The rule of the common law, commonly called "the rule of
shifting inheritance," is not in force in Illinois.
Kinzie Bates, the plaintiff in error, brought an action of
ejectment in that court against Brown, the defendant in error, to
recover certain premises. The cause was submitted upon an agreed
statement of facts, which, so far as it was necessary to consider
them, were as follows:
1. On the 29th of September, 1830, Alexander Wolcott bought of
the State of Illinois certain lands, of which those in controversy
were a part. At the time of the transaction
Page 72 U. S. 711
he paid the purchase money, and received the usual
certificate.
2. He died on the 30th of October, 1830, leaving a daughter,
Mary Ann Wolcott, his only child, and his wife, Eleanor, him
surviving. He left a will, duly executed, which contained the
following provision:
"I further give and devise to my said wife, Eleanor M. Wolcott,
and my said daughter, all my freehold estate whatsoever, to hold to
them, the said Eleanor M. Wolcott and Mary Ann Wolcott, their heirs
and assigns forever."
3. Mary Ann Wolcott, the daughter, died on the 16th of January,
1832, aged seven years, intestate and without issue.
4. On the 13th of May, 1833, Eleanor M. Wolcott conveyed to
David Hunter, his heirs and assigns, with a covenant of general
warranty, the premises in controversy.
5. On the 5th of July, 1833, a patent was issued by the Governor
of Illinois for the land purchased by Alexander Wolcott, as before
stated, to his "legal representatives, heirs, and assigns."
6. Eleanor M. Wolcott, his widow, married George C. Bates on the
26th of May, 1836.
7. The plaintiff, Kinzie Bates, was the issue of that marriage,
and was born on the 13th of April, 1838, and was the only child of
his parents.
8. His mother died on the 1st of August, 1849, leaving her
husband, George C. Bates, then and still surviving.
The plaintiff claimed title as the heir at law of his deceased
half sister, Mary Ann Wolcott, under the rule of the common law,
generally known as that of "shifting inheritance;" maintaining that
although at the time of the decease the mother was the presumptive
heir of the said Mary Ann, yet that by his own birth a nearer heir
was created, and that the estate thus placed in the mother was
divested from her, and vested in him, the son.
To understand the matter fully, it may be well to state that the
Congressional Ordinance of 1787 for the government of the
Northwestern territory, of which Illinois was originally
Page 72 U. S. 712
part, created a court which it declared should have "common law
jurisdiction;" and the Ordinance guaranteed also to the people of
the territory "judicial proceedings, according to the course of the
common law." This Ordinance declared that the estates of persons
dying intestate.
"Shall descend to and be distributed among their children, and
the descendants of a deceased child, in equal parts; the
descendants of a deceased child or grandchild to take the share of
their deceased parent in equal parts among them; and when there
shall be no children or descendants, then in equal parts to the
next of kin, in equal degree; and among collaterals the children of
a deceased brother or sister of the intestate shall have, in equal
parts among them, their deceased parent's share; and there shall in
no case be a distinction between kindred of the whole and half
blood."
In 1819, after Illinois had become a state, a statute adopted
"the common law of England" in general terms; and in 1845 another
statute declared that the common law of England,
"so far as the same is applicable and of a general nature, shall
be the rule of decision, and shall be considered as in full force
until repealed by legislative authority."
