Where the question upon the construction of the statute of a
state relative to real property has been settled by any judicial
decision in the state where the land lies, this Court, upon the
uniform principles adopted by it, would recognize that decision as
a part of the local law.
The statute of descents of Rhode Island of 1822 enacts
"That when any person having title to any real estate of
inheritance shall die intestate as to such estate, it shall descend
and pass in equal portions to his or her kindred in the following
course."
It then provides "if there be no father, then to the mother,
brother, and sister of such intestate and their descendants or such
of them as there be" and then declares, in the nature of a proviso,
that
"when the title to any estate of inheritance as to which the
person having such title shall die intestate came by descent, gift,
or devise from the parent or other kindred of the intestate, and
such intestate die without children, such estate shall go to the
kin next to the intestate of the blood of the person from whom such
estate came or descended, if any there be."
An estate situated in Rhode Island was devised by John Collins
to his daughter, Mary Collins, in fee; Mary Collins intermarried
with Caleb Gardner, and upon her death in 1806 the estate descended
to her three children, John, George, and Mary C. Gardner. John and
George Gardner died intestate and without issue, and Mary C.
Gardner, as heir to her brothers, became seized of the whole estate
and died in 1822.
Held that under the provisions of the
law of descents of Rhode Island, two-thirds of the estate of Mary
C. Gardner descended to Samuel F. Gardner, Eliza Phillips, formerly
Eliza Gardner, and Mary Clarke, formerly Mary Gardner, children of
Caleb Gardner by a former marriage, they being brothers and sisters
of the half-blood of Mary C. Gardner, it being admitted that the
remaining one-third, which Mary C. Gardner took by immediate
descent from her mother belongs to the heirs of the whole blood of
John Collins.
The phrase "of the blood" in the statute includes the
half-blood. This is the natural meaning of the word "blood,"
standing alone and unexplained by any context. A half-brother or
sister is of the blood of the intestate, for each of them has some
of the blood of a common parent in his or her veins. A person is
with the most strict propriety of language affirmed to be of the
blood of another who has any, however small a portion, of the same
blood derived from a common ancestor. In the common law, the word
"blood" is used in the same sense. Whenever it is intended to
express any qualification, the word "whole" or "half-blood" is
generally used to designate it, or the qualification is implied
from the context or known principles of law.
A descent from a parent to a child cannot be construed to mean a
descent through, and not from, a parent. So a gift or devise from a
parent must be construed to mean a gift or devise by the act of
that parent, and not by that of some other ancestor more remote
passing through the parent.
It is true that in a sense an estate may be said to come by
descent from a remote ancestor to a person upon whom it has
devolved through many intermediate descents. But this, if not loose
language, is not that sense which is ordinarily annexed to the
terms. When an estate is said to have descended from A.
Page 27 U. S. 59
to B., the natural and obvious meaning of the words is that it
is an immediate descent from A. to B.
At the common law, a man might sometimes inherit who was of the
whole blood of the intestate who could not have inherited from the
first purchaser. As in the case of a purchase by a son who dies
with issue, and his uncle inherits the same and dies without issue,
the father may inherit the same from the uncle although he could
not inherit from his own son.
In the Circuit Court of the United States for the District of
Rhode Island, the plaintiff, William C. Collins, instituted an
action of ejectment for the recovery of two-thirds of certain real
estate in the State of Rhode Island of which Mary C. Gardner died
seized and intestate.
The facts of the case agreed upon were as follows:
"The estate in question, two-thirds of which is demanded by the
plaintiff in his said writ, was the estate in fee simple of the
late John Collins, Esq., deceased, the father of the defendant and
the purchaser of said estate. That the said late John Collins died
in 1817, leaving lawful issue,
viz., John A. Collins,
Abigail Warren, and Mary Collins, and leaving a last will and
testament wherein and whereby he devised the estate in question to
his daughter, the said Mary Collins, in fee simple, who became
seized and possessed thereof accordingly and continued so seized
and possessed thereof to the time of her death,
viz., 2
October, 1806, and died intestate. That the said Mary Collins
intermarried with Caleb Gardner on or about the ___ day of _____,
and at her death left lawful issue,
viz., John Collins
Gardner, George Gardner, and Mary C. Gardner. The said John Collins
Gardner died 17 November, 1806, aged about __, of course intestate
and without issue. The said George Gardner died 18 September, 1811,
aged about __ years, of course intestate, and without issue. The
said Mary C. Gardner died 31 December, 1822, aged about __,
intestate and without issue. That at the death of their mother, the
said John Collins Gardner, George Gardner, and Mary C. Gardner,
took from their said mother the said estate as her heirs at law in
equal parts, and become seized and possessed of the same
accordingly in fee simple, and continued so seized and possessed
till the death of the said John Collins Gardner,
viz.,
Page 27 U. S. 60
till 17 November, 1806.
