
    George Edwards and others vs. Martha Barksdale, Adm'x.
    Heard before Chancellor Harper, at Coosawhutchie, February) 1836.
    It was referred to the commissioner, to inquire and report who-are the next of kin of the intestate, Thomas H. Barksdale. He reports on the evidence, that Thomas B. Bona is a first cousin of the whole blood ; and that George Edwards, Mary Holbrook,- Coe, and-Kirk, are first cousins of the half blood ; and submits to the decision of the court who are the next of kin. Thomas B. Bona excepts to the report, on the ground that the commissioner should have reported him the ohly next of kin, entitled to the estate under-the statute of distributions.
    The statute provides, that “ If the intestate shall have no lineal descendant, father, mother, brother or sister, of the whole blood, or their childien ; or brother or sister of the half blood, or lineal ancestor, then the widow shall take two-thirds of the estate, and the re.-jmainder shall descend to the next of kin.” If no widow, the portion allotted to her is to go as the remainder. The questions are, whether the half blood are included at all under the description of next of kin; or if admitted, whether they are put on the same footing with kindred of the whole blood, or postponed one degree.
    The terms of the act, in their plain and literal import, certainly do include the half blood. Being descended from a common ancestor, they are no less of kin than the whole blood ; and according to the method of computation pointed out by the act itself, these claimants all stand in the same degree to the intestate. By the English statute of distributions, (22 and 23 Car. 2, C. 10,) which was of force in this State previously to the passing of our own act of 1791, if there are no children, the estate is given to the next of kin. Under this statute, it has been always held that the half blood are included, and they are put on the same footing with the whole blood, in the granting of administration and the distribution of estates.
    But it is argued, that the act of 1791 is an act of descents, not of distributions; the disposition of real estate is first provided for, and then it is provided that the distribution of personal estate shall conform to it. In construing a statute of descents, we must have reference, not to the English statute of distributions, which received its construction from the civil or common law, but to the common law of descents. That law is still of force, unless in so far as it has been altered by the statute; and in giving construction to the words “ next of kin,” we must take them'to mean such next of kin, as on general, principles of law, are qualified to take. For example, if the next of kin were an alien, he is within the letter of the law, yet no one supposes that he can inherit land ; or if statute similar to ours were' passed in England, that an attainted person could inherit:
    Let us examine the act by the rules prescribed by Lord Coke, in: Haydon’s case, 3 Rep. 7.
    1. What was the common law, before the making of the act.
    
