
    Harriet Beresford Poaug ads. Christopher Gadsden and others, claiming a distributive share of the estate of John Wragg, deceased, who died intestate.
    
      Charleston,
    
    
      May, 1801.
    In the construction of the act for the abolition of the rights of primogeniture and distribution of intestates’ estates, passed in 1791, no distribution or right of representation is allowable among collate- and grand ne-rals. further down than brothers’ and sisters’ children. All grandchildren* ¿hews and nieces, of brothers apd sisters of the \ntestate, are excluded.
    UPON a summons to shew cause why a writ of partition should not issue, to divide the intestate’s estate among the petitioners, according to the act of the legislature, “ for “ the abolition of the rights of primogeniture, and the dis-fc tribution of intestates’ estates,” &c.
    The petitioners, Christopher Gadsden, in right of his wife, who was one of the sisters of John Wragg the intestate, and several others who were brothers and sisters, and 
      children of brothers and sisters of the said intestate, pref'erred their petition to the court of common pleas, praying for a division or partition of the said intestate’s estate among them, agreeably to the terms of the above mentioned act. In consequence of which, the usual summons issued to Mrs. Poaug, the widow of John Poaug, deceased, a nephew of the intestate John Wragg, deceased, to shew cause, if any she had, why the said intestate’s estate should not be divided among the petitioners, agreeably to the prayer of the petition.
    Upon the return of this summons, Mrs. Poaug came ia and shewed for cause, that she was entitled to one-sixth part of the said intestate’s estate, in right of her son John Poaug, deceased, who died an infant; and who was the only child of John Poaug, her late husband, who was the only child of his mother Charlotte Poaug, deceased, who was one of the sisters of John Wragg the intestate. That the father, if alive, would have taken under the act the one-sixth part of the estate, the proportion which his mother would have ‘ been entitled to j and consequently, that his son would have-been entitled to his father’s share. And upon the death of her son, she, Mrs. Poaug, had an unquestionable right to the share her son would have taken if alive.
    ' To this it was answered, on the part of the petitioners, that if Mrs. Charlotte Poaug, the sister of the intestate had been living, she would have been entitled to the one-sixth part of her brother’s estate ; or if her son, the late husband of the claimant had been alive, he would have taken his mother’s share ; but as they both died before the intestate, the act did not carry the right of distribution further down than to the nephew of the intestate. In that event, that sixth part which the nephew would have taken, went back to, and formed a part of, the aggregate of the intestate’s estate ; which was then to be divided into five equal parts, and to be distributed among the surviving bro. thers and sisters, and the surviving children of the deceased brothers and sisters, agreeably to the said act; and consequently, that Mrs. Poaug the claimant would take nothing in right of her deceased infant son; so that in fact, the great and leading question in this case, was, whether the act for the distribution of intestates’ estates, did or did not carnt down such distributions among collaterals, further than to brothers and sisters, and the children of brothers and sisters of the intestate.
    It was admitted on both sides, that there were no lineal descendants of the intestate, and that the whole of his estate must go off to, and be divided among, collateral relations; but, how far the right of representation among these colla-terals was to extend, was the question ?
    Mr. Parker, for the petitioners,
    contended, that by our act of distribution, passed in 1791, John Poaug, the grand nephew of the deceased, was totally excluded from any distributive share of his grand uncle’s estate, as that act did not carry down the right of distribution among collaterals further than brothers’ and sisters’ children, and there the right terminated or ended ; after which, it carried it back in the ascending line, rather than permit it to go down lower among collaterals ; and that that part which would have gone t© John Poaug, the nephew of the intestate, reverted back to, and formed a part of, the aggregate fund of the said intestate’s estate, to be divided in five equal parts among the surviving brothers and sisters, and the children of his deceased brothers and sisters. That as the right to a distributive share in said estate never vested in the grand nephew, he could transmit none to his mother, the present claimant 5 though he admitted there were cases in the books Upon the construction of wills and deeds, where grandchildren were considered as children, for the purpose of effectuating the benevolent intentions of the testator or donor.
    But, he said, the act in question included no such right, as would appear by an attentive consideration of the different clauses of it.
    The latter part of the fourth clause of the act under consideration, which regulates the distribution of intestates’ estates among collateral relations, in cases where there are no lineal descendants, expressly declares, “ that the childreit “ of the deceased brother or sister of the intestate shall take a among them respectively the shares which their respective “ ancestors would have been entitled to, had they survived 11 the intestate.”
    The fifth clause of the act holds the same language: “ That if the intestate shall have no lineal descendant, father “ or mother, brother or sister of the whole blood, but shall “ leave a widow, and brother and sister of the half blood, u and a child or children of a brother or sister of the -whole “ blood, the widow shall take one moiety of the estate, and “ the other moiety shall be equally divided among the bro-u thers and sisters of the half blood, and the brothers' and “ sisters’ children of the whole blood, taking among them a “ share equal to a share of the brother and sister of the half “ blood. But if there be no brother or sister of the half blood, “ then a moiety of the said estate shall descend to the child <( or children of the deceased brother or sister.”
    The sixth clause declares, “ that if the intestate shall leave no lineal descendant, father or mother, brother or sister of the whole blood, or their children, or brother or sister of the half blood, then the widow shall take one moiety, and the lineal ancestor or ancestors, if there be any, the other moiety.”
    The seventh clause declares, “ that if the intestate shall leave no lineal descendant, father or mother, brother or sister of the whole blood, or their children, or brother or sister of the half blood, or lineal ancestor, then the widow shall take two-thirds of the estate, and the remainder to. the next of kin.”
    Thus it was very evident, he said, from the whole of these clauses, taken either collectively or separately, the statute never meant or intended to carry down the distribution fur- ■ ther than to and among the children of brothers and sisters of the whole blood; it excludes the children of brothers and sisters of the half blood entirely.
    The fourth clause of the act, in express words, confines the distribution to the children of deceased brothers and .sisters of the whole blood. The fifth clause puts the children of the brothers and sisters of the whole blood upon the same footing with brothers and sisters of the half blood.
    The proviso in the sixth clause contemplates the children of brothers and sisters of the whole blood, and brothers and sisters of the half blood, as the lowest stages of distributions, because it declares, that in default of them, the estate shall go back m the ascending line to ancestors ; and if, in any part of the law, it had intended to carry down the right of representation any further, it would have been in this clause, where it stops in the descending line, and retrogrades back to the ascending line, so contrary to the genius and spirit of the common law.
    So in like manner, he said, the proviso in the 7th clause carried over two-thirds to the widow in default of lineal descendants, lineal ancestors, and brothers and sisters or their children, of brothers and sisters of the half blood, to the next of kin ad infinitum; all which clauses make it clear beyond all controversy, that the act sooner than carry down the right of representation lower than brothers’ and sisters’ children, or brothers and sisters of the half blood, consigns it over to the next of kin, without limitation, or carries it back to the ancestors, contrary to the principles of the common law. He next urged, that the act of 1797, amending the. act of 1791, held out the same idea, and enacts, that the issue, if any, of any deceased brother or sister, if more than one, shall take among themselves the same share of the intestate's estate, which their father or mother, if living, would ’ have taken ; and if but one such issue, then he or she shall take the share which his or her father or mother would have taken. Here it was evident, that this latter act which was explanatory of the principies ol the former act, stops at the precise point where the act of 1791 stopped, to wit, at the children of deceased brothers and sisters of the intestate, and there leaves the right of representation : both acts coincide upon this point, anti prove that the legislature of this country never intended to carry this right further down.
    
