
    Beebee and Wife against Griffing and others.
    Where tbo intestate was seized and possessed of lands which descend to tenants in common, one of them, though not in possession, can sustain proceedings under the statute for partition, the lands being unoccupied.
    Where, by the statute, lands descend to the brothers and sisters of the father of the intestate (1 M. S., 752,<jl0, sub. 1), those of the half blood take equally with those of the whole blood.
    The terms “ the blood ” of the ancestor, in the 15th section of the statute (1 R. S., 753), include his relations of the half blood.
    In May, 1846, Josiah Beebee and Lorenza bis wife filed their petition in the supreme court, pursuant to the statute, for the partition of real estate, situate in the county of Suffolk. The petition stated that the petitioners, in right of the wife, together with Peter W. Griffing and Mary B. his wife, Hannah Wiggins, William H. Wiggins, Orrin J. Wiggins, Albert Wiggins, Sidney S. Wiggins, A. King and Jeanette his wife, Roland T. Swain and Eliza Ann his wife, and William T. Trask, held and were in possession "of the lands described as tenants in common; and that each husband and wife, in right of the wife, and each of the other parties named, were respectively owners of an equal undivided tenth part of the premises. The defendants, Griffing and wife, Hannah Wiggins and William T. Trask, pleaded that they did not, nor did either of them, hold the premises, or any part thereof, in common with the petitioners, at the time of the commencement of the proceedings. They also gave notice that they would prove that the petitioners were not seized or in possession of the premises, or any part thereof, and that they, the defendants named in the plea, were, at the commencement of the proceedings, and ever after, solely seized and possessed of the premises. The issue was tried in 1847 at the Suffolk county circuit, held by Justice Barculo. The following facts were admitted: In 1835 Bradley S. Wiggins died intestate, seized and possessed of the premises, and leaving two children, Susan and Alfred B., who became seized and possessed of the premises as the heirs of their father. Susan, the daughter of the intestate, died in 1843, intestate and without issue, and thereupon her brother Alfred B. became seized and possessed of the whole of the premises, the one moiety descending to him from his sister; and that in 1845 he died, so seized and possessed, intestate and without having issue or lineal descendants, or father or mother, brother or sister, or any descendant of brother or sister him surviving. Brad ley S. Wiggins, the father of Susan and Alfred B., acquired the premises by purchase from a stranger. He was the son of William Wiggins and Mercy his wife, who died before he did. William Wiggins was twice married. By his wife Mercy he had four children, viz., the said Bradley S., Mary B. the wife of the defendant Griffing, Hannah, and Mercy, who married William Trask, and died, leaving the defendant, William T. Trask, who was her only child. The wife of the petitioner, and the other parties named in the petition as owners of an undivided portion of the premises, were children of William Wiggins by his wife Penelope, and were brothers and sisters, of the half blood, to said Bradley S. The above facts having been admitted, the plaintiffs rested. The counsel for the parties who had pleaded, thereupon moved that the plaintiff be nonsuited, or the proceeding be dismissed on the ground that it did not appear that the petitioners were, at the time of presenting the petition, in possession of the premises; that the title of the petitioners being denied, and not having been clearly established, they could not sustain this proceeding for partition unless they proved that they were in the actual possession of the premises; and that in this proceeding the title of the parties to the real estate could not be litigated and determined. The court denied the motion, and the counsel for the defendants excepted. No further evidence was given. The counsel for said Mary B. Griffing, Hannah Wiggins and William T. Trask thereupon requested the court to charge the jury that, they being the next collateral relatives of Alfred B, Wiggins, deceased, of the whole blood, were the owners of the real estate in question. The court declined to so charge, and there was an exception. The court charged the jury that the petitioners were entitled to a verdict, to which there was an exception. There was a verdict in accordance with the directions of the court. The rulings at the circuit were affirmed by the court at a general term in the second district, and judgment rendered, dividing the property equally among the relatives of the whole and of the half blood. From this judgment the defendants, the relatives of the whole blood, appealed to this court.
    J. H. Reynolds, for the appellants.
    I. The motion for a nonsuit should have been granted, because the plaintiffs failed to show that they were seized in fact, or had possession, of any part of the premises described in the petition. Even if they were seized in law, the case on their part-was not made out. 1. The petition alleged that the parties named in it “hold and are in possession of certain lands and tenements, as tenants in common.” The plea averred that the defendants, “ or any of them, did not hold the premises described in the said petition, or any part thereof, together with the said petitioners.” 2. This formed such an issue as put the plaintiffs to the proof of both seizin in law and seizin in fact; and the petition could not be maintained without proof of actual possession as tenants in common. (2 Barb. Ch. Pr., 285; Jenkins v. Van Schaack, 3 Paige, 242; Clapp v. Bromaghim, 9 Cow., 530, 561, 573; Brownell v. Brownell, 19 Wend,., 367; 2 R. S., 576, §§ 1—17, 4th ed.; 2 id., 410, 3d ed.; 3 id., 711, rev. notes to §§ 16, 17, 18, 19; 5 Denio, 385.)
    II. In this, case the inheritance came to the intestate, Alfred B. Wiggins, by descent; one-half from his father, who was the first purchaser, and the other half from his sister, who derived it by descent from the father. In such ease, the 15th section of the Revised Statutes, relat/ve to descents, does not apply, but the estate is left to descend according to the rules of the common law. (2 R. S., 37, §§ 15, 16, 3d ed.; 4 Kent's Com., 404, note b, 5th ed.; Baker or Chalfant, 5 Whart., 477; 2 Bl. Com., 201, 209; 2 R. S., 36, § 5, 3d ed.)
    
