
    John Stent v. The Executors of N. McLeod and the Heirs of Paul Hamilton.
    Where an intestate dies leaving no nearer relations than nephews and nieces, they take per capita and not per sierpes. As to personal property the law of the intestate’s domicil prevails. Real estate descends according to the law where the land lies. Personal property of an intestate is distributable according to the law of the intestate’s domicil.
    Paul Hamilton, of Pentonvilie, in the Parish of Clerkenwell, in the kingdom of Great Britain, made his last will and testament on the 30th of May, 1797, and shortly after died. The testator had been an inhabitant of South Carolina prior to the American revolution, but left this State about the time of the declaration of independence, and resided, from that time until his death, in England. By his wili he devised his estates, in South Carolina, to his nephew, Norman M’Leod, for life. His will contained no residuary clause. Norman M’Leod died sometime before this suit was brought, and Paul ^Hamilton, as to all the questions made by the parties in this cause, was considered as having died intestate, leaving a considerable real and personal estate, and no nearer relation alive than a nephew, Paul Hamilton, the late governor of South Carolina, the son of a deceased brother, and four nephews and nieces, the children of a deceased sister, Mrs. M’Leod. The question made was, how partition should be made among these nephews and nieces, whether per stirpes or per capita. The heirs of Paul Hamilton, Jun., contended that by the statutes of South Carolina, of 1791 and 1794, regulating descents, the nephews and nieces, the children of the intestate’s brother and sister, took the shares their respective parents would have been entitled to if alive. On the other hand, it was argued that the nephews and nieces took per capita and not per stirpes, both as to the real and personal estate; and that as to the personal estate there could be no doubt of it, as distribution was to be made according to the laws of England, the place of the intestate’s domicil.
    Jan. 1825. DeSaussure, Chancellor. The real estate will descend according to the law of this State, in which the land lies. The provisions of the statute of the 19th of February, 1791, abolishing the rights of primogeniture, and the construction put upon it by the court must guide us in forming an opinion in this case. On examining the provisions of that statute, we do not find that there is any distinct substantive clause providing generally for the single case of an intestate’s dying without wife or child, father or mother, brother or sister, (either of the whole or half blood,) but leaving several nephews and nieces, the children of the deceased brothers and sisters, unequal in number, as in the case we are considering. The fourth section, however, provides for the case of an intestate leaving a widoiv, and brothers and sisters of the *whole blood, giving one moiety to the widow, and the other moiety to the brothers and sisters, and then proceeds broadly and unqualifiedly to enact, that the children of a deceased brother or sister shall take among them the share which their respective ancestors would have been entitled to, had they survived the intestate. Was this intended as a distinct or substantive provision ? or was it merely intended to be a qualification of the preceding provisions of the same clause ? I am induced to think not the latter, for it is really not a qualification of the preceding clause, but a substantive provision applicable to the case stated in that clause, and at the same time applicable to all other cases of a similar description. Even then the enactment is complete, as it does not distinguish between the case where some of the brothers and sisters are living, and others are dead leaving children, and the case where all the brothers and sisters are dead, leaving children. By the English statute that distinction is made, and in the former case the children of the deceased brothers and sisters take per stirpes, in the latter per capita. The words of our statute of 1791 are materially different from the English statute of distribution. In the latter, when there is no widow and no children, or their representatives, the personal estate is to be distributed among the next of kin, in equal degrees, and their representatives; but no representatives arc admitted among collaterals further than the children of the intestate’s brothers and sisters; and it is on this provision of the British statute that Judge Blackstone puts it, “That when all the brothers and sisters of an intestate die before him, the children take per capita.” Nowp in our statute there is no such provision: an attempt is made to provide for every specific case, and there is no general clause providing for the next of kin, eo nomine, but in the seventh clause, and that is, after the failure of several lineal descendants *and ascendants, brothers and sisters, of the whole blood, and their children, and the brothers and sisters of the half blood. But there is one part of a clause (the fourth) in which it is enacted that the children of a deceased brother or sister shall take among them, respectively, the share which the respective ancestors would have been entitled to had they survived the intestate.