      - o, ™r Holt’s Hep. Salk. 250.
    
    He said, he would now draw the attention of the court' to the English statute of the 22d and 23d of Charles II., chap. 10, which was the model of our act of 1791, or pattern from which it was drawn.
    The statute of Charles II. after declaring the mode and manner of distributing intestates’ estates in England., between the widow and children of an intestate, goes on and declares, “ that if there be no lineal descendants of the in- “ testate, or their representatives, then one moiety to go to <c the widow, and the residue to be distributed equally to “ every of the next of kindred of the intestate, who are of “ equal degree, and those who represent them ; provided, u that there be no representation admitted among collaterals, “ after brothers’ and sisters' children; and in case there be “ no wife, then all the estate be divided among the child- “ ren ; and in case there be no children, then to be di- “ vided among the next of kindred in equal degree to the “ intestate, and their legal representatives as aforesaid; and “ in no other manner whatsoever.” The proviso in this statute, like the clauses in the act of 1791, restricts the right of representation to children of brothers and sisters, and goes no further down ; and in default of them, carries over the estate to the next of kindred of equal degree to the intestate. So far, then, the British statute and our act of 1791 go hand in hand, with respect to the subject matter now particularly under the consideration of this court.
    Upon the construction of this clause, he observed, that there had been a series of adjudged cases in the books, from the 35th year of the reign of Charles II. down to Lord Chancellor Barker’s time in 1719, when the law on this point appears to have been finally settled in England; in all of which cases, it had been determined and adjudged, that there should be no representation among collaterals, further down than brothers' and sisters’ children.
    
