#### West et al. vs. Williams et al.

A devise to A. for life, with remainder to B., does not lapse by the death of A., in the-lifetime of the testator, but vests immediately in B. on the death of the testator.

"Where lands are devised by a maternal ancestor, the devisee, though he acquires the land by purchase, holds them as an ancestral estate ex pm-te materna; and, upon his death, without issue, those only of his heirs who are of the blood of such maternal ancestor, can inherit. Kelly's Heirs et al. vs. Mc&mire el al., amte.

"Where lands and personal estate are both devised, charged with legacies, the personal estate must first be exhausted in the payment of the legacies, before resort can be had to the land.

A minor son, possessed of real estate, dies withont issue; the father enters upon the ' land, claiming as heir to the son, and mates valuable- and lasting improvements: he is entitled; in equity, to- set off such improvements against the rents and profits.

*683 Cross Appeals from the Pulaslci Circuit Court im Chamcery.

Hon. ¥k. H. Field, Circuit Judge.

Pike & CuMMINS, for tbe appellants,

West et al. Tbe first question in this case, is, wbetber the intestate, Eugene L. H. "Williams, took, at tbe death of tbe testatrix, the share devised to bis mother, Henry E. Williams, for life ;• or wbetber that legacy of tbe residuum lapsed.

Tbe general principle as to lapsing is, that wills not taking effect until tbe testator’s death, can communicate no benefit to persons who previously die. 1 Jarman on Wills, 293. But this rule does not extend to a legacy given, over after tbe death of tbe first legatee ; for, in such case, the legatee, in rema/imd&r, is mtitled to have it immediately. Prescott, adm. vs. Prescott, 7 Metcalf 141; Doe vs. Roach, 5 M. da 8. 482; Uophims vs. Iloplmis, 2 AtK 581; 2 Jarmam 671; 2 Vern. 378; 2 Allí. 320; 2 Keene 555.

It is clear, therefore, that the lands in Arkansas belonged to tbe heirs'of Mrs. Williams’ child. Who those heirs are, is to -be ascertained by tbe laws of Arkansas. Tbe estate came to tbe child from Mrs. Taylor, its grandmother; because, the child did not take thro’ its mother at all- — 'but \>j pwrchase, and not by descent.

When legal terms are used, they are to be understood in a legal sense; technically, the words “purchase,” and “on the part of,” used in a .statute, are to be construed as at common law. Ba/rn-its, Lessee vs. Casey, 7 Cranch 468;Uall vs. Jacobs et al., 4 Ua/rr. da John. 254.

Pwrchase, taken in its most extensive, sense, is thus defined by LyttletoN : “ The possession of -land, n&c., which a man hath by his own act or agreement; contradistinguished from acquisition by right of blood; a/nd includes emery other mode of comimg to am estate.” 2 Bla. Com. 241.

The intestate in this ease, taking by devise from his maternal *684grandmother, took by purchase. "When t-lie estate vested in him? his mother was dead. He dies, possessed of the land, in fee. To whom did it go on his death ?

The counsel contended that the complainants, who are the heirs at law of Mrs. E. M. 0. Taylor, must take the land, to the exclusion of the other heirs (the defendants) of Mrs. Henry E. Williams, not of the blood of Mrs. Taylor, and after quoting and commenting upon the several sections of the statute of descents and distributions, cited Gardner vs. Collins, 2 Peters 58/ 1 Lomax 588/ 2 Bla. Com. 221/ Ilall vs. Jacobs, 4 Ilamr. da John. 256/ 2 Hilliard on Peal Estate, chap. 77, sec. 68/ 4 Kent 405/ Torray vs. Shaw, 3 Edw. 360/ Conn. Stato, 204, 5 id. 34, 5/ Lewis vs. Gormam,, 5 Pa/rr. 164; WalkeSs ad/m. vs. Smith, 3 Yeates 480/ Shippen vs. Iza/rd, 1 Serg. & Pa/wle 226/ Bevcm vs. Taylor, 7 Serg. da Pawle 397/ Majjit vs. Ciarle, 6 Watts & Serg. 253/ StewmTs Lessee vs. Jones, 8 Gill da John. 1/ Burgwyn vs. Devereaux, 1 Ire. 583/ Piplcim, vs. Coot, 1 Law Repos. 104/ 2 Murph. 231/ Ham vs. Martin, 1 Hcvwks 423; Butler vs. King, 2 Yerg. 116.

