
    
      Camden.
    
    Heard by Chancellor Desaussure.
    Jesse Wren and Jane his Wife, vs. Robert Carnes and others.
    The half blood is postponed one degree to the whole blood, in successions to the personal as well as real estate, by the express provisions of the statute of February 1?91. And though the act of 1707, amending the former, does not expressly recognize that distinc-ition, but speaks generally of brothers and sisters, without discrimina? J.ion of whole or half blood, the same postponement shall take place'» according to the decision of the court of appeals.
    In another case, (the heirs of Richard Guerard, vs. the executors of Richard Guerard,) it was decided by. the circuit court, that in remoter relationships, not comprehended within the enumerated cases in the' statute of 1W1, the half blood in the same degree with the whole blood-, should take equally with the whole blood ; but there was no appeal.
    In tliis case, tiio judge delivered the following decree:
    
       All the facts stated by the bill of complaint are admitted by the answer, and they form the following case for the opinion of the court:
    
      JUNE, 1813.
    Mary S. White died in May, 1812, unmarried ami intestate, leaving a considerable personal estate. At the time ofher death, her nearest relations then living,, were, her mother, Jane Wren, one of the complainants ; a brother of the half blood, named Robert Carnes, a defendant, and a sister of the half blood, named Jane Wren* a daughter of the complainants.
    Jane Wren the daughter, hath since departed thiá life, unmarried and intestate, leaving alive her mother Jane Wren the complainant, and her half brother th® above named Robert Carnes.
    The question arising out of these facts, is, whether this defendant Robert Carnes, is entitled to e,ny, and if any,' what portions of the personal estates left by his -f$vo sisters of the half blood, who have died intestate.
    .By the operation of the third, eighth and eleventh sections of the act for the abolition of the rights of primogeniture, passed in 1791, the mother of these children, would, under the circumstances stated, have taken the. whole of the real as well as personal estates, of which they died possessed or entitled to. But by the law of 16th December 1797, for the amendment of the act for the abolition of the rights of primogeniture, it is enacted, ‘-e that in all cases in which any person shall die intestate, leaving neither wife, child or children, or lineal descendant; but leaving a father or mother, and brothers and sisters, or brother and sister, or brothers and -sisters one or more, the estate real and personal of such--íntesuiío, shall be equally divided amongst the fatlie%;r or ^ ^10 ke <’ca(b the mother, and such brothers and' sisters, as may be living at the time of the death of such intestate, so that such father or mother, as the case’ may be, and eacii brother and sister so left living by theintestate, shall each take an equal share of his estate real and personal: Provided that the issue, if any, of any dCr-ee ased brother or sister, shall take among themseivcb the same share, which the father or mother if living-•would have taken 5 and if but ono such issue, then he or' ■she shall take the same share which his father or mother' would have taken if living.
    The question which has been raised on this last mentioned act, is, whether the words brothers and sisters, as; .used i» the above mentioned clause, include brothers and sisters of the half blood ?
    I have considered this question, and though it is susceptible of doubt, I am of opinion that I am bound to let in the brother of the half blood, in the case stated under the provision of the act of 1797'. The words brothers and sisters are so broad, as to include brothers and sisters of the half blood. The act of 1797, does not discriminate between the whole and the half blood, as the act of 1791 did ,* and if the half blood should be let in equally with the whole blood to a share of the estate of the intestate, where a parent is living, though excluded where "the parents are dead, as is the case under the act of 1791» this will be the effect of legislative intention, or of want of precision in stating a contrary intention. But we aré' not required to decide that point now $ for there are n» brotbws and sisters of the whole blood of these intestates. At lien such a case arises, it will be decided. The present question is simply, whether the mother of the deceased intestates shall take the whole property from Robert Carnes, the defendant, who is their brother of the half biood ?
    
