
    CONKLING against BROWN.
    
      Supreme Court, First District; General Term,
    
    
      June, 1870.
    Descent.—Purchase and Inheritance.
    Lands allotted to an heir, by a voluntary partition of'the inheritance and releases, are to be deemed, notwithstanding, as coming to him by descent, and on his death such of his heirs as are not of the blood of the ancestor are excluded.
    Heirs made a voluntary partition of their inheritance, and after one of them, who was the son of a deceased nephew, and grandson of a deceased sister, of the ancestor, had received a release of his share, he died intestate, leaving no widow, descendants or father, but leaving surviving him his mother, and his half-brothers and sisters, who were children of his mother by a second husband, and were not of the blood of the ancestor.
    
      Held, that the heir in question took by descent from his ancestor, and not by purchase under the partition; and that his land descended, on his death, to his mother, to the exclusion of the brothers and sisters of the half blood, they not being of the blood of the ancestor.
    Controversy submitted without action.
    Elizabeth M. Conkling maae a contract to sell and convey to Thomas Pruden a lot of land on the westerly side of Seventh-avenne, between Fiftieth and Forty-ninth-streets, in the twenty-second ward of the city of New York. Pruden assigned the contract to J. Romaine Brown, the defendant.
    When the time came for peforming this contract, the defendant, J. Romaine Brown, refused to complete under the advice of counsel, on the ground that the title was defective ; and the parties therefore agreed to submit the question of title to the general term of the supreme court.
    The question to be decided by the court was, whether Mary Hill, the grantor of the plaintiff’s testator, under our statutes of descent, on the death of her son, Augustus M. Winter, acquired a fee in the said premises, an estate for life, or some lesser estate. The facts were stated as follows in the case agreed on :
    “ On October 26, 1848, Bolles Moore died intestate, and seized in fee of the premises in question, leaving no widow or descendants him surviving ; but leaving a sister, Margaret Cheesebrough, and a grand nephew, Augustus M. Winter, the son of a deceased nephew, and grandson of a deceased sister, his only heirs at law; Margaret Cheesebrough and Augustus M. Winter inherited the lands of Boltes Moore referred to, as tenants' in common in fee, and afterwards made an amicable partition ; the premises in question fell to the share of Augustus M. Winter, and a release of the same was made to him by Margaret Cheesebrough, dated May 15, .1849. Augustus M. Winter died November 22, 1849, seized in fee of his portion of the lands so released and descended to him from Boltes Mooré intestate, unmarried and without descendants, and leaving no father, and leaving a mother named Mary Hill, who after the death of her first husband, the father of Augustus M. Winter, and during the lifetime of said Augustus M. Winter, had married a second husband named George Hill; and by her last husband had children, brothers and sisters, of the half blood to the said Augustus M. Winter, but not of the blood of Boltes Moore, the ancestor of said Augustus M. Winter, and who were living at his death.
    “ Questions.
    “1. Did the. inheritance in the lands in question come to the said Augustus M. Winter by descent from his ancestor ?
    “2. To whom did the lands of the said Augustus M. Winter descend on his death, intestate and without descendants, and leaving no father, and leaving his mother surviving, and brothers and sisters of the half blood to him, but not of the blood of Ms ancestor ?”
    