That thereupon his part of the said
estate descended to and vested in his surviving brother and sister,
viz., George Gardner and Mary C. Gardner, in fee simple in equal
moieties, and thereupon the said George Gardner and Mary C. Gardner
became seized and possessed of the estate in question in equal and
undivided moieties and fee simple, and so continued seized and
possessed till the death of the said George Gardner, 18 September,
1811. That thereupon his part of said estate descended to and
vested in his sister the said Mary C. Gardner in fee simple, and
she became seized and possessed of the same accordingly, and
thereby became seized and possessed of the whole estate in question
in fee simple, and so continued seized and possessed to the time of
her death,
viz., to 31 December, 1822. That at the death
of the said Mary C. Gardner, the defendants,
viz., the
said John A. Collins and Abigail Warren went into possession of the
estate in question, claiming to be the heirs of the said Mary C.
Gardner, and the defendants have continued possessed thereof,
claiming it as their inheritance without interruption or adverse
claim till the plaintiff's suit as aforesaid."
That the plaintiff, by deeds duly executed, became seized and
possessed of all the right and title of the said Samuel F. Gardner,
Eliza Phillips, and Mary Clarke, in and to the demanded premises.
The plaintiff and Samuel F. Gardner and Eliza Phillips are children
of the said Caleb Gardner by a former marriage. That the said Mary
Clarke is also a child of said Caleb Gardner by a former marriage,
and are brother and sister of the half-blood to the said Mary C.
Gardner. That the said plaintiff and Samuel F. Gardner, Eliza
Phillips, and Mary Clarke are not of kin to the said late John
Collins, Esq., deceased, and have not any of his blood in their
veins. And if, upon the foregoing facts, the court shall be of
opinion that the plaintiff, and those under whom he claims, are
heirs at law of the said Mary C. Gardner, and entitled to said
estate, then judgment to be given for the plaintiff, but, if not,
then judgment to be rendered for the said defendant.
The statute of Rhode Island upon which the plaintiffs in
Page 27 U. S. 61
the ejectment claimed to recover, was passed in January, 1822,
and is entitled,
"
An act directing the descent of intestate estates, and the
settlement thereof, and for other purposes therein
mentioned."
"SECTION 1.
Be it enacted by the general assembly, and by
the authority thereof it is enacted, that henceforth when any
person having title to any real estate of inheritance shall die
intestate as to such estate, it shall descend and pass, in equal
portions, to his or her kindred in the following course: "
"To his or her children, or their descendants, if any there be:
"
"If there be no children nor their descendants, then to the
father of such intestate;"
"If there be no father, then to the mother, brothers and sisters
of such intestate, and their descendants or such of them as there
be;"
"If there be no mother, nor brother, nor sister nor their
descendants, the inheritance shall go in equal moieties to the
paternal and maternal kindred, each in the following course;"
"First to the grandfather;"
"If there be no grandfather, then to the grandmother, uncles,
and aunts on the same side and their descendants, or such of them
as there be;"
"If there be no grandmother, uncle nor aunt, nor their
descendants, then to the great-grandfathers, or great-grandfather
if there be but one;"
"If there be no great-grandfather, then to the
great-grandmothers, or great-grandmother if there be but one, and
the brothers and sisters of the grandfathers and grandmothers and
their descendants or such of them as there be, and so on in other
cases without end; passing to the nearest lineal male ancestors,
and for want of them, to the lineal female ancestors, in the same
degree, and the descendants of such male and female lineal
ancestors, or such of them as there be."