    
      Pett's case, in 1 P. Wms. 25. was a leading case, and remarkably strong in point. In that case it appeared, that the intestate left a deceased brother's child, and two deceased brothers' grandchildren ; and it was determined after solemn argument, that the grandchildren could not be admitted to a distributive share of the intestate’s estate, because, the clause in the statute was express ; which says, that there shall be no representatives among collaterals beyond brothers’ and sisters’ children ; that the words of the act were so strong, that there was no getting over them, as it was intended that none should take by representation, but the children of brothers and sisters of the intestate.
    So in this case, he observed, that if John Poaug, the grand nephew of the intestate, and son of the claimant, took at all, he must have been entitled as next of kin in equal degree, or else as representative. As to his being next of kin in equal degree, there was no colour for it; for he was the grandchild of Charlotte the sister, and not the child, and was therefore one degree further off than the petitioners ; and as to his being a representative he could not take inasmuch as he was not a child, of the sister of the intestate, but a grandchild; consequently, he was excluded by that statute, which declared in negative words, that there should be no other kind of distribution whatever. The case under consideration, therefore, and Pettfs case, he contended, were exactly similar to each other; there the grand nephew and niece were excluded from any distributive share, and here upon the same principles, the grand nephew must be excluded also.
    The case of Bowers and Littlewood, 1 P. Wms. 594. he argued, was also strong in point. One died intestate leaving no wife or child, but his next of kin was an uncle by his mother’s side, and a deceased aunt’s child ; there the Lord Chancellor decreed the whole to the uncle, to,the exclusion of the aunt’s son, because one degree more remote than the uncle. In this last case, the Lord Chancellor held, that the law had been settled in Pett’s case, and he did not think proper to call that decision in question.
    The Attorney-General, Mr. Pringle, on behalf of the claimant, Mrs. Poaug,
    contended, that upon the death of John Poaug, the nephew of the intestate, a sixth part of the intestate’s estate, vested in his grand nephew John Poaug\ an<J at his death was transmissible to his mother, the present claimant. That this grand nephew was entitled to a distributive share under an equitable construction of the 4th clause of the act, which was passed in conformity to the 5th section of the 10th article of the constitution of this state, for abolishing the rights of primogeniture, and giving an equitable distribution of the real estates of intestates, as well as personal estates. It may be more justly remarked of this act, than of the act of the 22d and 23d Charles II. that it was called a statute of distributions, as intended to be diffusive in distributing the intestate’s effects, to prevent any single or few hands from sweeping away the whole estate,, and to dispose of it so as that all the near relations of the intestate might be provided for; by which construction the statute would do most good. It has been further remarked of the same statute, that it was remedial and intended to put an end to the controversies between the spiritual and temporal courts ; to prevent the mischief before the statute, of administrator's carrying away the whole of the personal estate of the intestate,, and thei'efore the statute was made to let in the relations of the intestate in such a degree of proximity, to such a share as the statute directs, as the law or reason requires, and as one may suppose the intestate himself would have done if he had made a will. In various adjudications which the courts of common law have made upon the construction of the statute 22d and 23d Charles II. they have construed it in a manner most favourable to a diffusive distribution.
    It has been determined, that a bi-other of the half blood should be admitted to an equal distribution with the brother of the whole blood, although the statute is silent as to the half blood, because in respect of the father, the half blood is as near as the whole blood ; and also, because it is to be presumed, that if he had made a will, he would have given, him an equal share, 2 Mod. 204. 2 Tern. 403. 437. which construction may be said to be making a will for the intestate founded on reason and good sense. So in like manner, Our statute of distributions in 1791, may be said to be making a will for every intestate who dies in this state, or in other words, it was intended to supply the omission, Suppose, then, that the intestate in this instance had made a will, is it presumable that his affection for his nephew John Poaug, would upon his death be extinct or buried with him in his grave, or is it not more reasonable to suppose, that it would have survived and extended to his infant son ? most unquestionably it would ; otherwise you must do violence to the finest feeling of the heart. It is admitted in this case, that if John Poaug the nephew had survived, he would have been entitled to one-sixth part of the estate. Will the court then give such a construction (unless obliged by the positive terms of the act) as will add misfortune to misfortune, in depriving the unoffending infant, of the share his father would have been entitled to ? It is hoped the court will not; but be astute in giving a construction, more consistent with the dictates of justice, and the sound policv of the act. In effectuating these, surely the court will conceive itself warranted in going as far as courts have done with regard to wills, in carrying the benevolent intention of a testator into execution. In 2 Vern. p. 50, 51. Crook v. Brookings, money was bequeathed to the testator’s daughter Ann Crew for fife, and if she died in the life-time of her husband, then to go to the children of her sister Leach, in such shares as the said Ann Crezu should advise : some of the children of Leach died, leaving issue, and then Ann Crew died in the life-time of her husband,making no appointment. It was decreed, per curiam, that the money should be distributed among all the children of Leach, and their representatives per stirpes and not per capita. It was objected by the counsel, that if Ann Crew had been living to have made the appointment, she must have distributed among the children of Leach then living, and could not have given away any part thereof to the child of any one that was dead. Sed non allocatur per curiam. This decree was afterwards reversed, but admitted by all the judges, that where there is no child, grandchildren may take by a devise to children, consistent with the apparent intention of the testator. In various cases again it has been determined, that grandchildren shall take under the description of children, as in 4 Vez. jun-437. This has also been decided in our own courts of equity ; which has gone very far in admitting grandchildren, under the description of children, in loco parentis, even in cases where such construction was not supported by any very plain evidence of such intent; as in the case of Elliott and others v. Executors of B. Smith ; also in the case . of Sealey v. Laurens, Executor of Ball; and the case of Drayton v. Executors of J. Drayton ; all determined after solemn argument in the court of equity.
    It is not denied but that our act of 1791 is a remedial statute, made in order to supply the defect or omission of intestates who neglect to make wills. In fact, it may be considered as making a will for every intestate. If then that is a fact, which will not be denied, then surely it ought to have the same liberal construction which is given to last wills and testaments. Admitting this to be the case, it follows, that all the principles of the foregoing cases apply most pointedly to the present case, and prove that John Poaug the grand nephew ought to take, in loco parentis, the share that his father was entitled to. But it is alleged, that the same latitude of construction is not allowable in construing statutes, as are exercised by our courts in construing wills, &c. this position, however, he thought not tenable, because he conceived the same rules would apply.
    It is laid down by Plowd. 36. 109. 467. and also by Lord Coke, in his rules for construing statutes ; that in order to form a right judgment, whether a case be within the equity of a statute, or not, it is an excellent rule to suppose the law maker present, and that you have asked him this question. Did you intend to comprehend this case within the intent and meaning of the statute, or not ? and then you must give yourself such an answer, as you imagine he, being an upright and reasonable man, would have given to the question ; if this be, that he did mean and intend it to be within the intent and meaning of the statute, then you may safely conclude, that such was truly the intent of the law-J . J I 1 1 L maker; for while you do no more than he would have done, you do not act contrary to the statute but in conformity thereto : certainly, then, according to this rule of construction, if the same question was asked here, the answer would be, that the legislature in this 4th clause of the act, “ that children of a deceased brother and sister” should not be confined to the immediate descendants, but to comprehend grandchildren, and be equivalent to the word issue; which may be legally presumed or evinced by collating or comparing this 4th clause with the act passed 16th of December, 1797, explanatory of the act of 1791; and here he said it was an established rule of law, that all acts in pari materia, are to be taken together, as if they were one law, as laid down by Lord Mansjield in Doug. 30 : also, Bac. Ahr. new edit. vol. 6. p. 382. This amending act in 1797, declares, that in all cases where any person shall die intestate, leaving neither wife nor child, nor lineal, descendant, but having a father or mother, brothers and sisters, one or more, that the estate real and personal of the intestate shall be equally divided amongst the father, or if he be dead the mother and such brothers and sisters, so that such father or mother, as the case may be, and each brother and sister living shall take an equal share, provided always, that the issue, if any, of any deceased brother or sister, if more than one, shall take among themselves the same share which the father or mother would have taken if living. Here it is evident, that the legislature have made use of the word issue as synonymous, or of the same import with the word child, or children, or grandchildren, and so the 4th clause of the act in 1791, being in pari materia, relating to the same subject, should have the same construction as meaning children or grandchildren ; this would render them consistent with each other, otherwise the two acts having different meanings would render them discordant parts of the same system, and would be making the legislature speak a different language in the two acts, without a difference of reason or cause,- contrary to the maxim ubi eadem ratio, idem jus.
    
