[365]
Kirkpatrick, C. J.
Much time has been spent in the argument at the bar to show that Stephen Mulford, [*] the devisee, who took by devise, and therefore as a purchaser, was the person last actually seized; and that therefore he must be considered as the propositus, or common stock from whom the inheritance must descend, and not Mary Mulford, his sister, who took by descent. This, I apprehend, has been the more insisted upon in order to get the case clear of the opinion rendered in Den v. Urison ;1 and also to give it [75]*75the favor of what is reported to have been said by my brother RcteSEEL in that case, to wit: That if Wright, the person there left seized, had himself acquired the estate in question, he should have thought that it would go to his sisters of the half-blood by the mother’s side, and by a different father. But what is ascribed to the judge in that report of the case, was never actually expressed by him on the bench, and the manner in which it got into the report was fully and satisfactorily expressed on the hearing.1
I confess I do not clearly comprehend the reasoning of the counsel in this part of his argument. The devise contained in the case, to make the most of it in his favor, is a devise of an estate to the wife during widowhood, which remainder in fee to the grandson Stephen ; a remainder in fee, too, vested, and not contingent. Now no principle can be more familiar than that the possession of the tenant of the particular estate, if it be an estate for years, or his seizin if it be an estate of freehold, is the possession of seizin of the remainder-man; and that because there can possibly be no other during the continuance of such particular estate. Indeed, if there be rent reserved during such particular estate, the remainder-man, in order to make out his possession or seizin, must show that he was in the receipt [*] of such rent. But here there was none. The widow enjoyed without render of any kind. Stephen, therefore, by the nature of the devise, was actually seized of his remainder in the seizin of his grandmother. Her seizin, which was manifestly an actual seizin, was his seizin, and dying so seized, his estate descended to his sister Mary, who, upon the descent cast, become seized in like manner, and so continued till her death.
[76]*76The law never could be guilty of such an absurdity as to defeat a remainder, because the remainder-man [366] was not, himself, actually seized in the sense here contended, during the continuance of the particular estate. It would be requiring, in a case like this, an absolute possibility, which can never be supposed.
Mary Mulford, therefore, named in the case stated, is to be considered as the propositus or stock from whom the inheritance descends. But whether Mary or Stephen, it will not make the least difference in the view I shall take of the case. If I am right in this, the question which presents itself for consideration, has already been decided in this court, in the case of Den v. Urison. But as there was a difference of opinion on the bench in that case, and as the person last actually seized being a purchaser, or taking by descent, may be thought to make some difference as to the inheritance, I must beg leave to express my opinion a little more fully, with the reasons on which it was founded.
The lessors of the plaintiff, being the brothers and sister of the half blood by the mother’s side, claim this inheritance against the patruus or uncle by the father’s gide; and this without any pretense, as is manifest from the case, that the said inheritance déscended from the mother.
In order to place this question in the clearest light, it would be necessary to take a view of the rules of descent as contained in the common law; to show the reason of excluding the half blood, and in what cases [*] that exclusion had been thought to operate hardly, and in what not. It would be unprofitable however to go into this detail at this day, and in this court. It is sufficient to say, that though the exclusion of the half blood has been thought to be a hardship in some cases, yet it has not been thought to be so in all. So well have men been satisfied with the old feudal principle, to wit: that the feud should always descend to the blood of [77]*77the first feuditory; and also with that other principle, in early times engrafted upon it, to wit: that on every new purchase, the purchaser should hold the lands so purchased, ut feudum amtiquum, as an ancient feud, that is, as an estate descended to him from his remote ancestors: I say, so well satisfied have men been with these principles, that the justice and correctness of them, have never, so far as I know, been called in question.
Upon the exclusion of the half blood by the mother’s side, from an inheritance notoriously descended from the father, no man has been dissatisfied. Nay, Blackstone himself says, that it had been thought highly reasonable. And so also in case the half blood by the father’s side, had been excluded from an inheritance notoriously descended from the mother. Because, in these cases, the land descends according to the [867] feudal principle, to the blood of the first purchaser; or, in the common mode of expi’ession, the estate is kept in the family.