At the time of the decease of Mary Ann Wolcott, the statute of
Illinois governing the descent of the real estate of persons dying
intestate was as follows:
"Estates, both real and personal, of resident or nonresident
proprietors in this state, dying intestate, or whose estates, or
any part thereof, shall be deemed and taken as intestate estate,
and after all just debts and claims against such estate shall be
paid as aforesaid, shall descend to and be distributed to his or
her children, and their descendants, in equal parts; the
descendants of a deceased child, or grandchild, taking the share of
their deceased parent in equal parts among them;
and when there
shall be no children of the intestate, nor descendants of such
children, and no widow, then to the parents, brothers, and sisters
of the deceased person, and their descendants, in equal parts among
them, allowing to each of the parents, if living, a child's part,
or to the survivor of them, if one be dead, a double portion,
and if there be no parent living, then to the brothers and sisters
of the intestate and their
Page 72 U. S. 713
descendants; when there shall be a widow, and no child or
children, or descendants of a child or children of the intestate,
then the one-half of the real estate, and the whole of the personal
estate, shall go to such widow as her exclusive estate forever,
subject to her entire and absolute disposition and control, to be
governed in all respects by the same rules and regulations as are,
or may be, provided in cases of estates of femes sole; if there be
no children of the intestate or descendants of such children, and
no parents, brothers, or sisters, or descendants of brothers and
sisters, and no widow, then such estate shall descend in equal
parts to the next of kin to the intestate, in equal degree,
computing by the rules of the civil law; and there shall be no
representation among collaterals, except with the descendants of
the brothers and sisters of the intestate; and in no case shall
there be a distinction between the kindred of the whole and half
blood, saving to the widow, in all cases, her dower of one-third
part of the real for life, and the one-third part of the personal
estate forever."
The court below gave judgment for the defendant.
MR. JUSTICE SWAYNE delivered the opinion of the Court, having
first stated the case, and quoted the statute relating to descents
just above set out:
Mary Ann Wolcott, from whom the plaintiff in error claims to
have derived his title by inheritance, died nearly four years
before his birth. During all the intervening time, it is not denied
that the title was vested in his mother and her grantee. Such was
the effect of the statute. It is clear in its language, and there
is no room for controversy upon the subject. Although born after
the title became thus vested, he insists that upon his birth it
became, to the extent of his claim, divested from the grantee and
vested in him. His later birth and relationship to the
propositus, he contends, is to be followed by the same
results as if he had been living at the time of her death.
It is alleged that the rule of "shifting inheritances," in the
English law of descent, is in force in Illinois, and must govern
the decision of this case.
Page 72 U. S. 714
The operation of this rule is thus tersely illustrated in a note
by Chitty, in his Blackstone:
"As if an estate is given to an only child, who dies, it may
descend to an aunt, who may be stripped of it by an after-born
uncle, on whom a subsequent sister of the deceased may enter, and
who will again be deprived of the estate by the birth of a brother.
It seems to be determined that everyone has a right to retain the
rents and profits which accrued while he was thus legally possessed
of the inheritance. Hargrave's Co. Litt. 11; 3 Wilson 526.
[
Footnote 1]"
Such is undoubtedly the common law of England. [
Footnote 2]
It is said the Ordinance of 1787, which embraced the territory
now constituting the State of Illinois, and the acts of the
legislature of that state of the 4th of February, 1819, and of the
3d of March, 1845, are to be considered in this connection.
The ordinance created a court which it declared "shall have
common law jurisdiction," and it guaranteed to the people of the
territory "judicial proceedings according to the course of the
common law." There is no allusion in it to the common law but
these. The two acts of the legislature contain substantially the
same provisions. What is expressed in the second act and not in the
first is clearly implied in the former. The latter declared
that
"The common law of England, so far as the same is applicable and
of a general nature, . . . shall be the rule of decision, and shall
be considered as in full force until repealed by legislative
authority. [
Footnote 3]"
Mary Ann Wolcott died and the plaintiff in error was born before
this act became a law, but it may be properly referred to as
containing an exposition of the legislative intent in the prior
act. Although the former act adopts "the common law of England" in
general terms, it was undoubtedly intended to produce that result
only so far as that law was "applicable and of a general
nature."
By the common law, actual seizin, or seizin in deed, is
indispensable
Page 72 U. S. 715
to the inheritable quality of estates. If the ancestor were not
seized, however, clear his right of property, the heir cannot
inherit.
According to the canons of descent, hereditaments descend
lineally, but can never ascend. This rule is applied so rigidly
that it is said "the estate shall rather escheat than violate the
laws of gravitation."
The male issue is admitted before the female. When there are two
or more males, the eldest only shall inherit, but females
altogether.
Lineal descendants,
in infinitum, represent their
ancestors, standing in the same place the ancestor would have stood
if living.
On failure of lineal descendants of the ancestor, the
inheritance descends to his collateral relations -- being of the
blood of the first purchaser -- subject to the three preceding
rules.