    
      If then it is to be legally presumed, that it was the intent ^le legislature, that the term children in the above' 4th clause, should be of equal import with the term issue, there will be an end of the question or controversy in this case; for issue will in its technical and appropriate signification, comprehend grandchildren.
    The term issue is nomen collectivum, comprehending all descendants, unless there be something express to confine it. 10 Mod. 376. Grandchildren are entitled and take under a bequest to issue. Freeman v. Parsley, 3 Vez. jun«-421. 1 Vez. jun. 196.' '
    So under a bequest to the issue of A. all the descendants are entitled, and take per capita, 3 Vez. 257. 383.
    He next contended, that the legislature has not in the 4th clause of the act of 1791, made use of any negative ■words, to exclude grandchildren or grand nephews from coming in loco parentis, or from representing their parents; and no purpose of inconvenience, object of policy, or rule of construction can be answered by such exclusion.
    In answer to Petfs case, quoted from P. Wms. 23. and the other cases referred to • by the gentleman in his argument in favour of the petitioners, they all turned upon negative words in the statute of 22 and 23 of Charles II. which excluded the courts from any other construction, though strongly inclined to do so, if they had not been restricted by the prohibitory words of that statute j whereas, he said, there were no such negative or restrictive words in the act of 1791 ; it is silent on this head, and leaves the word children open to judicial construction, which is fully explained by the words in the act of 1797. The Attorney-General concluded by saying, that he presumed the court upon the present occasion was at perfect liberty to give the most liberal construction to an act of distribution, this being,one of the first eases upon the subject which had come fully before them. That the court of equity had been very liberal in their constructions upon wills and settlements in favour of grandchildren, so he hoped the common law judges would find themselves at perfect liberty to be equally so in their con= siruction of the act in favour of the grand nephew of the intestate, and through him to the present claimant Mrs. Poaugv
    
