#### Alexander M’Kay, Eliza M’Kay & John M’Kay v. William Hendon.

| From f Biaden.

II having two daughters, A and B. and a son C made his will, and devised his lands to his grandson D, the son of C. The daughters A and B, survived their father; the son C died before him, whereby the grandson 1), who was the devisee of the lands, became one of the heirs at law of his grandfather. A, one of the daughters, died intestate, and without issue. The mother of D married a second husband, by whom she had three children; and D having died, a question arose, whether these children, being of the half blood of the maternal line, were entitled to share in the lands devised to D, he having left at his death, his sister B, of the whole blood, him surviving. Held, that they were entitled under the acts regulating descents, for

D took the lands under the -will, and not by descent. If he had taken by descent, tire sister of the whole blood would exclude brothers and sisters of the half blood.

If a mair devise his land to his heirs without changing the tenure or quality of the estate, the heirs are in by descent; and so in all cases where they take the same estate by will, as they would have taken had their ancestor died intestate.

Where testator devises to his two daughters and their heirs forever, to be equally divided between them, the daughters take by descent and the devise is void; because the words of the devise make them tenants in common, which they would be under the act regulating descents, had their ancestor died intestate.

The design of the act, in directing that the heirs shall take as tenants in common, was to exclude survivorship; for besides the unity of possesssion, they are assimilated to parceners by the unities of title and interest, all coming in by descent from the same ancestor, and claiming the . same interest.

In the case of parceners, a devise to one is good: as, where a man having two daughters devises all to one; she shall take all by the devise, and shall not take a moiety by descent as heir, and a moiety by the devise : for this is not a devise to an heir, because both parceners make the hem, and the one is not an heir without the other.

Here the grandson, the devisee, was not the sole heir of Ins grandfather, tire testator. There were two daughters, his aunts. He must, therefore, be considered as taking all the lands by purchase, and upon his death, the half blood are entitled to inherit equally with the whole blood.

Bill for partition of lands.-r-William James Salter, under whom Complainants and Defendant both claim, died *210in the year 1807, seised of the lands in question, intestate and without issue. William Salter, the grandfather of the said William, died in the year 1802, haring published his jas|. duly executed to pass his real estates, and therein he devised to the said William James, the grandson, in fee, the lands described in the bill. William Salter, the grandfather had living, at the publication of his will and at the time of his death, several daughters ; and an only son Richard Salter, who was the father of William James, died in the life-time of his father, and before the publication of his will. William James had two sisters, Mary and Sarah. Mary died a minor and without issue, and Sarah intermarried with the Defendant, William Hendon. The mother of William" James, after the death of her husband, Richard Salter, intermarried with Archibald M’Kay, and had issue, Alexander, Eliza and John, who are the Complainants in this case, and brothers and sister of the half blood on the maternal side, of William James. It was referred to this Court to decide, whether the Complainants be entitled to any part of the real estate of William James Salter.

Tayiok, Chief-Justice,

delivered the opinion of the Court i

William Salter devised to his grandson, William James Salter, the land in question, and died in 1802, having, when the will was made, several daughters and one son, Richard Salter, who was the father of William James. The daughters of William survived him : his son Richard died before him, whereby William James became one of the heirs at law of his grandfather. Of the two sisters of William James, one died without issue, and the other intermarried with the Defendant. The Complainants are the children of the mother of William James, by a second marriage, and of course his brothers and sisters of the half blood of the maternal line j and the question is, whether the land shall be divided between them and the Defendant’s *211wife, the sister of the whole blood, or whether the latter shall take the whole.

If William James Salter acquired the land under the will and by purchase, the Complainants are entitled to share with the wife of the Defendant: If he acquired it by descent from his grandfather, and the will operated nothing, then the sister of the whole blood will exclude the brothers and sister of the half blood, according to the cases of Pipkin and others v. Coor, and Ballard v. Griffin.* If a man devise his land to his heirs without changing the tenure or quality of the estate, the heirs are in by descent; and in all cases where they take the same estate by will, which they would have taken if the ancestor had died intestate, the law is the same. In conformity with this rule, it was decided, in the case of the University v. Holstead,† that where a man devised to his two daughters and their heirs forever, to be equally divided between them, the devise was void, and they took by descent, because the words made them tenants in common, which they would have been under the act of Assembly regulating descents, had their ancestor died intestate. It had been decided in a case some years before, that where the daughters who wore the only heirs at law, had been created joint-tenants under a will made before 1784, they took by purchase.‡ And in this case, if William James Salter had been the solo heir to his grandfather, there could have been no doubt that he would have taken by descent, and the devise must have been held void. But there were several daughters of William Salter, (how many is not stated) who survived him, and who were consequently his heirs at law, together with William James, and would have been entitled to an equal share with him. Whether all the land, or an equal part, was devised to William James, does not appear from the recoi’d, and we cannot presume either way. Now although the act regulating descents directs that the heirs shall take as tenants, in common, yet I apprehend the-*212design of that was only to exclude survivorship : for in reality, besides the unity of possession, they are generally assimilated to parceners by the unities of title and interest, all coming in by descent from the same ancestor, and claiming the same interest. Suppose the devise in this case to be of all the land which belonged to the grandfather, the testator j it may be asked, what part of it can be claimed as heir, by William James ? Certainly only an equal share with the rest of the heirs 3 and, therefore, to view the case under the most favorable aspect, the devise could only be considered void as to that share, and the devisee would take all the rest as a purchaser under the will. But, upon the supposition that the devise is confined to such share as the devisee would have inherited, I cannot find any solid ground on which it is to be adjudged void. In the case of parceners, a devise to one is deemed good 3 as where one having two daughters, devises all to one 3 she shall take all by the devise, and shall not take a moiety by descent as heir, and a moiety by the devise : For this is not a devise to an heir, because both parceners make the heir, and the one is not an heir without the other. There can be no such descent as the descent of a moiety to one coparcener as heir. If one plead a descent “ Uni Felice et Cohairetti” it will be ill. Besides, if it Avere held that one took a moiety by descent, it must be held, consequently, that the devise, as to a moiety, was void, and then that moiety ought to descend to both, as heirs to the testator, and consequently the devisee would have but three-fourths of the lands where they were devised to her in toto. This Avas determined in the case of Reading v. Royston. † There, B C, having t\yo daughters, one of which had issue a son, and died, devised the land to his son and Ms heirs forever; and the question was, whether the son should take all by the devise, or the one moiety by descent, and the other moiety by devise ? for then, as to that moiety he took by descent, his aunt, the other daughter, would be coparcener Avith him. And it Avas argued, that where two titles concur, the *213elder shall be preferred, and that as to one moiety, which the grandson had by the devise, he had the same estate in it, and none other by the devise, than he would have had without it 5 and, therefore, since the devise worked no alteration in point of estate as to that, the grandson should take it in potiorijure, which was by descent. But it was resolved by the Court, that the grandson should take all by the devise, and could not take a moiety by the descent as heir, and a moiety by the devise.* Much of the reasoning in these cases is applicable to the case before us, and the analogy in principle has considerable strength. The conclusion is, that William James took under the devise as a purchaser, and that the Complainants are entitled to share in the division of the land with the Defendant.

*

1Law Repos, 103. 2 do. 595. 2 Murphey 231. 4 N.C. 237

†

1dem. 406. 4 N.C. 289

‡

Conf. Rep. 291.

†

2 Ld. Raym. 829, 1 Salk. 242, 1 Com. 123 (1702).

*

C. Litt. 163, b. Salk. 242. 2 Ld. Raym, 829.