It seems to us that, with the light which the law in other States sheds upon the subject, there ought to be no great difficulty in construing our own statute. “If the estate come by the mother, it shall descend to the onother and her heirs,” is the language of the statute. The 29th section then explains the words “come by the mother,” to mean the same thing as the words “come on the pa/rt of the mother,” and provides that the expression shall be construed to include every case where the inheritance shall have come to the intestate by gift, devise, or descent, from the parent referred to, or from any relative of the blood of such parent.

The common law followed invariably the line of the blood. It is not presumed that a statute is intended to change the common law any further than it does so expressly: and, in the 12th section, the Legislature, by excluding relatives of the half-blood where the inheritance comes to th§ propositus by gift, devise or descent, from a/ny one of his ancestors, and providing that in every such case, all who are not of the blood of that ancestor shall be ex-*685eluded, malee their meaning and intention, in the other sections, perfectly apparent. Section 12 shows, evidently that they meant to carry out the principle that, in all cases whore an estate comes to the intestate, from a particular ancestor, only such of his next of kin as are of the blood of that ancestor shall take.

The stcotutory definition of the meaning of the expression “come on the part of the father,” or “mother,” is only the interpretation which the courts would have given to it, on general principles, and in carrying out the leading object of the law under the controlling intention of the Legislature, in the same manner as they construe the word “children” in a devise, to include grand children, which is now well settled. Ewirng vs. Hcmdley, 4 Lilt. 349/ Drayton vs. Drayton, 1 Descm. 327/ Deveaux vs. Ba/rnwell, 1 id. 499/ Izard vs. Izard, 2 Desau. 303/ Tier vs. Pewnell, 1 Edna„ 354/ Marsh vs. Hague, id. 174/ Smith's ease, 2 Desau. 123, n./ Cooke vs. Brookem'g, 2 Vern. 106/ Beeves vs. Bry&r, 4 Ves. 698/ Boyle vs. Hamilton, id. 439/ Mowatt vs Oa/row, 7 Pcdge 328/ Badoliff vs. Buckley, 10 Ves. 195/ Ea/rlof Oxford vs. Churchill, 3 Ves. & Bea. 69.

Is Dr. Williams -entitled to have the legacies reimbursed to him? In other words, were they charged on the land? His son was legatee of one-third of the negroes, all the land, and the residue of all other property. “Out of the estate,” so devised, these legacies were payable.

