs King, by the unanimous concurrence, (including Judge Haywood) of the four Judges composing the Supreme court of Tennessee in 1926. And of that number was the presiding Judge of this court, and the writer of the present opinion.