But on the other hand, when the half blood by the father’s side is excluded from an inheritance descended from the father, or the half blood by the mother’s side, from an inheritance descended from the mother, it has been thought a hardship because it is at least preferring a more distant to a nearer relation of the same family, and sometimes causes even the total loss of the estate by its becoming escheated to the lord. The total exclusion of the half blood from the inheritance, Blackstone tells us, is a mere rule devised to aid us in investigating who was the first purchaser or feuditory, or in other words, [*] who is the nearest collateral relation descended from such first purchaser; and this rule in the case last stated, is made to defeat the very end for which it was devised. This is sacrificing the justice of the principle to the rigidity of the rule; it is destroying the substance to maintain the form.
[78]*78The Legislature of New Jersey, on examining this subject, have thought proper to change the law in this respect, and to provide a remedy for this evil, and for this purpose they have enacted, “ That, whereas by the law as it now stands, the issue of an ancestor by one venter, cannot inherit to the issue of such ancestor by a different venter, whereby the real estate of an ancestor in some instances goes out of the family .to the great injury of the remaining issue of such ancestor; For remedy whereof, Be it further enacted by the authority aforesaid, that if any person possessed of, or entitled to a real estate in his or her own right in fee simple, shall die without making a will, disposing thereof, and without any brother or sister, of the whole blood, and shall leave a brother or brothers, a sister or sisters, a brother and sister or sisters, or brothers and sister of sisters of the half blood, the said real estate of such person shall descend to and be' inherited by such kindred, as the case may be, of the half blood in the manner and proportions between male and female, directed by the first section of this áct.”
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[365]
Kirkpatrick, C. J.
Much time has been spent in the argument at the bar to show that Stephen Mulford, [*] the devisee, who took by devise, and therefore as a purchaser, was the person last actually seized; and that therefore he must be considered as the propositus, or common stock from whom the inheritance must descend, and not Mary Mulford, his sister, who took by descent. This, I apprehend, has been the more insisted upon in order to get the case clear of the opinion rendered in Den v. Urison ;1 and also to give it [75]*75the favor of what is reported to have been said by my brother RcteSEEL in that case, to wit: That if Wright, the person there left seized, had himself acquired the estate in question, he should have thought that it would go to his sisters of the half-blood by the mother’s side, and by a different father. But what is ascribed to the judge in that report of the case, was never actually expressed by him on the bench, and the manner in which it got into the report was fully and satisfactorily expressed on the hearing.1
I confess I do not clearly comprehend the reasoning of the counsel in this part of his argument. The devise contained in the case, to make the most of it in his favor, is a devise of an estate to the wife during widowhood, which remainder in fee to the grandson Stephen ; a remainder in fee, too, vested, and not contingent. Now no principle can be more familiar than that the possession of the tenant of the particular estate, if it be an estate for years, or his seizin if it be an estate of freehold, is the possession of seizin of the remainder-man; and that because there can possibly be no other during the continuance of such particular estate. Indeed, if there be rent reserved during such particular estate, the remainder-man, in order to make out his possession or seizin, must show that he was in the receipt [*] of such rent. But here there was none. The widow enjoyed without render of any kind. Stephen, therefore, by the nature of the devise, was actually seized of his remainder in the seizin of his grandmother. Her seizin, which was manifestly an actual seizin, was his seizin, and dying so seized, his estate descended to his sister Mary, who, upon the descent cast, become seized in like manner, and so continued till her death.
[76]*76The law never could be guilty of such an absurdity as to defeat a remainder, because the remainder-man [366] was not, himself, actually seized in the sense here contended, during the continuance of the particular estate. It would be requiring, in a case like this, an absolute possibility, which can never be supposed.
Mary Mulford, therefore, named in the case stated, is to be considered as the propositus or stock from whom the inheritance descends. But whether Mary or Stephen, it will not make the least difference in the view I shall take of the case. If I am right in this, the question which presents itself for consideration, has already been decided in this court, in the case of Den v. Urison. But as there was a difference of opinion on the bench in that case, and as the person last actually seized being a purchaser, or taking by descent, may be thought to make some difference as to the inheritance, I must beg leave to express my opinion a little more fully, with the reasons on which it was founded.