    III. The phrase '' of the blood of such ancestor,” in the last clause of the 15th section, includes only those who were held to be embraced in that technical phrase, and means those only of the whole blood. (1 Kent's Com., 461, 468, 5th ed.; 2 Caine's Cases in Error, 151; Yates' Case, 4 John., 359; Matter of Brown, 21 Wend., 316; 1 Edwards' Ch. R., 273; Douglass v. Howland, 24 Wend., 45, 47; 2 R. S., 37, §§ 15, 16, 3d ed.; 2 id., 160, § 79, sub. 12, 3d ed.; 2 Bl. Com., 220, note; 26 Christ., 224, note; Chitty,226, 229,note, 34 Christ., 233, note; 36 Christ.; Hawkins v. Shawen, 1 Cond. Eng. Ch. R., 129; Stat. of Feb. 23, 1786; 1 R.L. of 1813, 53, 54, 64; 3 R. S., 603.)
    
      N. Hill, for the respondents.
   Mitchell, J.

There wras no evidence that any of the parties, plaintiffs or defendants, were in actupl possession of the premises, nor that any other person was in possession. Thus there was no evidence of any adverse possession; and as the case admitted that the first purchaser, and each of his children, died seized in fact, the law, on their death, cast the seizin on and implied the actual possession in those to whom tjjie title descended. If the appellant, Griffing, entered and took possession (as he did not show that he entered adversely), it must have been for the benefit of those who, in law, were cotenants with him. *They therefore were in possession in fact, and could sustain an action for partition.

The next of kin to the person last seized were the sisters, of the whole blood, of his father, and a deseendant of a deceased sister of the father, and the brother and sisters, of the half blood, of the father; and the question is, whether the whole blood shall in such case inherit to the exclusion of the half blood.

The relatives of the half blood claim under § 10 of the chapter of descents (1 R. S., 752), which provides that if there be no heir entitled to take, under the preceding sections of that chapter, the inheritance (if it came to the intestate on the part of the father, as this did by descent) shall descend to the brothers and sisters of the father of the intestate, in equal shares, if all be living; and if any be living, and any be dead leaving issue, then to the living brothers and sisters, and to the descendants of those who have died; and that in all cases the inheritance shall descend in the same manner as if all such brothers and sisters had been the brothers and sisters of the intestate. (1 R. S., 752.) One of these rulés ísí that where there are brothers or sisters, and issue of a deceased brother or sister, each brother or sister takes the same share as if the deceased brother or sister were living, and the issue of the deceased takes the parent’s share. (1 R. S., § 8.) Another of these rules is, that relatives of the half blood shall inherit equally with those of the whole blood in the same degree, and the descendants of such relatives shall inherit in the same manner as the descendants of the whole blood, unless the inheritance came to the intestate by descent, devise, or gift of some one of his ancestors, in which case all those who are not of the bl'ood of such ancestor shall be excluded from such inheritance. (1 R. S., 753, § 15.) The express provision of the 9th section is, that when the inheritance comes to the intestate on the part of the father, and descends to brothers or sisters or their descendants, it shall in all cases descend in the same manner as if all such brothers and sisters had been the brothers and sisters of the intestate. This broad language was used with care, and was intended to be as operative as it is broad. Then these relatives of the half blood and those of the whole blood would each derive title from the person last seized, as if they were his brothers and sisters and he had derived his title from his father, who would stand, for the purposes of the inheritance, as if he were the father of all of them, although by different venters; then, although the inheritance came to the intestate by descent from his ancestor (his father), there are none who arc not of his whole blood.