      i have said already, that the. general words brothers: and sisters, appear to me broad enough to include brothers and sisters of the half blood, where the clause makes no discrimination. For it cannot be denied that a brother of the half blood, is a brother, and answers the description of the act of 1797 where the act of 1791 means-tb discriminate between the brothers and sisters of tiio whole and of the half blood, it does so distinctly and -dearly. Bat no such discrimination is made by the act of 1797. The reasonable deduction is that none was intended. The object of the act of 1797 was to prevent a surviving parent from carrying off all the property of a deceased child from his brothers and sisters. Tlie extension of this principle to the half blood, seems to be conformable to the general spirit of the act, which is to divide estates among the near relations.
    I feel the more disposed to give this construction to the act of 1797, because brothers and sisters of the halt blood, were let in equally with brothers and sisters of tlie whole blood, in the distribution of personal estates of in-testates, by construction of our old act of distributions-[1 Vezey, sen. 156, 7, Burnet vs. Man.] For the' courts of justice decided that brothers and sisters of the whole and of the half blood were in equal degree of relationship to the intestate: And to let those of the half blood in, in the total absence of the whole blood, seems still more reasonable.
    It is therefore ordered and decreed, that the defendant Robert Carnes, is entitled to a moiety of the personal estates of his intestate sisters, Mary S. White and Jane Wren 5 and that the mother Jane Wren, the complainant, is entitled to the other moiety: and that the administra* tor J. Wren, do account for said estate with the commissioner of this court, and pay over what may be due to the .guardian of said minor, Robert Carnes. — The costs to be ,g>aid out of the estate.
    (Signed) Henry W. Desatjssure.
    From this decree there was an appeal, which was very fully and ably argued by Mr. Blanding for appellants, and Mr. Hooker for the respondents.
    Mr. Blanding’s argument was as follows:
    By the act of 1791, the brothers and sisters of-the half blood are postponed one degree, and placed on a footing with the issue of the whole brothers and sisters. Their issue are entirely excluded, unless they are embraced in the general provision for the ‘s next of kin.” They are noticed in none of the particular provisions of the act. . Thus stood the claims of the half blood, prior to the act of 1797. Was it the object of that act to alter their rights and place them on a different footing in relation to the whole blood? This is not pretended. The preamble of the act shews, that this was not the intention of the legislature. It had another and specific object. The father and mother under the act of 1791, took in exclusion of the brothers and sisters. Large estates, descended from the father, thus passed into the family of the mothei*, even where there were children of the father .still living. To avoid this injustice, was the declared object of the legislature, There was no intention to disturb further the provisions of the act of 1791, or the relative situation of the whole and half blood. In providing the remedy, the act has declared that the father and mother shall take with the brothers and sisters. It is contended that the half blood are included in these terms : That the father and mother are placed on the same footing with the whole and half brothers and sisters, while they themselves arc not on the same footing. This can never bo, unless the omnipotence of legislation has destroyed the first principles of mathematical relations and proportions, and made a thing equal to both of two other things, which arc themselves unequal. In the construction of the acts of the legislature, we are bound to suppose them consistent, on-less they have marked their absurdities in characters too, plain to admit of reconciliation. Is there here that plain unequjv0ca! language including the half blood, which ne~ cessarily prevents the construction of their exclusion f The terms “ brothers and sisters,” may be satisfied by a construction which takes in the whole blood only. This is their common law construction, where the whole blood alone are known in the canons of descents. 2 Black* «tone’s Commentaries. The act of 1791, of which the act of 1797 is an amendment, in all its provisions relates to real estates alone. An after clause places the personal estate on the same footing as the real. It would seem thence to follow, that in all cases of doubt, where the common law is resorted to for furnishing the rule of con*. struction, the law of descents and not of distributions should be consulted. Butif we resort to our own act of distributions, the words brothers and sisters have the same meaning. They are used in the act of 1791 twice without any term of restriction annexed to them ; yet they there invariably mean the whole blood alone. The rule of the common law then, and the act of 1791, fix a meaning to the terms, which makes every thing consistent,, and leaves the symmetry of the plan of descents as con-, ceived by that legislature unimpaired.
    It has been correctly said that under the statute, 22' and 23 Car. 2 Cap. 10, Sec 6, the words “ shall be distributed equally to every of the next of kindred of the intestate, who are in equal degree,” have let in the half blood with the whole. In other words, it has been the construction of that act, that the half blood are in equal degree with the whole. Now if it he true that the brothers of the whole and half blood, are, according to our .law, in equal degree, the cases are parallel. But wa liare to contend with the act of 1791, which has placed the whole and half blood in different, and not in equal degrees, as far as the particular provisions of the act go; and the case under consideration, is within these particular provisions. Had the case arisen under the general provision in favor of “the next of kin,” it would be parallel with the one cited, and ought to be governed by i.tr
    
