HOLKER

After the opinion was delivered, P. B. Key mentionv. ed that in the opinion the Court had said that an acPARKER. Count ought to be taken, but the decree only directs that the proceedings below should be according to law.

We wish for leave to answer fully before an account be taken, and wish it may be understood that this Court does not mean to prevent a further answer.

MARSHALL, Ch. J. That is the meaning of the Court.

1812.

March 10th.

BARNITZ'S LESSEE v. ROBERT CASEY:

The statute of

descents in

Present.... All the Judges.

ERROR to the Circuit Court for the district of MaMaryland has ryland, in an ejectment brought by the lessee of Barnitz not declared against Casey, to try the title of Barnitz to certain real estate in Baltimore.

how an intes

tate estate shall descend,

rived to the

which was de- The facts of the case were stated by STORY, J. in deliintestate from vering the opinion of the Court, as follows:

his half bro

ther, or from

or

his brother of On or about the 6th of Feb. 1780, Daniel Barnitz died the whole seized of the premises in the declaration mentioned, havblood, or from bis son ing, by his will, devised the same to his wife, Catharine daughter, or Barnitz, in fee, and leaving issue, by his said wife, an from his wife; only child and heir, Elizabeth Barnitz, who intermarstates are left ried with one Charles McConnell, by whom she had an to descend as only child, John McConnell; after whose birth,

but such e

at common

ław.

A. in fee, and

and without

and

some time in 1781, Charles M.Connell died. Afterwards, his A devise to widow, Elizabeth, intermarried with one John Hammond, it he shall die by whom she had one child only, John Barnitz Hammond, under the age and died on the 22d of April, 1788. After her death,' of 21 years, John Hammond intermarried with Elizabeth Anderson, issue, then to and died on the 7th of April, 1805, leaving issue by B. in fee, is a the last marriage, Jane B. Hammond and Henry Hamry devise; and mond, his heirs at law, who are now alive, under whom if B. die be- the Defendant in ejectment claims. On the 7th of April, tugency hap. 1794, Catharine Barnitz died seized of the premises,

good executo

fore the con

CASEY.

volves upon

the contingen

himself heir to

A, be the heir

A. devolves to

having first duly made her last will and testament. By BARNITZ'S that will she devised to the said John M.Con- LESSEE nell, in fee, two certain parcels of land. She then devised another parcel of land, including her mansionhouse to the said John Barnitz Hammond, to the intent and uses following, viz. subject, (as to the rents thereof) pen, it deto certain trusts for the maintenance and education of his heir, and the said John Barnitz Hammond, and for the payment so from heir of certain specific debts of the testatrix, to the to heir until "use of John Hammond, the father, for and during cy happen, "the minority of the said John B. Hammond, if he when it vests absolutely in "shall so long live, provided the said John Hammond him only who "shall maintain, clothe and educate the said John B. can then make "Hammond, out of the rents thereof during his mino- B. the execu، rity; and from and immediately after the said John B. torr devi ee. ،، Hammond shall arrive to the age of 21 year's, or the And although "death of the said John Hammond, his father, which at law of B. "shall first happen," then to the said John B. Ham- yet the execumond in fee. The testatrix then provides, and if it this devolving tory devise "should hereafter happen that the said John M.Connell on him, is not ❝ should die before he shall arrive to the merged in the age of 21 years, precedent es"and without issue, then I give, devise, and bequeath tate, but on "all the estate of the said John M.Connell, which is the death of hereby devised to him, to go immediately to the said the next heir "John B. Hammond, his heirs and assigns forever, of B. One te"And if it should hereafter happen that the said John nant in com"B. Hammond should die, before he shall arrive to the maintain eject66 age of 21 years, and without issue, then and in such ment against "case, after the payment of my debts as above mention- without actual "ed, I give, bequeath, and devise." &c. (the same land ouster. and mansion-house before devised to John B. Hammond) "to the said John Hammond, his heirs and assigns for "ever; and also all the residue of estate herein before "or after devised to the said John B. Hammond, and "not hereby otherwise disposed of, I then, and in such "case, give and devise the same to the said John ،، M.Commell, to hold to him, his heirs and assigns for ❝ever, from and immediately after the death of the said "John B. Hammond as aforesaid; and in case of the “ death of both of my grandsons, under age and with"out issue as aforesaid, then I give, devise, and bequeath all that part of my estate which I have herein " before given to the said John M.Connell, to Charles "Barnitz, of," &c. "to hold to him, his heirs and assigns forever.” VOL. VII.