Mrs. Beebee and Mrs. Griffing, representing the two classes, would inherit as if they were sisters of Alfred, the son of Bradley Wiggins, the first purchaser; and if sisters of his, it must be as descendants of his father, who would Le the common'ancestor.

If that provision'was not intended to have this effect, then the question is, what is meant by the words “ the blood is it the whole blood, or the blood, whether the whole or half? These words occur in the 15th section, allowing the half blood to inherit the same as the whole blood, “ unless the inheritance came to the intestate bv descent, devise, or gift of some one of his ancestors, in which case all those who are not of the blood of such- ancestor shall be excluded from such inheritance.” The appellants contend that “ the blood” necessarily means the whole blood.

In that section “the half blood” is once used, and “the whole blood ” is twice used, showing that the re visors had in their mind what they deemed the most appropriate terms to express the two ideas, and that when they meant to speak of the whole blood they did not trust to any supposed technical meaning that the words “the blood” might have acquired when the feudal system of descents still prevailed, but they selected the popular and ordinary language, which could not admit of any doubt. They cannot be supposed at the close of so short a sentence to have abandoned this clear and cautious language, and to have used, in the sense of “ the whole,” words which, in their popular and ordinarv sense, would include both those of the whole and of the half. If one individual can be said to be of the half blood of his brother, and another to be of the whole blood to him, they both can with propriety be said to be of the blood of him; the term “of the blood” does not indicate the quantity, but simply that there is some of that blood, whether the whole or the half, or a smaller portion. This last is one reason why a phrase was used broader even than the expression, “ whether of the whole or of the half blood.” Brothers and sisters alone can be said to be of the half blood to each other; their descendants, being one degree further removed, cannot be said to be of the half blood to each other, but the two classes are properly described, as in this section, the one as “ relatives of the half blood,” and the other as “ descendants of such relatives.”

In a treatise on descent by the common law, where the rule is imperative to exclude the half blood, and to allow the estate to escheat rather than to admit them to the inheritance (2 Bl. Com., 227), the briefer expression, “ the blood,” might be used to denote those of the whole blood only, because the general rule excluding the half blood would be’ assumed to be properly understood. But in a statute adopting new rules of descent materially changing the common law, and expressly intended to admit the half blood on a par with the whole, except in a single case, no such inference could be drawn, and especially where the statute used the full expression, “ the whole blood” twice in the same sentence, when the whole was meant, and distinguished between the two classes, and treated each as having a portion of the blood of another.

Our laws of descent, as passed in 1786, and in force until 1830, used a different mode of expression, and may possibly admit of a different interpretation; they provided for none of the half blood, except the brothers and sisters of the person last seized; and, as to them, allowed them to inherit ‘ unless the inheritance came to the person last seized by descent, demise, or gift of some one of his or her ancestors, in which case all those who were not of the blood of such ancestor were to be excluded from the inheritance.” “ The v blopd ” might possibly here have meant the whole blood, because it was used in contrast with “ half blood,” and the term “ whole blood ” had not occurred in the statute before.

The spirit and intent of the act were shown by its previous provisions; if the intestate leave no father or mother, and no issue, and no brothers or sisters, the inheritance descends to the brothers and sisters of the father and their descendants, if it came on the part of the father, and only to the mother’s relatives if these relatives on the part of the father fail. If the inheritance came on the part of the mother, it descends to the like relatives on her side, and only on failure of those to the relatives of the father. Thus, in a liberal spirit, it allows those who may have none of the blood of the first purchaser, to inherit, because they are related to the one last seized, and is satisfied with-giving, and does give, the preference to that branch, whether male or female, through which the inheritance was derived to the one last seized. The exclusion in the statute would have taken effect if the estate had come on the part of Mercy, and then the children of Penelope would have been excluded ; or if it had come on the part of Penelope, then the children of Mercy would have been excluded.

