
    JOSEPH M. EMANUEL, Respondent, v. LAWRENCE ENNIS, Appellant.
    
      Statute of descents—relatives of half Mood—ancestor, meaning of.—1 i?„ S. 753, § 15.
    Section 15 of the statute of descents (1 B. S. 753),—providing that in case an inheritance came to an intestate by descent, devise or gift of one of his ancestors, all those not of the blood of such ancestor shall be excluded from the inheritance,—refers to the immediate ancestor from whom the intestate received the inheritance, and not a remote ancestor who was the original source of title.
    The term ancestor, when used with reference to the descent of real-property, embraces collaterals as well as lineals through whom an inheritance is derived.
    M. died intestate, unmarried and without issue, leaving him surviving, certain brothers and half-brothers. At the time of his decease he-was seized of certain real property, which he had taken by descent from a deceased brother of the whole blood, who had taken the-property by descent from their mother, the father being the common ancestor, and the half-brothers children of a second ’wife. Held, that on the death of M. the half-brothers were entitled to share-equally in such property with the brothers of the whole blood.
    Wheeler v. Clutterbuck (53 N. Y. 67), followed.
    Before Sedgwick, Ch. J., and Freedman, J.
    
      Decided December 4, 1882.
    Appeal from judgment entered on the decision of a judge at special term.
    Plaintiff contracted to buy certain lots of defendant and to give other property and cash in payment. The plaintiff’s counsel objected to defendant’s title to the lots in question, claiming that an undivided interest in the premises was still outstanding in certain heirs who were of the half blood to the original owners, and the defendant’s counsel contended that the half blood was-excluded by statute.
    Susannah Milledoler died seised of these premises-in 1815, intestate, leaving her husband Philip and six children her surviving. Philip Edward, one of her sons, died in 1850, intestate and without issue, and John L., another son, died in 1853, also intestate and without issue. Philip Milledoler (the husband of Susannah and father of Philip Edward and John L.), after the death of said Susannah, married a second time and died in 1852 (before his son John), leaving two children by his second wife—viz., William S. Milledoler and Abian S. Beekman.
    In. 1854 a partition suit was begun by the heirs, which finally resulted in a sale by order of the court, and the title of defendant was derived through the-purchaser at the partition sale. The children by the second marriage were not recognized in, nor made parties to, the partition suit. The plaintiff’s counsel contended that upon the death of John L. Milledoler, in 1853, a certain undivided interest in the premises became vested in his half-brother and sister, and as they had never been deprived of nor parted with that interest it was still outstanding in them or their, heirs, and, consequently, defendant’s title was defective; and plaintiff thereupon claimed to recover the money paid by him on the contract, with damages, costs and expenses, and that the contract should be rescinded.
    The decision of the question rests upon the proper construction of § 15 of. the statute of descent (1 JR. S. 753), which reads as follows: “§ 15. Relatives of the half Mood shall inherit equally with those of the whole blood in the same degree ; . . 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 be excluded from such inheritance.” The court below found, as a conclusion of law, that “ the equal undivided one-fifth of one-sixth (being one-thirtieth) which descended to the said John L. Milledoler, and which lie-inherited from his brother, Philip Edward, descended to and became vested as follows: the equal undivided one-sixth of such one-thirtieth (being one one-hundred- and-eightieth) to and in each of his said three sisters, Maria B., Susan Ann and Cornelia (one one-hundred- and-eightieth to each); another equal undivided one-sixth of such one-thirtieth (being one one-hundred-and-eightieth) to and in the two surviving children of his said brother,Benson, deceased; another equal undivided one-sixth of such one-thirtieth (being one one-kundred- and-eightieth) to and in his half-brother, William S. Milledoler; and the remaining equal undivided one-sixth of such one-thirtieth (being one one-hundred-and-eightieth) to and in his half-sister, Abian S. Beekman.”
    Judgment was rendered for plaintiff for the full amount claimed.
    
      Thomas Bracken, for appellant.
    
      Joseph C. Levi, for respondent.
    In statutes of descent the word “ancestor” is not used in the restricted sense of either a forefather,, a progenitor or an ascendant (McCarthy v. Marsh, 1 Seld. 263, 274 ; 3 Wash. Real Prop. [4th ed.] 18; Prickett v. Parker, 3 Ohio St. 394; Cliver v. Sanders, 8 Id. 501, 507; Armstrong v. Moran, 1 Bradf. 318 ; Bailey v. Bailey, 25 Mich. 188; Greenlee v. Davis, 19 Ind. 60, 62 ; 57 Barb. 269 [note a]). The “ancestor” referred to in the statute is not the original or remote, but the proximate and immediate ancestor (Wheeler v. Clutterbuck, 52 N. Y. 67; Valentine v. Wetherill, 31 Barb. 655, 659; Gardner v. Collins, 2 Peters U. S. 58, 89; 3 Wash. Real Prop. [4th ed.] 18 ; Buckingham v. Jacques, 37 Conn. 402, 404 ; Clark v. Shailer, 46 Id. 119 ; Hyatt v. Pugsley, 23 Barb. 285, 300; Prickett v. Parker, 3 Ohio St. 394, 396; Clayton v. Drake, 17 Id. 367, 371; White v. White, 19 Id. 531, 535; Murphy v. Henry, 35 Ind. 442, 450). The word “ancestor” in the statute does not refer to lineals exclusively; it embraces collaterals as well (Wheeler v. Clutterbuck, 52 N. Y. 67; McCarthy v. Marsh, 5 Id. 263, 274, 282; Jackson v. Green, 7 Wend. 333-338; Stat. 11 and 12 Wm. III., ch. 6; Bing. on Desc. 494, 495, 497; 3 Wash. Real Prop. [4th ed.] 18; Prickett v. Parker, 3 Ohio St. 394, 397). The “blood of such ancestor ’ ’ which the statute requires as a prerequisite to the right to inherit in the given case, is not the whole, but the half or any part of the blood (Beebee v. Griffing, 14 N. Y. 235, 240 ; Gardner v. Collins, 2 Peters U. S. 58, 87; Cole v. Batley, 2 Curtis C. C. 562 ; Baker v. Chalfant, 5 Whart. 477, 479 ; 4 Kent, 404 [note g] ; Kelly v. McGuire, 15 Ark. 555, 596).
   By the Court.—Freedman, J.

The facts being as found by the learned judge below, the conclusions of law follow from the facts found by force of the statute of descents, as interpreted by the court of appeals in Wheeler v. Clutterbuck (52 N. Y. 67).

The judgment should be affirmed, with costs.

Sedgwick, Ch. J., concurred.  