
    Doe d. Hickey v. Gilbert and Deloach.
    In descents amongst collaterals, the statute, when it provides “that in case there be'no children of the intestate, or descendants of them, nor brothers nor sisters or the descendants of them, the estate shall go to the father if he be living; if not, to the mother; and if there he neither father nor mother living, then it shall descend in equal parts to the next of kin to the intestate, in equal degree, computing according to the rules of the civil law,” does not give a preference to the relations of one side over those of the other; nor is there any thing in the statute to authorise the opinion, that the more remote relations in blood of the first purchase, shall inherit before nearer relations not of that stock. Therefore, where J. H. died possessed of real estate, leaving no children or descendants of them, nor father or mother, the estate shall go to the brothers and sisters of his mother, in preference to a son of the brother of his grandmother; because, computing according to the rule • of the civil law, the brothers and sisters of his mother are in the third degree and the others in the fifth.
    IN ERROR.
    This was an action of ejectment, commenced in the circuit court' of Wilkinson county by the plaintiff in error against the defendants; a declaration in the usual form, was filed, a notice of which was served upon the defendants, as tenants in possession. .The defendants were admitted defendants, confessed lease, entry and ouster, &c., and pleaded not guilty.
    A trial was had and a verdict for the defendants. A bill of exceptions in the record shows, that the plaintiff offered as evidence of his title a Spanish grant to one Andrew Hare, and a confirmation of said grant, by a certificate of the board of commissioners, dated in January 1806, and proved the death of Andrew Hare in 1799, the death of Hare’s wife in 1800, and of John Hare his only son in 1806. That Daniel Hickey, the father of the plaintiff, was the uncle of Andrew Hare, and died in 1808. That Philip Hickey is the only heir of Daniel Hickey. The defendants proved that John Hare, at the time of his death, had uncles and aunts, Mrs. Phebe Hunter and others, brothers and sisters of his mother, no relations on the side of his father except Daniel Hickey, his father’s uncle, and Philip Iiickey his cousin, under whom the defendants claim.
    The counsel for the defendants at the trial, moved the court to instruct the jury, “ that by the law of descents in the territory of Mississippi, the near relations of John Hare on the side of his mother were entitled to inherit the estate of John Hare, derived by descent from his father Andrew, in preference to the more remote relations, the descendants of the great uncle on the father’s side;” to which instruction the counsel for the plaintiff objected. The court overruled the objection and gave the instruction asked, to which the plaintiff excepted, and this case is brought up by writ of error, upon which the charge of the court is assigned for error.
    Winchester, for plaintiff in error.
    The question is, who inherited the land on the death of John Hare, his nearest of kin on the father’s side, Daniel Hickey, or his nearest of kin on the mother’s side, Phebe Hunter; the land having descended to John Hare from the father, and not the mother.
    It is an admitted rule of descent at the common law, that where the lands descend from the father’s side, the nearest of kin in the paternal line, though more remote, shall be preferred to the nearest of kin in the maternal line, and vice versa where the lands have descended from the mother.
    Did this rule govern descents in this state in 1806, dr was the rule altered by our statute of descents? Our statute of descents has in express and unambiguous language, which calls for no' construction, altered many of the common law rules of descent. As first, The rule of primogeniture, by an equal distribution among the lineal heirs. Secondly, The rule which excludes the half blood from the inheritance, by confining it to a preference of the whole blood, only when of equal degree of kin. Thirdly, The rule which disallows representation among collaterals by allowing it as to descendants of brothers and sisters. Fourthly, The rule which forbids land to ascend, by allowing it as to the father and mother. Fifthly, The rules of the common and canon law of computing the degree of kindred, by adopting the civil'law rules of computation.
    These are the changes made by our statute in the common law rules of descent. They are clear, express and definite changes, requiring no aid of construction or implication to effect the alterations intended by the legislature.
    It is contended, however, that by a fair construction of the statute, the intention of the legislature was to alter the common law rule of descents among collaterals, by which lands are inherited by the nearest of kin in the paternal line, and by the nearest of kin in the maternal line, where the lands have descended from the maternal line. It is said the legislature intended this alteration by requiring that the nearness of kin should be computed by the rules,of the civil law. Now as an answer to this, I conceive the legislature would not have left so important a rule as this to be altered upon implication and construction, when the body was so clear and explicit in all the other alterations. Much less would they have left it to be inferred from the simple fact of their altering the rules of computation.
    It is evident that these different rules of computing the degrees of propinquity can have no bearing upon the rule which preferred the male line among collaterals, when the lands descend from the father’s side, and the female line when the lands descend from the mother’s side. The rules of computing the degrees of kin do not affect the rules which point out who are of inheriting or which entire line of heirs shall be preferred.
    But what is still more conclusive on this question is, that notwithstanding the difference in the rule of computing the degrees of kin, the civil law gave- the same preference to the agnate or kindred of the blood from which the land descended, to the cognate or kindred by affinity, until the law was altered by construction. “Next of kin” is a legal phrase, and means next of kin capable of inheriting according to the rules of the common law, unless those rules have been altered.
    The rule which prefers the nearest of kin among collaterals of the line from which the land descended, is an important rule, and in no state in the Union more important than in the state of Mississippi, to which strangers are constantly immigrating and marrying the daughters of large landholders; or from which young men are sent to the North for education and bring home wives. It is certainly not the policy of this state, that in the event of a total failure of the issue from such marriages, the lands shall. go out of the family from which they descended. This is a new question in this state, and has not, so far as I have been able to find, been decided in any state in the Union, as many of the states expressly declare by statute that the land shall be inherited in the family from which it descended in a descent among collate-rals. Self-defence, the principles of reciprocity require the adoption of the same rule here. In the construction of the statute, what are the rules which should govern the court? Bacon, in volume 6, page 391, says: “If the meaning of a statute be doubtful, the consequences are to be considered in the construction.” Is there no doubt, whether our legislature intended the alteration of a rule which is so consonant to- public policy, the rules of self defence, and I may add, a rule which is so consonant with the feelings of natural justice?
    Bacon again, in page 384, says: “In all doubtful matters, and where the expression is in general terms, statutes are to receive such a construction as may be agreeable to the rule of the common law in cases of that nature; for statutes are not presumed to make any alteration in the common law farther or otherwise than the act expressly declares; therefore in all general matters the law presumes the act did not intend to make any alteration; for if the parliament had that design, they would have expressed it in the act.” My conclusion is, that as our statute has not expressly altered the rule which prefers the nearest of kin of the family from which the land descended, in descents among collaterals; so the rules of construction entirely favor a decision in support of a rule which has commanded the approbation of ages and of nations, which is expressly adopted in many of the states, and which certainly is dictated by the principles of reason and natural justice as well as by sound policy.' See 7 Sergeant & Rawle, from 398 to 409; 2 Blackstone, 7th Rule of Descents, page 237; Civil Law, rule 238; Table of Descents Explained, pages 209 and 210.
    Henderson, contra.
    
