Burgwyn v. Devereux

• Citation: 1 Ired. 583,23 N.C. 583
• Court: United States State Supreme Court of North Carolina
• Decision Date: 30 June 1841
• Parties: DEN EX DEM. HENRY K. BURGWYN et al. v. THOMAS P. DEVEREUX.

1 Ired. 583

23 N.C. 583

DEN EX DEM. HENRY K. BURGWYN et al.

v.THOMAS P. DEVEREUX.

Supreme Court of North Carolina.

June Term, 1841.

A. died in the year 1777, leaving two sons, Thomas and George. Thomas was the oldest son, and, by the law of this State as it then stood, sole heir to his father. A. devised the land in controversy in this suit to his second son George. George died in 1839, intestate and without issue, leaving surviving him a sister of the whole blood, under whom the defendant claimed, and the issue of a sister of the half blood on the mother's side, who are the lessors of the plaintiff. Held that the issue of the sister of the half blood took one moiety of the land.

The cases of Ballard v. Griffin, 2 Law. Rep. 258, and Cutlar v. Cutlar, 2 Hawks 324, cited and approved.

This was an appeal from the judgment of the Superior Court of Law of Jones County at Spring Term, 1841, his Honor Judge BAILY presiding, upon the following case agreed:

This action is brought to try whether the premises set forth in the declaration descended to the lessors of the plaintiff in common with Frances Devereux, or whether the said Frances was seized of them in severalty; and upon this question the following statement of facts is submitted as a case agreed. George Pollok died in April, 1839, seized in fee of the land in question, to which he succeeded by devise, upon the death of his father, Thomas Pollok, the elder, under the will of the said Thomas, a copy of which, so far as it regards this question, is made a part of this case. Thomas Pollok, the elder, succeeded to the land by descent upon the death of his father, he, the said Thomas, being the oldest son. Thomas Pollok the elder died in the year 1777, leaving two sons, Thomas, now deceased, and the above-mentioned George, of whom Thomas was the oldest, and a daughter, the said Frances Devereux. Thomas died without issue in the year 1803 or 1804. George also died intestate and without issue, leaving the said Frances his only sister of the full blood and of the blood of the said Thomas the elder. The lessors of the plaintiff are the children of Sarah Burgwyn, who was the daughter of the widow of the said Thomas, by a marriage subsequent to his death, and was a sister of the said George of the half blood on the part of his mother. The said Sarah died before the said George, and if she (had she survived the said George) would have inherited any of the said land, then the lessors of the plaintiff have the same title. The defendant, Thomas P. Devereux, representing the said Frances, is in the actual and exclusive possession of the land, and claims to hold the same in severalty adversely to the right of the said lessors. If, upon the foregoing facts, the lessors of the plaintiff have any title to the premises in dispute, then judgment is to be entered for the plaintiff; if they have no title, then judgment is to be entered for the defendant.

Upon this case agreed the court ( pro forma) gave judgment for the plaintiff, and the defendant appealed to the Supreme Court.

Extract from the will of Thomas Pollok the elder, referred to in the case.

Item. I give and devise unto my son George Pollok and to his heirs and assigns forever all my lands, tenements and hereditaments that I have and hold in fee simple in North Carolina, he paying unto my said wife the aforesaid annuity or yearly sum of five hundred spanish milled peices of eight, from his attaining the age of twenty one years during the natural life of my said wife.

The case was argued elaborately by Winston and Kinney, with whom was A. Moore , on the part of the defendant, the appellant; and by W. H. Haywood Jr. and Iredell for the plaintiff , the appellee. (The Reporter regrets that he cannot present these arguments in extenso, particularly those of the appellant, for want of room. And he is unwilling to attempt to condense, lest he might do them injustice. The principal points relied on, however, will be found in the opinion of the court.)

RUFFIN, C. J.

