
    H. F. Beaumont, Adm'r. vs. James Irwin et al.
    
    Descent. Act of. 1842, ch. 169, § 1, construed. By the act of 18é2, ch. 169, § 1, upon the death intestate of a person owning real estate inherited from the father, without issue, or brothers and sisters, or the issue of such, or father or mother surviving — such real estate vests in the right heirs of the father.
    FROM MONTGOMERY.
    J. M. Irwin departed this life in the State of Louisiana, leaving real estate in Tennessee, which descended to his only child, Adeline B. B.. Irwin, then an infant of tender years, whose mother had also died before the father. Adeline B. B. Irwin died without issue, or-' brother or sister in either degree, or the issue of such, but leaving several uncles and aunts on both the paternal and maternal side. This bill was filed in chancery, at Clarksville, to have the rights and interests of the parties in the real estate aforesaid stated and declared. The uncles and aunts on the paternal side claimed it to the exclusion of the maternal line, and the latter insisted upon an equal interest with the former; The chancellor, at April term, 1854, gave his decree in favor of an equal participation of the paternal and maternal line, in the property. The former appealed.
    Robb and Bailey, for complainants:
    The act of 1842, was designed by the legislature to overthrow the common law canons of descent; to change the principle which seems to have governed in passing the acts of 1784, and in accordance with natural justice, — with the commercial spirit of the age, to place the succession to real and personal estate on the same footing.
    There have been but two periods of legislation upon this branch of the law of descents in Tennessee. The one about the close of the revolution, when feudal principles were but in part abandoned. The other from 1839 to 1842, when the whole policy seems to have been changed.
    The act of 1842, introducing a new system, provides that, if the deceased die without issue, or brother or sister, all estates in land shall descend to the father and mother, if living, as tenants in common, if either be dead, to the survivor, if both be dead, then to the heirs on the part of the father and the heirs on the part of the mother, if they stand in equal degrees of relationship, if they do not, then to those nearest in blood.
    But a proviso is made, that if the land be acquired by gift from either parent, or by descent, gift or devise from the ancestor of either, that that parent from whom or whose ancestor it was derived, shall take if living.
    
      Great changes are made in the law of descent, authorizing us to say, that an entirely new system was designed to he introduced.
    1. It destroyed the preference given to the father over the mother.
    2. It gave the mother an absolute estate in fee simple in all lands however acquired.
    3. It destroys the preference given to the paternal over the maternal line.
    ■ 4. It gives to those nearest in blood.
    5. Save in the excepted case, it destroys all distinctions as to the manner in which the property was acquired by the deceased.
    In these particulars it places real estate upon the same footing with personalty.
    The language of the act • is broad and comprehensive. It embraces every description of seisin, and every interest in real estate. The enacting part makes no difference as to the mode by which it was acquired, and evidently intended to introduce a new rule.
    - But if any doubt existed as to the construction to be given to the enacting part of the law, the proviso clears it of all difficulty, by securing 'rights whieh existed under the act of 1784, and which by the comprehensive terms of the previous part were taken away. See remarks of Catbon, judge, 7 Yerg., Wiehol vs. Dupree.
    