      H. E. Davies & T. H. Barowsky, for plaintiff.
    I. The premises in question came to Augustus M. Winter, by descent, from Boltis Moore, he having died intestate, unmarried and without issue, leaving a sister, Margaret Cheesebrough, and a grand-nephew, Augustus M. Winter, who was the grandson of a deceased sister, his only heirs at law, by the provisions of our revised statutes. Margaret Cheesebrough and Augustus M. Winter inherited each an equal share of his estate (1 Rev. Stat., 752, §§ 7, 8, 5 ed., vol. 3, p. 41).
    II. Augustus M. Winter and Margaret Cheesebrough inherited the estate of their ancestor, Boltis Moore, in fee and as tenants in common (1 Rev. Stat., 753, § 17; Id., 722, § 2).
    III. The course of descent is not changed by the fact that there was an amicable partition of the estate descended from Boltis. Moore to Augustus M. Winter and Margaret Cheesebrough, as tenants in common, by-Margaret Cheesébrough. and Augustus M. Winter mutually- releasing and assuring to each other by deed the several estates which they afterwards held in severalty. The title to each of them is still by descent from Boltis Moore, their ancestor, they having acquired the estate by right of representation as his heirs at law, and not by any act or agreement of- their own (2 Blackst. Com., 160, § 200, and p. 193, § 341; 4 Kent Com., 371).
    IY. The manner in which the estate held by Margaret Cheesebrough and Augustus M. Winter, as tenants in common, was severed, by Margaret Cheesebrough and Augustus M. Winter releasing and assuring to each other by deed their respective shares, was a customary and lawful mode of making partition, especially where the parties are few in number and can make an amicable partition, as they did in their case, without application to the court, as prescribed by our revised statutes (3 Blackst. Com., 157, § 324, and p. 259; Cruise Dig., 143, §§ 8-10; Will. on Real Est., 185, 435; 4 Kent Com., 363).
    Y. In the construction of the deeds of partition, executed by Margaret Cheesebrough and Augustus M. Winter, “ it shall be the duty of the court to carry into effect the intent of the parties, so far as such intent can be collected from the whole instrument, and is consistent with the rules of law” (1 Rev. Stat., 748, § 2, 5 ed., vol. 3, p. 38).
    YI. “The intent, when apparent and not repugnant to any rule of law, will control technical terms, for the intent and not the words is the essence of every agreement” (Jackson v. Blodget, 16 Johns., 172; Same v. Myers, 3 Id., 368, 395; Same v. Beach, 1 Johns. Cas., 399, 402). In French v. Carhart(1 N. Y. [1 Comst.], 102), Jewett, J., says: “ Where the language of a deed will bear more than one interpretation, looking only to the instrument, the court will look to the surrounding circ-umstances existing when the contract was made, such as the situation of the parties and the subject matter of the ■contract.”
    VII. The agreement to divide the estate held by Margaret Cheesebrough and Augustus M. Winter, as tenants in common, and their subsequently releasing and assuring to each other their respective shares according to the agreement—the two instruments executed by them, and relating to the partition and division of the estate—may be considered as parts of one assurance (Jackson v. Dunsbaugh, 1 Johns. Cas., 91; Stow v. Tifft, 15 Johns., 458; Ward v. Fleet, 36 N. Y., 499).
    VIII. The half brothers and sisters of Augustus M. Winter are excluded from the inheritance, they not being of the blood of Boltis Moore, the ancestor of Augustus M. Winter (3 Rev. Stat., 12, §§ 6, 15; 4 Kent Com., 5 ed., 404, notes A and B; 2 Blackst. Com., §§ 220-224; §§ 227-229; §§ 235, 230). If the intestate shall die without descendants and leaving no father, or leaving a father not entitled to take the inheritance under the last preceding section, and leaving a mother and a brother or sister, or the descendant of a brother or sister, then the inheritance shall descend to the mother during her life, and the reversion to such brothers and sisters of the intestate as may be living, and the descendants of such as may be dead, according to the same law of inheritance hereinafter provided. If the intestate in such case shall leave no brother or sister, nor any descendants of any brother or sister, the inheritance shall descend to the mother in fee (3 Rev. Stat., 5 ed., 41, § 6). Relatives of the half blood shall inherit equally with those of the whole blood in the same degree; and the descendants of such relatives shall inherit in the same manner as the descendants of the whole blood ; unless the inheritance came to the intestate by descent, devise, or gift of some one of his ancestors ; in which case all those who are not of the blood of such ancestor, shall he excluded from, such inheritance (3 Rev. Stat. 5 ed. §15,). Morris v. Ward, 36; N Y. 587.
    IX. Augustus M. Winter having died intestate, unmarried, and without descendants, leaving no father, and leaving brothers and sisters of the half blood, but not of the blood of Boltis Moore, and who were, by section 15 of the Revised Statutes, excluded from the inheritance,— upon the death of Augustus M. "Winter, the premises in question descended to Mary Hill, his mother, in fee (3 Rev. Stat., 41, 42, §§ 6, 15).
    
    
      
      X. As to the general rules which are applied to the interpretation of statutes, see 1 Kent Com., 5 ed., 461, 468; Matter of Brown, 21 Wend., 316; Yates' Case, 4 Johns., 359.
    
