
    Edwin T. Cornell, Respondent, v. Lillian R. Child and Florence C. Kent, Respondents, Impleaded with Charles Purdy and Others, Appellants.
    Second Department,
    December 17, 1915.
    Real property — descent — Decedent Estate Law — descent of brother of the half blood who is also cousin by marriage of ancestor with deceased wife’s sister — “ ancestor ” defined.
    The half brother of an intestate, who is also her cousin by reason of the fact that the intestate’s father married his deceased wife’s sister, and also the descendants of the deceased half brother, being nieces of the half blood, are “of the blood” of the intestate and inherit her real estate to the exclusion of other cousins who are descendants of a deceased aunt of the intestate.
    Where a sister inherits lands from her brothers “ they are ancestors ” from whom the estate is derived within the meaning of section 90 of the Decedent Estate Law, and the lands so inherited by the sister descend to her brother of the half blood and to the descendants of a deceased brother of the half blood under the circumstances aforesaid.
    
      Appeal by the defendants, Charles Purdy and others, from a judgment of the Supreme Court in favor of the respondents, entered in the office of the clerk of the county of Westchester on the 15th day of March, 1915, upon the decision of the court after a trial at the Westchester Special Term in an action for partition.
    
      Eben H. P. Squire, for the appellants.
    
      Burton C. Meighan, for the respondents.
   Putnam, J.:

The rights of the descendants of three sisters, Sarah, Elizabeth and Ann Theall, are here involved. Mr. William Cornell first married Sarah, by whom he had two sons, William T. Cornell (who in 1907 deceased, leaving as only issue Lillian E. Child and Florence C. Kent) and Edwin T. Cornell, the plaintiff herein. After Sarah’s death, Mr. William Cornell married as his second wife Elizabeth Theall, by whom he had three children, Fred L. Cornell, Frank S. Cornell and a daughter, Ella L. Cornell. Mrs. Elizabeth Cornell was seized of the lands here in question. She died in 1892, intestate, so that the lands subject of this suit for partition descended to her three children aforesaid, each having a third interest, as tenants in common. These" children have now all died. Ella’s interest became increased by devise and descent from her brothers. By lapse of certain provisions of the will of Ella Cornell, a case of partial intestacy has arisen as to one-half of her residuary estate. The respondents claim that this inheritance passed to her brother of the half blood, plaintiff Edwin T. Cornell, with her nieces of the half blood, Lillian E. Child and Florence C. Kent, daughters of the deceased half-brother William T. Cornell, between whom there is entire agreement.

The descendants of Ann Theall, by her marriage with Thomas Purdy, also claim an equal share in the property as to which Ella L. Cornell died intestate. This family relationship is shown by the following diagram:

FULL SISTERS

The learned court at Special Term has found and determined that the plaintiff Edwin T. Cornell, and the defendants Lillian B. Child and Florence C. Kent, inherit the property which descended to Ella L. Cornell directly from her ancestor Elizabeth Cornell, as to which Ella L. Cornell died intestate. This is through their kinship of the half blood, under the provisions of the Decedent Estate Law (Consol. Laws, chap. 13; Laws of 1909, chap. 18). Obviously, if they do so inherit, the descendants of Sarah Purdy being cousins are excluded from any right in the property under rule 4 of descents. (Fowler Beal Prop. [2d ed.] 864, 866.)

It is not questioned that these respondents whom, for brevity, counsel have described as the “ Cornell claimants,” are nearer in degree than those called the “Purdy claimants,” if the half blood here stand equally with the whole blood. But it is urged that a different rule applies as to this landed interest which the intestate has inherited from her mother under the exception as to ancestral property by Decedent Estate Law (§ 90) which provides: “Eelatives of the half-blood and their descendants shall inherit equally with those of the whole blood and their descendants, in the same degree, unless the inheritance came to the intestate by descent, devise or gift from an ancestor; in which case all those who are not of the blood of such ancestor shall be excluded from such inheritance.” This re-enacts former Beal Property Law (Gen. Laws, chap. 46 [Laws of 1896, chap. 547], § 290), taken from section 15 of chapter 2 of part 2 of the Eevised Statutes (1 E. S. 753, § 15).

By the term “ ancestor ” when used in respect to the succession to real estate, is meant a predecessor in estate, and is applied to every person from whom property might be inherited. It embraces both lineals and collaterals. (McCarthy v. Marsh, 5 N. Y. 263.) The novelty is in the dual relationship through marriage of sisters to the same husband. When such a situation arose before the New Jersey Supreme Court in 1826, where like competing rights resulted from the marriage with sisters, Mr. Justice Ford said: “The present case of a man marrying two sisters forms an anomaly; the issue of such a marriage, disposed of in such a form, may not occur again in a century.” (Den on demise of Delaplaine v. Jones and Searing, 3 Halst. [8 N. J. L.J 340, 355.) But in the present case this double kinship solves all difficulty, and under our statute furnishes an undeniable blood relationship.

The term “ of the blood ” as here used, does not indicate the quantity, but simply that there is some of the hlood, whether the whole, or the half, or a smaller portion. (Beebee v. Griffing, 14 N. Y. 235.) As to a part of the interest of the intestate, her brothers Fred and Frank are to be deemed “ ancestors,” while as to the portion which Ella inherited from her mother Elizabeth, the mother is the ancestor, as the inheritance was direct to the daughter. The brother and nieces of the intestate by the half blood (the Cornell claimants) are to be deemed “of the blood” of Elizabeth Cornell, under the rule that “all are of the blood of an ancestor who may in the absence of other and nearer heirs take by descent from that ancestor ” (2 Black. Com. 220), a holding which does not take the inheritance out of the family. Such a conclusion is supported by Gardner v. Collins (2 Pet. [U. S.] 58); Den on demise of Delaplaine v. Jones and Searing (8 N. J. L. 340); Wheeler v. Clutterbuck (52 N. Y. 67); Banes v. Finney (209 Penn. St. 191). Our public policy is against the feudal exclusion of the half blood, which doubtless was because by promoting escheats it favored the Crown. (2 Pollock & Mait. Hist. Eng. Law [2d ed.], 305.)

The findings and determination of the learned justice at Special Term accord with the trend of American authority. (Note to Anderson v. Bell, 29 L. R. A. 541, 546.)

I advise that the judgment be affirmed, with costs.

Jenks, P. J., Stapleton, Mills and Rich, JJ., concurred.

Judgment affirmed, with costs.  