
    BARNITZ’S LESSEE v. ROBERT CASEY.
    
      Present.,..All the Judges.
    
    descontó "in • Maryland ■ has not declared now an intestate estate shall descend, rived' to^the" mte^tate from his half brother» or from his brother of blood 'orfrom tis son or daughter, or buTsuch'e-6 ’ states are left £ lav.
    A infeSe mid ir he sha’u die of 2?’ and without issue, then to good"executory devise; and forithe'eon-’ t'ngencyhappe», it dehuTieirPauit so from tickCy iiappénf1 ^"u£|Ves.ls Wmouiywho can theumake B^he execulory devi es. at’iawof b. 5j9; *®e®.“cu‘ ^ <íeeVotving o» him, is pot tate, but on J^ievoh-a^to the npxt'heu-° ofB. One temon'eammt maintain eject^eo-tenanM without actual ouste’-’-
    
      ERROR to the Circuit Court for the district of Maryland, in an ejectment brought by the less* e of Barnitz against Casey, to try the title of Barnitz to certain real ^ v CS13.Í6 in B&ltllTlOPC.
    The facts of the case were stated by Story, J. in deliVering the opinion of the Court, as follows:
    n , . v Dn or about the 6th of Feb. 1780* Darnel Barnitz died se*zed the premises ih the declaration mentioned, hay-by'his will, devised the same to his wife, Catharine. Barnitz, in fee,' and leaving issue, by his said wife, an °.nb child and heir, Elizabeth Barnitz, who intermarried with one Charles JP Connelly by whom she liad an John JPConnell f after whose birth, and sometimein 1781, Charles APConnelldwd. Afterwards, his vv'dow* Elizabeth, intermarried with one John Hammond, by whom she had one child only, John Barnitz Hammond, and died on the 22d of April, 1788. After her death, To/wt Hammond intermarried with Elizabeth Anderson, and died on the 7th of April, 1805, leaving issue by ^t marriage, Jane B. Hammond and Henry Hammond, his heirs at law, who afe now alive, under whom Defendant in ejectment claims. Oh the 7th of April, 1794, Catharine Barnitz died seized of the premises, having first duly made lier last will and testament. By that Will she devised to the said John M<Connell, in fee, two certain parcels of land. . She then deVised another parcel of land* including her mansion-house to the said John Barnitx Hammond, to the and uses following, viz. subject, (as to the rents thereof) to certain trusts for the maintenance and education «f .the said John BarnHx Hammond, arid for the payment of certain specific debts of the testatrix, “to the “ use of John Hammond, the father, for and during “ the minority of the said John B. Hammond, if he « shall so long live, provided the said Jo/m Hammond « shall maintain, clothe and • educate the. said John Bt “ Hammond, out of the rents thereof during his mino- « rity ; and from and immediately after the said John B< “ Hammond shall arrive to the age of 21 years, or the “ death of the said John HammOnd, his father, which “ shall first happen,” then to the said John B. Hammond in fee. The testatrix then provides, “ and if it « should hereafter happen that the said John M-Connell « should die before he shall arrive to the age of 21 years, “ and without issue, then I give, devise, and bequeath « ail the estate of the said John jlBCoünell, which is “ hereby devised to him, to go immediately to the said « John B. Hammond, his heirs and assigns forever. “ And if it should hereafter happen that the said John “ B. Hammond should die, before he shall arrive to the « age of 21 years, and without issue, then and in 3tich « case, after the payment of my debts as above mention- « ed, I give, bequeath, and devise,” occ. (the same land and mansion-house before devised to John B¡ Hammond) « to the said John Hammond, his heirs and assigns fojr- “ ever; and also all the residue of estate herein before “ or after devised to the said John B. Hammond, and “ not hereby otherwise disposed of, I then, and in such « case, give and devise the same to the said John “ M'Connell, to hold to him, his heirs and assigns for- « ever, from and immediately after the death of the said « John B. Hkmmond as aforesaid; and in case of the « death of both of my grandsons, under age and with- « out issue as aforesaid, then 1 give, devise, and be- « queath all that part of my estate which I have herein « before given to the said John M* Connell, to Charles “ Barrate, of,” &c. «to hold to him, his heirs and ae; « signs forever,”
    
