84 83 successions.82 But even at common law there were some reasonable exceptions to this rule; e. g., where the intestate had not been actually seised of a hereditament in order to make himself the stock or terminus, then the brother of the half blood succeeded before the sister of the whole blood. This was because it was necessary to go back to the seisin of the common father of the intestate and the half blood, and the brother of the half blood was the common father's heir. Blackstone lucidly explains the origin of the feudal or common-law rule which excluded the half blood from collateral successions; it being founded on a presumption that the half blood could not be of the blood of the first feudatory. It is obvious that this rule might apply beneficently to inheritances of family or ancestral estates, but that it had a less reasonable application in successions to those estates acquired solely by the industry of the persons last seised. The Legislature of New York, in 1786, wisely changed the common law in this respect, so as to admit brothers and sisters of the half blood into collateral successions, in every case where the inheritance came from a common ancestor of such whole and half blood; but excluding them in every other case.85 The Revised Statutes carried the same principle much farther.80 But whether it was intended to apply to successions beyond those of uncles and aunts and their descendants is doubtful.87 This act goes not beyond the Revised Statutes in this respect.88 Relatives of the Half-Blood. Thus, under the existing Statutes of Descents, half blood brothers and sisters of intestate and their descendants in infinitums and the half blood brothers and sisters of intestate's father and mother and their descendants in infinitum, are admitted (according to the foregoing rules1), into 90 82 Supra, p. 353; 2 Black. Comm. 228-231. 83 Watkins, Descents, 42. 84 2 Black. Comm. 228; Valentine v. Wetherill, 31 Barb. 655, 658. 85 Laws of 1786, chap. 12; 1 R. L. of 1813, p. 53. 86 1 R. S. 753, § 15. 87 Appendix II, infra, note of revisers to 1 R. S. 753, §§ 15, 16. 88 §§ 90, 91, Decedent Estate Law. 89 § 87, Decedent Estate Law. 90 8 88, Decedent Estate Law; Beebee v. Griffing, 14 N. Y. 235; 4 Kent Comm. 408, 411. Cf. Hunt v. Kingston, 3 Misc. 309. 91 $ 81, 86, 87, 88, Decedent Estate Law; supra, pp. 349, 380, 386, 389. intestate collateral successions (in default of those of nearer degree), unless the inheritance came to intestate from an immediate ancestor who was not of the blood of such half blood collaterals of intestate. Beyond collaterals of the degrees indicated, the common-law rules regulating descents prevail.93 94 92 Ancestor. The term "ancestor," as employed in this section, embraces collateral as well as lineal predecessors in blood and title. But it means the immediate ancestor, from whom intestate received the estate, and not some remote ancestor who may have first acquired the estate by purchase.95 When an estate is derived by intestate by purchase and for value, and not by descent, devise or gift from an ancestor, the exclusion specified in this section has no application, and intestate's collaterals of the half blood share with those of the whole blood." 66 An estate derived by an intestate "C." from his brother "A.” is an estate derived by "C." from an ancestor," " within the meaning of this section, and although "A." in his turn had inherited the estate from their father, "B.," the half brothers and sisters of "A." and "C., not of the blood of "B.," are entitled to share in the inheritance; for "C." derived the estate from his brother "A.," and not from his father " B.," and the half brothers and sisters of "C." were half brothers and sisters of "A.," and, therefore, of the blood of "A." 98 92 Wheeler v. Clutterbuck, 52 N. Y. 67; Valentine v. Wetherill, 31 Barb. 655, 658; Brown v. Burlingham, 5 Sandf. 418; Matter of Wadsworth, 58 Misc. 549. 93 92, Decedent Estate Law. 94 Wheeler v. Clutterbuck, 52 N. Y. 67; McCarthy v. Marsh, 5 id. 263; Conkling v. Brown, 8 Abb. Pr. (N. S.) 345, 350, note; Valentine v. Wetherill, 31 Barb. 655, 659; Matter of Reeve, 38 Misc. 409; Righter v. Ludwig, 39 id. 416, 420. 95 Wheeler v. Clutterbuck, 52 N. Y. 67, 71; Valentine v. Wetherill, 31 Barb. 655, 658; Emanuel v. Ellis, 48 N. Y. Super. Ct. (16 J. & S.) 430; 96 Valentine v. Wetherill, 31 Barb. 655, 660; Brown v. Burlingham, 5 Sandf. 418; Matter of Peck, 57 Misc. 535. 97 McCarthy v. Marsh, 5 N. Y. 263; McGregor v. Comstock, 3 id. 408. 