    The late Judge Brevard was of opinion, that the provision of the last sentence in the fourth clause of our statute is general in its expression and its operation, (see his note in 1 Brev. Dig. 427,) when commenting on this statute, where he considers this a departure from the provisions of the English statute of distributions. It is said that the late Judge Grimke agreed in opinion with Judge Brevard. I am not aware of any decision in our courts on this precise point. On the best consideration I have been able to give the statute, I am inclined to think, that the construction given by the Judges Brevard and Grimke is right, and I would be disposed, if I doubted more than I really do, to concur with those judges from deference to their authority. This opinion is strengthened by the fact, that there is no distinct provision in any part of the statute which directs that children of deceased brothers and sisters should, in any case, take per capita, which it is probable would have been enacted, had it been intended; and in two cases (act of 1791, sec. 4, and act of 1794, sec. 1,) where the law speaks of the children of deceased brothers and sisters, it is enacted that they shall take among them respectively the share which their respective ancestors would have been entitled to, had they survived the intestate. My opinion is further strengthened by observing', that in lineal descendants it is provided by the second clause of the statute, that lineal descendants of the intestate shall represent their respective parents, and be entitled to receive and divide equally among ♦them the shares to which the parents would have been entitled had they survived the ancestor. Now, there does not seem to be any good reason for malting a difference in this respect between lineals and collaterals, and as the statute does not plainly make such distinction, I will not make it by construction. The English statutes did malte the difference, and therefore made the Jaw on that point. In a question of this kind, however, I am not disposed to be positive, and therefore wish the question to be carried up to the court of appeals to have the Jaw settled. This case furnishes a salutary lesson as to the difficulty of legislating on important subjects. The statute in question was drawn up with great care by the late Mr. Edward Rutledge, (afterwards governor of this State,) whose head was as clear as his breast was benevolent and his tongue eloquent, and he had the aid of the revision of his bill by the late eminent lawyer and distinguished citizen, General C. C. Pinckney, as well as several other learned lawyers. It is well drawn, and it is wonderful that so few questions of difficulty have arisen out of a statute containing so many enactments of very wide extent and operation. Still, the human mind, however enlightened, cannot foresee and provide for all the cases which may grow out of extensive legislation. The statute of frauds, 29th of Charles II. was drawn by very able men, and yet hundreds of decisions have been required to explain its meaning and clear up the doubts springing out of it. Upon the whole, I am of opinion that Mr. Paul Hamilton, the nephew, was entitled at the death of his uncle, the testator, to take, jure representalionis, one moiety of the real estate in question, and the four nephews and nieces of the intestate (children of his sister Mrs. M’Leod,) were entitled to take the other moiety of the real estate, to be divided among them equally and their representatives.