    ¥m. Thompson, for. the defendants,
    said:
    It is contended for the appellants in this case, that upon the death of Adeline B. B. Irwin, without leaving mother, brothers or sisters, the real estate which had descended to her from her father, became the inheritance of her uncles on the father’s side.
    It will not be denied, we presume, but that from 1784 to 1842, such was the unquestioned law. It will, however, be argued by the appellees that by the act passed February 5th, 1842, § 1, a radical change has been made in the law, and that the paternal uncles and aunts take equally. That the estate should be kept in the line from which it descended has ever been a favored policy of our law; and that where it should have been acquired otherwise than by gift or descent from the one side or the other; and a preference was to be shown, it was ever to the paternal side, is manifest. This cherished policy of the law then from 1784 to 1842, in preferring the line from which the estate came, we argue, would not have been destroyed at one “swoop” without a preamble to, or a reason assigned in the repealing law, or at least, if such was the intention of the legislature, that intent would not have been expressed in such very ambiguous phraseology.
    Before the act of 1842, if the intestate acquired the estate by purchase (actual) or otherwise (than being derived from the paternal or maternal line,) it should go to the father, if living, and if he should be dead, then to the mother for life, and then to the heirs on the part of the father, and after that to the heirs on the part of the mother.
    Here then is a case in the acts of 1784, on which the first section of the act of 1842 may operate, without construing it into so great and violent a ehange as that for which the appellees contend. It elevates the mother to the condition of the father; meaning as we contend, that -where the estate is acquired by purchase or otherwise, (not derived from either line,) on the death of the intestate, it shall go to them, (the parents,) as tenants in common, or to the survivor — (a change from the act of 1784. See 2 Yerg., 115,) — and in like manner if both parents be dead, to be divided equally between the two lines, (another change in the act of 1784.) But in the last of the section the provision is made for a case, where the estate is derived from the one line or the other, which we think shows an’ intention to keep it in the line from which it was derived.
    Suppose the mother had here survived, if we are not right in our construction, the 'heirs on the part of the father would be cut off entirely, and the estate go to strangers to the father’s blood. ■ If this great change were intended to be made, we believe it would not have been without a preamble, or a reason assigned, as was done in the great radical changes in the ancient English law of inheritance, made by the act of 1784, ch. 22. See preamble to §§ 2, 3 and 7, and the act of ’1784, ch. 10, § 3. if. & O.’b Dig., 247, 248, 249, and 250.
    There is no express repeal of the law of 1784, and where the repeal shall be argued from implication, we contend that the implication will not be extended by the court beyond the imperative necessity imposed, in order-to give any effect to the statute. The construction of the act of 1842, that the intention was to place the mother, in relation to purohased lands, upon a footing -with the father, is consonant with the spirit of the present age.
    But there has been no feeling or sentiment evinced; in the community, showing a relinquishment of the favored policy, that real estate shall descend in the line of its derivation.
    From whatever principle the feeling emanates, there has ever been, in the human breast a desire clearly evinced by the proprietor, that the lands descending from him, with the fine homesteads, &c., &c., should continue in the line of his own blodd, and should not, at least, by inheritance, pass into the hands of those who might be strangers 'to him in blood, while there may be any of his own kin to inherit.
    We contend there has been no intention in the legislation of the country to thwart and cross this feeling, call it prejudice, or whatever else you please. On the land so descending often are found the graves of his ancestors, and monuments commemorative of their life and virtues! No wonder such feelings are common to man, both savage and civilized!
    But it may be asked, when the mother is placed in relation to purchased lands on a footing with the father, why stop there? We answer, that there is a manifest difference in relation to lands acquired, not by descent, gift, &c., in elevating the mother to an equality with the father, as to these purchased - lands, no violence is done to any cherished feelings. It is a mere act of what the present age seems to look on as equitable and just.
    These lands, “otherwise acquired,” are not derived from or through the father, or the paternal line, his feelings have never intermingled with the soil. And if the father, the legislator enacting the law, should have a predilection for the reality, that feeling is in subordination to a sense of justice, and he in doing justice to the mother, can well say, “Mot that I loved Csesar .less, but that I loved Rome more.”
    Meigs, for defendants,
    said:
    Land 'bought by the .intestate, or otherwise acquired, so that it was not acquired by descent from a parent, or by gift, from a parent, or by gift, devise or descent from an ancestor of a parent, goes:
    1. To the intestate’s children, and their heirs in infinitum.
    
    2. To his brothers and sisters of the whole and half blood.
    8. To his father and mother as tenants in common, or the survivor.
    4. To the heirs of the father and mother in equal degree of relationship to the intestate; or if said heirs be in unequal degrees of relationship, to the nearer in blood.
    Land acquired by the intestate by descent from a parent, or by gift from a parent, or by gift, demise or descent from an ancestor of a parent, goes:
    1. To his children and their heirs in infinitum.
    
    2. To his brothers and sisters of the whole blood, and of the half blood on part of the parent from whom the land descended or otherwise, as aforesaid, proceeded.
    3. To the parent from whom or whose ancestor the land was thus acquired.
    4. To the heirs of such parent; i. e. to the heirs of the intestate on part of such parent, in equal degree of relationship to the intestate.
    This all seems to me too plain to need the support of argument. And it cannot be disputed, indeed, that No. 4 would succeed, if tbe parent survived the intestate and tools the land. For, if the parent took the land from the intestate child, the heirs of such parent, in exclusion of all others, would succeed to such parent.
    But it is supposed, it seems, that if both parents be dead when the descent happens, then the heirs of both parents, in equal degree of relationship to the intestate, both as tenants in common, whether the land was bought by the intestate with his own money, or whether it was given to him by a parent, or by an ancestor of a parent, or it was devised to him by such parent or ancestor, or it descended to him from either.
    The participation, then, of the inheritance between the heirs on part of the father and mother, depends upon the accident of the death of both previous to the descent, and not upon the source whence the estate came to the intestate.
    But our law, in every other case except No. 4, looks to said source, and not to accidents for those on whom a succession is to be cast. The family from which the land came is uniformly preferred; and why not in this case? The supposition that it is not, arises from all at once forgetting that a distinction is kept up between the case of land bought by the intestate, and acquired from a pa/rent or parent's ancestor, as well in the act of 1841-2, as in the previous laws.- It is true, the distinction is not mentioned in the first clause of the first section, but it is in the second proviso, and that is all the same.
    The act of 1841-2, does not expressly repeal any of the preceding laws. It is true that it does alter the previous laws as to descent- to the father and mother, and that seems to have been the principal object of the law. But certainly no one can say that that act changes, or was intended to change, the characteristic of our law of descent, to prefer the family from which the land came, in seeking for a successor to an intestate.
   McKinney, J\,

delivered the opinion of the court.