Many cases were referred to in an able and elaborate argument by the counsel for the appellants; it is not necessary to notice them all. Cresoe v. Laidley (2 Binney, 279) merely decided that the heir at common law must take when the statute of descent did not apply, and that, the section in the statute providing for the distribution of estates, when the intestate left no mother or brother or sister of the whole blood, did not apply when he left a mother and a brother of the half blood who could not inherit. It in effect decided that when the estate passed from father to son, and the mother then married and had issue", such issue could not take, as not being of the blood of the ancestor from whom the estate came. Collins v. Gardner (2 Peters' U. S. R., 58,) was under a statute of Rhode Island, Collins devised to his daughter, Mary Gardner, in fee: she died, leaving three children, each of whom took from her one-third by inheritance; these all died intestate and without issue; the last was Mary C. Gardner. She left an uncle and aunt of the whole blood, and a brother born of another mother, but of the same father. It was admitted that the one-third, which came to Mary C. from her mother by inheritance, passed to those only who were of the blood of her mother, so the brother who had no blood of the mother .was excluded as to that; but it was unanimously held that the two-thirds, which came' to Mary C. by descent from her brothers, passed to her half brother, who was the half blood to them and to her, though not of the blood of the ancestor who first had title to the land, as she took it, not through her mother, but by immediate descent from her brothers, and they took it by devise, and so, in the common law sense, as purchasers.

The court declared that they all thought “'that the words ‘ of the blood ’ comprehend all persons of the blood, whether of the whole or half blood,” and that the words, “ come by descent, gift, or devise from the parent or other kindred,” mean immediate descent, gift or devise, and make the immediate ancestor, donor or devisor the sole stock of descent.

This decision was made in January, 1829, and, although the Revised Statutes were passed at that time, yet they had not then taken effect. As early as April, 1830, they were amended in many respects (Laws 1830, ch. 320, and other chapters); and, among other things, the law of descent was altered in part (Laws 1830,387), but no alteration was made in the phraseology of the section now Under consideration, although the decision in the United States court must have been known to the revisors and to the legislature. It is fair to infer that both intended that the words should have the meaning given to them by a court of so great influence.

Shippen v. Izard (1 Serg. & Rawle, 222) decides that “ estate coming from the part of the father” means one that came from his side, as distinguished from the mother’s side, and so included an estate coming from the father’s father, and differed from the words “ coming from the father” merely. Bevan v. Taylor (7 Serg. & Rawle, 397) is to the same effect, although many other propositions are discussed in a very elaborate argument, and, among them, one relied on by the counsel for the appellants, that the court is not to extend the statute of descents to cases supposed to be within its spirit, if the legislature has not provided for them. The spirit of a law may be referred to in order to interpret words admitting of two meanings, but not to extend a law to a case not within its fair meaning. Den ex dem Delaplaine v. Jones (3 Hals. N. J. R., 340) holds, that when lands come to the intestate by descent, devise, or gift of one of his ancestors, his brothers and sisters of the half blood, who are of the blood of the ancestor, may inherit; but brothers and sisters of the half blood, who are not of the blood of the ancestor, cannot inherit. The statute allowed brothers and sisters of the half blood to inherit, provided that if the estate came to the intestate by-descent, devise, or gift of some one of his or her ancestors, all those who were not of “ the blood” of such ancestor should be excluded; it also held that this statute made the person last seized, and not the ancestor, the propositus; that they are of the blood of the ancestor who are descended from him, or from the same couple of common ancestors, or who are capable of taking by descent from him. In Arnold v. Den ex dem Phoenix (2 South. N. J. R., 862), the court of appeals of New Jersey held that when lands came to one by gift from her father, her brothers and sisters of the half blood, by her mother’s side, could inherit with the sister of the half blood on her father’s side, reversing a decision of their supreme court. Baker v. Chalfant (5 Whart. Pa. R., 477), decided in 1840, held that “ blood,” used in the statute of descents, included the half blood, and approved of the decision, in that respect, in Gardner v. Collins (2 Peters, 77), and in Den v. Jones (2 Hals., 340).

These decisions concur with the popular sense of the words used, and are an additional argument in favor of the adoption of this meaning. The judgment should be affirmed with costs.

All the judges concurred.

Judgment accordingly.

CASES ARGUED AND DETERMINED LN THE COURT OF APPEALS OP THE STATE OF MW-YORK, SEPTEMBER TERM, 1856.  