Hillhouse v. Chester

By the Court. The statute of distributions, which was in force in this state, at the death of Rachel, places the real property of a person who died intestate upon the same footing as personal: that is to say, both kinds of estate were to be distributed to the same persons, without any regard to the maxim seisina facit stifiitem. The claim, therefore, of the plaintiff to the land in ques211 lion, on the ground that she was the person last ae-tually seised, as next of kin to her, fails; for on Rachel’s death, who left issue Mary Chester, her only child, the lands descended to said Mary, and she was, although a minor, legally seised of those lands as heir to her mother. This has always been the received opinion in this state, and the practice has been conformable thereto, that on the death of an ancestor the descent was cast upon his heir, without any reference to the actual seisin of such ancestor; and the right of such heir to the real property of the intestate was the same as his right to his personal property. The plaintiff cannot, therefore, inherit this estate as next of kin to Rachel. If he can inherit the estate in question, it must be as next of kin to Mary Chester, his niece. It cannot be pretended, that the plaintiff is next of kin to Mary, if we give the same construction to the words which they have received in the English law. The rule of construction, which has obtained in that law, has been uniformly the same, since their introduction into it. By the statute of Hen. ' VIII. administration on the estate o& an intestate is directed tó be given to the next of kin. It has always been held, that to ascertain who this person is, the computation of kindred is to be made according to the rules of the civil law. So too the statute of distributions, enacted in the reign of Car. II. directs, that if there is no issue of the intestate, his personal property shall be distributed to his next of kin. To ascertain who that person is, the computation is always made according to the rules of the civil law. Our statute, which directed that in such añ event the estate of the intestate, both real and personal, should go to the next of kin, was enacted at a time when the aforesaid statute of Car. II., and the construction given to it, was perfectly known. It i§ a sound rule, that whenever- our legislature use a term, without defining it, which is well known in the English [212] law, and there has a definite, appropriate meaning a£« fixed to it, they must be supposed to use it in the sense in which it is understood in the English law. In the present case, the father of Mary was her next of kin, according to the computation of the civil law, being in the first degree, whilst the plaintiff was in the third degree. For the same reason that Mary’s personal estate would have gone to her father by the English statute, both her personal and real would go to her father by our statute, for he is her next of kin; and there is no possibility of resisting this conclusion, unless the term next of kin, when used in our statute, mean to point out one person, when real property is concerned, and a different person, when personal property is concerned. It is to be observed, that there is no intimation in the statute, that those terms are to be understood in two different senses. Both kinds of estate are directed to be distributed to the next of kin. There must be some very cogent reason to induce a belief, that the legislature did not intend, in all cases, that both kinds of estate should go to the same persons. It is claimed that the term next of kin in our statute, as it respects real property, means the next of km inheritable at common law. So that when there are no issue of the intestate living at the time of his death, we must resort to the English common law to discover who may inherit his real property, by which law the ascending line is excluded, and every person in the collateral line, except the next collateral kinsman of the whole blood, who himself is of the blood of the first purchaser. Certain it is, that the statute intimates no such thing. But it is contended, that this is the meaning of the terms, when veal property is concerned. In the English [213] law of descents, we never find these words so used standing alone as in our statute. The rule in their law is, that on failure of issue of the person who died actually seised, his real estate shall go to his next collateral kinsman of the whole blood, who is of the blood of the first purchaser. It would be very strange, that the words next of kin in our law should designate the character just described, when they would not designate such person in their law. Where A. devised a real estate to B. his daughter for life, with remainder over in fee to his next of kin, without other words or explanation, it was determined, that on the death of B. this estate should go to the next of kin, computing kindred according to the rule of the civil law, and not to the next collateral kinsman of the whole blood, &c. If the legislature of this state had discovered an anxiety in other respects to preserve entire the rules of descent established by the common law, it might have furnished some ground for a conjecture in favour of the plaintiff’s claim ; but that is not the -case. Instead of respecting the English law of descents, they have provided, that there shall be no preference given to males; that females shall inherit equally with them; and also, that there shall be no preference given to the eldest male. If then a man dies intestate, instead of the real, property descending to the eldest son, to the exclusion of his brothers and sisters, it descends equally to all his children, whether male or female. The object of our statute is to distribute the estate of an intestate person equally among all those who are in the same degree of relationship; and this object would be defeated, if such construction should be given to the term next of kin as is contended for by the plaintiff. For, 'if we consider the term as meaning such next of kin only as are inheritable at common law, then.no person can inherit to-the intestate, except the eldest male, however many [214] persons 'there may be in the same degree of kindred according to the computation of the civil law. It must be the next collateral kinsman to the intestate of the blood of the first purchaser; for he alone, as the next of kin, is inheritable according to the English law of descents. To adopt this rule, we must give a construction to the terms next of kin, which they have never received before ; and this is to be done in opposition to the manifest intention of the legislature, who enacted the statute. It is opposed to the received opinions among lawyers, and all the modern decisions in this state. New trial not to be granted.