      2. What was the mischief and defect for which the common law did not provide. And,
    3. What remedy the legislature hath resolved and appointed, to' cure the disease of the commonwealth.
    We know what the canons of the common law were, in relation to' descents; and we perfectly well know the evil which was intended to be remedied. The complaint was that' the estates of deceased' persons were distributed, not as it was supposed nature and affection would have prompted the owner to dispose of them, but by certain artificial rules arising out of the feudal system which had ceased to' exist. The eldest son was preferred to the younger; though these were equally near in blood, and it may be presumed, in affection, to' the father. So sons were preferred to daughters; and in the more' remote relations, males in every instance to females. The act corrects all this ; all children on the same footing, and sisters on the same footing with brothers. Why should it not be contended, that under the clause in question, male next of kin should be preferred to, female 1 The expressed object of the act is, “ to abolish the right of primogeniture, and to give an equal distribution of the real estates of intestates.” A general purpose, which runs through the whole act, and may be detected in every one of its provisions, is to distribute the estates of deceased persons among their kindled,'according to propinquity of blood; supposing, what is in general true, that affection is according to nearness of blood. Keeping in view this general purpose of the act, we may more easily arrive at its true construction.
    On the same reasoning which was used in this case,- it might be' contended that the next of kin, to take under the act, must be of the blood of the first purchaser. But when we recollect the origin of that rule,-the strictly descendable nature of feuds, and that upon failure of descendants they reverted to the lord, and call to mind the general purpose of the act above mentioned, we shall hardly ' conclude' that a man’s laud may escheat to the State, though he may have near kindred to inherit it.
    So it might be supposed that when the intestate was the first purchaser of the land, the heirs on the part of the father should inherit,in preference to those on the part of the mother. If this were admitted, then the most remote relation on the part of the father would' inherit, in preference to a very near one on the part of the mothers But this would be opposed to the purpose of the act, which puts’ males and females on the same footing. No distinction is known ia 
      nature, between the affection for relations on the part of the fathej'i- and those on the part of the mother. Other such instances might be put.
    So in the case of the half blood. Mr. Hargrave, in his note to Coke Lit. 140, n. 30, refers to Wright’s Ten. 184, where the exclu-sien oí the half blood is supposed to be a consequence of the rule for restricting the succession to the descendants of the first feudatory. Mr. Cruise, in his Treatise on Real Estates, (3d voh 365) supposes it to have been derived from the Norman customs, by which the half blood by the mother’s side was excluded, when the inheritance descended from’ the father, and vice versa ; which he supposes to have been in time extended to the entire exclusion of the half blood. He refers to the Grand Coustumier, C. 25. There can be little doubt, but that it must have originated in some such feudal reason, for it is not founded in nature. Can we suppose it conformable to the spirit of our act, that the most remote conceivable kinsman of the whole blood shall inherit, in preference to the children of a brother of the half blood? Or if there be none of the whole blood, that the land shall escheat? For if the next of kin of the half blood are not put on the same footing with those of the whole blood, the consequence must be, that they are excluded altogether.-
    With respect to the alien, the purposes of the act of 1791 have no imaginable connexion with the policy of the law which disables such an one to hold land within the State, and construing according to its spirit, I may well conclude that the act did not intend to embrace him, though in strictness comprehended within its letter. But certainly I can find nothing in the act to authorize me to exclude the half blood, who are expressly within the letter.
    Nor can the half blood, as contended for, be postponed one degree. According to the reasoning 1 have used, if the half blood had not been specifically mentioned at all, they would have been included in the act, and placed on the same footing with the whole blood. In certain enumerated instances, however, they are postponed one degree. Am I, from this, to infer that they are to be, in like manner, postponed in every other instance, where no such thing is said. The contrary is rather the legitimate inference. I may suppose that it would have been more conformable to nature, that the half blood should have been postponed one degree throughout, and conjecture that only through some casual inattention of the Legislature, it was net thus expressed. But, certainly, I am not at liberty to depart from the plain terms of the act, upon such a conjecture.
    [ am happy to find myself supported in ihis conclusion by the decided cases on the subject — that of Karison vs. Lowndes, 2 Eq. Rep. 210, and by the authority of Chancellor Desaussure, in Guerard vs. Guerard, reported in a note to Wren vs. Carnes, 4 Eq. Rep. 405. Nor do 1 regard it as at all inconsistent with the determinations in Wren and Carnes, and in Lawson vs. Perdriaux, 1 M’Cord, 456— that by the act of 1797, amending that of 1791, and providing that where there is a father, or mother, and brother, or sister, they shall take equally — brother, or sister, of the whole blood only is meant.. Upon the particular provisions of both acts construed together, 1 should certainly arrive at the same conclusion.
    
      It is adjudged and decreed, that the said Thomas B. Bona, George Edwards, Mary Holbrook, -Coe, and -Kirk, are the next of kin of the intestate, Thomas XI. Barksdale, in equal degree, and ¡equally entitled to his estate.
    WILLIAM HARPER.
    Colcock and M’Caethy, for Appellants.
    Petigeu and I)e Teeville, for Appellee.
    Filed 17th May, 1836.
   'Chancellor Desaussuee

delivered the opinion of the Court.

In ordinary cases, it might be sufficient to say, that the court is •unanimously of opinion the decree delivered in these cases by Chan-celler Harper, is correct, and must be affirmed. But the very confident tone in which it was insisted by the counsel for the complainant, Thomas B. Bona, that the decree was erroneous in principle, and that the authorities on which it professed to rely, were wholly untenable, or inapplicable, require that something more should be said. The court has re-examined the statutes which required construction, as well as the eases which have been decided under them; and upon full consideration, is entirely satisfied that the construction heretofore given to the statutes, respecting the half blood, is the correct construe, tion, and that the cases decided, were rightly decided, and are in harmony with each other.

The court expresses itself in this decided manner, that it may be understood by the profession and the community, that the construction, and doetrine established by this decree, is permanently settled, and the door to further litigation on the subject closed.

It is therefore unanimously adjudged and decreed, that the decree ' of the Circuit Court be affirmed.

HENRY WM. DESAUSSURE.  