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WILLIAM C. GARDNER v. JOHN A. COLLINS ET AL.

January 1, 1829

WILLIAM C. GARDNER
v.
JOHN A. COLLINS ET AL.



CERTIFICATE of Division form the Circuit Court of Rhode Island.*fn1 2

IN the circuit court of the United States for the district of Rhode Island, the plaintiff, William C. Collins, instituted an action of ejectment for the recovery of two-thirds of certain real estate in the state of Rhode Island, of which Mary C. Gardner died seised and intestate.

The facts of the case agreed upon were as follows:

'The estate in question, two-thirds of which is demanded by the plaintiff, in his said writ, was the estate in fee simple of the late John Collins, esq. deceased, the father of the defendant, and the purchaser of said estate. That the said late John Collins died in 1817, leaving lawful issue, viz. John A. Collins, Abigail Warren, and Mary Collins; and leaving a last will and testament, wherein and whereby, he devised the estate in question to his daughter, the said Mary Collins, in fee simple; who became seised and possessed thereof accordingly, and continued so seised and possessed thereof to the time of her death, viz. the 2d of October 1806, and died intestate. That the said Mary Collins intermarried with Caleb Gardner, on or about the ___ day of _____ and at her death left lawful issue, viz. John Collins Gardner, George Gardner, and Mary C. Gardner. The said John Collins Gardner died the 17th of November 1806, aged about _____, of course intestate, and without issue. The said George Gardner died the 18th of September 1811, aged about _____ years, of course intestate, and without issue. The said Mary C. Gardner died the 31st of December 1822, aged about _____, intestate and without issue. That, at the death of their mother, the said John Collins Gardner, George Gardner, and Mary C. Gardner, took from their said mother the said estate, as her heirs at law, in equal parts, and become seised and possessed of the same accordingly, in fee simple, and continued so seised and possessed till the death of the said John Collins Gardner, viz. till the 17th of November 1806. That, thereupon, his part of the said estate descended to and vested in his surviving brother and sister, viz. George Gardner and Mary C. Gardner, in fee simple, in equal moieties; and thereupon the said George Gardner and Mary C. Gardner became seised and possessed of the estate in question, in equal and undivided moieties, and fee simple, and so continued seised and possessed till the death of the said George Gardner, the 18th of September 1811. That, thereupon, his part of said estate descended to and vested in his sister the said Mary C. Gardner, in fee simple, and she became seised and possessed of the same accordingly, and thereby became seised and possessed of the whole estate in question, in fee simple; and so continued seised and possessed to the time of her death, viz. to the 31st of December 1822. That, at the death of the said Mary C. Gardner, the defendants, viz. the said John A. Collins and Abigail Warren went into possession of the estate in question, claiming to be the heirs of the said Mary C. Gardner; and the defendants have continued possessed thereof, claiming it as their inheritance without interruption or adverse claim, till the plaintiff's suit as aforesaid.

That the plaintiff, by deeds duly executed, became seised and possessed of all the right and title of the said Samuel F. Gardner, Eliza Phillips, and Mary Clarke, in and to the demanded premises. The plaintiff and Samuel F. Gardner and Eliza Phillips are children of the said Caleb Gardner by a former marriage. That the said Mary Clarke is also a child of said Caleb Gardner, by a former marriage, and are brother and sister of the half blood to the said Mary C. Gardner. That the said plaintiff and Samuel F. Gardner, Eliza Phillips and Mary Clarke, are not of kin to the said late John Collins, esq. deceased, and have not any of his blood in their veins. And if, upon the foregoing facts, the court shall be of opinion that the plaintiff, and those under whom he claims, are heirs at law of the said Mary C. Gardner, and entitled to said estate, then judgment to be given for the plaintiff; but, if not, then judgment to be rendered for the said defendant.'

The statute of Rhode Island upon which the plaintiffs in the ejectment claimed to recover, was passed in January 1822, and is entitled,

'An act directing the descent of intestate estates, and the settlement thereof, and for other purposes therein mentioned.

'SECTION 1. Be it enacted by the general assembly, and by the authority thereof it is enacted, That henceforth when any person having title to any real estate of inheritance shall die intestate as to such estate, it shall descend and pass, in equal portions, to his or her kindred in the following course:

To his or her children, or their descendants, if any there be:

If there be no children, nor their descendants, then to the father of such intestate:

If there be no father, then to the mother, brothers and sisters of such intestate, and their descendants, or such of them as there be:

If there be no mother, nor brother, nor sister nor their descendants, the inheritance shall go in equal moieties to the paternal and maternal kindred, each in the following course:

First to the grandfather:

If there be no grandfather, then to the grandmother, uncles and aunts, on the same side, and their descendants, or such of them as there be:

If there be no grandmother, uncle nor aunt, nor their descendants, then to the great-grandfathers, or great-grandfather if there be but one:

If there be no great-grandfather, then to the great-grandmothers, or great-grandmother if there be but one, and the brothers and sisters of the grandfathers and grandmothers, and their descendants, or such of them as there be, and so on in other cases without end; passing to the nearest lineal male ancestors, and for want of them, to the lineal female ancestors, in the same degree, and the descendants of such male and female lineal ancestors, or such of them as there be.

But no right in the inheritance shall accrue to any persons whatsoever, other than to the children of the intestate, unless such persons be in being, and capable in law to take, as heirs, at the time of the intestate's death.