      
      Wetmore & Bowne, for the defendant.
    I. Augustus M. Winter acquired one-half of these lands, not by descent,;but by purchase. (1.) By agreement between Mes. Cheesebrough and Mr. Winter these lands,- which descended to them, as tenants in common, from Boltis Moore, were divided. He released certain of the lands to her, and she released these lands to him. This may be called partition, rele'ase, or agreement—it required, and was consummated by, bargain—it was a purchase. Descent is defined to be, that estate which a man takes from his ancestor by single operation of law; purchase, that by which a man hath by his own act or agreement (2 Blackst. Com., 241). (2.) Title acquired by purchase gives to the owner a new inheritable quality, and is descendible to his blood in general, and not to the blood only of some particular ancestor (2 Blackst. Com., 243; Valentine v. Wetherill, 31 Barb., 655; Beebe v. Griffing, 14 N. Y. [4 Kern.], 235). (3.) It follows, that as respects the one equal half part of the lands of which Augustus M. Winter died seized, it descended to his mother for life, and the reversion to Ms brothers and sisters in fee (Cases above cited).
    II. The mother of Augustus M. Winter took a life estate only in the lands descended from him. Our statutes of descent, among other provisions, provide that where the.intestate shall die without descendants, and leaving no father, or father not capable of inheriting, and leaving a mother ancl brothers■ and sisters, the inheritance shall go to the mother for life, and the reversion to the brothers and sisters ; but if the intestate shall leave no brother or sister, then the inheritance shall descend to the mother in fee (1 Rev. Stat., 752, § 6). Relatives of the half blood shall inherit equally with those of the whole blood, unless the intestate came to the intestate by descent, or gift from some one of his ancestors, in which case all those who are not of the blood of the ancestor shall be excluded from the inheritance (1 Rev. Stat., 753, § 15). In cases not provided for, the inheritance shall descend .according to the course of the common law (1 Rev. Stat., § 16). At common law neither the mother or brothers of the half blood_could inherit. It is only by force of the statute~that the mother inherits, and this statute has failed to provide for this case. Augustus M. Winter left, besides his mother) brothers and sisters ; his mother took by statute a life estate and no more ; to give her a fee, we must interpolate and add words to the statute, which the legislature have inserted in case of a father not capable of inheriting, but' wholly omitted in the case of brothers and sisters. To give the mother a- fee, the sentence should read, “if the intestate shall leave no brother or sister, or brother or sister incapable of inheriting, then the inheritance shall descend to the mother in fee.” But the legislature has not said so—and the inability of the mother to inlierit, which existed at common law, has not been removed by the statute. We must seek elsewhere for the heirs at law of Augustus M. Winter, upon whom these lands descended in fee.
    
      
       The same facts that now appear in this case having been submitted to the Honorable William Inglis and Charles O’Oonor, Esquire, the following was their opinion as to the questions of law:
      In relation to the case of Augustus M. Winter’s half brothers and sisters, it is to be observed that by the common law the half blood was entirely excluded from the inheritance, and rather than it should take the lands, were subject to escheat. This principle was subsequently modified, and the half blood was, in certain cases, permitted to inherit. The rule applicable to this subject, re-enacted from an older statute, is to be found in 1 Rev. Stat., 753, § 15, of ch. 2, of title 5.
      By that statute it is provided that relations of the half blood shall inherit equally with those of the whole blood, in the same degree, and the descendants of such relations shall inherit in the same manner as the whole blood, unless the inheritance came to the intestate by descent, devise or gift of some one "of his ancestors, in which case all those who were not of the blood of such ancestor, shall be excluded from such inheritance.
      Under this statute the first question in the particular case is, How did the inheritance come to the intestate, Augustus M. Winter ?
      It is conceded that it came to him by descent from Boltis Moore. Is Boltis Moore, Augustus M. Winter’s ancestor, within the meaning of the statute ?
      The word ancestor, as used in this part of our statute of descents, does not merely refer to a person from whom natural descent was claimed in a direct line; it also includes a person from whom property comes, though he be a collateral relative. The proper meaning of the word ancestor—■ ante cessor—being one who lias preceded in the inheritance. In this case then, Boltis Moore is the ancestor spoken of by the statute, from whom the inheritance came to Augustus M. Winter, by descent. It is evident that Augustus M. Winter’s half brothers and sisters are not of the blood of Boltis Moore. The statute, therefore, quoted above, by its express-terms, excludes them from the inheritance.
      
        It makes no difference to the exclusion; as it has been suggested that it might, whether the lands that descended from Boltis Moore to Augustus M. Winter, came to Boltis Moore from a common ancestor, or whether Boltis Moore purchased them himself. The meaning and policy of the statute equally apply to all lands which the ancestor owned, in what way soever the title came to him. The 'statute does not make any inquiry how the ancestor acquired the land; it seeks only to exclude from the inheritance those not of his blood. This view of section 15 is also taken by Chancellor Kent (see 4 Kent Com., 404, note).
      The policy of preserving an ancestral inheritance in cases of intestacy, in the blood of the ancestor from whom it came, is also found in other cases in the Statute of Descent, §§ 11,12.
      The course of descent is not changed by the fact that there was a partition of the estate descended from Boltis Moore to Margaret Oheesebrough and Augustus M. Winter, as tenants in common, by Margaret Oheesebrough and Augustus M. Winter having mutually released to each other, and holding particular portions afterwards in severalty. The title of each of them is still by descent from Boltis Moore.
      It would appear, therefore, that the half brothers and sisters of Augustus M. Winter are . excluded from the inheritance in this case. The question then remains as to the right of the mother of Augustus M. Winter.
      In our Statutes of Descent two provisions have been introduced, which were unknown to the common law, which permit the father and mother to inherit in certain cases (sections 5 and G).
      Section 5 directs that in case the intestate dies without lawful descendants, and leaving a father, then the inheritance shall go to such father, unless the inheritance came to the intestate on the part of his mother, and such mother be living; but if such mother be dead, the inheritance descending on her part shall go to the father for life, and the reversion to the brothers and sisters of the intestate, and their descendants, according to the law of inheritance by collateral relations hereinafter provided. If there be no such brothers or sisters, or their descendants, living, such inheritance shall descend to the father in fee.
      The father is entitled to take, under this provision, an inheritance from his child, even where it had come from an ancestor-of whose blood the father had none, and when even, if the father were dead, the half-blood brothers and sisters of the intestate on the part of such father would be excluded under section 15.
      