      To give the act of 1797, any other construction than the one contended for by the complainant, would be attended with many absurdities. Thus, where there is no father or mother, under the act of 1793, the whole brother takes in exclusion of the half. But if there be a father and mother, the act of 1797 governs, and according to the construction contended for by the defendant, the whole and half brother take together, and come in with the father or mother; or what is more strange, where there is a father or mother and whole brothers, the words «‘brothers and sisters,’’ in'the act of 1797, mean whole brothers and sisters in exclusion of the half; but where there is no whole brother, “-brothers and sisters” in the same act mean half brothers and sisters. — In other words, «• brothers and sisters” have two different meanings, not by being used in relation to different subjects, but in the same sentence, in relation to the same subject, and even without being repeated. The same difficulties attend the proviso of the act of 1797. But there are some peculiar to that proviso. — “ Issue of brothers and sisters,” arc the terms there used without the qualification of blood.
    Does this mean the half blood ? Then the issue of the half take with the issue of the whole brother, or even with the whole brother himself: This must be the case on the construction contended for, or the words have a different meaning in the proviso, from their meaning in ’the enacting clause. Suppose there is a father, a brother of the half blood, and the issue of another half brother. In that case, according to the decree, the half brother takes with the father, and under the proviso of the act of 1797, how is the issue of the other half brother to he excluded ? But if there be no father, then the half brother excludes such issue. There being or not be-. ing a father, includes or excludes the issue of the half brother; and what seems strange, there being a father brings them in — there being none excludes them. The reverse of the rule might be tolerated. The absence of those placed before them under the act of 1791, might, admit them. By the rule contended for, it excludes ■thorn. Under the agt ©f 1791, which still governs where there is no father or mother, the issue of a whole broihetf is in the same degree with a half brother, and the issue of a half brother never takes as long as there is a whole brother or the issue of one. But if “ brothers' and sisters” in the act of 1797, mean ha}f brothers and sisters, then “ issue of brothers and sisters,” in the proviso of that act, mean issu'e of half brothers and sisters.™ Then, in ease there be a father, the issue of a half brother takes with a whole brother; but in the absence of such father, the issue of a half brother is two degrees more remote than a whole brother.
    These are difficulties which cannot be surmounted, but by rejecting tlie construction of the circuit court, and adopting that contended for by the complainant. The whole brothers and sisters and their issue, will then he placed on a Jewel with the father or mother, and the half blood left to make out their claims under the act of 1791.
    