Chancellor Kent said, in Livingston vs. Hewhirk, 3 J. O. B. 319: “It is too well settled to be questioned, that the personal estate is to bv first applied to the payment of debts and legacies; and that a mere charge on the land will not exonerate the personal estate, nor anything short of express words, or plain intent in the will of the testator.” That this is correct, and that the personal estate, where real and personal estates are jointly charged with the payment of debts or legacies, is to be first applied, and the real estate only when the personal estate falls short, is undeniable. See, fully in point, Duke of Ancaster vs. Ma/yer, 1 Bro. G. G. 454/ Lawson vs. Hudson, id. 58/ Bwrtón vs. Knowlton, 3 Ves. *686 Jr. 108/ Bmvmmel vs. Prothero, id. 113/ Tait vs. Lord North-wick, 4 Ves. 823/ Hartley vs. Hwrle, 5 icl. 546/ TPaisow, vs. Brick-wood, 9 id. 453/ Hancock vs. Abbey, 11 id 188/ TP"&>5 us. Jones, 1 Cox 245/ £?«•«/ us. Mvnnethorpe, 3 Ves. 103/ Bootle vs. Bl/un-dell, 1 Meriv. 227/ Walker vs. Jackson, 2 Atk. 624/ Kidney vs. Goussmaker, 1 Ves. Jr. 436/ Hamilton vs. Worley, 2 id. 62/ Git-tins vs. Steele, 1 Swanst. 28/ iNii «5. Raymond, cited 2 Hiic. 434/ ChcpUn vs. Qhaplin, 3 P. Wms. 364/ Gallon vs. Hancock, 2 Ath. 424/ Wride vs. Glcwk, Dick. 372/ Davies vs. Topp, 2 Bro. O. G. 259, n.j Mannin vs. Spooner, 3 Ves. Jr. 114/ Ha/rwood vs. Og-ta/nder, 6 Ves. 199/ S. G. 8/ id. 106/ Milnes vs. Slater, 8 Ves. 295/ Minor vs. Wicksteed, 3 Bro. G. G. 627/ Austen vs. Halsey, 6 Ves. 475/ Nyssen vs. Gretton, 2 Yo. & Coll. 222/ Davis vs. Da/rd/ner, 2 P. Wms. 188/ Pa/rker vs. Fearnley, 2 Sim. <& Stu. ■592/ Dol/mcm vs. Smith, Pre. Oh. 456, cited 1 Ropter on Leg. 696/ Philips vs. Philips, 2 Bro. O. C. 274/ Fitzgerald vs. Field, 1 Russ. 428/ Halsewood vs. Pope, 8 P. Wms. 324/ Lord Inchi-qui-n vs. French, Amb. 33/ Scmvwelltvs. Wake, 1 Bro. O. G. 144/ Rhodes vs. Rudge, 1 Sim. 79/ McGlellcvnd vs: Shaw, 2 Sch. & Lef. 538/ Walker vs. Ha/rdwick, 1 Myl. & K. 396/ Roberts vs. Roberts, 18 Sim. 337/ Brydges vs. Phillips, 6 Ves. 567/ Ald-ridge vs. Lord Wallscourt, 1 Ball do Beatt. 312/ Tower vs. Lord Rous, 18 Ves. 132/ Seaver vs. Lewis, 14 Mass. 83/ Lupton vs. Lupton, 2 J. C. R. 614/ Tole vs. Hcvrd/y, 6 Oowen 333/ Wright vs. Deevn, 10 Wheat. 204/ Gridley vs. Andrews, 8 Conn. 1/ Down-ma/n vs. Rust, 6 Ra/nd. 587.

Fowler, for Williams et al.

By the the first section of our statute of descents and distributions, the estate of Eugme, so dying intestate, is giving absolutely to tbe father. How far it is qualified, by other sections of the same act, is the question here, and produces the great difficulty in its construction.

By the 10th section, where'the estate is a new acquisition, it is made to ascend to the father Turing his life, &c. Gren. Williams, my client in this case, insists first, that the estate ascended *687to him in fee, on tbe death of his son, under the first section of the statute; and that this section should not be trammelled by subsequent sections of the staute of doubtful bearing. But, if not his, in fee, that under the circumstances of the' case, and the heavy legacies charged upon it, that under the 10th section, it became a new acquisition in the hands of his son; and ascended to the father for his lifetime. And that such legacies were so charged upon the estate, and so changed its nature and condition, he refers to 1 Roper on Leg. (ls£ Am. Ed. 1829,) p. 448 to 454/ 2 Vern. Hep. 708; Trott vs Vernon, 3 Brown Oh. Rep. 731, Minor vs. Wioksteed.

If these positions be erroneous, he insists that a proper construction of the 10th and 22d sections taken together, (if the latter really applies to the former, and it fails to quote language used in the former,) is that, on the death of Eugene, his estate having come by the mother, or rather by his grandfather, Lewis 0. Taylor, (which the bill admits) must ascend to the heirs of his grandfather, and not those of his grandmother, as the estate clearly came by the grandfather. 1 ■'

And the bill having admitted this fact, the complainants are bound by it.

Or, under the seme sections, whether the estate came to Eugene by devise or by descent, that it came to him “by the mother”• — his own mother, LLemry E. Williams — and should ascend to her heirs/ which heirs are both the complainants and the defendants; and the estate should be divided amongst them ctLl.

But, if none of the above constructions be the true canons of descent, under our statue, it is insisted, on the part of Williams- and his co-defendants, that Eugene did not take, under his grandmother’s will, as devisee, but inherited the land as her sole heir-at law.

For, where land is devised to the heir at law in the same estate; ■which he would take as'heir, the devise is inoperative, and the heir takes by descent as the better title. 2 Dev. {ET. 0. Lam Rep.)-323/ LLoyle et ad. vs. Stone. .

