Haring v. Van Buskirk

8 N.J. Eq. 545 | N.J. Super. Ct. App. Div. | 1851

The Ordinary.

The 1st section of the u Act directing the descent of real estates” provides, that if any child of a person dying seized of lands and intestate shall have died before the intestate, leaving issue, the share of the land which the child so dying would have been entitled to if he or she had survived the intestate shall descend to and be inherited by such issue.

The 2d section of the said act provides, that when any person shall die seized of land, without will, and without leaving lawful issue, leaving a brother or sister, &c., the inheritance shall descend to the brother or sister, &c. The word c< issue,” in the phrase “ without leaving lawful issue,” in this section, includes the issue of a child who died before the intestate, otherwise a brother or sister would take before a, child of a deceased child, as. provided by the -first section, which-would.be contrary to the provision of the first section.

The. 3d section of the said act provides, that when any person shall die seized of land, intestate, and without leaving lawful issue, , and-without leaving a -brother or sister of the whole blood, or. any issue-of such brother or sister, and leaving a father, then the: inheritance shall go to the. father, unless the inheritance came, to the person so seized from-the. part of his or her mother, by descent,, devise or gift, in which case-it shall descend as if such person so seized .had survived his or her father.

..In the ease, before us, if -Ann Eliza, the daughter of the intestate, had survived him, and she had afterwards died without will,- and .the land had descended from -her to her infant son, and the son had afterwards died, Demarest, the father of ..this son, could not have • inherited. .The question is, does the fact that Ann Eliza died before the intestate put the inheritance in the son of Eliza in such way that Demarest can inherit-it'? It seems to me that every reason for excluding Demarest in the first case, exists in the. second case put. The estate, came from Haring, Ann Eliza’s father. Demarest has none of. the blood of Haring. By the right of representation the right of proximity is transferred from the root to. the branch,.and gives the branch the same preference that the root had-as next of blood. The last clause of the third section of our act is founded upon, and .adopts the- rule, that no one can succeed who is mot of .the blood pfi the first purchaser.

The Orphans’- Court have held, that the persons applying for the-appointment of Commissioners to .assign dower are persons interested in. the estate. It is asked that' I should reverse the order of- that Court, on the -ground, that Demarest claims to have succeeded to the inheritance as the heir of his said deceased son, and that the question, who is heir, is doubtful. But this Court is no more competent to deal with questions of title to land than the Orphans’ Court; and I am not willing to reverse the order of that Court on the suggestion of such a doubt.

The order of the Orphans’ Court will be affirmed. Order accordingly.