      The testatrix then provides for the payment of her debts, b^ a sale, if necessary, of some of her 'lots of land, on or near church-hill, in Baltimore, and then proceeds, «And Í give and devise all the rest « and residue of the said lots, on or near church-hill « aforesaid, -and all my estate therein (subject ne- « vertheless to the, devises aforesaid) to my said grand- « sons John M'Comiell and John B. Hammond, their heirs « and assigns forever, to be equally divided between « them, share and share alike, as tenants in common, « and not as joint tenants.’’ After some intermediate bequests, the testatrix devises «all the rest, residue, « and remainder of her estate, real and personal, to the « said John M'Comiell and John B. Hammond, their heirs « and assigns forever, to be equally divided between « them, share and share alike.”
    
      John M'Comiell attained his full age of 21 years, married, had issue, and afterwards on the 7th of April, ±802, died without leaving any surviving issue. And John B. Hammond died on the 12th of February, 1808, under the age of 21 years, and without issue.
    The lessors of the Plaintiff are the children and heirs at law of Charles Barnii», who was the only brother of Daniel Barnitz, the testator. And upon the defect of lineal lieii;s, the said lessors claim as next heirs, in blood, of Johi M'Comiell, on the part of his mother Elizabeth Barnifa, the daughter of Daniel Bamitca. It is admitted that the inheritable blood is extinct on the part of Charles M'Connell, .the father of John M'Connell.
    
    At the death of John JB. Hammond, the property consisted of four descriptions; which it may be proper to enumerate.
    1. The land specifically devised to John M(Connell, with a limitation over to JohnB. Hammond.
    2. The land specifically devised to John B. Hammond„ with a limitation over in fee to 1ns father.
    3. The moiety of the church-hill lots, and the resi duary estate devised to John M'Comiell, in fee.
    
      4. The moiety of the church-hill lots* and the residuary estate devised to John B. Hammond in fee, with alimitation over to John M‘Connell.
    
    At the time of the death of Catharine Barnitz, (as she survived her daughter) her.two grandsons, M‘Conneil and Hammond, were her heirs at law.
    Harper, for Plaintiff in error.
    
    I. As to the devise to John M‘Conneli, with limitation over, xn case of his death underage, and without issue, to J. B. Hammond. This was a fee simple in M'Conncll, with a conditional limitation, and not an estate tail. 1. Fearne on Contingent Remainders, 9,10, Dublin ed. 1795. id. 409.- Powell on Devises, 261. 7 T. It. 589. Shears v. Jeffrey. Plowd. 408. 3 Co. 10. Carthew,175. Dyer, 127.
    
    Upon J. McConnell's arrival at full age he had aii absolute estate, in fee, because the condition never could happen which was to defeat Tfs estate.
    As he took by purchase, and not by descent, and a§ at the time of his death he left neither child, nor brother or sister of the whole blood, the estate descended, according to the statute of descents in Maryland, to his brother of the half blood, John B, Hammond.
    
    J, B. Hammond took it by descent, through bis mother, and therefore tiie estate descended to him “ on the part of his mother,” withih the meaning of the statute.
    He certainly took by descent, and not by purchase ; and the commune vinculum, which connected him with his brother, must be traced through his mother.
    The statute was intended to prevent escheats pro defecto, sanguinis, and to provide for all cases.
    The legislature meant to compi’ehend all cases in three classes.
    1. Where the estate had descended to the intestate, on the part of the father.
    