The lessors of the plaintiff claim to be tenants in common with the defendant, by a descent of the premises in dispute from George Pollok; and the defendant, admitting what is equivalent to an actual ouster, if the parties be tenants in common, yet insists, that the premises descended to Frances Devereux alone. The question, therefore, is, who is or are the heir or heirs of George Pollok, in respect of this land?

Here, it may be as well to say at once, that the answer to that question, and to every other that can be raised as to a descent since 1808, depends, and depends exclusively, upon the act passed in that year, and re-enacted among the Revised Statutes of 1836. That act embraces the whole subject of descents, and, consequently, repealed the law, which previously existed, whether it existed as a part of the common law or in the form of a Statute. It is to be seen, therefore, how the act of 1808 applies to the case before us.

The propositus deed in 1839, leaving no issue; and the present parties claim as his collateral heirs. The case may be simplified by considering that Sarah, who is represented by the lessors of the plaintiff, and was a maternal sister of Mr. Pollok, survived him: so that, upon his death, he may be supposed to have left the two sisters, Mrs. Devereux and Mrs. Burgwyn--the former of the whole blood; and the latter, of the maternal line only. The first thing to be noticed is, that the fifth and sixth sections of the act abrogate the incapacity of the half-blood, as such, to inherit, which had once existed. It is thereby expressly enacted, that collateral relations of the half-blood shall inherit equally with those of the whole blood; and, also, that relations of both lines shall inherit equally in all cases, excepting only two: which are those provided for in the fourth section of the act, namely, first, where the inheritance has been transmitted to the propositus by descent from an ancestor; or, secondly, where it has been derived by gift, devise, or settlement from an ancestor, to whom the person thus advanced (the propositus) would, in the event of such ancestor's death, have been the heir or one of the heirs. In these two cases the fourth section provides, that the inheritance shall descend to the next collateral relations of the propositus, who are of the blood of the ancestor, from whom it fell or was derived. The effect of the act, therefore, may be shortly stated to be, that purchased estates--in the popular sense of the term, purchase--descend to the nearest relations, whether of the paternal or maternal line; and that descended estates and certain purchased estates (which the act puts on the same footing with those descended) descend to the nearest relations, of the blood of the ancestor or person from whom the estate moved. Our enquiry is, then, narrowed to the point, whether George Pollok derived this inheritance by one of those peculiar purchases, enumerated in the fourth section, so as to confine the descent from him to the blood of his father, Thomas the elder, and vest the inheritance in Mrs. Devereux. This question has been argued with zeal and at much length, particularly on the part of the defendant; and the court has given an earnest and deliberate attention to every thing that was said. But, after doing so, we all think as we did on the opening of the argument, that the case is not within the fourth section of the act.

Thomas Pollok, the father, owned the land in fee; and in 1777, (when the eldest son was, by law, the heir) he having two sons, Thomas and George, devised the land in fee to George, the second son; and the father died the same year, leaving both of the sons surviving him.

It is to be observed, in the first place, that George did not get this land by descent. It would have been thus transmitted, notwithstanding the will, if he had been the heir of his father. But he was not then, the heir, and could only claim under the will. As, therefore, he was in by devise and could not have claimed as heir to his father, had the latter died intestate, the case is neither within the words or meaning of the Legislature, as it seems to us. The act was intended to provide for every case; and there is no doubt, that it applies to all estates, whether vested before or after the passage of the act. The period of the acquisition is not at all material. But the mode of acquisition by the propositus, whether by descent or quasi descent--if the expression may be allowed--determines its quality as an estate descendible to relations of a particular line, in exclusion of those of the other. Now, whether an estate be derived by descent or by purchase, is a fact, simply; and that, necessarily, is determined at the time the estate is derived. The fact, that it was derived in the one mode or the other, instantly imparted to the estate, upon its acquisition, the quality, as a descendible estate, of going, upon the death of the new owner, to all his relations or to a particular line. We can conceive no instance, in which the character of an acquisition, whether by descent or purchase, is not...