    The question propounded to the court below was whether those relations of John Hare by the mother’s side in the third degree, should inherit to John Hare before the plaintiff (connected Avith him on the father’s side) in the fifth degree. The court charged this point in favor of the defendants, to which opinion the plaintiffs excepted, and now brings to this court as the only-point in the case.
    The plaintiff’s connsel, if he assumes any ground for reversing the opinion of the court below, will agree I suppose as he then agreed, that this inheritance must, be on some one of the blood of the first purchaser, viz: of the blood of Andrew Hare from Avhom John Hare inherited. This proposition in this country is almost too absurd to merit a reply. It would be easy to show that even if the English canon of descent operated on this case at the time of descent cast, yét nevertheless this is not such a feud (being a feudum novum) as the rule contended for would apply. It is also equally clear that, by the seventh canon of descent, this plaintiff would be excluded tracing his connection with John Hare to the first purchase, through the maternal line, viz: through Andrew Hare’s mother and not his father. 2 Bla. Com. 234-237. But all such inquiries I can consider only as learned and curious nonsense, so far as we are concerned.
    I first assume that all rules of successions to estates are creatures of the civil polity and juris positivi merely. 1 Bla. Com. 211.
    2. That the statute of descents in force at the time when the descent was cast fixed the inheritance. 2 Wheat. Rep. 259 and 278.
    3. That as John Hare died in 1806, and Toulman’s Digest was not adopted till 1807, the statute of 1803 was in force when John Hare died. This statute I here quote at length, and its express provision in a case like this, is that “Avhen such estate shall descend in equal parts to the next of kin to the intestate in equal degree.”
    I can add nothing by way of argument or illustration that can make this statute more plain. I also quote the ordinance of congress, Toulman’s Digest, 468; also the law as adopted in Toulman’s Digest, on the 10th of February, 1807, (see p. 19 and 25,) p. 279. Turner’s Digest of 1816, 434. Revised Code, 41, sec. 50.
    All these statutes of descent, on the point here involved are essentially the same; therefore I care not which the court adopted, though that of 1803 is the proposed one.
   Mr. Chief Justice ShaRkey

delivered the opinion of the court.

Both parties in this case claimed to derive title to the land in question from Andrew Hare. The question arises out of the law of descents entirely. The original patentee, Andrew Hare, died in 1799, leaving a son, John Hare, and the wife of Andrew, the mother of John Hare died in 1800. John Hare died in 1806, without issue. Daniel Hickey, the father of the plaintiff, was the uncle of Andrew Hare, the plaintiff, being his only heir. It was proved by the defendants, that John Hare, at the time of his death, had uncles and aunts, brothers and sisters of his mother, under whom the defendants claim possession. The only question, therefore, is whether the more remote relations of John Hare on the father’s side, through whom the land was acquired, shall be preferred to nearer relations on the mother’s side.

The act of 1803, of which the present law of descents is a copy, provides that in case there be no children of the intestate, or descendants of them, the land shall go to the father, if he be living, if not, to the mother; and if there be neither father nor mother living, then it “ shall descend in equal parts to the next of kin to the intestate in equal degree, computing by the rules of the civil law. No preference is given to the relations of one side over those of the other; nor is there any thing to justify the position taken, that the more remote relations by the blood of the first purchaser, shall inherit before nearer relations not of that stock. Computing by the rules of the civil law, Phehe Hunter and her brothers are but three degrees removed from John Hare, and Phillip Hickey is in the fifth degree. According to the statute, therefore, Phebe Hunter and her brothers were entitled to the inheritance, and the court below was correct in so charging the jury.

The judgment must be affirmed.

Mr. Justice Smith gave no opinion.  