    3. Where it had descended, on the part of the mother; and
    
      3. Whepe it liad vested in the intestate by purchase, and not derived from or through any of his ancestors.
    The Court will not suppose that the legislature has to provide for the case where the estate has descended from a brother to a brother, but wdl rather place the present case in the second class.
    Thelegislature did not mean to limit the 2d class to oases where the estate had dcscended/romthcmother, because it provides, that if there be no child or descendant of the intestate, the estate shall go to the mother: And it would be absurd to say, that an estate wbichhad descendedl o™ the mother, should descend again to the ¡notlier. So if the estate had descended from the mother’s father directly to thi mother’s son. it would be-an estate which had descended to,the son on the part of his mother, and yet it had not descended cither from or through his mother, for the estate had never vested in her. The statute must mean every case where the blood must be traced through the mother t, every case where the mother is a link of the chain which connec ts t|ie intestate with the- person from w hom the estate descended to him.
    This estate, therefore, must be understood, as leaving descended to J.B, Hammond,- on the part oj his mother; and therefore, inasmuch as at his death, he left neither child nor descendant, nbr ipolhcr, nor brother or sister of the blood of the mother, nor descendant of such brother or sister, nor grandfather on the pari, of the mother, nor descendant of such grandfather, nor father of such grandfather, and inasmuch as the-lcssors of the Plaintiff are the descendants of the father of such grandfather, the estate must, by the provisions of the statute, descend to them.
    2d. The devise to John M(ConneU, in fee, of the moiety of. the church-hill lots, and of the general residuum, vested in him a fee simple estate from the beginning. He took by purchase under the will. It descended to J. B. Hammond by the same rule of descent as in the former case* and by the same construction of the statute has, descended from him to the Plaintiffs,
    3d. The third case under this will, is that of the specific devise to J, B. Hammond, with limitation over,, in case of his death under age and without issue, to John M‘Connett.
    
    
      , J. B. Hammond died under age and without issue, so that tJie fee devised to him was defeated, and would vested immediately in John M- Connell, if he had been alive, but he died in the life time of J. B. Hammond. In whom then did it vest? By the rules of the common law, John MWonnell had such an interest in the devise, as was descendible to his heirs. Who were his heirs ? Not they who were such at the time of his death, but they who answered the description of his heirs at the time of the death of J. B. Hamriiond. 2 Fearne, 529. id. S35. 2 Wilson, 29. Goodright v. Searle.
    
    John McConnell, if he had been alive at the time of the death of J. B. Hammond, would have taken the fee by purchase, and the lessors of the Plaintiff were the only persons who could at that time entitle themselves as his heirs, there being no heirs of the paternal line then living,
    Martin and Pinkney, Attorney General, contra.
    
    The executory devises were void, because the contingency is the dying “ without issue”- indefinitely, and not limiting it to the case of dying without leaving issue alive at the time of his death, l Fearne, 411. 2 Fearne, 74. 144-5, 154. 1 Sid. 148, Cotterson v. Right. 4 Bac. Ab. 251. (Gwillim’s Ed.) 2 Fearne, 187, 358, 1 P. Wms, 198, Nichols v. Hooper. 2 Fearne, 245. 2 Fearne, 206. 159. 154. 160. 2 H. Bl. 358.
    The limitations over being void, each took an absolute fee simple in the lands devised to him.
    Upon the death of John M‘Connell, the estate descended, according to the provisions of the statute, to J. B, Hammond, who took, not by way of descent at common law, but by force of the statute. The preamble of the statute show's that the legislature meant to abolish the law of descents altogether.
    The expression « on the part of the mother,” means, from or through the mother. Now this estate never came to J. B. Hammond from or through his mother. Under the 3d branch of the statute, every estate which comes to an intestate, « and not derived from or through either “ of his ancestors,” is supposed to have come by jmrchase, and is to descend accordingly. This estate was derived to the intestate, J. B. Hammond; from or through either of his ancestors, and therefore is to descend as if it came to him by purchase.. This construction makes the statute provide for áll cases, whereas the construction insisted upon by the Plaintiffs, leaves he cases where the estate has descended or passed by force of the statute from brother to brother of the w hole blood, or from son to father, or from husband to wife, or from wife to husband, wholly unprovided for; for these are not cases of purchase, nor of descent from ancestors.
    If, however, the case of Hammond be casus omissus, then the estate may descend at common law' through the line of his father.
    One argument of the Plaintiff’s counsel was built upon <he absurdity of supposing that the statute directed an ' state to'descend to the mother, which,had already descended from her. But the statute only directs it to descend to. the mother, by way of illustration, so as to lead to the heir.
    But if the ■'limitations over were good, then John Connell died seized of an hereditament, a descendible interest, which went to his heir. Who was his heir? This same J.B. Hammond, so that either way the absolute estate in fee vested in him as a purchaser, and descended to his heirs. Again, the 3d section of the statute declares, “ that no right in the inheritance shall “ accrue 10 or vest in any person, unless such person is « in being, and capable in law to take as heir at the timé « of the intestate’s death.” Now these Plaintiffs were not « capable in law to take as heirs” to John M‘Connell “ at the time of his death.” So that they are prohibited by the statute from taking the benefit of this ex-ecutory devise, even if they could do so by the common law'. Under the statute J. M(Connell had, at his death, an inheritable interest in the land devised to J. B. Ham.-» mond, with limitation oyer. The statute makes, no difference between, vested and contingent interests 5 they all descend alike
    