And when herein the inheritance is directed to go by moieties to the paternal and maternal kindred, if there be no such kindred on the one part, the whole shall go to the other part; and if there be no kindred, either on the one part or the other, the whole shall go to the husband or wife of the intestate; and if the wife or husband be dead, it shall go to his or her kindred in the like course as if such husband or wife had survived the intestate, and then died entitled to the estate

The descendants of any person deceased, shall inherit the estate which such person would have inherited, had such person survived the intestate.

When the title to any real estate of inheritance as to which the person having such title shall die intestate, came by descent, gift or devise, from the parent or other kindred of the intestate, and such intestate die without children, such estate shall go to the kin next to the intestate, of the blood of the person from whom such estate came or descended, if any there be.'

For some time prior to the passage of this act, the law of descents of Rhode Island was regulated by an act of 1798, the first section of which nearly resembles the clause in the statute of 1822. It was as follows:

'When the title of any real estate of inheritance, as to which the person having such title, shall die intestate, came by descent, gift, or devise, from the parent or other kindred of the intestate, and such intestate die without children, such estate shall go to the next of kin of the intestate of the blood of the person from whom such estate came or descended.'

The judges of the circuit court of Rhode Island, having divided in opinion upon the case, the decision was certified to this Court for its decision.

Mr Whipple, for the plaintiff, made the following points.

1. That at common law, the phrase 'of the blood,' includes 'the half blood.'

2. That if this is not the case at common law, the phrase 'of the blood,' as it is used in the statute of Rhode Island, necessarily includes the half blood.

3. That the person whole blood is referred to in the statute, as constituting 'the stock of descent,' is that kindred from whom the intestate derived the estate, by immediate descent; to wit, the brothers, and not the mother of the intestate, Mary C. Gardner.

He argued, that the act of the legislature of Rhode Island gives the estate 'to the next of kin of the intestate, of thee blood of the person from whom such estate came or descended;' and by the act of 1822, there is added, 'if any there be.'

The defendants contend, that 'the blood,' ex vi termini, means the whole blood; because they assert this to be the meaning at common law.

For the plaintiff, it is claimed that neither at the common law, nor by the proper construction of the statute of Rhode Island, the whole blood is intended; and that as the plaintiff claims as half blood, and as representing those who were of the half blood of Mary C. Gardner, the person last seised; the whole question in the cause, and which alone is to be decided by this Court, depends upon a proper construction of the law of Rhode Island of 1822.

In order to arrive at a sound conclusion upon the case, it may be proper to examine what is the meaning of the word blood at common law.

Under the sixth canon of descents, in reference to the intestate, the word 'whole' is added, which would not have been necessary if that was the natural import of the term. In reference to purchasers the word 'blood' simply is used; which means, when used alone, half as well as whole blood.

In a note to Chitty's Blackstone's Commentaries, Vol. II. p. 5, is the following language.

'It should here be noticed that though it is necessary that a person who would succeed, must show himself to be of the blood of the first purchaser; yet, where the persons who inherit succeed or derive title to the inheritance by virtue of remote and intermediate descents from the purchaser, it will be sufficient if they be related by half blood only to the purchaser, or to such other remote and intermediate ancestors, who were formerly and intermediately seised of the inheritance, in the regular course of descent from the purchaser; provided, according to the rule which follows, they are the worthiest legal relatives of the whole blood, to the person last seised.' Robinson on Inheritance, 45, is cited. He might have cited better authority.

In 1 Co. Litt. sec. 8, p. 14, b. it is said,

'But if there be two brothers by divers ventres, and the eldest is seised of land in fee and die without issue, and his uncle enter as next of kin to him, who also dies without issue; now the younger son may have the land as heir to the uncle, for he is of the whole blood to him, albeit he be but of the half blood of his elder brother.'

What is the meaning of the terms 'of the blood,' as used in the statute?

The object of the provision was to continue the estate in the blood of the person from whom it descended; to find a stock of inheritance, not to establish a new rule of descent.

The provision has no application, except to a case where the purchaser or preceding holder has already transmitted it to his heirs. Under the enacting clause, the half blood take from the purchaser on the first descent. An heir of the purchaser dies, will not the same blood take from the heir that took from the ancestor?

It is to go to the kin, that is the whole or half blood of the intestate, of the whole blood of the purchaser. According to the argument for the defendant, this reverses the common law; which gives to the whole blood of the intestate, of the whole or half blood of the purchaser.

After giving it to the half blood on the first descent, you can never narrow the capacity of inheritance. You may enlarge it as the common law does, but not give in the first descent and take away in the second.

The family, the blood of the purchaser, is his whole and half blood. The object is to continue the estate in the blood.

The second question is, who is 'the person' who is to constitute the stock of descent, 'the first purchaser, or the last ancestor.'

We agree that the object of the statute was to preserve estates in families. We disagree as to the extent of the object. What but the language of the act can determine that question. It is not identity but the extent of the object, about which we differ. The former might be determined by other considerations, the latter by nothing but the words of the act.

2. The acts of 1798 and 1822, admit of two readings. 'To such of the next of kin of the intestate as are of the blood of the person from whom such right, title or interest came or descended;' or 'to the nearest of such of the kin of the intestate as are of the blood,' &c. The second reading will, in most cases, give it to a more remote relation of the intestate than the first; and as the next of kin is the primary object of the statute, the former reading should be preferred.

3. Suppose we adopt the latter, however. If first purchaser had been intended, why not expressed? If the principle, why not the language of the common law? Its meaning is well settled and comprehensive. Technical words are adopted, as in other statutes. It was drawn by lawyers, who generally use technical ...


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