The collateral heir of the intestate must be his collateral
kinsman of the whole blood.
In collateral inheritances, the male stock is preferred to the
female. Kindred of the blood of the male ancestor, however remote,
are admitted before those of the blood of the female, however near,
unless where the lands have in fact descended from a female.
[
Footnote 4]
These principles sprang from the martial genius of the feudal
system. When that system lost its vigor and in effect passed away,
they were sustained and cherished by the spirit which controlled
the civil policy of the Kingdom. The celebrated statute of 12
Charles II, ch. 24, which Blackstone pronounces a greater
acquisition to private property than magna charta, was followed by
no change in the canons of descent. The dominant principles in the
British constitution have always been monarchical and aristocratic.
These canons tend to prevent the diffusion of landed property and
to promote its accumulation in the hands of the few. They thus
conserve the splendor of the nobility and the influence
Page 72 U. S. 716
of the leading families, and rank and wealth are the bulwarks of
the throne. The monarch and the aristocracy give to each other
reciprocal support. Power is ever eager to enlarge and perpetuate
itself, and the privileged classes cling to these rules of descent
with a tenacity characteristic of their importance -- as means to
the end they are intended to help to subserve.
Before the Revolution, some of the colonies had passed laws
regulating the descent of real property upon principles essentially
different from those of the common law. In most of them, the common
law subsisted until after the close of the Revolution and the
return of peace. It prevailed in Virginia until the act of her
legislature of 1785 took effect, and it was perhaps the law upon
this subject in "the Northwestern Territory" at the time of its
cession in 1784 by Virginia to the United States. With the close of
the Revolution came a new state of things. There was no monarch and
no privileged class. The equality of the legal rights of every
citizen was a maxim universally recognized and acted upon as
fundamental. The spirit from which it proceeded has founded and
shaped our institutions, state and national, and has impressed
itself upon the entire jurisprudence of the country. One of its
most striking manifestations is to be found in the legislation of
the states upon the subject under consideration. Of the results an
eminent writer thus speaks:
"In the United States, the English common law of descents, in
its most essential features, has been universally rejected, and
each state has established a law of descents for itself. [
Footnote 5]"
Another writer, no less eminent, upon this topic says:
"In the law of descents, there is an almost total change of the
common law. It is radically new in each state, bearing no
resemblance to the common law in most of the states, and having
great and essential differences in all. [
Footnote 6]"
So far as British law was taken as the basis of this
legislation
Page 72 U. S. 717
in the different states, it was the statutes of Charles II and
James II, respecting the distribution of personal property, and not
the canons of descent of the common law. The two systems are
radically different in their principles.
The Ordinance of 1787 contains a complete series of provisions
upon the subject. They are the type and reflex of the action of
many of the states at that time. The ordinance declared that the
estates of persons dying intestate
"shall descend to and be distributed among their children, and
the descendants of a deceased child, in equal parts, the
descendants of a deceased child or grandchild to take the share of
their deceased parent in equal parts among them, and when there
shall be no children or descendants, then in equal parts to the
next of kin in equal degree, and among collaterals the children of
a deceased brother or sister of the intestate shall have, in equal
parts among them, their deceased parent's share, and there shall in
no case be a distinction between kindred of the whole and half
blood."
We find here not a trace of the common law. These provisions are
diametrically opposed to all its leading maxims. We cannot infer
from their silence that anything not expressed was intended to be
adopted from that source by implication or construction.
The statute governing the descent of real estate, already
referred to, is also a complete code upon the subject of which it
treats. It is to be presumed to cover every case for which the
legislature deemed it proper to provide. If the same question had
come before us under the ordinance, we should have said with
reference to the common law, conflict is abrogation and silence is
exclusion. The spirit and aims of the two systems are wholly
different. One seeks to promote accumulation -- the other
diffusion. One recognizes and cherishes the exclusive claim of the
eldest son -- the other the equal rights of all his brothers and
sisters. The latter makes no distinction on account of age, sex, or
half blood. We apply to the statute also the remark that silence is
exclusion. It speaks in the present tense -- of the state of things
existing at the time of the death of
Page 72 U. S. 718
the intestate, and not of any change or different state of
things which might occur thereafter. If the legislature had
designed to provide for this case according to the rule insisted
upon, we cannot doubt that they would have said so in express
terms. The statute bears no marks of haste or inattention. We
cannot believe it was intended to leave a rule of the common law so
well known and so important to be deduced and established only by
the doubtful results of discussion and inference. The draughtsman
of the bill could not have overlooked it, and the silence of the
statute is full of meaning.