      But there.is a fatal objection to the Plaintiff’s recovery in this case. The lessors of the Plaintiff are tenants in common with the Defendants; and one tenant in common cannot maintain ejectment against another, without proof of actual ouster. Such ouster is not proved.
    Harper, in reply.
    
    The Defendants have confessed lease, entry tmd ouster, and therefore, an actual ouster need not be proved.
    The whole question is as to tne meaning of the words “ descend on the part of the mother.”
    There are only two modes of acquiring property, viz. by purchase and by descent $ by the act of the party, or by act of law.
    Descents are either lineal or collateral. Lineal is from the ancestor in the direct descending line. Collateral, is where you first ascend to the common ancestor, and then descend until you find the heir.
    .The construction of the statute adopted by- the Defendants, allows only one kind of descent — lineal. The statute uses the word “descent” generally, comprehending both kinds. It says from or through either of his ancestors. “ From” applies to. lineal descent $ “ through” to collateral. If the statute includes collateral descents, there is an end of the question. If a man takes an estate by reason of his mother, he takes through his mother. If a man takes as great grandson from I. S.. the estate has not passed through the father or grandfather, yet he takes through them. So in tracing, a collateral descent, the estáte does not go through the intermediate links, yet the heir claims through them.
    As to the executory devises. The contingency was not too remote nor indefinite. It must be determined Within 21 years. If the contingency had been simply dying'without issue, there would be weight in the objection j but it is dying under age, and without issue; so that if he came of age, or had issue, the estate became absolute. Here are not two conditions, but two facts making one condition.
    
      The Plaintiffs do not take as heirs, but as purchasers under the will by the description of their persons; if they answer the description of heirs at the time the contingency .happens on which the executory devise takes they must take. A possibility is not descendible. They take as'purchasers. This is an answer also to the objection raised upon the 3d section of the statute.' They do riot claim (is heirs, and therefore are not within the statute. The statute refers to their natural capacity to fake. It alludes to the disability of alienage, attaint, &c. and was intended to exclude posthumous children in cases of collateral descent.
    
      March 11th, 1813.
    Preseraf....MARSHAXX, CL J. Washington, Duvaxx and Story, J.
    
   The Court having taken time since last term to advise,

Story, J.

(after stating the facts of the case,) delivered the opinion of the Court as follows :

It is true, that the general rule is, that an heir shall not take by devise, when he may take the same estate in the land by descent. 1 BoU,. Mr. 626.1. SO. Hob. 30. 1 Salk. 242. 1 Bl. Rej). 22.

But it is not denied that all the estates which each of the grandsons derived under the will, were estates by purchase. Admitting the executory devises over to be good, there could be no doubt as to any part of the estates | for the estates are of a quality different, from what' Jie parties would have taken in the course of descent.