The lessors of the plaintiff, being the brothers and sister of the half blood by the mother’s side, claim this inheritance against the patruus or uncle by the father’s gide; and this without any pretense, as is manifest from the case, that the said inheritance déscended from the mother.
In order to place this question in the clearest light, it would be necessary to take a view of the rules of descent as contained in the common law; to show the reason of excluding the half blood, and in what cases [*] that exclusion had been thought to operate hardly, and in what not. It would be unprofitable however to go into this detail at this day, and in this court. It is sufficient to say, that though the exclusion of the half blood has been thought to be a hardship in some cases, yet it has not been thought to be so in all. So well have men been satisfied with the old feudal principle, to wit: that the feud should always descend to the blood of [77]*77the first feuditory; and also with that other principle, in early times engrafted upon it, to wit: that on every new purchase, the purchaser should hold the lands so purchased, ut feudum amtiquum, as an ancient feud, that is, as an estate descended to him from his remote ancestors: I say, so well satisfied have men been with these principles, that the justice and correctness of them, have never, so far as I know, been called in question.
Upon the exclusion of the half blood by the mother’s side, from an inheritance notoriously descended from the father, no man has been dissatisfied. Nay, Blackstone himself says, that it had been thought highly reasonable. And so also in case the half blood by the father’s side, had been excluded from an inheritance notoriously descended from the mother. Because, in these cases, the land descends according to the [867] feudal principle, to the blood of the first purchaser; or, in the common mode of expi’ession, the estate is kept in the family.
But on the other hand, when the half blood by the father’s side is excluded from an inheritance descended from the father, or the half blood by the mother’s side, from an inheritance descended from the mother, it has been thought a hardship because it is at least preferring a more distant to a nearer relation of the same family, and sometimes causes even the total loss of the estate by its becoming escheated to the lord. The total exclusion of the half blood from the inheritance, Blackstone tells us, is a mere rule devised to aid us in investigating who was the first purchaser or feuditory, or in other words, [*] who is the nearest collateral relation descended from such first purchaser; and this rule in the case last stated, is made to defeat the very end for which it was devised. This is sacrificing the justice of the principle to the rigidity of the rule; it is destroying the substance to maintain the form.
[78]*78The Legislature of New Jersey, on examining this subject, have thought proper to change the law in this respect, and to provide a remedy for this evil, and for this purpose they have enacted, “ That, whereas by the law as it now stands, the issue of an ancestor by one venter, cannot inherit to the issue of such ancestor by a different venter, whereby the real estate of an ancestor in some instances goes out of the family .to the great injury of the remaining issue of such ancestor; For remedy whereof, Be it further enacted by the authority aforesaid, that if any person possessed of, or entitled to a real estate in his or her own right in fee simple, shall die without making a will, disposing thereof, and without any brother or sister, of the whole blood, and shall leave a brother or brothers, a sister or sisters, a brother and sister or sisters, or brothers and sister of sisters of the half blood, the said real estate of such person shall descend to and be' inherited by such kindred, as the case may be, of the half blood in the manner and proportions between male and female, directed by the first section of this áct.”
It has been said at the bar, that the enacting words of this clause are not to be restrained by the preamble thereto; and as the enacting words are general, they must apply to the half blood generally, and in all cases.
It is true, that the preamble does not always restrain more general words in the enacting clause; but-when the intention of the Legislature can be clearly ascertained, that intention will always restrain the generality of the [368] words, or in other phrase, give the object upon which they are to operate. Let us see whether we can discover this.