One class of posthumous children are provided for. We see no
reason to believe that another was intended to be included,
especially when the principle involved is so important. The
intention of the legislature constitutes the law. That intention is
manifested alike by what they have said and by what they have
omitted to say. Their language is our guide to their meaning, and
under the circumstances we can recognize none other. We cannot go
farther than they have gone. The plaintiff in error asks us, in
effect, to interpolate into the statute a provision which it does
not contain. Were we to do so, we should assume the function of the
legislature and forget that of the court. The limit of the law is
the boundary of our authority, and we may not pass it.
The principle contended for was applied in the case of
Dunn
v. Evans. [
Footnote 7] The
case is briefly reported, and no arguments of counsel appeal. It
was also adopted in North Carolina in
Cutlar v. Cutlar,
[
Footnote 8] and in
Caldwell v. Black. [
Footnote 9] No recognition of it is to be found, it is
believed, in any other American adjudication.
The subject was elaborately examined by the Supreme Court of
Ohio in
Drake v. Rogers, [
Footnote 10] and
Dunn v. Evans was overruled. It
came before the Supreme Court of Indiana in
Cox v.
Matthews, [
Footnote 11]
and received there also
Page 72 U. S. 719
a thorough examination. The result was the same as in the last
case in Ohio. The doctrine was repudiated.
The court said:
"Under the laws of this state, it is contemplated that such
change of title from one living person to another is to be made by
deed duly executed, rather than by our statutes of descent. . . .
The feudal policy of tying up estates in the hands of a landed
aristocracy, which had much to do with the shifting of descents as
recognized by the English canons of descent, is contrary to the
spirit of our laws and the genius of our institutions. It has been
the policy in this state and in this country generally not only to
let estates descend to heirs equally, without reference to sex or
primogeniture, but also to make titles secure and safe to those who
may purchase from heirs upon whom the descent may be cast. Our laws
have defined and determined who shall inherit estates upon the
death of a person seized of lands. When those thus inheriting make
conveyances, the purchasers have a right to rely upon the title
thus acquired. If titles thus acquired could be defeated by the
birth of nearer heirs perhaps years afterwards, great injustice
might in many cases be done, and utter confusion and uncertainty
would prevail in reference to titles thus acquired. We are of
opinion that the doctrine of shifting descents does not prevail
under our laws any more than the other
English rule, that
kinsmen of the whole blood only can inherit."
The rule is sanctioned by no American writer upon the law of
descents. Judge Reeve, [
Footnote
12] speaking of distributees, says: "I am of opinion that such
posthumous children who were born at the time of the distribution
were entitled, and none others."
It is to be regretted that we have not the benefit of an
adjudication by the Supreme Court of Illinois upon the subject.
Their interpretation -- the statute being a local one -- would
of course be followed in this Court. We have, however, no doubt of
the soundness of the conclusion we have reached.
Page 72 U. S. 720
We find no error in the record, and the judgment of the circuit
court is
Affirmed.
[
Footnote 1]
2 Christian's Blackstone 208, n. 9.
[
Footnote 2]
Watkins on Descents 169.
[
Footnote 3]
Revised Statutes of Illinois of 1845, p. 337.
[
Footnote 4]
Watkins on Descents 95.
[
Footnote 5]
4 Kent's Commentaries 412.
[
Footnote 6]
Reeve on Descents 11.
[
Footnote 7]
7 Ohio 169.
[
Footnote 8]
2 Hawkes 324.
[
Footnote 9]
5 Iredell 463.
[
Footnote 10]
13 Ohio St. 21.
[
Footnote 11]
17 Ind. 367.
[
Footnote 12]
On Descents, p. 74, Introduction.