It has been argued by the Plaintiff’s counsel, upon the foregoing facts, that as to the whole estate immediately devised to John M‘ConnelI, the lessors of the Plaintiff are entitled to recover, in the events which have happened, as his heirs ex parte materna ; and that as to the estate devised to him upon the contingency of the death of John. B. Hammond under age and without issue, the lessors of the Plaintiff are entitled to recover as the heirs at law of John M‘Connell, at the time when the contingency happened, although not heirs at the time of his death.

The decision of these points depends upon the true construction of the statute of descents of Maryland, and the application thereto of the principlesvof thfc common law. '

This statute of descents, (1786, cb. 45,) after reciting that tue 1. w of descents which originated with the feudal system and'military tenures, is contrary to justice, ana ought to be abolished, enacts, “That if any person seized of an esí.at-V’ &c. “ shall die intestate thereof, s.ucii lands,” &c. “ shall descend to the kindred, male and female, of such person, in the following order, to wit: Firsi, to-the" child or children, and their descendants, if any, equally, and if'no child or descendant, arid the estate descended to the intestate on the part of the father, then to the father, and if no father living, then to the brothers and sisters of the intestate of the blood of the father, and their descendants equally, and if no brother or sister as aforesaid, or descendant from such brother or sister, then to the grandfather on the part of the father, and if no such grandfather living, then to the descendants of such grandfather and their descendants, in equal degree equally, and if no descendant of such grandfather, then to the father of such grandfather, and if none such living, then to the descendants of the fathep of such grandfather in equal degree, and so on, passing to the next lineal male paternal ancestor, and if none such, to his descendants jn equal degree, without end : And if no paternal ancestor, or descendant from such ancestor, then to the mother of the intestate, and if no mother living, to her descendants in equal degree equally, and if no mother living, or descendants from such mother, then to the maternal ancestors and their descendants in the same manner as is above directed as, to the paternal ancestors and their descendants. J3nd if the estate descended to the intestate on the part of the mother, and the intestate shall die without any child or descendant as aforesaid, then the estate shall go to the mother, and if no mother living, then to the brothers -and sisters of the intestate of the blood of the mother, and their descendants in equal degree equally, and if no such brother or sister;, or descendant of such brother or sister, then to the grandfather on the part of the mother, and if no such grandfather living, then to his descendants in equal degree equally, and if mo such desceridant of such-grandfather, then to the father of such grandfather, and if none such living, then to his descendants iii equal degree, and so on, passing to the next mail maternal ancestor, and if nonesuch living, to liis descendants in equal degree, and if no such maternal ancestor, of descendantfróm any maternal ancestor, then to the-father of the intestate, and if no father living, to his descendants in equal degree equally, and if no father living, or descendant from the. father, then to the pateriial ancestors and their descendants, in tlie same manner as is above directed as to the- maternal ancestors.”

“'And if the estate is or shall be vested in the intestate hit purchaseand not derived from. or through either, of his :ancestors, and there be no child or descendant of such - intestate, then the estate shall descend to the brothers arid sisters, of such intestate of the whole blood, and their descendants in equal degree equally, and if no brother or sister of the whole blood, or descendantfróm such brother or sister, then to the brothers and sisters of the half blood and their descendants, in equal degree equally, and if no'brother or sister of the whole or half blood, or any descendant from such brother or sister, thei" to the father, arid if no father living, then to the mother, and if no mother living, then to the grandfather on the part of the father, and if no such grandfather living, then to tiie descendants of such grandfather, in equal degree equal - ly, and if no such grandfather, or any descendant from him, then to the grandfather on the part of the mothers and if no such grandfather, then to his descendants in equal degree equally, and so on without end,'alternating1 the next male paternal ancestor and his descendants, and the next male maternal ancestor arid his descendants ; and giving preference to the paternal ancestor and his descendants ; and if there be no descendants or kindred of the intestate as aforesaid to lake the estate, then the same shall go to the husband or wife, as the case may be; and if.the husband or wife he dead, then to his or lief kindred in the like course as if such husband or wife had Survived the intestatc, and then had died entitled to the estate by purchase; and if the intestate has liad more husbands or wives than one, and all shall die before such intestate, then tlie estate shall be equally divided among the kindred of the several husbandi or Wives in equal degree equally.”

