Greenlee v. Davis

Davison, J. The appellant, who .was the plaintiff, sued Davis and Cassman, for the partition of real estate. Demurrer to the complaint sustained, and final judgment for the defendants. The following are conceded to be the facts of the case, as alleged in the complaint: On the 16th day of June, 1827, one Abraham Burnett made his will, by which he devised to his nephew, Richard Davis, a section of land, known as Section No. 6, in the Burnett reservation at the mouth of the Tippecanoe river, in Tippecanoe county, Indiana. By this will the said Richard Davis became the owner, in fee simple, on the death of his uncle, the said Abraham Burnett, which occurred shortly after the execution of his will, and prior to the 12th day [61] of May,- 1828. Bichará Davis was the son of one John H. Davis and his wife, who was Nancy Davis, a sister of Abraham, Burnett. Nancy Davis survived her brother, and, after his death, had issue, by her said husband, William B. Davis. Prior to the marriage of John II. Davis to the said Nancy, he had issue a son, John H. Davis, by a former marriage. Nancy Davis died some time after her brother Abraham, leaving, her surviving, her two sons, the said Bichará and William B. Davis; and, in the year 1847, the said Bichará died, intestate, seized of said section of land in fee, and left, him surviving, as his only heirs at law, the said William B. Davis, his brother of whole blood, and the said John H. Davis, the brother of the half blood. Sometime in May, 1857, the said half-brother, John N. Davis, made his will, and shortly afterward, prior to June 10, 1857, died. His will was duly proven; and, by its provision, after devising some fifty acres of said Section No. 6 to Jaorigim Gassman, he makes the appellant his residuary devisee as to that section and some other of his estate. The only title, if any, John JS. Davis had in said Section No. 6, was derived by descent from his half-brother, Bichará Davis; and if he had any inheritance in said section, it embraced the equal, undivided half of it, as co-heir with William B. Davis, Bichard’s brother of the whole blood. The facts above stated appear ■ in the complaint, by which the appellant seeks to have partition of said section so as to set off to him, in severalty, the portion which, he, insists, belongs to him as the residuary devisee under John II. Davis’s will. The only question to settle is: Bid John H. Davis, the half blood brother of Bichará Davis, the intestate, inherit, as to the land devised by Abraham Burnett, equally with William B. Davis, Bichará’s brother of the whole blood? An act, in force when the intestate died, contains this provision : “ Kindred of the half blood, and their descendants, shall inherit equally with those of the whole blood in equal [62] degree of consanguinity to the intestate, unless the inheritance shall have come to the intestate by descent, devise, or, gift, of some of his ancestors; in which case, such kindred of the half blood, and their descendants, shall not inherit, except they also be of the blood of such ancestor; but if, in any such case, there be no relatives of the whole blood, in equal or nearer degree of consanguinity to such intestate, nor their descendants, entitled to take such inheritance, then such kindred of the intestate, of the half blood, and their descendants, shall take the same, as if they were of the whole blood.” R. S. 1843, p. 436, sec. 114. Was Abraham Burnett, the devisor, the ancestor of his nephew, Richard Davis, the intestate, within the meaning of the term “ ancestor,” as used in the provision just recited ? If he was, John H. Davis did not inherit the land in question from the intestate, because, in view of the facts alleged, he was not “ of the blood of such ancestor.” It is, however, argued that, as Nancy Davis, the sister of Abraham Burnett, and mother of Richard Davis, was living at the time of Burnett’s death, Richard was not the heir of Burnett, could not, therefore, have inherited any portion of his estate, and not being such heir, Burnett was not his, Richard’s, ancestor, because the word “ ancestor,” in the connection in which it is used in the statute, is “ the correlative of heir.” While, on the other hand, it is insisted that that word should not be confined in its signification “ to those from whom the devisee, or donee, would have inherited, as heir, under the circumstances as existing;” but that “it embraces all from whom a title, by descent, could be derived under any circumstances.” The latter position seems to be correct. The intent of the statute must govern its construction; and, from the whole enactment, it may be readily inferred that , the legislature did not mean to employ the word “ ancestor ” in its usually defined meaning: but to use it as synonymous with kindred. [63] Richard Davis was of the blood of his uncle, Abraham Burnett, from whom he derived the estate by devise, and it is enough to meet the intention of the law-maker, if, in the absence of a nearer heir, he could have inherited the same estate. And, being thus of the blood of his uncle, from whom, in a given case he could have inherited, it follows, that John H. Davis, not being of the same blood, could not inherit the estate from Richard, his half-brother. Brewster v. Benedict, 14 Ohio, 368. This authority, though not directly in point, enunciates a principle which accords with the view we have taken. See, also, Pricket v. Parker, 23 Ohio, 394. John Pettit, Samuel A. Huff, W. F. La Rue, and Behm and Taylor, for the appellant. Robert Jones, for the appellees. Per Curiam. The judgment is affirmed, with costs.