Ballard v. Thomas B. Hill's Heirs

• Court: North Carolina Supreme Court
• Writing for the Court: TAYLOR
• Citation: Ballard v. Thomas B. Hill's Heirs, 7 N.C. 410 (N.C. 1819)
• Decision Date: 31 May 1819
• Parties: BENJAMIN BALLARD AND WIFE et al v. THOMAS B. HILL'S HEIRS.

7 N.C. 410

BENJAMIN BALLARD AND WIFE et al

v.THOMAS B. HILL'S HEIRS.

SUPREME COURT OF NORTH CAROLINA

MAY TERM, 1819.

From Halifax.

Claim of the half blood in the case of a descended estate, prior Laws 1808, Ch. 4

Henry Hill, being seised of the equitable estate in the lands, died intestate, leaving an only child, Joseph John Hill, upon whom the lands descended. His mother, the widow of Henry Hill, married a second husband, by whom she had issue, who were living when Joseph John Hill, their maternal brother, died intestate. Henry Hill left a brother named Whitmell Hill, who afterwards died, leaving an only son, Thomas B. Hill, his heir at law.

Upon the death of Joseph John Hill, in 1808, a question arose, whether the lands of which he died seised descended to Thomas B. Hill, his paternal cousin, and of the blood of the first purchaser; or to the maternal brothers and sisters of the said Joseph John Hill.

The Complainants are the maternal brothers and sisters—the Defendant is the paternal cousin, and the heir at common law.

Although this be a case of lands which came to the person last seised by descent, yet the half blood of the maternal line are entitled to the lands under the act of 1784, ch. 22.

The Complainants filed their bill in the Court of Equity for HALIFAX, against the Defendants, and therein charged that in 1789, Whitmell Hill and Henry Hill, who were brothers, purchased a tract of land lying in Bertie county, for which they each paid equal moieties of the purchase money, but the conveyance was made to Whitmell Hill alone; who agreed to convey a moiety of the said land in feesimple to his brother Henry Hill. That before any conveyance was made, Henry Hill died intestate, leaving

Martha, his widow, and Joseph John Hill, his only child and heir at law. That after the death of Henry Hill, Whitmell Hill had the land divided and appropriated between himself and Joseph John Hill, but died without executing to Joseph John Hill a conveyance. That he made and published in writing his last will, whereof he appointed his son Thomas B. Hill his executor, and therein and thereby directed him to convey the land so appropriated to Joseph John Hill in fee simple, whenever he should request it. That Joseph John Hill departed this life in 1808, an infant, under the age of twenty-one years, without issue, and without having applied for or received a conveyance from Thomas B. Hill.

That after the death of Henry Hill, his widow Martha, who was also the mother of Joseph John Hill, intermarried with Samuel Thorne, by whom she had issue Eliza, intermarried with Benjamin Ballard; William, Samuel and Henry Thorne were all born and living at the death of Joseph John Hill, their half brother on the mother's side; and who, since his death, had applied to Thomas B. Hill, the executor of Whitmell Hill, to make them a conveyance for the lands appropriated to Joseph John Hill; that he refused to make such conveyance, alleging that he was of the whole blood of the first purchaser, Henry Hill, and entitled to the land in exclusion of them (the Complainants.) The bill prayed for a conveyance, &c.

To this bill Thomas B. Hill demurred; and the bill and demurrer were sent to this Court, and upon a consideration of the case, the demurrer was sustained and the bill dismissed.

The Complainants immediately afterwards filed a bill to review the decree; and assigned, for error in the decree, that

the land mentioned in the original bill descended to them on the death of their maternal half brother, the said Joseph John Hill, and that the prayer of their bill ought to be granted; that for this error and imperfection in thedecree, they had brought their bill of review, and prayed that they might be relieved therein.

To this bill the Defendant pleaded the former decree, and demurred to the opening of the enrollment; and the case was sent to this Court.

The opinion of this Court upon the original bill is to be found in Ballard v. Hill, 4 N. C., 404, and the reason for it in Hilliard v. Moore, Ib., 392, same book, 590.

The case was submitted on behalf of the Defendant, upon the argument made in Shepard v. Shepard, ante, 333.

TAYLOR, Chief-Justice: The claim of the Complainants arises on a descent from a maternal half brother, oflands which descended from his father, or lands descending from the paternal side; and whether their claim be well founded, depends upon the true construction of the acts of April and October, 1784. The third section of the first act, without the proviso, is in these words, "that if any person dying intestate, should, at the time of his or her death, be seised or possessed of, or have any right, title or interest, in or to any estate of inheritance in lands, or other real estate in fee simple, and without issue, such estate or inheritance shall descend to his or her brothers, and for want of brothers, to his or her sisters, as well those of the half blood as those of the whole blood, to be divided among them equally, share and share alike, as tenants in common, and not as joint tenants; and such and every of them shall have, hold and enjoy, in their respective parts or portions, such estate or inheritance as the intestate died seised or possessed of or entitled unto." Were the case to depend on this enacting clause, the Complainants' right to the inheritance would be beyond controversy: for the words extend to every person dying seised of any inheritance, whether acquired by descent or purchase, whether it descended from the paternal or maternal line; and embrace both sorts of half blood, as well the maternal as the paternal. The clause must necessarily continue to govern every case that is not withdrawn from its operation by some proviso; and, therefore, it must direct the descent in this case, unless it be prevented by the proviso. The

words of the proviso are, "that when the estate shall have descended on the part of the father, and the issue to whom such inheritance shall have descended, shall die without issue, male or female, but leaving brothers or sisters of the paternal side of the half blood, and brothers or sisters of the maternal line, also of the half blood, such brothers and sisters respectively of the paternal line shall inherit, in the same manner as brothers and sisters of the whole blood until such paternal line is exhausted of the half blood: and the same rule of descent and inheritance shall prevail amongst the half blood of the maternal lineunder similar circumstances, to the exclusion of the paternal line." The proviso then gives a preference to the half blood of the line from which the estate descended, when the competitors for the inheritance are the half blood of that line, and the half blood of the line from which the estate did not descend. But there are no words in it, which are exclusive of the latter half blood, where there is none other in equal degree, and recommended by the reason given for the preference, to claim it from them. On the contrary, the words "until such line is exhausted of the half blood," carry, with them a strong implication, that when such an event shall occur, the other line of half blood shall be taken into the inheritance. The word "until," which signifies the same as "to the time that," seems to import, that when the half blood of the favored line gives out, the other half blood shall inherit. The enacting clause has viewed with undistinguishing regard and favor the half blood of both lines; the proviso has selected a particular case, wherein the preference shall be given to one set: in all other cases, therefore, as well where the reasons of the preference have ceased to operate, as where they have never existed, the other set of half blood must be entitled.

A man having issue, and having also brothers and sisters of the half blood on the father's side, and brothers and sisters of the half blood on the mother's side, for peculiar reasons, thinks proper to devise his estate to all his brothers and sisters, as well the half blood on one side as on the other, but annexes a condition to the devise, that...