17 Ky. 75 | Ky. Ct. App. | 1824
Many years ago, Henry Clay, being the holder of the legal title to a tract of land in the county of Bourbon, departed this life, leaving a tyidow and an only child, Thomas C. Clay. After the death of Henry Clay, his widow intermarried with Robert Cousins, and had by him a son, Samuel W. Cousins, Thomas C. Clay, the son of Henry Clay, subsequently, and whilst he ivas an infant, under the age of twenty-one years, also departed this life, and the present action of ejectment was then brought by the appellants, who are the brothers and sisters of Henry Clay, to recover, as the heirs, of jrlenry, the tract of land held by him at his death.
The only question made in the court of original pi-risdiction, and pow presented for the decision of this court, is, whether, on the death of the infant, Thomas. C. Clay, the land which he derived from his father, Henry Clay, passed by operation of law to the brother and sisters of his father, or descended to his half brother on the part of his mother, Samuel W. Cousins-
The act of 1785 provides, that where any person hav-. ing title to any real estate of inheritance, shall die intestate, as to such estate, it shall descend and pass in parcenary to his kindred, male and female, in the following course, tjyat is to say:
“Sec. 2. To his children, or their descendants, if any thpre be. ’ ' *
“ Sec.'3. If there be no phildren, nor-their descend-' antSi then to his father.
Sec. 4. If there be no father, then to his mother, brothers and sisters, and their descendants, or such of them as there be.”
But the fourth section of the act of 17.85, has undergone a change, by the third section of the act of Virginia, of 17S0. í
That section provides, “ where an infant shall dio without issue, having title to any real estate of inheritance, derived by purchase or descent from the father, tuc mother of such infant.shall not succeed to or enjoy the samo, or any part thereof, by virtue of the above recited act, (the act of 1785,) if there be living any brother or sister of such infant, or any brother or sister of the father, or any lineal descendant of either of them,”
The judgment must, consequently, be affirmed costs.