      
       It is not known that any judgment has been rendered by the Court of Law m this state, on this point. But see the opinion of judge Brevard in his digest of the statute law of this state, in a note to page 436, of the first volume.
      Another case occurred respecting the rights of the half blood, unv der our statutes, which was heard and decided by Chancellor Dcsaus" sure, and which, as bearing on this question, is inserted below, as a note.
      The Ileirs of R. Gratuita, vs. the Executor and Trustee of It. Gratt-un?;
      In the principal decree made in this cause, most of the points in controversy were decided; but it seems that it is necessary to make an additional order for the sale of part of the property, and also to decide a collateral point, arising' among the complainants themselves, .which I am requested to do by the parties.
      It is therefore ordered and decreed, that the house and lot situated in tlio town of Beaufort, belonging to the estate of R.chard Guerard, deceased, be sold by the master or commissioner (at the choice of the parties) on the following terms : One-'part cash, and the balance payable in-years. The purchaser to give bond and mortgage for securing the payment of the purchase money ; and the nett amount of the said sales shall be distributed in the same manner as the rest of the estate of Richard Guerard, deceased, was directed to be distribuí.' eri by tile decree htyotoibramade in this case; that hi to say, one fopifa1" part to be equally divided between the heirs of Godin Guerard, deceased, a half brother of R Guerard ; another fourth part to be equally divided between the heirs oí' Oodm Guerard, as assignees of Jacob Guer-ard, another half brother of Richard Guerard; and another fourth t* Joseph Guerard, a surviving half brother of Richard Guerard, the. testator! and the romain.ng' fourth part to be equally divided between the heirs at law of John Hill Guerard, a nephew of Richard Guerard, by a whole brother named David, who was dead at the time of R. Guerard’s decease.
      Fhe question which has arisen among the complainants themselves*. 5s this : Who are the heirs at law of John H-11 Guerard, among whom 'the d.vision of his fourth part of Richard Guerard’s estate is to be nii.de? John Hill Guerard died intestate, in 1799, leaving neither father, mother or other lineal ancestor, wife or lineal descendant, brother or sister, or any of their descendants. His relations were two uncles of the half blood, who survived linn ; and the children of another uncle of the half blood wlie died before him ¡ also one uncle and two aunts of-the whole blood, who all survived him ; though they are dead since*. leaving children and legal representatives.
      Do any, and which of these relations of the half blood come in foe distribution, under the act of 1791, equally with the relations of the ■Whole blood, or are they excluded by them ?
      In the provisions of the ant of 1791, for the abolition of the rights of primogeniture, and for a more equal distribution of intestates estates ■the relations of the half blood, arc postponed one degree to the whole, Wood as far as the cases arc specified. For instance, the brothers and sisters of the half b\ood, are postponed to the. brothers and s.otcrs of the. Whole blood, but they are let in equally with the children of such of the brothers and sisters of the whole blood as are dead.
      Thefi-st six sect ons laydrvnthe '-ules for dislr.but'on in anum- ,&?:■ oí-speciñcd casus j then the 7iii section cik-cis hi these word-'; “if' the intestate shall leave-no lineal descendant, father, mother, brother ow 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 file estate, and the remainder shall descend to the next of kin. Another clause provides, “ that if there be no widow, the share intended for 1 her shall go as the rest of the estate is directed to be distributed by the act.” And another clause puts real and personal property on the same* footing.
      I regret that 1 have not had the usual advantage of the aid o£ ¡counsel in this case, the parties having submitted the point without argument.
      It is manifest fróín the preceding statement, that the property in Question, that is, the fourth pvt of Richard Guerard’s estate, which descended to John Hill Guerard, must be distributed according to the '5th section abovemenxioned, because he left no relations for whom provision is specified in. the preceding clauses. By that clause it is said it Shall “ descend to the next of kin.” This brings, us then .directly to-the question, who are the next of kin. — The English statutes of distribution, 22d Car. 2d (amended by the 29th,) which was of force in this 'state, governed upon this subject before the act of 1791 was enacted; •and I presume it is reasonable and proper that the construction put upon the words of those acts, should be followed, wherq the same words are used in the new. act. By those acts it was provided, that if there be neither widow nor children, the- whole estate (personal) shall be distributed among the next of kin. Mr. Justice Blackstone says, (2d vol. p. 215, 316,) “ the next of kin here referred to, are to be investigated by the same rules of consanguinity as those who arc entitled to letters of administration, of whom (he says) we have sufficiently spoken, 'In recurring to what he has said on that subject, (2d vol. p. 504, 505,) \V.e find that he lays it down, that “ the half blood is admitted to the fdroijMstratien as wejl as the-whole.; for they are the kindred of thein~ tbstate, anil only excluded from inheritance of land on feudalprinciples.’^ Therefore the brother of the half blood, shall exclude the uncle of the whole blood, and the Ordinary may grant administration to the sister of the bal fj or the brother of the whole blood, at lib discretion.” Here then is direct authority, that under the words, next of kin, relations of the half blood in equal degree, are let in equally with relations of the-tvholc blood, as to personal estate.
