Garner v. Wood

Stone, J., delivered the opinion of the Court. A Airs. Mary Harrison died many years ago, seized in fee of a tract of land lying in Calvert County, Maryland. ³⁸ Mrs. Harrison was twice married, first to a man by tlie name of Holland, and after his death to Harrison. She had two children by her first husband, but none by her second.

The two children that she had by her first husband were a son, called Thomas Holland, and a daughter, Sally Holland. Sally Holland married a certain Alexius Wood, and died before her brother, Thomas Holland, leaving Thomas Wood, her only child. Mrs. Harrison by her last will devised the tract of land owned by her to her son, Thomas Holland, in fee. Thomas Holland subsequently died intestate, and without lineal descendants, leaving the said Thomas Wood his only heir-at-law, who duly took possession of the land, and remained in possession up to the time of his death.

Thomas Wood died intestate, and Avithout lineal descendants, or brothers or sisters of the blood of his mother, and the real question in the case is, avIio are his heirs-at-law of this land? The Court beloAv decided that the inheritance Avas governed by the 19th and 20th sections of Art. 47, of the Code of 1860, and that as Thomas Wood had no brother or sister of the Avhole blood, but had brothers of the half blood, the estate should go to the latter. Our Act to Direct Descents provides that if the estate descended to the intestate on the part of the mother, then the estate shall go to the heirs of the intestate of the blood of the mother. If this estate descended to Thomas Wood, the intestate, on the part of his ■mother. then it must go to the heirs of Thomas of the blood of the mother, and the decree beloAv giving it to his half brothers on the part of the father must be reversed.

The important question, therefore, for us to decide, is whether Thomas Wood did take this estate by descent from his mother (there being no question that if he took it by descent at all, he took from his mother,) or whether he took it by purchase or in some other manner ³⁹ than by such descent. Although more than a hundred years have elapsed since the passage of our Act of 1786 to Direct Descents, the identical question presented by this record has never yet, as far as our researches have extended, been decided by this Court. The learned Judge who decided this case below in quite an exhaustive opinion, has referred to all the cases bearing upon the subject, and has based his opinion upon the case of Hall vs. Jacobs, 4 H. & J., 245 . That case comes, perhaps, nearer to the question here than any to which we have been referred, but still we think there is one important difference which should be adverted to, and which will control our decision.

A brief review of the cases may not be amiss. In Stewart’s Lessee vs. Evans, 3 H. & J., 287 , the land in controversy descended from Col. John Stewart to his two children, Jane and.Alexander, and was duly divided between them. Alexander died intestate and without issue, and his sister Jane inherited the land he took by descent from his lather.

Jane died subsequently intestate, and without issue, and the question presented in that case was who was the lieir-at-law of Jane and entitled to the land she took from her brother Alexander. The Court of Appeals decided that it went to the heirs of Jane of the blood of the. father. No opinion, however, was hied by the Court, and we are left to inference as to the ground of their decision. The argument of the distinguished counsel who tried the case for the successful party was this: that the land descended immediately from the sister, and mediately from the father.

It is probable, therefore, that the Court took a similar view. This case was decided in 1812. The next case in chronological order was the case of Hall vs. Jacobs, 4 H. & J., 245 , which was tried in 1817. The facts in that case were these: Richard Jacobs devised his real estate to his three children, Joseph, Rachel and Dorsey Jacobs.

Joseph ⁴⁰ and Rachel died intestate, and without issue, and their surviving- brother, Dorsey, inherited their lands which they took as devisees of their father Richard. Dorsey Jacobs subsequently died intestate, and without issue, and the question before the Court was, who inherited from Dorsey Jacobs the land he inherited from his brother ,and sister. Judge Ciiase in the Court below decided that the land went to the heirs of Dorsey Jacobs on the part of his father, but the Court of Appeals reversed that decision, and decided that the land that Dorsey Jacobs took by inheritance from his brother and sister, who had taken by purchase, did not go to the heirs of Dorsey Jacobs on the part of his father and mother, but that as the case had not been provided for by the Act to Direct Descents then in force, that the land descended according to the rule of the common law. But the omission in the Act of 1786 has been supplied by the Act of 1820, and if the law as announced in Hall vs. Jacobs is adhered