"But no right in the inheritance shall accrue to any persons
whatsoever, other than to the children of the intestate unless such
persons be in being, and capable in law to take, as heirs, at the
time of the intestate's death."
"And when herein the inheritance is directed to go by
moieties
Page 27 U. S. 62
to the paternal and maternal kindred, if there be no such
kindred on the one part, the whole shall go to the other part, and
if there be no kindred, either on the one part or the other, the
whole shall go to the husband or wife of the intestate; and if the
wife or husband be dead, it shall go to his or her kindred in the
like course as if such husband or wife had survived the intestate,
and then died entitled to the estate"
"The descendants of any person deceased shall inherit the estate
which such person would have inherited, had such person survived
the intestate."
"
When the title to any real estate of inheritance as to
which the person having such title shall die intestate, came by
descent, gift or devise, from the parent or other kindred of the
intestate, and such intestate die without children, such estate
shall go to the kin next to the intestate, of the blood of the
person from whom such estate came or descended, if any there
be."
For some time prior to the passage of this act, the law of
descents of Rhode Island was regulated by an act of 1798, the first
section of which nearly resembles the clause in the statute of
1822. It was as follows:
"When the title of any real estate of inheritance, as to which
the person having such title, shall die intestate, came by descent,
gift, or devise, from the parent or other kindred of the intestate,
and such intestate die without children, such estate shall go to
the next of kin of the intestate of the blood of the person from
whom such estate came or descended."
The judges of the circuit Court of Rhode Island, having divided
in opinion upon the case, the decision was certified to this Court
for its decision.
Page 27 U. S. 84
MR. JUSTICE STORY delivered the opinion of the Court.
This case comes before us from the Circuit Court of Rhode Island
upon a certified division of opinion of the judges of that court
upon the question whether the plaintiff was entitled to recover
upon a statement of facts incorporated into the record. The action
was an ejectment for two-third parts of certain land described in
the writ, and the title of the parties being by descent, depends
altogether upon the true construction of the statute of descents of
Rhode Island, of 1822. Accordingly as that statute shall be
construed, the land now in controversy belongs to the plaintiff or
the defendants.
The material facts are that the estate (two-thirds of which are
demanded in the writ) was devised by John Collins to his daughter
Mary Collins in fee. Upon her death in 1806, the same descended to
her three children,
viz., John C. Gardner, George Gardner,
and Mary C. Gardner. The two
Page 27 U. S. 85
brothers died intestate and without issue, and Mary C. Gardner,
as heir to her brothers, became seized of the whole estate, and
died intestate and without issue, in December, 1822. The defendants
are the uncle and aunt of Mary C. Gardner, the intestate, of the
whole blood, being children of John Collins, the devisor, and
brother and sister of her mother, Mary Collins. The plaintiff is
the brother of Mary C. Gardner, the intestate of the half-blood,
and he holds a conveyance of their shares from her other brothers
and sisters of the half-blood, they being children of her father by
a former marriage. The plaintiff and his brothers and sisters of
the half-blood claim the two-thirds of the estate now in question,
as her heirs of the half-blood, and the defendants claim the same
as her heirs of the whole blood. It is admitted on all sides, that
the one-third which Mary C. Collins took by immediate descent from
her mother, belongs to the heirs of the whole blood. But the other
two-thirds, being taken by immediate descent from her brothers, it
is contended that by the statute of 1822, it passes to her heirs of
the half-blood.
If this question had been settled by any judicial decision in
the states where the land lies, we should, upon the uniform
principles adopted by this Court, recognize that decision as a part
of the local law. But it is admitted that no such decision has ever
been made. If this had been an ancient statute, and a uniform
course of professional opinion and practice had long prevailed in
the interpretation of it, that would be respected as almost of
equal authority. But no such opinion or practice has been known to
prevail, and indeed the statute itself is but of very recent
origin. Even the statute of 1798, of which, in respect to this
point, that of 1822 is almost a transcript is not of a date so
remote as to enable us to presume that many cases could have arisen
in that state, on which to found a practical construction, without
some unequivocal evidence.