*688And, if Eugene took by descent, his title came by his moth&r, through her blood — for, without her, he could not have inherited at all — -and his estate would ascend to the heirs of Ms mother.

And, if the court should deem this a casus omissus in our statute, and unprovided for specifically, the 13th section provides that the estate “shall descend according to the course of the common law.”

And according to the common law, the heirs at law of Lewis 0. Taylor, the first purchaser, mast inherit. See 2 Blade. Gom., gp. 220.

In any event, Williams, as a trustee, in possession under the will, or acting as guardian by nature for his infant son, or honestly believing the land was liis own, is entitled clearly in this proceeding to be re-imbursed to 'the extent of his expenditures, for permtmant improvements, and for the lagacies which he paid with his own money. The complainants seeking equity, are bound to act equitably.

Mr. Justice Scott

delivered the opinion of the Court.

West and others exhibited their bill in chancery, against Williams and others, for the recovery of a tract of land, and the rents, and profits of the same, from the death of Eugene L. TI. Williams.

The land in controversy, was originally owned by Lewis C. Taylor, who, by his last will and testament, devised it in fee to his wife, Mrs. Elizabeth M. 0. Taylor. During her widowhood, Mrs. Taylor, by will, devised as follows: To her brother, William Overton, one-third of her negroes and $1000 in money; to her sister, Mrs. West, one-third of her negroes for life, remainder to her children; to her daughter, Mrs. Henry E. Williams, all the residue of her estate, including a tract of land in Arkansas (which is the land in controversy) for life, remainder to her children, with a proviso, that if any such child come of age, or married in their mother’s (Mrs. Williams) life time, its share should be then delivered to it. In case of Mrs. Williams5 death, without issue, *689 at h&r death, the property devised to ber to go over to Overton and Mrs. West. If any of Mrs. Williams’ children coming of age, or marrying, and receiving tbeir share, should die in their mother’s life time, its, or their share, “to fall bach into the mass,” and go to Overton and Mrs. West., The clause carrying the property over, on the death of Mrs. Williams, without issue, provides that the whole of her share shall go over, “saving such as may have been allotted off to such of the children ás before directed.”

Mrs. Williams died in the life-time of the testatrix, leaving but ■•one child, a son, Eugene L. II. Williams, who died in infancy, without issue, after the death of the testatrix.

Mrs. Taylor also devised to certain nieces and nephews, legacies to be paid in money to the amount of $1,300 in the aggregate. Then follows item 5th of the will-, in these words: “The foregoing cash legacies and bequests, shall be paid by my son-in-law, Joseph R. Williams, out of the estate hereinafter bequeathed and devised to my beloved daughter, Henry E. Williams, wife of said Joseph R. Williams, and her children, with the accompanying limitation over in certain contingencies, as such estate hereinafter bequeathed to my said daughter and children, is to, and is hereby declared, shall be, and remain in,- the care and under the management. of him, the said Joseph R. Williams, free of rent, interest, or hire, so long as, by limitation aforesaid, said estate shall •remain in the use and possession of my said daughter, Henry E. Williams.” And the 6th item of the will, which gave Mrs. Williams all the residue of the estate — that is, one-third of the ne-.groes, all the land, and all other property, real, personal, and mixed, except a carriage and horses, declares that she is “the same to have and to hold, subject to the legacies aforesaid, separately'to herself and her children,” &c.

Joseph R. Williams, and William Overton were named as executors; and, by a codicil, $1.000 were given to Sarah B. Wilkins, a sister of the testatrix, to “be paid,” in the language of the will, “by my son-in-law, Joseph R. Williams, out of the properly de*690vised my daughter, bis wife.” A copy of the will is made a part of the bill.

The negroes were divided, the other legacies delivered, and the pecuniary legacies paid off as directed by the will; the latter by Joseph R. Williams, out of his own funds.

The will of Mrs. Taylor was executed the 10th of November, .1846, and was admitted to probate in Montgomery county, Tennessee, the 2d of April, 1849. She having died, a short time before, in that State, where Eugene L. H. Williams also died, a month or two after the testatrix. Ever since his death, Joseph R. Williams, his father, has been in possession of the land, and in receipt of the rents and profits. After the death of the testatrix, Joseph R. Williams married Jane T. Wilkins, daughter of Jane Wilkins, vice Taylor, who was a sister of Lewis C. Taylor, the deceased husband of the testatrix.

