Beaumont v. Irwin

• Decision Date: 31 December 1854
• Citation: 34 Tenn. 291
• Parties: H. F. BEAUMONT, Administrator, v. JAMES IRWIN et al.
• Court: Tennessee Supreme Court

34 Tenn. 291

H. F. BEAUMONT, Administrator,

v.JAMES IRWIN et al.

Supreme Court of Tennessee.

December Term, 1854.

FROM MONTGOMERY.

J. M. Irwin departed this life in the state of Louisiana, leaving real estate in Tennessee, which descended to his only child, Adeline B. B. Irwin, then an infant of tender years, whose mother had also died before the father. Adeline B. B. Irwin died without issue, or brother or sister in either degree, or the issue of such, but leaving several uncles and aunts on both the paternal and maternal side. This bill was filed in chancery, at Clarksville, to have the rights and interests of the parties in the real estate aforesaid stated and declared. The uncles and aunts on the paternal side claimed it to the exclusion of the maternal line, and the latter insisted upon an equal interest with the former. The chancellor, at April term, 1854, gave his decree in favor of an equal participation of the paternal and maternal line in the property. The former appealed.

Robb and Bailey, for complainants.

The act of 1842 was designed by the Legislature to overthrow the common-law canons of descent; to change the principle which seems to have governed in passing the acts of 1784, and in accordance with natural justice, with the commercial spirit of the age, to place the succession to real and personal estate on the same footing.

There have been but two periods of legislation upon this branch of the law of descents in Tennessee. The one about the close of the Revolution, when feudal principles were but in part abandoned; the other, from 1839 to 1842, when the whole policy seems to have been changed.

The act of 1842, introducing a new system, provides that, if the deceased die without issue, or brother or sister, all estates in land shall descend to the father and mother, if living as tenants in common; if either be dead, to the survivor; if both be dead, then to the heirs on the part of the father and the heirs on the part of the mother, if they stand in equal degrees of relationship; if they do not, then to those nearest in blood.

But a proviso is made, that if the land be acquired by gift from either parent, or by descent, gift, or devise from the ancestor of either that that parent from whom or whose ancestor it was derived shall take, if living.

Great changes are made in the law of descent, authorizing us to say that an entirely new system was designed to be introduced.

1. It destroyed the preference given to the father over the mother.

2. It gave the mother an absolute estate in fee-simple in all lands, however acquired.

3. It destroys the preference given to the paternal over the maternal line.

4. It gives to those nearest in blood.

5. Save in the excepted case, it destroys all distinctions as to the manner in which the property was acquired by the deceased.

In these particulars it places real estate upon the same footing with personalty.

The language of the act is broad and comprehensive. It embraces every description of seizin, and every interest in real estate. The enacting part makes no difference as to the mode by which it was acquired, and evidently intended to introduce a new rule.

But if any doubt existed as to the construction to be given to the enacting part of the law, the proviso clears it of all difficulty, by securing rights which existed under the act of 1784, and which by the comprehensive terms of the previous part were taken away. See remarks of Catron, J., 7 Yerg., Nichol v. Dupree.

Wm. Thompson, for the defendants, said:

It is contended, for the appellants in this case, that upon the death of Adeline B. B. Irwin, without leaving mother, brothers, or sisters, the real estate which had descended to her from her father became the inheritance of her uncles on the father's side.

It will not be denied, we presume, but that from 1784 to 1842 such was the unquestioned law. It will, however, be argued by the appellees that by the act passed February 5, 1842, sec. 1, a radical change has been made in the law, and that the paternal uncles and aunts take equally. That the estate should be kept in the line from which it descended has ever been a favored policy of our law; and that where it should have been acquired otherwise than by gift or descent from the one side or the other, and a preference was to be shown, it was ever to the paternal side, is manifest. This cherished policy of the law, then, from 1784 to 1842, in preferring the line from which the estate came, we argue, would not have been destroyed at one “swoop” without a preamble to, or a reason assigned in, the repealing law, or at least, if such was the intention of the Legislature, that intent would not have been expressed in such very ambiguous phraseology.

Before the act of 1842, if the intestate acquired the estate by purchase (actual) or otherwise (than being derived from the paternal or maternal line), it should go to the father, if living, and if he should be dead, then to the mother for life, and then to the heirs on the part of the father, and after that to the heirs on the part of the mother.

Here, then, is a case in the acts of 1784, on which the 1st section of the act of 1842 may operate, without construing it into so great and violent a change as that for which the appellees contend. It elevates the mother to the condition of the father; meaning, as we contend, that where the estate is acquired by purchase or otherwise (not derived from either line), on the death of the intestate it shall go to them (the parents) as tenants in common, or to the survivor--a change from the act of 1784 (see 2 Yerg. 115); and in like manner if both parents be dead, to be divided equally between the two lines--another change in the act of 1784. But in the last of the section the provision is made for a case where the estate is derived from the one line or the other, which, we think, shows an intention to keep it in the line from which it was derived.

Suppose the mother had here survived; if we are not right in our construction, the heirs on the part of the father would be cut off entirely, and the estate go to strangers to the father's blood. If this great change were intended to be made, we believe it would not have been without a preamble, or a reason assigned, as was done in the great radical changes in the ancient English law of inheritance, made by the act of 1784, ch. 22. See preamble to secs. 2, 3 and 7, and the Act of 1784, ch. 10, sec. 3 (N. & C. 247, 248, 249, 250).

There is no express repeal of the law of 1784; and where the repeal shall be argued from implication, we contend that the implication will not be extended by the court beyond the imperative necessity imposed, in order to give any effect to the statute. The construction of the act of 1842, that the intention was to place the mother, in relation to purchased lands, upon a footing with the father, is consonant with the spirit of the present age.

But there has been no feeling or sentiment evinced in the community, showing a relinquishment of the favored policy that real estate shall descend in the line of its derivation.

From whatever principle the feeling emanates, there has ever been, in the human breast, a desire clearly evinced by the proprietor that the lands descending from him, with the fine homesteads, etc., should continue in the line of his own blood, and should not, at least by inheritance, pass into the hands of those who might be strangers to him in blood, while there may be any of his own kin to inherit.

We contend there has been no intention in the legislature of the country to thwart and cross this feeling--call it prejudice, or whatever else you please. On the land so descending often are found the graves of his ancestors, and monuments commemorative of their life and virtues! No wonder such feelings are common to man, both savage and civilized!

But it may be asked, when the mother is placed, in relation to purchased lands, on a footing with the father, why stop there? We answer that there is a manifest difference in relation to lands acquired, not by descent, gift, etc., in elevating the mother to an equality with the father; as to these purchased lands, no violence is done to any cherished feelings. It is a mere act of what the present age seems to look on as equitable and just.

These lands “otherwise acquired” are not derived from or through the father, or the paternal line; his feelings have never intermingled with the soil. And if the father, the legislator enacting the law, should have a predilection for the reality, that feeling is in subordination to a sense of justice, and he, in doing justice to the mother, can well say, “Not that I loved Caesar less, but that I loved Rome more.”

Meigs, for defendant, said:

Land bought by the intestate, or otherwise acquired, so that it was not acquired by descent from a parent, or by gift from a parent, or by gift, devise, or descent from an ancestor of a parent, goes--

1. To the intestate's children, and their heirs in infinitum.

2. To his brothers and sisters of the whole and half...