    We come now to the consideration of the rights of *the par-lies as to the personal estate of Paul Hamilton, the intestate. If Mr. Hamilton had been domiciliated in this country at the time of his death, the decision would have, of course, been the same in relation to the personal as to the real estate in South Carolina, under the 12th clause of the act of 1791; but he had been long settled and domiciliated in England, and he died there, in 1797, completely domiciliated there. This makes an important difference in the question. I am bound to consider if any, and what difference, is made by the fact above stated, as to the distribution of the personal estate. In general every nation legislates for itself, and most cases in every country depend upon the municipal regulations of that country. The great intercourse of mankind, however, compels the adoption of certain principles of international law among civilized nations. Hence the lex loci contractus often governs in our tribunals. Foreign interest, larger than allowed by our laws, is permitted to be recovered in our courts on foreign contracts. Hence England recognises the unceremonious marriages entered into by her own subjects in Scotland, though none of the requisites of her rigid statutes are complied with. A multitude of other examples might be given of this mutual respect of nations for the laws of other nations, even operating upon the subjects of the former and its property. The subject is of wide extent, and is very well treated by Huberus, who was treated with contempt as a mere Dutch schoolmaster by an English jurist, who was himself far inferior to this profound writer. A branch of his able work was translated (for the use of the bar in Philadelphia,) in a cause of some importance in the supreme court of the United States in 1797. The late Mr. Dallas favored the public with the translation, which is attached as a note to page 370, &c. of the third volume of his reports. The provinces which formed the Dutch republic were so small *and so contiguous, and the inhabitants had such a general intercourse, that a great number of questions grew out of the relative situations respecting contracts, marriages, wills, and even intestacies. A treatise was written, entitled “ Be conflictu kgum and it became a system to provide for the harmony of the discordant materials of the different States. Speaking of successions to an intestate’s estate, Huberus says, that if the deceased was a father of a family whose property was in different provinces, as far as respects the real estate, it would descend according to the law of the places where situated ; for the lex loci situ governs in relation to territorial rights, but with respect to personal property it would go according to the law of the place where the intestate lived, and of which he was an inhabitant. See the last clause except one of the note of Mr. Dallas, vol. 111. p. 375, of his Reports. Nor is this the doctrine of a mere civilian writing in his closet. Every civilized nation in Europe has adopted and acted on this principle, on various and most interesting subjects. On the question immediately before us, the English and American decisions are quite clear. As early as the time of Lord Chancellor Hardwicke (and indeed earlier) the subject was before him, and he decided this point. It is unnecessary to go at large into the cases, it will be sufficient to cite a few of them to show how clearly the principle of the lex loci domicile of an intestate governs in the distribution of his personal property, in Pippin v. Pippin, decided by Lord Hardwicke, reported in Ambler, p. 25, that great master of equity said, “if I was to go into the general question, the personal estate follows the person and becomes distributable according to the law or custom of the place where the intestate resided. So in Home v. Watkins, 2 Ves. Sen. 36, the same principle is laid down. The principal case is that of Somerville v. Somerville, 5 Ves. 750. That is one of the *best argued cases in the English books of reports. The case decided, and the principles laid down are ably stated. The master of the rolls in. his judgment, p. 786, states the rule to be, that the succession to the personal estate of an intestate is to be regulated by the laws of the coun try in which he was a domiciliated inhabitant at the time of his death, without any regard whatsoever to the place of the birth or death, or the situation of the property at that time. This principle has been considered and adopted in this court in a case tried some years ago, and has not been to my knowledge, controverted at any time.
    The result is that Paul Hamilton, the intestate, being domiciliated in England at the time of his death, his personal estate, wheresoever it is, must be distributed according to the English, law. That law (the statute of distributions) decides that when an intestate leaves neither father nor mother, wife nor child, brothers nor sisters, but only children of the deceased brothers and sisters, they take per capita. Mr. Paul Hamilton and his representatives are entitled, then only toa fifth part of the personal estate of the intestate, and the four children of Mr. M’Leod and their representatives are entitled to the other four-fifths, to be equally distributed among them.
    It is therefore ordered and decreed that the real estate of the late Paul Hamilton, the elder, be divided into two equal parts; one-half of which shall be allotted to the representatives of the late Paul Hamilton the younger, and the other half among the heirs of Mrs. M’Leod. And the personal estate of the intestate shall be divided into five equal parts, one of which shall be allotted to the representatives of Paul Hamilton the younger, and the other four-fifths shall be allotted among the four children of the late Mrs. M’Leod and their representatives. The costs to be paid out of the estate.
    *From this decree an appeal was taken up by the children of Mrs. M’Leod, on the ground that the real estate in South Carolina should have been decided per capita and not per stirpes.
    
    Nov. 1826.