[*] What is the meaning of the term ancestor in the above section ? It cannot mean the person last actually seized, for by the opposition he is already dead without issue, in the case before us, it cannot be applied to Mary Mulford, for it would be impossible that the old rule excluding the half [79]*79blood, should operate to the great injury of her remaining issue, she being dead without issue, as is manifest from the case. It must mean, therefore, 1 apprehend, him from whom, in contemplation of law, the estate has descended to such person last seized, taking the nearest first, and so proceeding in the ascending line. The word family, too, used in the section, must be taken in that sense in which the law uses it when speaking of descents, and in that restriction it will comprehend only the descendants of such ancestor; those who have his blood running in their veins; and in that sense, is nearly if not quite of the same import as the word issue.
How if John Styles be seized of an estate of inheritance, and marry, and have a son Richard, and then marry again, and have another son Thomas by his second wife; and then die, and the estate descend to Richard, who becomes seized, and he die without issue, the estate, by the rules of the common law, cannot go to his brother Thomas, but an heir must be sought for in the family of his paternal grandfather; so that the estate would go out of the family of John Styles, according to my construction of the word family, and to the great injury of his remaining issue, Thomas. So if Mary Gray be seized of an estate of inheritance, and have issue by diffei’ent husbands, on similar events the very same evil will arise. But besides these two cases, I can conceive of none where the common law doctrine of excluding the half blood, could possibly cause the real estate of an ancestor to go out of the family, to the great injury of the remaining issue of such ancestor. Here, probably because it was by far the most common, the Legislature have stated only the first of these cases, to wit: that of the half blood by the father’s side, and the [*] evil arising from the law as it then stood, on their exclusion from the inheritance descending from their father. Whether the case of the half blood by the mother’s side being- excluded from the inheritance notoriously descended [80]*80from their mother, being in substance, the very same thing, might not be construed to be within the equity of the statute, is a question which will be determined when it presents itself for consideration. The great and the only evil to [369] be remedied is, that the real estate of an ancestor, in some instances, goes out of the family, to the great injury of the remaining issue of such ancestor. • Now if this evil cannot possibly be produced by the rules of the common law in any other than the two cases above stated, it seems to be an irresistible consequence that the act, in its broadest construction, can only apply to them. The Legislature have stated what they conceive to be- the evil resulting from a certain principle of the common law, with respect to the exclusion of the half blood, and they expressly say, that for the remedying this evil, it is enacted, &c., as above stated. Now to construe this act in such a manner as to produce the very evil which by express words it is intended to remedy, seems to be a strange and unwarrantable construction.
In the case before us, Mary Mulford, if she be considered as the common stock, held the estate by descent from the Mulford family, to wit, from her brother Stephen; Stephen Mulford, if he be considered as the common stock, as is contended, being a purchaser, held it, according to a well known principle of the common law, with which this act in no wise interferes, ut feudwm antiquum, as an estate descended from his ancestors, and subject precisely to the same rules of descent, as if it had actually so descended. So that which-soever of them be considered as the person last actually seized, it will make no difference. In either case, the ancestor is to to be sought for in the family of the Mulfords, from whom the estate descended.
If the construction contended for by the plaintiffs [*] should be admitted, and the Piersons and Christies be let in to the inheritance, would this obviate the evil complained [81]*81of? Would this prevent the estate of an ancestor going out of his family, and preserve it to his remaining issue ? Who can possibly be considered as the ancestor of Mary Mulford, in the legal acceptation of that term? Can Pierson or Christie be so considered ? It will not be pretended. Can Anna Mulford, the mother, be so considered? Nothing can be more clear than that the law, in speaking of descents, uses the term ancestoi-, exclusively, to signify the person from whom the inheritance descended; but here Anna Mulford, the mother, never was seized, either in law or in fact, of an estate of inheritance in the premises; she can, therefore, in no view which I have of the subject, be considered as the ancestor of whom the act speaks.
To let in the Piersons and the Christies, therefore, instead of preventing the estate from going out of the family of the ancestor, and preserving it to the remaining issue of such ancestor, would actually carry it out of his family, and wrest it from such issue. It [370] would be creating the very evil which the law is intended to prevent.
