10 N.C. 272 | N.C. | 1824
The circumstances of this ■case, and the arguments addressed to the Court, render it necessary, in my apprehension, to consider two questions. 1st. Whether the title of the lessors of the plains tiif is valid, independently of the act of 1801, cap. 575. And if it be not valid, v ithout the aid of that act, then, 2dly. Whether that act is repealed by the act of 1808, cap. 739. The second section of the first act, provides that, where any person shall die seised of real estate of inheritance in this state, leaving descendants, or other relations, citizens of the United States, who would according to law inherit, were all the nearer descendants or relations extinct, but who according to the now existing laws, cannot inherit, because there may be others who, if citizens, would be entitled to inherit, but being
The object of the act of 1801 was to permit citzens to inherit the estates of their deceased relatives, although there were other persons more nearly related to the deceased who were aliens; that estates should take the same course of descent among citizens, as if there were no alien relatives in existence who might intercept them.
I think the act of 1808 intended to regulate descents ¡ among citizens, in the number of which were included those to whom the act .of 1801 had imparted heritable blood; and not to revive (as to them) the obstacles which before that time stood between them and inheritances.The act of 1808, as I think, did not intend either to create new heirs, or to take away heritable blood from those who had it before that time: if it intended the latter, we may as well admit that it intended the former; and if so, it will have the effect to repeal that part of the common law which declares that aliens shall not inherit real estates; for the act declares that, in particular cases, lands shall descend to the next collateral heirs of the person last seised, and some of those heirs may he aliens, of whom the’act of 1808 makes no mention.
Again* giving this construction to the act, it would repeal the act giving heritable blood to bastard children, for that act declares that such children may inherit from their mothers and from each other, which by common law they could not do. But 1 think that the two acts of 1801 and 1808 may stand well together; that it was not the object of the legislature, by the last act, to repeal the provisions of the first. I am therefore of opinion, that judgment should be given for the plaintiff.
The act of 1808 forms of itself, a comP^e system of descents, so far only as regards the question of consanguinity. So far, and so far only, all P™1* laws afe abi’ogated by it, as coming within its purview and enactments. It affects not the law of descents in any other point. An alien son or brother is not, by that act, called to the inheritance, although the first may be the issue of the person who died actually seised, or the second the next collateral relation of such person, there being a failure of his issue. The law of alienage being unaffected by the act, as not relating to the question of consanguinity, upon which alone the act of 1808 operates. It is therefore not within its purview, that-is, provisions. A person must, therefore, so far as regards consanguinity, bring himself within the rules prescribed by the act of 1808; for that act repeals all prior rules on that subject. But with personal qualifications or disqualifications, that act has nothing to. do. It does not repeal them whether imposed by the common or statute law.. That the act of 1808 embraces the rules and orders by which the consan-guinii shall be called to the succession, is apparent -upon its face, for it is silent as to all other rules;'nothing is said on the subject, where there are no consanguinii, or none who can take. The title of the lord by escheat, the widow under the act of 1801, are left to the opera- . tion of prior laws. In fact, if the act of 1808 is an entire provision on the subject, as. I take it to be, it of course provides for the rule which it abrogates, b.y providing another rule; for on that the abrogation depends. Where then are its provisions for the present case? What other person' does it call to the inheritance? To whom would the act of 1808 give this property? To no one. Then it has made no provision for it, Nor is it a casiis omissus; for it does not affect to make provision for it. The law, therefore, of 1801, under which the plaintiffs claim, interposes not between the plaintiffs and one claiming under the act of 1808; but between-the plaintiff and the state,