    4 Burn. Beet, IjOnv, 3'5S. I' P. Wtnti. 38.
   The judges took time to consider this case, and after» wards th“ if the court was delivered by

Mr. Justice Watif.s, ac ¡:

Th: qu«. •>' > , iíí ?’■ v ■ ■ ■ he said, was, whether the grrad-child of a deceased ¡.roitn-v or sister of the in.estate was entitled to a distributive share of his estate in right of representation i Such a right was claimed under the following words ; u the children of a deceased brother or sister, “ (where there are no lineal descendants) shall take among 11 them respectively, the share which their respective an-i(' cestors would have been entitled to, had they survived the a intestate,” It is contended, for the claimant, that the word children included grandchildren, and a great number of cases were cited of wills and deeds in which this word had been so construed, but he could see nothing in those cases which ought to govern the present case; in all of them, the word children was construed to mean ‘‘ grande “ children,” in order to effectuate the intentions of the donors ; but they all shew, that this was a strained construction, and contrary to the proper import of the word. It is true, that the intention of a law, like that of a private deed of an individual is to govern it; but there is a wide difference between them ; a law is to be construed according to a general intent, and not a particular one ; in a deed or will the object is special, and the court' may therefore control or even change the proper meaning of words. But a law contemplates no single case, its object is general, its construction therefore must also be general, and not made to suit particular pases.

What, then, is the meaning, or general import of the word children ? Why certainly the first descendants. This construction has been given to the same word in the British statute of distributions ; and the only difference be» tween that act and ours, is, that the first defines negatively the right of representation in collaterals, and the last defines this right by affirmative words. The reason of the proviso in the former, is, that the preceding clause gave this right without any restriction, and it was necessary by a proviso to limit the extent of it ; but in our act, the extent of the act is declared at once, and a proviso was unnecessary. By this, the representation of a collateral is expressly confined to the children of brothers and sisters, and there are no other words in the act, which shew an intention in the legislature to extend it further ; the contrary may be very fairly inferred. In making a will for persons who should die intestate, the legislature no doubt intended to make such a distribution, as it presumed, would be agreeable to the general wishes and sentiments of intestates. He said, he believed that generally, persons, circumstanced as the intes» tate in the present case was, would not carry their views of distributions beyond surviving brothers and sisters, or the first descendants of those who were deceased. The attachments of blood was much diminished to collaterals after the first degree ; a man may indeed be willing to put the first descendants on the same footing as their parents, but a grand nephew or a grand niece is not usually regarded by him as objects of equal concern, and without some particular cause for partiality towards them he will not be disposed to let them share equally in the division of his estate. It is unnecessary, however, to inquire into the reasons of the legislature for limiting the distribution in this way; the words of the act require this construction, and we have no right to look any further. The right of property by descent is not a natural one ; it is conferred by society, or depends upon the regulation of law; and we are bound to give effect to the will of the legislature, without admitting any speculations to the contrary.

It was therefore ordered, that the writ of partition should issue, to divide the intestate’s estate into five equal parts among the petitioners, agreeably to the prayer of the petition, and that the claim of Mrs. Poaug be rejected.

Present, Grimke, Waties, Johxscm and Trezevant.  