6 Johns. 322 | N.Y. Sup. Ct. | 1810
The fifth rule, or canon of descent, ill Our statute, regulating descents, (Laws, vol. 1. p. 46. sess. 9. c. 12.) has departed a little from the principle adhered to, in the order of lineal descent, and has carried to an unusual length, the doctrine of inheritance, per stirpes, or by representation. Thus if A. dies seised of land, and his nearest heirs are a brother and two nephews, by a deceased brother, the two nephews must claim by representation, to entitle themselves to a share of the estate with their uncle. But, if A. dies seised of land, and his nearest heirs are a nephew, by a brother deceased, and two nephews by another brother, deceased, in this Case, the claimants all stand in equal degree of consanguinity, being all nephews to the common .ancestor, and might all well inherit equally, or per capita; yet the statute makes them inherit per stirpes, or such share as their patents respectively would have inherited, if living; and, of course, one nephew would take one half of the
Judgment accordingly.