98 Wheeler v. Clutterbuck, 52 N. Y. 67; Valentine v. Wetherill, 31 Barb. 655; Matter of Reeve, 38 Misc. 409; Righter v. Ludwig, 39 id. at p. 420. Uncles and Aunts of Intestate. The principle concerning the rights of those of the half blood to take in collateral successions applies to uncles and aunts of intestate, and to their descendants to the remotest degree."9 99 Beebee v. Griffing, 14 N. Y. 235. When the inheritance § 91. Relatives of husband or wife. shall have come to the intestate from a deceased husband or wife, as the case may be, and there be no person entitled to inherit under any of the preceding sections, then such real property of such intestate shall descend to the heirs of such deceased husband or wife, as the case may be, and the persons entitled, under the provisions of this section, to inherit such real property, shall be deemed to be the heirs of such intestate. Formerly 290a, The Real Property Law (chap. 46, General Laws), chap. 547, Laws of 1895, as amended by chap. 481, Laws of 1901. § 290a. Inheritance from husband or wife.— When the inheritance shall have come to the intestate from a deceased husband or wife, as the case may be, and there be no person entitled to inherit under any of the preceding sections, then such real property of such intestate shall descend to the heirs of such deceased husband or wife, as the case may be, and the persons entitled, under the provisions of this section, to inherit such real property, shall be deemed to be the heirs of such intestate.1 Comment. This section was enacted by chapter 481 of the Laws of 1901, and after the original passage of "The Real Property Law" of 1896.2 3 At first, the meaning of this section did not seem quite plain. The word "inheritance," simpliciter may mean either an estate of inheritance, i. e., a fee simple, or any real property actually inherited. In the former case only will it include estates devised to the intestate. The word "inheritance" in this section cannot possibly be restricted to the meaning prescribed by the initial and defining section of this article. It must be construed as meaning "estate of inheritance." The words " from a deceased husband or wife" must, in order to meet the equity of the statute, be intended to mean on the part" of a husband or wife. 66 1 Repealed by § 130, Decedent Estate Law. 2 Chap. 547, Laws of 1896. 3 Prest. Abst. of Tit. 236; 1 id. 144; I Williams, Real Prop. 419. 42 Black. Comm. 201; Smith, Real & Pers. Prop. 323; § 80, Decedent Estate Law. 5 § 80, Decedent Estate Law. 68 80, Decedent Estate Law and text under $ 84, supra. With such a construction of this section we shall perceive that if an estate be devised to a married person by the husband or wife of such person, or by relatives of the other spouse, and the devisee die without right heirs, such estate, instead of escheating, will now go back to the heirs at law of the other spouse; thus, in practice, cutting down a fee to a life estate, or else making the estate thus devised a “qualified fee," or one by which the heirs of one spouse are made the heirs at law of the other." It will be remembered that neither husband nor wife inherits. from the other. The title of dower is not strictly by inheritance, but by a succession originally called "infeudation," and the dowager at common law holds of the heir, as of the husband's seisin, an estate of freehold not of inheritance. In the same way, tenant by curtesy consummate cannot be said strictly to have derived his estate of freehold for his own life from his wife by inheritance. This section, therefore, can have no application to estates of dowagers or of tenants by curtesy. These are not in any event estates of inheritance, and not inherited. This section must therefore refer to estates derived by a husband or a wife from each other, by gift or devise, or from the relatives of the blood of the other.10 In such case, if the surviving spouse so last seised die intestate, leaving no heirs at law, the inheritance will now under this section pass to the heirs of the other spouse.11 The principle of this section might well be extended by statute to all cases of intestacy of married persons without heirs. Escheats at the present day are very harsh and anachronistic. 7 See Fowler's Real Prop. Law (3d ed.), 174; 1 Prest. Estates, 472. 8 Litt. 393; Watkins, Descents, 83; Co. Litt. 240b; § 190, Real Prop. Law. 9 See under § 80, supra. 1080, Decedent Estate Law. 11 § 91, supra. |