      Now we have seen that the legislature in the act of 1791. after specifying- -certain enumerated cases, declares in the 7th section, that in default of such relations as are so specially provided for, the estate shall, descend to the next of k.n, and has not g-iven any direction for a dii-Ifcrent construction of those words, than heretofore used and settled.
      Indeed tbc9lb section of the act of 1791 enacts, that in reckoning-file degrees of kindred, the computation shall begin with the intestate,' which is the civil law rule ; he being tito terminus a quo, the sevcrifl degrees are numbered. And this was the rule by the English law in the construction of the statutes of distribution, though the rule of the cannon law prevailed in computing descents for the inheritance ofreA estates. 2 Black. 504, 5.
      This mode of resorting to the old rules and modes of construction and even to the old principles of descent, in cases not provided lor by the statutes giving a new rule, is generally resorted to.
      In Johnson vs. Haines' lessee, in 4 Dallas, 64, and in Cresee vs. Laidly, 2 Binney, 279, it was decided that where a case arose not provided forty the new act regulating-descents, the court must decide according to the ancient rule, and that the heir at common law must take.' The reason g-.ven, to be sure, is that the new distribution was an alteration or encroachment on the common law, and wherever such an en.. croachment takes away a right, which would otherwise lie vested in the heir at law, the operation of the statute should not be extended further-than it is carried by the very words of kite legislature.- And I presugfe-that where rights are vested in particular descriptions of persons by statute, that the new regulations shall not alter those rights beyond the very words used.
      I come then to the application of all this. The old statute of distributions, used the words, “next of kin.5’ In the construction of those words in the acts, the relations of the half blood were let in. equally with those of the whole blood of the same degree.
      The act of 1791, after distributing the intestate’s estate in certain enumerated cases, (and certainly postponing the half blood to the \ whole, one degree in those enumerated cases,) goes on to provide generally, that m all other cases not enumerated, the estate shall descend among the next of kin. And the ninth clause of that act directs, that in reckoning the degrees ofkindred, the mode of computing shall be by-beginning at the intestate and counting in a manner, which is found to have been that of the civil law.
      Now that was the mode of reckoning unde? the statute of distribution in England, which we had adopted; and we find it settled, that the half blood in the same degree, were let in equally with those of the whole blood, in such cases. I Vez. sen. 15. I feel myself bound, therefore, when our statute of 1791 ceases to make new provisions, and directs the estate to be divided among the next of km, to construe those words.as they were formerly construed.
      It is true that the court^ of appeals seems in another c_ase not to . have acted on that principle. It was in the case of Wren and wife vs-. Carnes, decided two years ago at Camden. The point decided by the circuit court was, that the act of 1797, (amending the act of 1791,) having let iii brothers and sisters equally with the mother of an intestate, to the inheritance of the property of the intestate, the word brothers and sisters, included half brothers and sisters. But the court of appeals finding the half blood postponed one degree by the act of 1791, to •the whole blood, (in the eiiqumepated cases,) decided that the act of 1797, using the words brothers and sisters, did not include the brothers and sisters of the halt-blood: and that the mother should take the whole estate of her daughter, who died intestate, leaving no other relations but that mother and a half brother.
      This case, however, was of a new impression, and the court was div.ded three to uvo. And it does not bear directly upon the question notv under consideration ; only by analogy. I therefore shall not hesitate to follow my own judgment, that the half blood are let in., under the words, “ next of km,” in the 7th section jii the act of 1791, equally with the whole blood, conformably to the construction of those words, under the old statute of distributions. 1 am confirmed in this opinion, by that expressed by judge Brevard in his valuable notes to. Ins digest of the statute laws of the state — See 1st volume, page 426, where he says, “The act has made no special provision tor the half blood after brothers and sisters. They must come to the succession-under the denomination of next of kin, mentioned in the 7th rule, in which case they will not be postponed one degree in deference to the whole blood, as m the other cases where they are specially provided for.” “ And in the provision made by the act of December, 1797, amending the act of 1791, no distinction is made between brothers and sisters of the whole and half blood and their issue.”
      Another question, however, arises. The intestate John Ilill Gue, yard, left alive, as above stated, two aunts and one uncle, of the whole blood on the maternal side, and two uncles of the half blood on the paternal side, and the children of a third uncle, Mr. Godin Gnerard, of •the half blood of the paternal side, who was dead at the time of the intestate’s decease.
      The question is, admitting that the half blood are entitled to come in equally with the whole blood, can the children of Godm Guerard, be admitted to take their father’s share of the estate, which lie would hat e been entitled to, had ha b een living at tlm intestate's death.
      