The complainants are the heirs at law of the testatrix, and the defendants are the heirs at law of Lewis C. Taylor, deceased husband of the testatrix.

Williams, in his answer, also claims the land as heir of his deceased son, Eugene L. IT. Williams, and that if not, that it went to the heirs of his deceased wife, (the mother of Eugene), who are both the plaintiffs and the defendants; that is to say, as well the heirs of the testatrix as of her deceased husband, Lewis C. Taylor. He also sets up that if the land should not be decreed to him, the legacies paid by him should be charged upon it, and the land sold:to re-imburse him, and that the rents and profits should not be charged against him further back than to the 1st January, 185.0; because, under the laws of Tennessee, he has already distributed sounuch of them as accrued for the unexpired portion of the year 1849, as part of the personal ''state of the testatrix. And that against the rents and profits, for which he might be held accountable, all valuable and lasting improvements made upon the land ought to be set off. He also submitted that the charge of the pecuniary lega cies, upon the property devised to his son, so changed its nature as to make- it a.new acquisition and not *691ancestral, within the meaning of the statute, and that thus bis son was constituted a new stock of descent. He does not, however, in any way, allege, or set up that the personalty, devised along with the land, was insufficient to pay off the legacies charged in gross upon the whole estate devised.

The court below decreed the land to the complainants, and that Williams should account to them for the rents and profits, from the 1st day of January, 1850; and directed the master to enquire into, and report the dates when the legacies were paid, the amount of rents and profits, that ought to have been received, the value of permanent and lasting improvements made on the land, with annual rests and interest on both sides. The value of such improvements, and the amount of the legacies paid to be set off against the rents and profits, and that the defendants pay all the costs.

From that decree, both parties appealed to this court.

It is shown, very clearly, by the reasoning, and the authorities cited by counsel on the one side, and is admitted by the counsel on- the other, that, under the facts of this case, the legacy of the residuum to Mrs. ITenry E. Williams for life, with the limitation, over, did not lapse, but immediately upon the death of the testatrix, vested in Eugene L. H. Williams, her grand son. The lands in controversy, then, belong either to all the heirs of the. latter, or else to such of them, onljq as under the provisions of our statute of descents and distributions are capable of inheriting them from him.

Coming to him by devise from his maternal grandmother, Mrs. Taylor, who had taken them by purchase from her deceased husband, and held them as an ancient fee, they were in his hands, an ancestral estate ex parte materna, within the meaning of the 10th section of our statute, explained and enlarged by the 22d section; and the question is, who of the parties in'this controversy, are entitled, under our laws, to inherit these lands from Eugene L. H. Williams, who died intestate, thus seized and possessed of them ?

*692According to the interpretation of the statute in the case of Kelly et al. vs. McGuire & wife et al., decided at the present term, where the whole subject was fully discussed and elaborately considered, it was held that ancestral estates embrace not only descended estates, but also all others, which may have come to the intestate by gift, or devise, from either parent, or from any relative of the blood of either parent, and that, as to all such, it is the manifest intention of the Legislature, upon the death of the intestate, without issue, to preserve them in the line of the blood from whence they come, to the same extent that descended estates-were so preserved at common law-

To carry out this intention, it is obvious, that the same means, must be resorted to, that were used- at common law, to make it effectual as to descended estates, and should these fall short in any case, when applied to estates given or devised, then that analogous means must be used.. Hence, the inevitable principle, substantially announced in the case cited, that to be of the blood of the last purchasing ancestor, in the line of the transmitting' relative, is as indispensable to enable a collateral to inherit, as heir of the intestate, an ancestral estate which was given or devised to the intestate, as to be of the blood of the last purchasing ancestor was, according to the principles of the common law, to enable him to inherit, as heir of the intestate, an ancestral estate which had come to- the intestate by descent. Consequently, whether an ancestral estate come to the intestate by gift, devise, or by descent, upon the failure of issue, it can be inherited by such of his heirs only as are of the blood of the last purchasing ancestor, in the line of the blood from whence it came, either maternal or paternal, as the case may be. 4 Kent 404. And this is in exact harmony with the provisions of the statute in excluding the half-blood and their descendants from inheritances only, when these are ancestral, and they, not of the blood of the-transmitting ancestor.