The most that has been urged is that there has been some general
understanding among the people that such was the meaning of the
statute, but even this, though very respectably attested, is
encountered by equally respectable statements on the other side. We
are driven, therefore, to
Page 27 U. S. 86
consider the question as entirely new and unsettled, and to be
decided not upon the mistakes of parties relative to their rights
in one or two unadjudicated cases, even if they existed, but by the
true construction of the statute itself.
The statute of 1822 enacts that
"When any person having title to any real estate of inheritance
shall die intestate as to such estate, it shall descend and pass in
equal portions to his or her kindred in the following course,"
&c. Among other clauses is the following, "if there be no
father, then to the mother, brothers, and sisters of such
intestate, and their descendants, or such of them as there be." In
the present case, there was no father or mother of Mary C. Gardner,
the intestate, living at the time of her decease, and as her
brothers and sisters of the half-blood are her brothers and sisters
within the meaning of the statute, they would be entitled to the
estate in question beyond all controversy, if there were no other
disqualifying clause. But in a subsequent clause of the statute in
the nature of a proviso, it is declared that
"When the title to any estate of inheritance as to which the
person having such title shall die intestate came by descent, gift,
or devise from the parent or other kindred of the intestate, and
such intestate die without children, such estate shall go to the
kin next to the intestate of the blood of the person from whom such
estate came or descended, if any there be."
The most material differences between the statute of 1798 and
that of 1822 so far as regards this question is that the words "if
any there be" are omitted in the former, which also uses the words
"next of kin to," instead of "kin next to." Both of these
circumstances have been relied on at the bar as indicating a
probable change of intention. It is said that both acts admit of
two readings,
viz., "to such of the next of kin of the
intestate as are of the blood, &c.," or "to the nearest of such
of the kin of the intestate as are of the blood," &c. The
latter reading will give the estate to a remote relation of the
intestate of the blood, although he be not of the next of kin of
the intestate. The former reading requires that the party should be
of the next of kin (that being the primary intention), as well as
of the blood, and therefore if a person be not of the next of kin
of
Page 27 U. S. 87
the intestate, although he be of the blood, he cannot take, and
the words of the act of 1822, "if any there be," are relied on to
fortify the construction.
We think the legislative intention in both acts was the same,
and that the transposition of the words "next of kin" to "kin
next," was accidental, and not introductory of any new object. The
true construction of the statute of 1822 is that it gives the
estate to the next of kin of the intestate who are of the blood,
excluding all others though of a nearer degree who are not of the
blood, &c.
In this view of the clause, two questions have been argued at
the bar.
1. Whether the words "of the blood" include the half-blood or
exclusively apply to the whole blood.
2. Whether the words "came by descent, gift, or devise from the
parent and other kindred of the intestate" are limited to a
proximate and immediate descent, gift, or devise from such parent,
&c., to the intestate, or include a descent, gift, or devise
which can be deduced mediately from or through any ancestor,
however remote, who was the first purchaser to the intestate.
The first question has not been seriously pressed in this Court
by the counsel for the defendants, though it constituted in the
court below a main ground of argument. We think that the phrase "of
the blood" in the statute includes the half-blood. This is the
natural meaning of the word "blood" standing alone and unexplained
by any context. A half-brother or sister is of the blood of the
intestate, for each of them has some of the blood of a common
parent in his or her veins. A person is with the most strict
propriety of language affirmed to be of the blood of another who
has any, however small a portion, of the same blood derived from a
common ancestor. In the common law, the word "blood" is used in the
same sense. Whenever it is intended to express any qualification,
the word whole or half-blood, is generally used to designate it, or
the qualification is implied from the context on known principles
of law. Thus, Littleton in his sixth section says that none shall
inherit
"as heir to any man, unless he be his heir of the whole blood,
for if a man hath issue two sons by divers
Page 27 U. S. 88
ventres, and the eldest purchase lands, &c., the younger
brother shall not have the land, &c., because the younger
brother is but of the half-blood to the elder."