59

mon cannot

his co-tenant,

BARNITZ'S The testatrix then provides for the payment of her LESSEE debts, by a sale, if necessary, of some of her lots of v. land, on or near church-hill, in Baltimore, and then CASEY. proceeds, "And I give and devise all the rest "and residue of the said lots on or near church-hill "aforesaid, and all my estate therein (subject ne"vertheless to the devises aforesaid) to my said grand"sons John M.Connell and John B. Hammond, their heirs and assigns forever, to be equally divided between them, share and share alike, as tenants in common, "and not as joint tenants." After some intermediate bequests, the testatrix devises all the rest, residue, "and remainder of her estate, real and personal, to the " said John M Connell and John B. Hammond, their heirs "and assigns forever, to be equally divided between them, share and share alike."

John M.Connell attained his full age of 21 years, married, had issue, and afterwards on the 7th of April, 1802, died without leaving any surviving issue. And John B. Hammond died on the 12th of February, 1808, under the age of 21 years, and without issue.

The lessors of the Plaintiff are the children and heirs at law of Charles Barnitz, who was the only brother of Daniel Barnitz, the testator. And upon the defect of lineal heirs, the said lessors claim as next heirs, in blood, of John M'Connell, on the part of his mother Elizabeth Barnitz, the daughter of Daniel Barnitz. It is admitted that the inheritable blood is extinct on the part of Charles M.Connell, the father of John M'Connell.

At the death of John B. Hammond, the property consisted of four descriptions; which it may be proper to enumerate.

1. The land specifically devised to John McConnell, with a limitation over to John B. Hammond.

2. The land specifically devised to John B. Hammond, with a limitation over in fee to his father.

3. The moiety of the church-hill lots, and the residuary estate devised to John McConnell, in fee.

4. The moiety of the church-hill lots, and the residu- BARNITZ'S ary estate devised to John B. Hammond in fee, with a li- LESSEE mitation over to John M⭑Connell.

At the time of the death of Catharine Barnitz, (as she survived her daughter) her two grandsons, M.Connell and Hammond, were her heirs at law.

HARPER, for Plaintiff in error.

1. As to the devise to John M'Connell, with limitation over, in case of his death under age, and without issue, to J. B. Hammond. This was a fee simple in M.Connell, with a conditional limitation, and not an estate tail. 1. Fearne on Contingent Remainders, 9, 10, Dublin ed, 1795. id. 409. Powell on Devises, 261. 7 T. R. 589. Shears v.Jeffrey. Plowd. 408. 3 Co. 10. Carthew,175. Dyer,127.

Upon J. M.Connell's arrival at full age he had an absolute estate in fee, because the condition never could happen which was to defeat his estate,

As he took by purchase, and not by descent, and as at the time of his death he left neither child, nor brother or sister of the whole blood, the estate descended, according to the statute of descents in Maryland, to his brother of the half blood, John B. Hammond.

J. B. Hammond took it by descent, through his mother, and therefore the estate descended to him" on the part of his mother," within the meaning of the statute.

He certainly took by descent, and not by purchase ; and the commune vinculum, which connected him with his brother, must be traced through his mother.

The statute was intended to prevent escheats pro defectu sanguinis, and to provide for all cases.

The legislature meant to comprehend all cases in three classes.

1. Where the estate had descended to the intestate, on the part of the father.

2. Where it had descended, on the part of the mother; and

7.

CASEY.

BARNITZ'S 3. Where it had vested in the intestate by purchase, LESSEE and not derived from or through any of his ancestors.

v. CASEY.

The Court will not suppose that the legislature has omitted to provide for the case where the estate has descended from a brother to a brother, but will rather place the present case in the second class.

The legislature did not mean to limit the 2d class to cases where the estate had descended from the mother, because it provides, that if there be no child or descendant of the intestate, the estate shall go to the mother: And it would be absurd to say, that an estate which had descended from the mother, should descend again to the mother. So if the estate had descended from the mother's father directly to th mother's son. it would be an estate which had descended to the son on the part of his mother, and yet it had not descended either from or through his mother, for the estate had never vested in her. The statute must mean every case where the blood must be traced through the mother; every case where the mother is a link of the chain which connects the intestate with the person from whom the estate descended to him.

This estate, therefore, must be understood, as having descended to J. B. Hammond, on the part of his mother; and therefore, inasmuch as at his death, he left neither child nor descendant, nor mother, nor brother or sister of the blood of the mother, nor descendant of such brother or sister, nor grandfather on the part of the mother, nor descendant of such grandfather, nor father of such grandfather, and inasmuch as the lessors of the Plaintiff are the descendants of the father of such grandfather. the estate must, by the provisions of the statute, descend to them.

2d. The devise to John M Connell, in fee, of the moiety of the church-hill lots, and of the general residuum, vested in him a fee simple estate from the beginning. He took by purchase under the will. It descended to J. B. Hammond by the same rule of descent as in the former case, and by the same construction of the statute has descended from him to the Plaintiffs.

3d. The third case under this will, is that of the specific devise to J. B. Hammond, with limitation over, in