        The statute 22d Car 21, enacted, “ that where tlie intestate leaves no wife or children, the personal estate shall go to the next of kin, and and their legal representatives, provided there shall be no representation amongst collaterals, after brothers and sisters’ children.” In the construction of that act, it was decided in Pett’s case, IP. Williams, 25 to 28, that the grand-chi! dren of a deceased brother should not «orne in and take by representation what their grand-father or father would have been entitled to. The whole court of king’s bench agieed that “ among collaterals, saving only in the case of brothers and sisters’ children, proximity of blood should give title to the personal estate of the intestate.” Lord Macclesfield, in the case of Powers ®,v. Ijittlewood, 1 P. Williams, 594, considered the doctrine settled by Pett’s case, notwithstanding Lord Cowper had inclined by an ingen.ous construction of the words of the proviso to let in tlie children of col-laterals. And in the case then before him, he, Lord Macclesfield, refused to let th e son of an aunt take any- part of the estate of the intestate who left an uncle living.
      The point decided in Bower’s caséis precisely the second question we are now considering. For the children of a deceased brother claim with their uncles and aunts by right of representation among colla-terals. But it seems they have been prevented from taking by tlie ■words of the proviso, in the statute of 22d Car. 2d, restricting representation to the children of the brothers and sisters of die intesiide. I do not however find any such direct proviso in our act of 1791; so that if the matter rested here, the children of Mr. Godin Gnerard might perhaps be allowed to come m. But there is another difficulty in their way, the words ofihe seventh section of the act of J791 directs the property, in case of the failure of the specified relations, to go to the next of kin, and stops there. The act of 22d Charles 2d, give it to the next of k.n and their legal representatives, (with proviso, &o.) Now tlie. next of km. are the uncles and aunts living at John lull (¡tic, rard’s death. Godin Guerard was then dead. His children who set up this claim are one degree further off’; they are not next of kin.— They cannot take then by the words of the act, and there is nothing to induce the court to think that the words “and their representatives,’ were omitted by accident in the 7th section of the act of 1791. For the right of representation is carefully secured in the preceding clauses among the lineal relations. I must then conclude that the words were omitted designedly, and that it was not intended to extend the right of representation any farther. Upon this ground, therefore, I am of opinion that (he children of Godm Guerard cannot come in to take the share to which their father would have been entitled, of John Hill Gue-rard’s fourth pai’t of It. Guerard’s estate. Proximity of blood must prevail.
      It is therefore ordered and decreed, that the fourth part of the estate of the late Richard Guerard, which descended to his nephew, John H.11 Guerard, deceased, shall be divisible into five equal parts, one whereof shall be paid to the heirs or legal representatives of John Bernes Barnwell, deceased, an uncle, of the deceased John Hill Guerard; another fifth part to the heirs and legal representatives of Mrs. El.za-betli Deveaux, deceased, an aunt ofthe deceased: One other fifth part to the heirs and legal representatives of Mrs. Phcebe Campbell, an aunt of the deceased : One other fifth paralo John Guerard, an uncle of the half blood of the deceased : And the -emaining fifth part to the heirs and legal representatives of Godin G ierard, (not in right of their fa. thor, against whose claim I have decided,) but as assignees of Jacob Guerard, another half uncle of the deceased John Hill Guerard : And that the costs be paid out of the estate of John Hill Guerard, deceased.
      Hiiniit Wii. DjESAtTSStlBB.
      J. Ford and Henry Alexander Desaussure for complainants — T -Parker for defendants. There was no appeal from this decree.
    
