16 Johns. 96 | N.Y. Sup. Ct. | 1819
The lessors claim three-fourths of the premises, as heirs to Abraham Lawrence, Although it is not stated, that Daniel Lawrence, the ancestor, had any other children than Abraham, and a son, who went to sea in the'life-time of his father, and was never heard of, and who must be presumed to be dead; yet the case has been argued, as though there Were other children of the ancestor Daniel „Lawrence; and, it seems, that the question intended to be submitted, is, whether Abraham Lawrence, as the eldest son, and heir at law of hiá father, became, as such, so seised of the premises devised to the daughter, Mehitabel Hilton, for life, as that his children can recover the premises as his heirs. We are of opinion that they cannot. It is a maxim of the common law, which De Grey, Ch. Justice, says, in Goodtitle v. Newman', (3 Wil. 526 ) has subsisted for ages, as appears by Bracton,
This doctrine has received the sanction of this Court on two occasions 3 in Jackson v. Hendricks, (3 Johns. Cas. 214.) and in Bates v. Shraeder, (13 Johns. Rep. 200.) In the first case, Esther Hendricks died seised of a real estate in 1775, leaving a husband and two sons and three daughters ; the husband became seised by the curtesy, until his decease in 1798 3 the eldest son died in 1784, intestate, and without issue; the youngest son entered after the death of his father; the sisters brought their ejectment, and the Court held, that the case was governed by the common law, and that the statute of descents did not apply; that the descent to the eldest son was suspended by the existence of the estate of the tenant by the curtesy, and that the eldest son was not seised so as to form a new stock of descent, or to constitute apossessio fratris ; and that the mother was the person last seised, from whom the descent must be claimed 3 and as she died before our statute of descents, her surviving son was adjudged to be entitled to the estate, to the total exclusion of his sisters,
This being the law, unless the lessors can make a title, as heirs to Daniel Lawrence, they cannot recover, and they have failed to show what proportions they are entitled t© as such heirs.