The same distinction is found in section eighth of the same
author, and Lord Coke in his commentary on the text constantly
takes it. So Robinson in his Treatise on Inheritances, 45, after
laying down the rule, that the person who is to inherit must be of
the whole blood to the person from whom he proximately and
immediately inherits, adds that he must also be of the blood of the
first purchaser; but that it is sufficient to satisfy this that he
is of the half-blood of such purchaser. The legislation of Rhode
Island leads to the same result as to the meaning of the word
"blood." That colony was governed by the English law of descents
from its first settlement until the year 1718, a period of more
than half a century. By an act passed in 1718, the real estate of
the intestate was divided among all his children, giving the eldest
son a double share, &c., and in default of issue, the same was
distributable among the next of kin of the intestate, within equal
degree, &c. This act was repealed in 1728, and the common law
course of descents was revived and remained in force until 1770,
when an act was passed providing substantially for the same
distribution as the act of 1718. It contained, however, this
remarkable proviso
"that no distribution of any real estate in consequence of this
act shall extend or be made in the collateral line beyond the
brothers and sisters of such intestate and their children and to
those only of the whole blood."
In 1772, the act of 1770 was repealed in regard to the double
share to the eldest son, but in other respects it remained in force
until the revision in 1798, when the proviso that none should
inherit in the collateral line except the whole blood was dropped,
and there is not either in the act of 1798 or of 1822 any clause
referring to the blood of any person as a stock of descent except
the very clause upon which the present questions arise. When,
therefore, the distinction between the whole and half-blood was
well known in the colony, not only as a part of the common law, but
as a part of its own legislation, and the proviso is
Page 27 U. S. 89
dropped in which the words "whole blood" were studiously used,
and the words "of the blood" only. are found in any correspondent
provision; it affords a strong presumption, that the whole blood
were no longer deemed to be exclusively entitled to inherit, but
that the half-blood should be let in. If the half-blood were not
permitted to inherit in cases of this sort, this anomaly might
occur; that a son might inherit from his parent the moiety of an
estate directly, which he could not inherit from his brother of the
half-blood, to whom it has passed by descent from the same parent,
if such brother should die without issue. We see no reason, then,
to doubt that the words "of the blood," include the half as well as
the whole blood. The plaintiff, then, and those from whom he claims
being the next of kin of the intestate, [
Footnote 1] and of the blood of her two brothers,
[
Footnote 2] from whom she
immediately derived that part of the estate which is now in
controversy, is entitled to recover unless the statute in the other
part of the clause defeats the descent.
This leads us to the second question. The estate originally came
from John Collins by devise to his daughter Mary Collins and by
descent from her to her three children, and mediately as to the
two-thirds to the intestate through her brothers. The counsel for
the plaintiff contends that the clause looks only to the proximate
and immediate descent; the counsel for the defendants that it looks
to the origin of the title in the first purchaser, and requires
that the party claiming as heir should be of the blood of the first
purchaser, through whatever intermediate devolutions by descent,
gift or devise it may have passed, and however remote may be the
first ancestor. If the latter be the true construction of the
clause, it goes far beyond the common law, for that stopped at the
last purchaser in the ancestral line, and persons taking by devise
or gift are deemed purchasers, and
Page 27 U. S. 90
ascended no higher than it could trace an uninterrupted course
of descents. The common law, therefore, would have considered Mary
Collins as the first purchaser for all its own purposes of
descents. The words are,
"when the title to any real estate, &c., as to which the
person having such title shall die intestate
came by descent,
gift or devise from the parent, or other kindred of the
intestate,"
&c. Now what reason is there to suppose that the legislature
in this clause meant in favor "of
the blood of the person
from whom such estate came or descended" to extend its
reach beyond that of the common law? No such intention is disclosed
on the face of the provision, and every progressive enactment for
the last fifty years in Rhode Island is a relaxation of the strict
canons of descent of the common law. The words themselves certainly
do not necessarily require such an interpretation. As to descents
as well as gifts and devises from a parent, it is plain that the
act looks only to the immediate descent or title. A descent from a
parent to a child cannot be construed to mean a descent
through and not
from a parent. So a gift or
devise from a parent must be construed to mean a gift or devise by
the act of that parent, and not by that of some other ancestor more
remote, passing through the parent. It has been urged in another
quarter entitled to great respect that the words may be construed
distributively; that a distinction may be taken between a descent,
gift, or devise from a parent, and a descent, &c., from other
kindred, and so also that the words "descent, gift, and devise" may
be construed distributively, so that in cases of descents, the
party who shall inherit is to be of the blood of the first
purchaser, from whom by
intermediate descents it was
passed to the intestate, and that in cases of gifts or devises, the
donor or devisor shall alone be the person whose blood is to be
inquired for. It may be admitted that the clause is susceptible of
such a construction without any great violation of its terms. But
we do not think that such is the natural construction of the terms,
nor is any legislative intention disclosed which would justify us
in adopting it. There does not seem any sound reason why the clause
should be construed in the
Page 27 U. S. 91
case of a parent, differently from what it would be in the case
of any "other kindred of the intestate." The latter words must be
construed in the same manner as if each class of kindred had been
enumerated in detail, such as uncles, brothers, grandparents,
cousins, &c., and if they had been, the same rule from the
specific enumeration must have been applied to them as is now
sought to be applied to the case of parents. The general expression
must be deemed to include all the particulars. Then as to the
distinction between descents and gifts and devises.