Three classes of cases arc here in teriris provided for.

1. «■Estates descended to. the intestate oh the part of « the father.”

2. « Estates descended to the intestate on the part of st the mother.”

3. “ Estates vested in the intestate by purchase and “ not derived from or through cither of. his ancestors.’*

The descent of an estate of purchase, from brother to brother, and from a son to a parent, where the brother or the. parent is the propositus, is not directly within the language of the statute. For, by the common law, a descent from brother to brother is,held to be an immediate descent, and riot from or through the parents; and the express provision of the statute of ¡Maryland as to estates of purchase, necessarily involves the same conclusion ; and the same may be declared of a descent from a child to a parent under the same statute.

'' It has been argued that the legislature intended to form a complete scheme of descents: and that the Court ought not to construe any case to be a casus omissus, if by any reasonable construction the words can be extended to embrace it. Both.; parties accede to this argument, hut they apply it in a very different mariner. The Plaintiffs contend that the descent from brother to brother was meant to be included in the first and second classes of descents, as the parents were the common link of connexion' from and through'whom the consanguinity was to be sought; that therefore the descent, in such case, is ex-parte paterná, or materna, as the father in- mother happens to be the commune vinculum. And the Plaintiffs rely on the words' “ and not derived from ov through Jcither of his ancestors,” in the clause embracing the third class, as distinctly showing that the legislature deemed every case of descents to Incompletely within the preceding classes. On the other hand, the Defendants contend that whatever might be the legislative supposition, it is impossible to support thg position, that a descent from brother to brother, or from child to parent, is-a descent ex-parte 'paterna or materna. It is therefore, either a casus'omissus, or the words and not derived from or tkroiigh either of his aneestors” are to be. considered not as qualifying and lnniting the preceding words, but as either constituting a fourth class of cases, embracing all such as are not included in the three preceding classes; or as explaining estates by purchase to include all cases which are not patei nal or maternal descents.

There are certainly intrinsic difficulties in admitting either of these constructions. If the legislature have proceeded on a mistake, it would be dangerous to declare that a Court of law were bound to enlarge the natural import of words in order to supply deficiencies occasioned by that mistake. It would be still more dangerous to admit that because the legislature have'expressed an intention to, form a scheme, of descents, the Court were bound to bring every 'case within the specified classes. In the present case, equal violence would be done to the ordinary use of the terms employed by adopting the construction contended for by cither party.

. It is not a descent f? jm or through the paternal or maternal line', in the sense of the common law. Nor is it a purchase. ■

The words “ and not derived from or through either of his ancestors’'’ are manifestly used,as explanatory of the legal import of purchase. They are the exact words which the common law selects to distinguish the estate of a purchaser from-.the estate of an heir.

•It is obvious that the legislature use the words descent and purchase in t! eir technical and legal sense. They have also expressly provided for the case of a descent from brother to brother, passing by the parents; and of a parent, from a/c.h'l.d, when there are no brothers or sisters. These descents must therefore be direct and immediate; and the former case is so deemed also at the common Jaw. It is therefore in our judgment per- ‘ fectly of/ar, that, a descent from brother to brother is not within.the. statute, and'of course is a casus omissus, to be. regulated by the common law.

To apnly this to the present cage. By the arrival of John McConnell at the age of %1 years, all the estates devised to him immediately became absolute estates in ft e simple. On ids death they passed to his half brother, John B. Hammond; and upon his death they passed to the heirs at law of the latter. The lessors of the Plaintiff have therefore made no sufficient title

Let us now consider the second question: whether the lessors of the Plaintiff have any title to the estates which were devised over to John M*Connell upon the contingency of John B. Hammond’s dying under age and without issue.

It has been argued by the Defendant’s counsel that this executory devise is void because the contingency is too remote.

It is the acknowledged rule, that an executory devise ns not too remote if the contingency may happen within a life or lives in being, or 21 years and a few months after.