Upon this ground, not only is Joseph E. Williams, the father-of the intestate, excluded from this inheritance, but also all the *693 next of kin of the intestate on the side of bis grandfather, Lewis. C. Taylor; none of them being of the blood of his grandmother,. Mrs. E. M. 0. Taylor, from whom the estate came to him, and who held it as purchaser. It is, therefore, only the complainants below, all of whom are of this blood, that are called to the inheritance in question.

In response to the position of the counsel of Joseph E. "Williams,, that inasmuch as the devise was to the same person, who would have taken the estate as heir at law, the devise shall be held inoperative, and the devisee as in by descent, it is to be remembered that, although it might be so held, the result would be pre_ cisely the same, because in that case none of his next of kin could have inherited, upon his death without issue, except such onhj as were of the blood of his grandmother, from whom, as representing his mother, he inherited the estate; his grandmother having held it as last purchaser. In that case, however, the result would have been very different, as to future descents from those who, in either ease, would inherit from Eugene and die without issue; because, only such of the heirs of such intestate-inheriting from Eugene and dying without issue, could be called to the inheritance, as were of the blood of Jhugene's grandmother, who would still remain the last purchaser in the line of descents; whereas, under the actual state of the case, Eugene, having taken an ancestral estate by devise from his grandmother, is m by purchase, and thereby becomes himself a stock of descent as to all those who might inherit from those who inherited from him, it being the rule of the American law, as to such future descents of ancestral estates, to stop at the last purchaser, and ascend no higher for blood. Gardner vs. Collins, 2 Peters Rep. 58; 2 Hilliard, chap. 17, sec. 64; 4 Kent 405.

And, in addition to the reasons already given, this rule would peremptorily exclude all the next of kin of the intestate, who-are of the blood of Lewis C. Taylor, even had he (Lewis) been some relative, either paternal or maternal, of Mrs. Taylor, instead of being her husband, and of no kin to her at all — so far as appears *694upon this record — because, although he had been such a relative, and had devised the land to Mrs. Taylor, as he did, in calling the next of kin of Eugene to the inheritance left by his failure of issue, the law would have gone no higher v/p the ancestral line for blood, than to the first purchaser of the estate, who, in that case, also, would have been Mrs. Taylor.

According to the actual state of case, however, as it appears upon this record, the estate, when in Mrs. Taylor’s hands, was not an ancestral estate at all, but a new acquisition, within the definition of such estates given in the case of Kelly et al. vs. McQuire & wife et al.; because, she held it by devise from her husband, Lewis 0. Taylor, who, so far as this record shows, was a stranger to her blood, both paternal and maternal; but, in the hands of Eugene, it was an ancestral estate, expa/rte materna; because it had come to him from his maternal grandmother. And this being so, in accordance with the ancient maxim of the common law, “that he who would have been heir to the father of the deceased, and of course to the mother, or any other real or supposed pwehasinq ancestor, shall also be heir to the son” — a maxim that twill hold universally, except in the case of a brother or a sister .of the half-blood. 1 Black. Com. 223; 1 Lomax on Heal Property, 589. None of the heirs of Eugene could inherit the lands from him, who would not also have been heirs of Mrs. Taylor, his grandmother, and these, in this case, are those who were the •complainants below, to whom the Circuit Court of Pulaski county correctly decreed them.

There being, in our opinion, nothing in the position taken in behalf of Joseph E. Williams, that the legacies, charged upon the whole, estate, devised, real and personal, so changed the nature of the real estate as to make it, in the hands of the intestate, a new acquisition, within the meaning of our statute : And there being no pretence that the personal estate was insufficient to pay the legacies charged in gross, upon the whole estate devised, it is perfectly clear, in the light of the immense array of authority, cited to the point, that so much of the decree as directed that the-*695pecuniary legacies paid by Joseph H. Williams should be set off against the rents and profits of the land since the first day of January, 1850, for which he was properly held accountable to the plaintiffs below, is erroneous, and must be reversed. The residue of the decree is equitable, and ought to be affirmed and executed. The cause will, therefore, be remanded to the Chancery Court for Pulaski county, with instructions to this effect.