Upon the whole; the exclusion of the half blood in this case, is not the exclusion of the issue of an ancestor by different venters, and which it is intended to prevent, which is the case mentioned in the act; it does not carry the inheritance out of the family of the ancestor, according to my interpretation of the term ancestor, to the great injury of his remaining issue, which is the only evil to be remedied by the act; but on the other hand, it keeps it out of the hands of strangers, it preserves it in the family of the ancestor, and casts it upon the remaining issue of such ancestor, to wit: on the issue of Lewis Mulford, the grandfather of Mary Mulford, from whom it actually came. In my opinion, therefore, there must be judgment for the defendant.
Rossell, J.
The more I have considered the third [*] section of our act of Assembly, altering the descent of real [82]*82estate, the more strongly I am of opinion, that our legislature intended to provide only for that particular mischief complained of under the old law, that “ the estate in some instances, went out of the family of an ancestor,” although his child or children might be living; and that they did not intend to do away any of those ancient canons of descent, against which no complaint had been made, and to which no apparent injustice was attached. I therefore concur in the opinion just delivered by the Chief Justice.
Pennington, J.
The case is shortly this. Stephen Mulford died seized of the premises in question, subject to the life estate of his grandfather’s widow, leaving a sister of the whole blood, a brother and sister of the half blood, and úneles and aunts in the paternal line.- Though Stephen Mulford was not in the actual seizin of the premises at the time of his death, yet he being a purchaser, taking by the will of his grandfather, he was capable of transmitting the estate to his heirs. The estate, on the death of Stephen, descended to Mary Mulford, his sister of the whole blood. Then Mary dies, and after her, the tenant for life dies; but as Mary was never actually seized, she cannot make the stock of a new inheritance; and if we remain in this case as at common law, as it is contended by the defendant, in order to find the heir, we must look up the heirs of Stephen, who being the person last actually seized, forms' the stock of' inheritance. This will cast the estate on the eldest paternal ■uncle of Stephen, unless our statute altering the descent of real estate makes a difference.
[371] Our statute, as far as it goes, I apprehend, takes-away the distinction between actual seizin and seizin in law, by using the .words “possessed of or entitled to;” but I do not perceive that this distinction can make any difference in the present case. The heir at law, or the persons to take under the statute, will be the same 'whether we consider Stephen or Mary, the stock of inheritance. [*] Nor can I [83]*83perceive any distinction between this case and the case of Den v. Urison, except that in this case the persons claiming under the statute are of the half blood to the purchaser; in the case of Den v. Urison, they were of the half blood to the person last seized, to whom the estate had come by inheritance, from an ancestor of no consanguinity with the claimants under the statute, which, in my opinion, does not alter the law of the case. If my brethren had delivered the same opinion on this point, I should have thought this case concluded by that. That not being the case, I apprehend the whole is left open. The case, in my apprehension, turns upon the simple question, can the enacting clause of a statute, laying down with perspicuity a new rule or canon of descent, be restrained by reason that the words of the preamble do not express an intent co-extensive with the rule, but not repugnant to it ? The preamble expresses a particular intent. The enacting clause lays down a general rule, which the intent expressed in the preamble is not broad enough to cover; but it must be observed that the preamble does not express an intent different from the rule as applied to this case, giving it the broadest latitude that can possibly be imagined. If I am correct in the statement of the statute, as applied to the case, (and, with deference to my brethren, I do not see how it can be viewed in any other light,) I think that the rules laid down in the books for the construing statutes will not permit the enacting part of a statute to be restrained in the manner contended for by the defendant’s counsel.
I have given my opinion on this question so fully in the ease of Den v. Urison, that it would be useless to repeat it at this time. I am, therefore, of opinion that Mary Mulford, at her death, was eMitled to a vested remainder in fee of the premises in question; and that it descended by the positive provisions of our statute to John and Sarah Pier-son, her brother and sister of the half blood; that the doc[84]*84trine respecting posthumous children does not apply in this case; and, therefore, [*] that the plaintiff ought to have judgment on the demises of John and Sarah Pierson.
Judgment for defendant.
Cited in Fidler v. Higgins, 6 C. E Gr. 153.