It is true that in a sense an estate may be said to come by
descent from a remote ancestor to a person upon whom it has
devolved through many intermediate descents. But this, if not loose
language, is not that sense which is ordinarily annexed to the
term. When an estate is said to have descended from A. to B., the
natural and obvious meaning of the words is that it is an immediate
descent from A. to B. If other words of a statute should seem to
require another and more enlarged meaning, there would be no
absolute impropriety in adopting it; but if the true sense is to be
sought from the very terms
per se, that which is the usual
sense would seem most proper to be followed. It is not for courts
of justice to indulge in any latitude of construction where the
words do not materially justify it and there is no express
legislative intention to guide them. But we think that the
connection in which the words stand justify us in adhering to the
ordinary interpretation. If in cases of gifts and devises the blood
of the proximate donor or devisor is alone to be regarded, there
being no distinction pointed out in the words of the act between
those cases and that of descents, the very juxtaposition of the
words affords a strong presumption that the legislature intended to
apply the same rule as to all. If the object was to regard the
blood of the party from whom the estate was derived, what reason is
there to suppose that the legislature intended less regard to the
blood of a devisor or donor than to that of an ancestor? The
mischief might be as great in suffering the estate to pass into the
hands of strangers, when there were next of kin of the blood in the
one case, as in the
Page 27 U. S. 92
other. On the other hand, there might be solid reasons for
confining the preference of blood to cases of immediate descents,
which could be easily known and easily traced.
One of the known inconveniences of tracing back titles and
relationship is the obscurity which at a small distance of time
gathers over them. It would often be difficult to ascertain whether
there were not relations of a very distant stock of the blood of a
remote ancestor who might be entitled to the inheritance to the
exclusion of the immediate next of kin of the intestate. And even
the course of descents of his own title in a country where estates
are universally partible for two or three generations might involve
the estate of the intestate in inextricable difficulties, and
disable the next of kin from ascertaining into what fragments it
was to be subdivided with any reasonable certainty. It would be no
want of wisdom, therefore, in a legislature to limit its provisions
in favor of the blood to cases where the immediate title could be
traced with almost absolute certainty. Certainty of title in a
country where titles so rapidly change hands might furnish a far
safer principle of legislation than any preference for the blood of
persons remotely related to the intestate through some distant and
perhaps unknown ancestor. We think, then, that in the case of a
gift or devise, the statute stops at the immediate donor or
devisor, and ascends no higher for any blood. What reason is there
to suppose that in the case of a descent there was a different
legislative intention? In the case of a parent, the parent is, by
the very terms of the statute, made the sole stock of descent,
whether he derived it by descent or by gift or devise from an
ancestor or a stranger. In the case at bar, the mother of the
intestate took the estate by devise from her father. She was in by
purchase, and in the sense of the common law, as first purchaser,
and of course the true stock of descent, holding the estate
ut
feudum antiquum.