   After some deliberation, the court disagreeing in opinion, the chancellors Gaillard, James and Thompson, delivered the judgment of th,e court, for the reversal of the decree :

The respect I feel for the opinion of the judge whose decree is appealed from, has made me give to this case the best consideration a short time would allow.

The question is, as he states it, whether the defend dant,.B.obert Carnes, is entitled to any, and what portion of the personal estates left by bis sisters of the half blood, who have died intestate ? Or it may be stated thus: Whether the mother is entitled to their estates exclusively ?

It is admitted that the mother would be entitled exclusively under the aet of 1791, abolishing the rights of primogeniture, See. if the act of 1797, to amend that act, were not in the way. By the operation of the act of 1791, a surviving parent, the mother for instance, got the whole estate of her husband, who died intestate, and by a second marriage, carried it off with her into another, family, strangers to the blood of the first husband. The" 'legislature viewed this as a mischief, and to remedy it, gassed the act of '1797. •

Let us consider the preamble to this act: « Whereas it hath been adjudged by the courts upon the construction of the aforesaid act, (referring to the act of 1791,) that in cases in which persons die intestate, leaving no wife or children or lineal descendant, but leaving father or mother, although such intestate also leave brothers and sisters, or brother and sister, or brothers or sisters, one or more, that the father or mother is entitled to receive the whole estate, to the exclusion of. such other of his or her kindred aforesaid.” The cases in which it had been adjudged by the courts, that the surviving parent took the estates of the children who died intestate, were all of them cases in which the children were the children of both parents.

A. married, we will say, B. and had by her two children, C. and D. B. died. A. afterwards married E. and had two children by her, F. and G. A died intestate, leaving his wife E. and three or four children. If either of the children of the first marriage, died after-wards intestate, his or her share of the intestate’s estate, under the act of 1791, went to his brother or sister of the whole blood; not to the wife of the intestate, because she was not his or her mother; and if so, children of the half blood, that .is, brothers and sisters of the half blood, were not in the contemplation of the legislature when they passed the act of 1797, and the words ee brothers and sisters, or brother and sister, or brothers or sisters,” used in the preamble, must be understood of the -whole blood.

It is correctly said in the decree of the circuit court, that where the act of 1791 means to discriminate between the brothers and sisters of the whole and of the half blood, it does .so distinctly and clearly.

The counsel for the appellant has observed,, that in the fourth clause of the act of 1791 the words brothers and sisters are used twice without any terms of restriction, and that they there mean the whole blood.

This is so; but they so evidently and appropriately refer fo the words immediately preceding in the sarafc clause, brothers and sisters, or brother and sister o. the whole blood,” that the insertion of the words ee of the whole blood” afterwards would have been superfluous. The clause upon which this question turns, enacts, 4i That in all cases in which any person shall die intestate, leaving neither wife, child or children, or lineal descendant, but leaving a father or mother, and brothers and sisters, or brother and sister, or brothers, or sisters, orte or more, that the estate real and personal of such intestate, shall be equally divided amongst the father, or if he be dead, the mother, and such brothers and sisters, as may he living at the time of the death of such intestate, so that such father or mother, as the case may be, and each brother and sister so left living by the intestate, shall each take a share of his estate real and personal: Provided always, that the issue of any deceased brother or sister, if more than one, shall, take, amongst themselves, the same shave which their father on mother if living would have taken ; and if but one issue, then he or she shall take the share which bis or her farther or mother would have taken if living.”

In every clause of the act of 1791, in which the children of a brother or sister are provided for, it is the children of a brother or sister of the whole blood. Whatever construction shall be put upon the words brother and sister in the proviso, must be put upon the same words in the clause of the act in 1797, to which the proviso is attached, there being no repugnance between them, If then, the expression brothers and sisters or brother and sister in the clause, comprehends the half as well as the whole blood, the issue of a brother of the half blood is put upon a footing with a brother of the whole blood, which would reverse the situation in which they are placed by the act of 1791, for by that act, the children of a brother of the whole blood, take with a brother of the half blood. Many' absurd consequences would follow from this con» struction in favor of the half blopd, and we cannot shut our eyes to them. If the meaning of a statute he doubtful, the consequences are to he considered in the construction, and if in this case we say that the legislature intended brothers and sisters of the half, as well as of the whole blood, we shall be bound to say so in every other case which may occur.

It is said, that under our old act of distribution, brothers and sisters of the half blood were let in equally with brothers and sisters of the whole blood ; but the manner of computing the degrees of kindred is prescribed by the act of 1791, and the issue of the brother of the whole, is expressly put on a footing with a brother of the half blood. The act of 1797 refers to the act of 1791, and relates to the same subject. Now all acts that relate to the same subject, must be taken to be one system, and construed consistently.