        The exclusion of the half blood under section 15 of the statutes does not apply to a father or mother, for they cannot properly be designated as being relatives of the half blood to their children.
      By this provision of the statute the father of Augustus M. Winter, if living, would be entitled to take the inheritance in fee (it not having descended from the intestate’s mother, to the exclusion of Augustus M. Winter’s brothers and sisters, whether of the Whole or the half blood.)
      By section 6 of the Statute of Descents, the rights of descent to the mother of the intestate is somewhat different. Where there are no descendants and the father is dead, or not entitled to take, the mother takes a life estate, and the inheritance goes to the brothers and sisters. The statute then adds, if the intestate in such case shall leave no brother or sister, nor any descendants of any brother or sister, the inheritance shall descend to the mother in fee.
      There is a slight difference in phraseology between sections 5 and 6 of the statute. When the inheritance comes on the side of the intestate’s mother, section 5 gives the inheritance to the father for life," and the reversion to the brothers and sisters, according to the law of inheritance by collateral relations hereinafter provided. Section 5 then provides that if there be no such brother or sister, or their descendants, living, it shall descend to the father in fee. The statute supposes that the intestate might have brothers and sisters living, but not such as might inherit.
      In section 6 the word “ such” is omitted in speaking of the case of brothers and sisters, and it may be asserted that if the intestate leaves any brothers or sisters, even if not entitled to inherit, that the mother cannot take in fee; because the literal prerequisites to her inheriting, expressed in the statutes, are not complied with, there being brothers and sisters.
      This construction, however, of section 6 would probably be considered too strictly verbal, as against the mother of the intestate, and the omission of the word “such,” as contained in section 5 of the statute, relating to the intestate’s father, would probably be considered a mere accidental variation of the language. This view is strengthened by the consideration' that section 5 of the statute, providing for the case of the father, was introduced into the law of descents on the suggestion of the revivors, whereas section 6, providing for the case of the mother, Was inserted by the legislature after the revision was submitted to it (see Revisor’s Notes, 3 Rev. Stat., 603). The section, therefore, being penned by different authors, might easily vary in phraseology, even where a similar object was in view. The legislature intended, by introducing the new canon of descent in favor of the mother, to give her the same privileges, in most respects, in the succession to her children’s property, as the revisors had provided for the father. The sections appear to be for the most part counterparts of each other, and it is hardly to be supposed that the legislature intended to exclude the mother from inheritance, because there were brothers and sisters of the half blood, who could not take in the particular case where just before a rule had been laid down as respects the father. The words brother or sister, in the last sentence of section 6 of the statute, is therefore to be considered not as referring to any persons of that degree, whether of the whole or of the half blood, but refer only to those who are capable of inheriting under the statute; the brothers and sisters of the half blood, being in this case excluded from the inheritance, are not considered by section 6 of the statute, and it would seem that the mother would take the lands in question in fee.
      Wm. Inglis.
      
        April 17,1850.
      I have carefully considered the question presented by the above'case, and am decidedly of opinion that the mother takes the land in fee.
      On. O’Cotroit.
      
        New Yorh, April 17, 1850.
    
   By the Court.—Cardozo, J.

The lot in question is part of land which descended _from Boltis Moore to Augustus M. Winter, and Margaret" Cheesehrough, who thus "became tenants in common. Each was seized solely or severally of his undivided share of the land ; and all there was of unity between them was the possession, not estate, in the land (4 Kent Com., 368); and that possession they could sever and divide, and assign to each his separate part by parol, and the release which they executed effected nothing more. Neither acquired any new estate (Wood v. Fleet, 36 N. Y., 499).

Upon the death, therefore, of Augustus M. Winter, intestate, unmarried, without descendants, leaving no father, the fee descended to his mother, Mrs. Mary Hill, and to the exclusion of the brothers and sisters of the half blood, of Mr. Winter, they not being of the blood of Mr. Moore, the ancestor of M. Winter (1 Rev. Stat., Edmonds’ ed., 702; Morris v. Ward, 36 N. Y., 587).

There must be judgment for the plaintiff on the submission.

Ingraham and George G. Barnard, JJ., concurred.  