Andrew S. Wheeler, Appellant, v. A. D. Clutterbuck, Respondent

Andrew S. Wheeler, Appellant, v. A. D. Clutterbuck, Respondent. Section 15 of the statute (1 R. S.,= 753) concerning descents, which provides that, in case an inheritance came to an intestate by descent, devise or gift of one of his ancestors, all those not of the blood of such ancestor shall be excluded from such inheritance, refers to the immediate ancestor from whom the intestate received the inheritance, not a remote “ ancestor,” who was the original source of title. A half-brother or sister, who is excluded from taking by said section 15, is not a brother or sister within the meaning of the last clause of section 6 of said statute, which provides that the mother shall inherit in fee, in case an intestate dies without descendants and leaving no father entitled to take, and no brother or sister or descendant of a brother or sister; in such case the distinction between the whole and the half-blood is retained. The term “ancestor,” when used with reference to the descent of real property, embraces collaterals, as well as lineals through whom an inheritance is derived. R. died intestate, seized of certain real estate, leaving a widow and two children, P. and L. The widow married, and by the second marriage had one son, W. L. then died intestate without descendants, and thereafter P. also died intestate and without descendants, leaving the mother and W. living. Held, that as to the undivided one-half of the land which came to P. by descent from his father, W., the half-brother, was excluded from inheriting, he not being of the blood of P., and that the mother took the inheritance in fee; that as to the other undivided one-half which came to P. by descent from L., subject to the life estate of the . mother, W. took the inheritance subject to such life estate, he having been born of the same mother, and thus being of the blood of L. (Submitted December 24, 1872; decided January 28, 1873.) Appeal from judgment of the General Term of the Supreme Court in the second judicial department in favor of defendant, rendered upon a case submitted under section 372 of the Code. In 1852 Richard Tighe died intestate, seized in fee of two lots in the city of Brooklyn, and possessed of the lots in question, leaving a widow, Ellen, and two infant children, his only heirs-at-law, namely, Patrick Tighe and Letitia Tighe. In 1854 Ellen, the widow, intermarried with one Charles O’Mel, by whom in 1856 she had one son, William John O’Mel, who is now living. In 1864 Letitia Tighe died intestate, unmarried and without issue, aged about fifteen. (In 1866 Charles O’Mel, the second husband, died, leaving his wife Ellen a widow the second time.) In 1869 Patrick Tighe died intestate, unmarried and without issue, aged about nineteen. The question in controversy depends upon who succeeded to the inheritance of the fee of the lots in question upon the death of Patrick Tighe. In 1870 Ellen O’Mel (widow) conveyed the lots in question to the plaintiff herein, by deed dated December 31st, 1869. In 1872 the plaintiff contracted to sell for a valuable consideration and to convey to the defendant, and the said defendant agreed to buy the lots in question. The defendant refused to accept a conveyance from the plaintiff, on the ground that the plaintiff has not a perfect title in fee thereto, for the reason that his grantor, Ellen O’Biel, did not inherit the whole of the fee to the lots in question from her son Patrick Tighe. The parties asked the court to decide whether a good title in fee to the lots in question could be acquired by the defendant, or whether the defendant would acquire one undivided half only of the fee or no fée at all, by virtue of a conveyance from the plaintiff, and to render judgment as if an action for specific performance were pending. Edmund Blarney for the appellant. The half-brother had none of the blood of the ancestor and is excluded from inheriting. (2 R. S., chap. 2, §§ 6, 15, 30 ; Shippen v. Izard, 1 Serg. & Rawle., 222; Bevan v. Taylor, 7 id., 397; Conklin v. Brown, 57 Barb., 265.) A. M. <& W. E. Osborn for the respondent. “ Ancestor,” when used in relation to the succession of real estate, means every person from whom the estate might be inherited, and embraces both lineals and collaterals. (McCarthy v. Marsh, 5 N. Y., 263; Conkling v. Brown, 57 Barb., 269 a.) The common law distinction between the whole and half-blood is abolished, save in exceptional cases specified by the statute. (Beebee v. Griffing, 14 N. Y., 235; Brown v. Burlingham, 5 Sandf., 418.) [MAJORITY — Rapallo, J.] Rapallo, J. The questions submitted to the court in this case are whether, on the decease of Patrick Tighe, his entire estate in the two lots of land descended 'po his mother, so that she could convey a good title to the whole, or whether Wm. John O’Biel, the half-brother of Patrick, inherited from him a share therein. And if the mother did not take the whole land in fee, what share or interest was vested in her, and passed by the conveyance from her to the plaintiff. Patrick Tighe, the intestate, having left no lineal descendants or father, his half-brother, Wm. John O’Biel was, under the provisions of the Revised Statutes (vol. 1, p. 752, § 6, and p. 753, § 15), entitled to inherit from him (subject to a life estate in the mother), unless he falls within the exception contained in section 15, which is in the following words, viz.: “ 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 blood of such ancestor'shall be excluded from such inheritance.” As to the one undivided half of the land which came to Patrick Tighe by descent from his father, Richard Tighe, the half-brother is excluded by this provision, he being the issue of a second marriage of the mother of Patrick, and having none of the blood of Patrick’s father. The other undivided half, subject to a life estate in the mother, came to Patrick by descent from his sister Letitia, who had inherited it from Richard Tighe, their father. Wm. John O’Riel was the half brother of Letitia, as well as of Patrick; all being born of the same mother, but being issue of different fathers.. He was thus of the blood of Letitia; and it was not necessary to his capacity to take under the statute that he should be of the full-blood. (Gardner v. Collins, 2 Peters, 58; Beebee v. Griffing, 14 N. Y., 235; Arnold v. Den, 2 South. [N. J.], 862; Den v. Brown, 2 Halst., 340; Baker v. Chalfant, 5 Whart., 477.) Consequently, he was not barred by the exception, unless the appellant is right in his position that the ancestor referred to in section 15 is the remote ancestor who was last in as purchaser, and is the original source of title (who, in the present case, was Richard Tighe), and not the person seized last before the intestate, and from whom he immediately inherited. We think it clear that section 15 of the statute refers to the descent, devise or gift last preceding the death of the intestate; that the “ ancestor ” referred to is the immediate ancestor from whom the intestate received the inheritance, devise or gift; and that, in the present case, Letitia was such ancestor, and the stock of descent as to the one-half of the premises. The descent from Letitia to her brother Patrick was direct and immediate. He took as her heir, and not as heir of his father. (McGregor v. Comstock, 3 N. Y., 408 ; McCarthy v. Marsh, 5 N. Y., 263.) The term “ancestor,” when used with reference to the descent of real property, embraces col-laterals as well as lineals, through whom an inheritance is derived. (Id; see also Conking v. Brown, 57 Barb., 265.) Valentine v. Wetherill (31 Barb., 655) covers the point relating to the capacity of Wm. John O’Hiel to inherit, and is sustained by the case of Gardner v. Collins (2 Peters, 58), before referred to. Though the statute of Rhode Island which was construed in that case differs in some respects from ours, yet the difference does not affect the question here considered. Our conclusion, therefore, is that the plaintiff did not by the conveyance from the widow of Richard Tighe acquire a perfect title, but that on the death of Patrick the title to the undivided half, inherited by Patrick from Letitia, descended to Wm. John O’Hiel, subject to the estate for life of his mother. This outstanding life estate did not suspend the descent. (16 Johns., 96; 3 Johns. Cases, 214, note; 1 R. S., 754, § 27.) The remaining question submitted is whether the fee of the other half, which Wm. John O’Hiel was by section 15 excluded from inheriting, descended to the mother. The Revised Statutes (1 R. S., 752, § 6) provide that the inheritance shall descend to the mother in fee in case the intestate leave no descendant, father or brother or sister, or descendant of a brother or sister. And it is argued that the mother cannot take the fee under that section, for the reason that in this case the intestate did leave a brother, viz., his half-brother Wm. John O’Hiel. We think that, construing section 6 in connection with section 15,. the true interpretation is that the terms brother and sister as employed in section 6 embrace only brothers and sisters of the whole-blood, and such brothers or sisters of the half-blood as are under section 15 entitled to inherit, and that a half-brother or sister excluded from taking by the provisions of section lo should not be deemed a brother or sister of the intestate, within the meaning of section 6, the distinction between the whole and the half-blood being retained as to the excluded ones. By section 6, if there be no descendants, and the father be dead and the mother and brothers or sisters living, the estate goes to the mother for life and the reversion to the brothers and sisters. These clearly include only brothers and sisters of the full-blood, and such brothers and sisters of the half-blood as are entitled to inherit. Where the same section 6 goes' on to provide how the property shall descend in case the intestate leaves no brother or sister, it must be deemed to refer to such brothers and sisters as are before mentioned, that is, those to whom, if living, the reversion would descend. That portion, therefore, of the property as to which the intestate left no brother or sister capable of inheriting descended by virtue of section 6 to the mother in fee, and passed by her conveyance to the plaintiff. The result is, that under that conveyance the plaintiff acquired an estate" in fee in one undivided half of the property, and an estate for the life of the mother in the other half, the reversion in fee in that half having descended to Wm. J. O’iSliel, and the defendant should' not be compelled to specifically perform his contract of purchase if he is not content to take such title as the plaintiff can give. The judgment of the court below should be affirmed, without costs, they being waived. All concur. Judgment affirmed.