69 S.E. 133 | N.C. | 1910
The case was heard on facts admitted in the pleadings and from which it appeared:
1. That John Raines died in 1899, seized and possessed of a tract of which the land in controversy was a part.
2. That said John Raines at the time of his death left him surviving as his heirs at law, two children, George Raines and Bettie Watson, and a grandchild, Florence Sullivan, she being a child of Melvina Sullivan, a deceased daughter of John Raines and her husband, Arthur Sullivan, defendant.
3. In the division of the land of John Raines, seventeen acres of said tract of land were allotted to Florence Sullivan, the only child and heir at law of Melvina Raines, the wife of the defendant, who was then dead.
4. That after the death of John Raines, Arthur Sullivan (247) remarried, and by said last marriage several children were born unto him, and who are now living.
5. That Florence Sullivan died without lineal descendants, and plaintiffs, the two surviving children of John Raines, instituted the present suit against Arthur Sullivan, the father of Florence, to recover the seventeen acres of land inherited by her from John Raines, her grandfather.
There was judgment for defendant, and plaintiffs excepted and appealed. Rule 6 of our Canons of Descent, Revisal, ch. 30, sec. 1556, is as follows: "Collateral relations of the half blood shall inherit equally with those of the whole blood, and the degrees of relationship shall be computed according to the rules which prevail in descents at common law: Provided, that in all cases where the person last seized shall have left no issue capable of inheriting, nor brother nor sister, nor issue of such, the inheritance shall vest in the father if living, and if not, then in the mother if living."
It is contended for plaintiffs that under the proviso contained in this rule the father of the person last seized is only allowed to inherit in case such person, last seized, died without brothers or sisters of the half or *202 the whole blood and without reference to their capacity to take by inheritance, but the decisions of our Court construing the rule have been uniformly against the plaintiffs' position.
At common law, collateral descent was not allowed in case of land. 2 Blackstone, pp. 227-228. This was changed at an early date by our legislation on the subject, and it was provided by statute that on failure of lineal descendants, collaterals could inherit land provided they were of the blood of the first purchaser, the ancestor who had acquired the estate. Revisal, ch. 30, rule 4. The same statute established rule 6, and our courts construing the law have held as stated that this requirement of rule 4, that a collateral claimant should be of the blood of the (248) purchasing ancestor, affected and controlled the interpretation of rule 6, the one before us, and required that in order for a collateral of the half blood to inherit, he should be of the blood of such ancestor. Paul v. Carter, ante, 26; McMichael v. Moore,
Affirmed.
