Jackson ex dem. Roosevelt v. Thurman

6 Johns. 322

Opinion

Per Curiam.

The fifth rule, or canon of descent, ill Our statute, regulating descents, (Laws, vol. 1. p. 46. sess. 9. c. 12.) has departed a little from the principle adhered to, in the order of lineal descent, and has carried to an unusual length, the doctrine of inheritance, per stirpes, or by representation. Thus if A. dies seised of land, and his nearest heirs are a brother and two nephews, by a deceased brother, the two nephews must claim by representation, to entitle themselves to a share of the estate with their uncle. But, if A. dies seised of land, and his nearest heirs are a nephew, by a brother deceased, and two nephews by another brother, deceased, in this Case, the claimants all stand in equal degree of consanguinity, being all nephews to the common .ancestor, and might all well inherit equally, or per capita; yet the statute makes them inherit per stirpes, or such share as their patents respectively would have inherited, if living; and, of course, one nephew would take one half of the estate, and the other two nephews the other half. The present is such a case; and it is carrying the doctrine of inheritance, per stirpes, further than it is carried in the case of lineal descent; and further than it was carried in the celebrated novel of Justinian, (118.) from which the " statute of distributions was copied; but it is clearly the language and meaning of the statute. The lessors are, therefore, entitled to judgment, for one equal undivided moiety of the premises, and no more.

Judgment accordingly.