    Toomer, for the appellants,
    cited Poaug v. Gadsden, 2 Bay’s Rep. 293, where it was decided that representation could not take place beyond children of brothers and sisters. Among collaterals personal equality is the principle of the statute of intestacy, and the period at which the equality is to be fixed is the death of the intestate. A division per capita is certainly most equal. Where, at the death of the intestate, all persons having claim to the estate are in the same degree, the representative principle is not necessary to a division. All may take in equal proportions “as next of kin in equal degree.” This was within the spirit and letter of the. act. To set up the principle of representation where it is not necessary, the party must show an express provision in the law. The act makes a marked distinction between the right of representation among lineals and collaterals. Among collaterals the principle of representation is never to take place, except when at the death of the intestate a brother or sister is alive, who, but for the especial provision of our statute, would exclude the nephews and nieces, and therefore the act restricts the taking per stirpes to such a case. In the second clause of the act of 1791, representation is expressly provided for cases of lineal descents, and by not providing for it in any other case, it shows that it was not intended to operate in cases of collaterals. Expressio unites excitesio est alterius. So in the fourth section of the act, where a brother or sister survives and children of a deceased brother, it provides that the children of the deceased brother should come in, of course per stirpes, otherwise it would be unequal. This *was only to prevent an entire exclusion of the children. Judge Brevard admits that the rule, as he understood it, differed from the former constructions. Where there exists no necessity for the rule of representation, to prevent the exclusion of children, the English rule ought to prevail. 2 Black. Comm. 517.
    Gadsden, same side.
    The constitution, by providing for the, law, shows an intention to have an equal distribution. Before our statute, personal property was distributable under the 22 & 23 Charles II. c. 10. But our acts puts personal and real property on the same footing as to descents. The provisions of our statute are founded on the statute of Charles. Where our statute treats on the same subject as that of Charles, and it is obscure, light may be received from the other. The English statute was written by Sir Walter Walker, a famous civilian, and except in some instances mentioned in the statute, it is, says Sir Joseph Jekyll, to be governed and construed bv the civil law. In the same light Dr. Harris held the three first chapters of Justinian’s Novel. 4 Burn’s Ecc. Law, 845. Harris’ Justinian. To all these laws then we may look for light on this subject. He cited Free, in Chan. 54. Vinn. Quest. Jur. Select, ch. 30, p. 333, (ulrmn fratrvm Jilii, quando soli sunt, in stirpes an in capita succedunt.) Ano D. C. Nov. 118. Cooper’s Justinian, 551, notes, and in the text 399. 3 Eq. Ca. Ab. 249.
    Where our State provides for representation, it is always where the children would not otherwise take all. To extend the rule further would be contrary to the statute abolishing the laws of primogeniture.
    J. E. Holmes, contra.
    As to real estate, the rule before our statute of 1791, was always that the representation should be per stirpes and not Per capita; and *in this respect that act has not altered the old rule. If A. died leaving real estate, and no brothers or sisters, but leaving, as heirs or next of kin, six nieces, three by one brother or sister, and two by another, and one by a third, his estate would be divisible only into three parts, and distributable per stirpes: thus one-third to the children of each brother or sister. 2 Black. Comm. 217. This rule was in force in South Carolina until the act of 1791. By that act the representation per stirpes was — so far from being changed — most expressly confirmed. The primary object of the act of 1791 was to give an equitable distribution of real estate; and personal estate, only as a secondary object, is ordered to be distributed in the same manner as real. 1 Faust. 23. Suppose the act had only abolished the laws of primogeniture, and had made no further provision for the descent of estates, it is clear the estate in question would then descend as in cases of females in England, where the laws of primogeniture did not apply, as in the case he had stated. Should not the rule operate until altered by statute ? The act no where provides for their taking per capita. No argument could be inferred from the statute of Charles, as real estate, by our act, is not put upon the same footing as personal property, but rules are made for real property, and then the act orders personal property to be distributed in the same way. The rules of real property then are to prevail, and if there occurs a case for which the act has not provided, then the English rules as to the descent of real property among females must apply. If there had been a widow, the nephews and nieces would have taken per stirpes, and taking away the widow, why should the rule be altered? If there had been another of the half-blood and nephews and nieces of the whole-blood, the half-brother would have taken a moiety. 1 Mod. 209. 1 Vent. 316. 1 Vern. 437. 2 Vern. 124. S. P. Crooke v. Watt, in the house of lords after great *argument. Show. P. C. 108. I Eq. Ca. 219. Even under the statute of Charles, no provision is made for representation among col-laterals, further than among the children of the intestate’s brothers and sisters, and that the personal estate is to be distributed among the next of kin in equal degrees, which is the reason of their deciding that nephews and nieces take per capita. Brothers and sisters under oui-act take by name and not as “next of kin,” which is not the case under the English statute. Our act then says the shares of children shall be the same as their parents would have taken.
