31 Barb. 655 | N.Y. Sup. Ct. | 1860
There is a want of parties which will prevent this judgment being final in any respect. The suit was only necessary because of the adverse claims to the fund. But for them the court would have directed the payment of the moneys to the claimants, upon their ex parte petition. An action became necessary because other parties made claims to parts of the fund, and upon these claims questions not free from difficulty arise—questions which could not properly be settled upon a summary proceeding by petition. A formal adjudication, and the judgment of the court in a formal action, was considered, and properly considered, essential to the final determination of the rights of the claimants.
But if the claims of these parties were before us, upon this record, I should be of the opinion that they were well founded ; especially that of the half sister. At the time of the death of Catharine L., who died in 1856, under age and incapable of making a will of real estate, thé whole fund had vested in her, not as personalty but as realty. For all the funds continued to be real estate of the same nature as the property sold. (2 R. S. 195, § 110. Shumway v. Cooper, 16 Barb. 556. Foreman v. Foreman, 7 id. 215; S. C. 1 Ker.
The total exclusion of the half blood from the inheritance is almost peculiar to the common law, and was founded on reasons peculiar to the English tenures, and grew out of the feudal system. The difficulty of tracing the descent from the first feudatory compelled a departure from the strict proof which the rule would have required and the sxxbstitution of a more simple rule of evidence, and at common law even it is necessary that the claimant be next of the whole blood to the person last in possession, (or derived from the same coxiple of ancestors.) (2 Bl. Com. 228.) This rule does not secure any greater certainty that the estate will go to the heir of the first purchaser than if the half blood of its last possessor were allowed to inherit. (Id. note 29.)
So that it is in truth a rule of evidence and not a rule of descent. The exclusion of the half blood is looked upon as a hardship, and as no necessity growing out of our tenures exists for its contiuance, it has been abrogated, except in the case provided for by statute, and perhaps some exceptional cases not provided for by the express provisions of the act regulating descents. In this state with others there is no distinction between the whole and the half blood, as to descents from brothers and sisters, except in the case of ancestral in
There was no father or mother to inherit from Catharine, and the estate consequently descended to her collateral relatives, and first to her brothers and sisters if any were living, or to the descendants of such as had died. (1 id. 752, §§ 7, 8.) By § 15 it is declared that relatives of the half blood shall inherit equally with them of the whole blood in the same degree, unless the inheritance came to the intestate by descent, devise or gift of some one of his ancestors :• in such case all those who are not of the blood of such ancestor shall be excluded from such inheritance.
Unless the exception in the 15th section excludes the half sister of Catharine, and this section must be read in connection with §§ 8 and 9, as showing who are brothers and sisters capable of inheriting as of .the blood of the last possessor, the plaintiffs cannot claim under §§ 10, 11 and 12, which only provide for a descent to the paternal or maternal relatives in case there be no heir entitled to take under the preceding sections. The one third of the estate did come from the ancestor (the father) of Catharine, and as to that, Harriet Wetherillj the half sister, is excluded. The other two thirds came remotely or indirectly and by intermediate descent, from the same source, but it formed no part of the ancestral inheritance. It came to the intestate by descent from her collateral relatives, to wit, her brother and sister. The term “ ancestor” is used in its proper sense, in the statute, and designates the immediate not the remote source of the intestate’s title. It is not equivalent to the expression “ the parent or other kindred of the intestate,” as used in the statutes of Rhode Island. “ Ancestors,” derived from antecessores, designates the ascendants of the intestate in the right line, as father and mother, grandfather and grandmother, and does not include collateral relatives as brothers and sisters. (2 Bouv. Inst. 355. Bouv.
The judgment must be reversed and the case remitted, with leave to the plaintiffs to amend their complaint by adding parties as they shall be advised. The costs to abide the event and final order of the court.
Allen. Mullm and Morgan, J ustices.j