It has been said that the object was to preserve inheritances in
the same family. To a limited extent this is true -- that is, as
far as the legislature has provided for such cases. No general
declaration is made by the legislature on the
Page 27 U. S. 93
subject, and no preamble which discloses any leading intention
exists. What the legislative intention was can be derived only from
the words they have used, and we cannot speculate beyond the
reasonable import of these words. The spirit of the act must be
extracted from the words of the act, and not from conjectures
aliunde. The common law carries back in certain cases the
descent to the heirs of the first purchaser. But the common law
cannons of descents are overturned by the statute of descents of
Rhode Island. How then can we resort to the common law to make up
the supposed defects in the language of the statute? Here, there is
not a
casus omissus, but a complete scheme of descents,
and the only question is how much the proviso carves out and saves
from the operation of the general rule. No such words as "the first
purchaser" are to be found in the statute, though it is
sufficiently technical in other respects, and what right can this
Court possess to exchange the words in this statute for the words
"first purchaser" when they are not equipollent in meaning or
extent? If the legislature intended to set up a new the rule of the
common law as to descents, &c., from the first purchaser, it
seems scarcely credible that it should have omitted the very
phrase, considering that for a century at least it was a material
ingredient in the law of descents of the colony. Then again, if the
argument now urged at this bar for the defendants is well founded,
it goes (as has been already stated) far beyond, and indeed to the
overthrow of the common law on the very point of first purchasers.
Indeed, at the common law, a man might sometimes inherit, who was
of the whole blood of the intestate, who could not have inherited
from the first purchaser. As in the case of a purchase by a son who
dies without issue and his uncle inherits the same and dies without
issue, the father may inherit the same from the uncle, although he
could not inherit from his own son. [
Footnote 3] The statute of Rhode Island imparts to parents
a right to inherit the real estates of their children in cases
where the latter die without issue.
Page 27 U. S. 94
The statutes of descents of the different states in the union
are so different in their provisions that it is not easy to apply
any general rule of construction to them. The cases cited at the
bar do, however, demonstrate that in those states where a similar
language is used in their statutes of descents, the expression has
been uniformly construed to mean immediate descents, gifts and
devises, unless that construction has been overruled by the
context. The statute of Connecticut of 1784, which has been
supposed to be the model of that of Rhode Island as to this
proviso, is understood to have received this construction.
[
Footnote 4] Under words nearly
similar, in the Virginia statute of 1792 (the words being "that
where an infant shall die without issue, having title to any real
estate as inheritance derived by gift, devise or descent from the
father, &c."), it has been held that an immediate descent from
the father, and not an intermediate descent was intended. [
Footnote 5]
Upon the whole, our opinion is that both points are in favor of
the plaintiff. We all think that the words "of the blood"
comprehend all persons of the blood, whether of the whole or
half-blood, and that the words "come by descent, gift, or devise
from the parent or other kindred, &c." mean immediate descent,
gift, or devise, and make the immediate ancestor, donor, or
devisor, the sole stock of descent.
A certificate will accordingly be sent to the circuit Court of
Rhode Island in favor of the plaintiff.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Rhode Island, and on the points on which the judges of the said
circuit court were divided in opinion and which were certified to
this Court for its opinion and was argued by counsel, on
consideration whereof it is ordered and adjudged by this Court that
it be certified to the said
Page 27 U. S. 95
Circuit Court of the United States for the District of Rhode
Island that the plaintiff and those under whom he claims the estate
in controversy are heirs at law of Mary C. Gardner, the intestate,
and as such heirs are by the statute of descents of Rhode Island of
1822, entitled to the same estate upon the facts agreed in the
case, and that judgment ought to be given for the plaintiff in this
cause, all which is ordered to be certified to the said circuit
court.
[
Footnote 1]
See Smith v. Tracey, 2 Mod. 204;
Crook v.
Watts, 2 Vern. 124;
S.C., Shower Parl.Cases 108.
[
Footnote 2]
See Cowner v. Cowper, 2 Pecre Will. 720, 735;
Collingwood v. Pace, 1 Vent. 424; Watkins on Descents,
227, 228 note; Reeves on Descents 176.
[
Footnote 3]
See Littleton, s. 3, and Co.Litt. 10b; Litt. s. 8;
Co.Litt. 14b.
[
Footnote 4]
See Reeves on Descents 160 &c.
[
Footnote 5]
1 Munf. 183; 3 Call. 120.
