33 Barb. 373 | N.Y. Sup. Ct. | 1861
The share of the lands described in the complaint, to which the present question relates, came to Oakley Pugsley as heir at law of his brother Isaac L. Pugsley, who died intestate. Isaac L. Pugsley inherited from his father Taiman Pugsley. The manner in which the latter acquired title does not appear. Oakley Pugsley was the person last seised, and tinder whom all the parties to the present suit claim. He died intestate as to this share or part of his lands, being one-third, and all which it is necessary to notice for the purpose of the. present appeal. Oakley Pugsley died in 1853, leaving no ancestor living nor any descendant, brother or sister, or descendant of a brother or sister. His heirs at law, therefore, were bis collateral relatives, the descendants of brothers and sisters of Taiman Pugsley his father, and of brothers and sisters of his mother. The plaintiffs are descendants of brothers and sisters of Oakley Pugley’s father, or purchasers from them. They claim that this inheritance came to Oakley Pugsley on. the part of his father,” because his father was originally seised of the land, and it descended from him to Isaac L. Pugsley his son, from whom it came to Oakley Pugsley. They-therefore insist that the case comes tinder § 10 of the statute of descents, (1 R. 8. 752,) and that the share of the lands in question must go to the descendants of the brothers and sisters of Taiman Pugsley the father, to the exclusion of the relatives of the mother of the intestate.
It may be conceded that this would be the rule of the English law, notwithstanding that it is also well settled by that law that the descent from brother to brother is immediate, and not traced back through the father, and so not interrupted by alienage or other disability on the part of the latter. (Collingwood v. Pace, 1 Ventr. 413. 7 Wend, 333.) But the canon of the English law of descents, which regulates such a case, is not the same as the rule of our statute. The rule of the English law requires that the collateral relative, who is to inherit in default of lineal descendants of the
The judge at special term decided correctly in establishing this rule of distribution, but the order which was entered upon his decision varies from it and from the express direction of the statute in an essential particular. The statute (1 R. S. 751, § 7) provides that where the descent is to collateral relatives, all of equal degree of consanguinity to the intestate, the inheritance shall descend to them in equal parts. The judge at special term expressly announced this
Lott, Emott and Brown, Justices.]