    Giumke, same side.
    The rule joer stirpes is the most natural. It is in analogy to the case of grand-children who take in the place of their parents, whether any child be living or not. If grand-children never take but per stirpes, whether there be children or not living, why should not nephews and nieces always take per stirpes, in like manner, whether there be brothers and sisters living or not ? That it was thought the natural course of descent, he referred to the Code Napoleon, 13, tit. 1, sect. 2, no. 742, which expressly provides that nephews and nieces shall never take but by representation. He also referred to Swift’s System, vol. I. 288. The civil law does not admit of the principle of representation. Before the 118th Novel of Justinian, the brother of the deceased excluded nephews and nieces, but when nephews and nieces claim they all share alike. Cooper’s Justinian, 544. When the 118th Novel was adopted, it was limited to the class of cases till then unprovided for, viz: the concurrence of brothers and sisters with nephews and nieces. It therefore received a strict construction, as in Lawson v. Perdriaux, 1 M’Cord’s Rep. 456. Wren tt. Cams, 4 Desaus. Rep. 405. The emendatory law being only intended for the mixed class of brothers, nephews, and nieces, and not for the simple *class already provided for, the construction was con■fined to that class alone.
    But there is authority for the construction contended for; that of Judge Brevard in the first volume of his Digest, 427, No. 8, and that of the author of the Law of Executors (Judge Grimke,) who, in page 297, after quoting the case of Walsh v. Walsh, recognises the equality of rights between nephews and nieces, when no brother or sister claims; and he cites the second clause of the fourth section of the act of 1791, which is decisive that his opinion coincided with that of Judge Brevard. Judge Reeves, in his I^aw of Descents, 501, adopts Judge Brevard’s construction, as the proper view of our statute. This case is either not provided for at all, or it is provided for in common with the mixed class of cases, by virtue of the second clause of the fourth section.
    Hunt, in reply.
    The act of 1791 certainly intended to provide the same rule for real and personal property. To divide the estate equally among all promotes the great policy of the law; besides complying with the general course of affections. When the brothers and sisters are all dead, the nephews and nieces all stand equally near and dear. The fourth clause, giving specifically a representation where there are brothers or sisters living, excludes the presumption of the principle of representation in other cases. By the fifth clause the crescent is not per jure parentis. This case turns on the fifth clause. There is no disposition per stirpes — they take from propinquity of blood alone. Representation only applies to lineal descendants. 2 Black. Comm. 217. And it is thought a brother of the half-blood would take per capita with the children of brothers of the whole-blood; and if there be none of *the half-blood, of course the children of the whole-blood must still take equally, per capita. As to the general principles he cited 3 Yes. 257, 383.
    Feb. 1827.
   Curia, per

Nott, J.

The court concur in opinion with the chancellor in this case. The first question has been considered as settled for many years by the case of Matthewes v. Matthewes, and Brevard v. Matthewes, and agreat many estates, it is said, have been settled in conformity with those decisions. The chancellor, withoutbeing aware of these decisions, has, after a very full investigation of the question, given the act the same construction, and we do not feel at liberty to call in question a principle so long decided and so long received as law. This opinion has been delayed under the expectation that the counsel would have argued the second ground made in the brief, as to the law of the domicil in relation to the personal property. But as they have declined doing so, the court proceed to express their concurrence with the chancellor o-n that question also. The decree is therefore affirmed.

Decree affirmed.  