In the present case the contingency must have happened within 21 years at all events. For if John B. Hammond attained bis full age the estate vested absolutely. To have defeated the estate over, it was sufficient either that he attained his full age, or died under age leaving issue. The authorities are conclusive on this point. 4 Wills. 440, 270. 2 Burr 873. 1 Sound, 174. 5 Bos. and Pul. 38. 12 East. 288, 2 Str. 1175. There is no validity therefore in this objection.

In the next place it will be necessary to consider what is the nature of an executory devise as to its transmissibiiity to heirs, where the devisee dies before the happening of the contingency.

And it seems very clear that at common law, contingent remainders and executory devises , are transmissible to the heirs of the party to whom they are limited, if lie chance to die befire the contingency happens. Pollexjen 54; 4 Bep. 99. Cas. Temp. Tato. 417. In such case, however, it does not vest absolutely in the first heir so as upon his death to carry it to his heir at law, who is not. heir at law. of the first devisee, but it devolves from heir to heir, and vests absolutely in him only who can make himself heir to the first devisee at the time \shen the contingency happens, and the cxecutory devise fails into possession.

-Idis fu!e is adopted in analogy to that rule of dewhich requires that a person who claims a fee simple by descent from one who was first purchaser of the reversion dr remainder expectant on a freehold estate, must make himself heir of such purchaser at the time when that reversion or remainder falls into possession. Cq. Lit. 14. (b.J 14, (a.J 3 Rep. 42. Nor does it vary llic legal result that the person to whom the preceding estate is devised, happens to be the heir of the executory devisee, for though on the death of the latter the executory devise devolves upon him, yet if is not merged in the preceding estate, but expects the regular happening of the contingency and then vests absolutely in the then heir of, the executory devisee. The case of Goodright v. Searle, 2 Wits. 29, is decisive on ttiis point and indeed runs on all fours with the present.

But it is contended that the statute of desceñís of Maryland has changed (he rule of the common law in this respect: and has made the death of the intestate the point, of time from which the descent and heirship arc iii every case to be traced. The third section, which is relied on for this purpose, enacts as follows: « That ««no right in the-inheritance'shall accrue to or vest in ««any' person, other than to. children of the intestate «« and their descendants, unless such person is in being, «« and capable in law to take as' heir at the time of the l« intestate’s death ; but any child or descendant of the «‘•intestate, born after the death of the intestate, shall ♦«'have the same right of inheriiance as if born before ««the death of the intestate.”

In our judgment; the conclusion drawn from this clause is not correct.. The object of’ the section is to limit the natural capacity to lake, as heirs, to persons in being at, the time; of the death of the intestate, where, the estate is then capable of vesting in possession; aiid not to make persons heir’s, who, if in being at the time, .■would not, by the’common law, answer the description of absolute heirs, or to give a vested absolute interest, where the common law had given only a possible contingent interest. The legislature had in view cases of posthumous children, and cases where a descent to licir had been' defeated by the subsequent birth of a nearer heir. • The argument of the Defend ants, (in this point, ought not, therefore-, to prevail. No question has been made as to the land specifiediy devised (to B; Hammond in fee with a limitation over to his lather in fee. As that limitation over was a good executory devise, and, in the events which happened, took effect, it. is. very clear that the lessors of the Plaintiff cannot claim title thereto. This is indeed conceded on all sides.

The result of this opinion accordingly is, that the lessors of the Plaintiff are entitled.; as heirs of John M‘Gonnell, at the happening of the contingency, on the death of John B. Hammond, under ag(v and without issue, to one moiety of the Church-hill lands, and th© residuary estates as tenants in common with the heirs of John B,Hammond; but they are not entitled to any portion of the lands of which John McConnell had an absolute vested fee at the time of his decease.

As, however, a tenant in common cannot in general maintain art action of ejectment against his co-tenant', and there,are no facts found in this case to prove an actual ouster and to take it out of the general rule, the consequence is that the-judgment; iu the opinion of a majority of the Court, must be affirmed with costs.  