This cause involves the construction of the act of 1842, ch. 169, § 1. The case is this: Adeline B. B. Irwin died intestate, in the year 1850, seized and possessed of certain real estate. She died, leaving neither issue, parents, brothers or sisters, or the issue of such. Her nearest of kin, are uncles and aunts, both on the paternal and maternal side. The real estate of which she died seized, was inherited from her father. And, the question presented by the record is, does it descend in “equal moieties,” to the uncles and aunts on both sides, or only on the father’s side?

The statute enacts, “that where any person shall die seized of any lands, tenements, or hereditaments, or any right thereto, or entitled to any interest therein, not having legally disposed of the same by last will or testament: and having no issue, or brothers or sisters, or issue of brothers or sisters; his or her estate shall descend in equal moieties in fee simple, to his or her father and mother, to hold as tenants in common: or, if either be dead, then to the surviving parent: and if both be dead, then the estate shall descend, in equal moieties, to the heirs of the father, and the heirs of the mother.”

The first proviso to the' above clause, declares, that if such heirs do not stand in equal degree of relationship to the intestate, those who are nearest in blood, shall take the estate. And the second proviso declares, “that when the estate came to the intestate by gift from the father, or by gift, devise, or descent from the ancestors of the father, the same shall descend to the father only, if living, in preference to the mother. And, when the estate came to the intestate by gift from the mother, or by gift, devise, or descent from the ancestors of the mother, the same shall descend to the mother only, if living, in preference to the father.”

This statute is inartificially framed, and its meaning is somewhat obscure. It does not, in express, terms, repeal any former rule of succession or descent, and as a construction which would have that effect, by implication, is not favored, it can only be construed a repeal of the former law, so far as it is so clearly repugnant thereto, that the two cannot stand together.

In what respect, then, and to what extent, is the act of 1842, inconsistent with the former law? By the acts of 1784, ch. 22, § 7, and ch. 10, § 3, if the intestate died seized of an estate of inheritance, without leaving issue, or brothers or sisters, or the issue of such: and such estate was derived from either parent, it vested, in fee simple, in the parent from whom the same was derived: But if the estate was “actually purchased, or otherwise acquired by such intestate,” then it vested in the father, if living, but if dead, then in the mother for Ufe, and after the death of the mother, then in the heirs of the intestate on the part of the father: and for want of heirs on the part of the father, then in the heirs of the intestate on the part of the mother forever.

It is true, that by force of the general words of the enacting clause of the act of 1842, taken alone, and without reference to the proviso, any estate of which the intestate died seized, irrespective of how it was acquired, whether by descent or purchase, would go to the father and mother as tenants in common: and if either was dead, to the survivor; and if both were dead, then in equal moieties to the heirs of the father, and the heirs of the mother. But when we look to the proviso, it is obvious, that such is not the intention or proper exposition of the . statute.

The proviso qualifies' and restrains the generality of the enacting clause. It excludes, in express terms, the operation of the enacting clause, in case the estate came to the intestate by gift from either parent, or by gift, devise or descent from the ancestors of either parent: thus clearly demonstrating that it was not the intention ‘of the legislature to alter the rule established by the act of 1784, giving preference to the heirs of the line, from or through which the estate was derived by the intestate.

And this being so, there is nothing left for the enacting clause to operate upon, but such estate as the intestate may have acquired otherwise than by gift from either parent, or by gift, devise or descent from the ancestors of either parent. If the substance and meaning of the proviso were incorporated in the enacting clause, no question could have arisen as to the proper interpretation and meaning of the statute: and yet, the construction must be the same, as if it had been so incorporated.

We are not called upon, in the present case, to expound what is meant by an estate in the intestate, by “gift” from the father or mother, or by “gift,” devise, or descent from the ancestors of either — no question having been made as to the meaning of these expressions. The words used to define the modes of acquisition are not technical, and are different in meaning from the common law terms, “descent” and “purchase.”

The policy of the statute would seem to be, to distinguish between such estate of the intestate as he may have acquired, in any mode, from either parent, or either parental line, and such estate as he may have acquired otherwise. And that, in the former case, the estate should go to the parent, or relations* of the line whence “it came.” And in the latter case, that it should go in equal moieties to the parents, if living, or the survivor: and if both were dead, then in like manner to the heirs of both.

This construction gives ample operation to the act of 1842, and effects a very important alteration of the former law.

By the act of 1784, in a case like the present, the father would take the entire estate in fee simple, to the exclusion of the mother: the mother could only take in the event of the father’s death in the life of the intestate, and then only a life estate, with remainder to the heirs on the part of the father. But under the act of 1842, if both parents be living, the mother takes an equal moiety, as tenant in common with the father: if the father be dead when the descent happens, the mother takes the entire estate in fee: And in the event of the death of both parents in the life of the intestate, the heirs of the father, and the heirs of the mother take the estate in equal moieties. It is scarcely necessary to trace the confusion and derangement of the established rules of succession, and the absurd consequences -which would result from the construction contended for by the complainants. The construction we have put upon the statute, while it leaves important principles untouched, is, we think, in accordance with the spirit and meaning of the law. In this view the decree of the chancellor is erroneous, and will be reversed.

Oaruthers, J.,

dissenting; being of the opinion that the act of 1842, will not admit of the construction given.  