The general words brothers and sisters are certainly broad enough to include brothers and sisters of the half blood ; but the act of 1797, is open to two constructions, one consistent, and the other inconsistent with the act of 1791. I am bound, I think, to adopt the former. This view of the subject, appears to me to be warranted by sound principles of construction, and consistent too, with the object of the act of 1797.

I am, therefore, of opinion, that the decree of the circuit court be reversed ; and my brethren, Thompson and James concurring with me, it is reversed.

Theodore Gailsard.

We concur in this opinion,

W. D. James?

W. Thompson.

The Chancellors Desaussure and Waties were of opinion that the decree of the Circuit Court ought to be affirmed, and delivered their opinion accordingly:

I have reconsidered the decree of the Circuit Court in this case, and I am satisfied that it is correct. By the act of 1791, abolishing the rights of primogeniture, passed in the year of our Lord 1791, if an intestate left no child, or other lineal descendant, but left a widow and a father or mother, the widow was declared to be entitled to one moiety of the estate, and the father, (or if 1x8 be dead, the mother) to the other moiety. By this regula-' tipn, the father and mother were preferred in the case-stated, to the brothers and sisters of the intestate. This was considered an unjust preference, and the act of the 16th Dec. 1797, was passed; to correct the principle ‘f and it was enacted that if any person should die intestate;, leaving neither wife, child or lineal descendant, but leaving a father or mother, and brothers and sisters, (one or more) the estate, real and personal .of the intestate, should be equally divided amongst the father, (or if he be dead, the mother) and such brothers and sisters as may be living at the time of the death of such intestate; so that such father or mother, and each brother and sister, so left Jiving, should take an equal share of his estate, real ancj personal, with a proviso in favor of the issue of any de* ceased brother or sister. In the case under considera* tion, the intestates being females, left ho husbands or lineal descendants, but left a mother, who is one of the Complainants, and a half brother, Robert Carnes; who is the defendant; and he appears to come in under the general words ofthe act of 1797, which lets in brothers and sisters equally with a surviving parent of the intestate. But it is objected, that the act of 1797 does not expressly name brothers and sisters of the half blood. To this I answer, that it was unnecessary. In the construction of the Bi'itish statute of distributions, formerly of force here, the brothers and sisters of the half blood were let in equally with brothers and sisters of the whole blood, to the succession of intestates estates. And when the act of 1791 meant to discriminate between them, and postpone the half blood to the whole blood, in cases of personal, as well as real estate, it does so by express words. The omission of such words of discrimination, and preference of the whole blood, in the act of 1797, leaves a strong impression that the legislature did not mean to make the discrimination in the case stated ; or " at any rate we are left fi’ee to give the broad words of the act of 1797, their natural and full operation, and to a cbnsirtfction analogous fo the construction of the oíd siat- ■ ute of distributions. But in reality, it is not necessary to go so- far, for I agree that the act of 1797 is to be construed in connection with'the act of 1791, both being passed in pari materia. The effect of the' regulations of the act of 1791, is to postpone the half blood to the whole blood, but not to exclude them. They are let in on failure of the whole blood, and equally with the children of the brothers and sisters of the whole blood. Even in the case of the widow of a childless intestate, (and the widow is the most favored relative of these laws) the brothers and sisters of the half blood are let in to a, moiety of the estate in default of brothers .and sisters of the whole blood, or to equal portions of that moiety with the children of brothers and sisters of the whole blood. These shew the intention of the legislature to provide for the half blood, secondarily to the whole blood. The act of 1797, makes no other alteration in the system, than to take away the exclusive tight of the parent in the case stated, to the estate of a wifeless and childless intestate, and to let in brothers and sisters. In the case under consideration, there is no brother or sister of the whole blood to answer the description, nor any of their children. But there is a brother of the half blood, who does answer the description, and who, (without prejudice to the rights of the whole blood, if there were any brothers and sisters of that description) docs seem to me entitled to the benefit of the act of 1797.

I am therefore of opinion, that tho decree of the Circuit Court judge should bo affirmed. ,

HeN&y W. Desatjssusb.

I concur in this opinion, and for the reasons therein átatocL

Thomas Watxes^  