| N.C. | Jun 5, 1823
To this petition there was in the court below a demurrer, which was sustained, and plaintiffs appealed. The petitioners are unquestionably entitled each to a fourth part of the estate of which J. S. Cutlar died seized; for, notwithstanding the great and radical changes in the law of descent, which are introduced by our statute, the principle relative to posthumous and after-born children remains unaltered and adapts itself to the course of descent instituted here. According to the British law, if lands are given to a son, who dies leaving a sister his heir, if the parents have at any distance of time afterwards another son, this son shall divest the descent upon the sister and take the estate as heir to his brother. Nor is it uncommon for the same estate to undergo frequent changes by the subsequent birth of presumptive heirs who are nearer before it finally rests upon the sister and take the estate as heir to his brother. Nor is it uncommon for the same estate to undergo frequent changes by the subsequent birth of presumptive heirs who are nearer before it finally rests upon an heir apparent. An estate may be given to an only child, upon whose death it may descend upon an aunt as the nearest presumptive heir, who may be deprived of it by an after-born uncle, on whom a subsequent sister may enter, and who will again be deprived of the estate by the birth of a brother. 2 Blackstone Com., 209; Chris., note. A more precise analogy is presented by the case where a man has issue *181 a son and a daughter; the son purchases land in fee and dies without issue, the daughter shall inherit the land; but if the father hath afterwards issue another daughter she shall be coparcener with her sister. Co. Lit., 11b. So in this State, if the son purchases land and dies without issue, it descends for the present upon the brothers (326) and sisters then being, but if any are subsequently born they become equally entitled; and the same law must prevail relative to half-blood where they are entitled to inherit. It follows that the judgment sustaining the demurrer and dismissing the petition must be reversed and the cause remanded for further proceedings.
PER CURIAM. Reversed.
Cited: Seville v. Whedbee,