Before the Revolution, some of the colonies had passed laws regulating the descent of real property upon principles essentially different from those of the common law. In most of them the common law subsisted until after the close of the Revolution, and the return of peace. It prevailed in Virginia until the act of her Legislature of 1785 took effect, and it was, perhaps, the law upon this subject in "the Northwestern Territory," at the time of its cession in 1784 by Virginia to the United States. With the close of the Revolution came a new state of things. There was no monarch, and no privileged class. The equality of the legal rights of every citizen was a maxim universally recognized and acted upon as fundamental. The spirit from which it proceeded has founded and shaped our institutions, State and National, and has impressed itself upon the entire jurisprudence of the country. One of its most striking manifestations is to be found in the legislation of the States upon the subject under consideration. Of the results an eminent writer thus speaks: "In the United States the English common law of descents, in its most essential features, has been universally rejected, and each State has established a law of descents for itself." 4 Kent Comm. 412.
Another writer, no less eminent, upon this topic says: "In the law of descents there is an almost total change of the common law. It is radically new in each State, bearing no resemblance to the common law in most of the States, and having great and essential differences in all." Reeve, Des. 11.
So far as British law was taken as the basis of this legislation in the different States, it was the statutes of Charles II. and James II. respecting the distribution of personal property, and not the canons of descent of the common law. The two systems are radically different in their principles.
The Ordinance of 1787 contains a complete series of provisions upon the subject. They are the type and reflex of the action of many of the States at that time. The ordinance declared that the estates of persons dying intestate "shall descend to and be distributed among their children, and the descendants of a deceased child in equal parts; the descendants of a deceased child or grandchild to take the share of their deceased parent in equal parts among them; and when there shall be no children or descendants, then in equal parts to the next of kin, in equal degree; and among collaterals the children of a deceased brother or sister of the intestate shall have, in equal parts among them, their deceased parent s share; and there shall in no case be a distinction between kindred of the whole and half blood."
We find here not a trace of the common law. These provisions are diametrically opposed to all its leading maxims. We cannot infer from their silence that anything not expressed was intended to be adopted from that source by implication or construction.
The statute governing the descent of real estate, already referred to, is also a complete code upon the subject of which it treats. It is to be presumed to cover every case for which the legislature deemed it proper to provide. If the same question had come before us under the ordinance, we should have said, with reference to the common law, conflict is abrogation and silence is exclusion. The spirit and aims of the two systems are wholly different. One seeks to promote accumulation - the other diffusion. One recognizes and cherishes the exclusive claim of the eldest son - the other the equal rights of all his brothers and sisters. The latter makes no distinction on account of age, sex, or half blood. We apply to the statute also the remark that silence is exclusion. It speaks in the present tense - of the state of things existing at the time of the death of the intestate, and not of any change or different state of things which might occur thereafter. If the Legislature had designed to provide for this case, according to the rule insisted upon, we cannot doubt that they would have said so in express terms. The statute bears no marks of haste or inattention. We cannot believe it was intended to leave a rule of the common law so well known, and so important, to be deduced and established only by the doubtful results of discussion and inference. The draughtsman of the bill could not have overlooked it, and the silence of the statute is full of meaning.
One class of posthumous children are provided for. We see no reason to believe that another was intended to be included, especially when the principle involved is so important. The intention of the Legislature constitutes the law. That intention is manifested alike by what they have said and by what they have omitted to say. Their language is our guide to their meaning, and under the circumstances we can recognize none other. We cannot go farther than they have gone. The plaintiff in error asks us, in effect, to interpolate into the statute a provision which it does not contain. Were we to do so, we should assume the function of the Legislature and forget that of the court. The limit of the law is the boundary of our authority, and we may not pass it.
The principle contended for was applied in the case of Dunn v. Evans, 7 Ohio, 169. The case is briefly reported, and no arguments of counsel appear. It was also adopted in North Carolina, in Cutlar v. Cutlar, 2 Hawks, 324, and in Caldwell v. Black, 5 Ired. 463. No recognition of it is to be found, it is believed, in any other American adjudication.
The subject was elaborately examined by the Supreme Court of Ohio, in Drake v. Rogers, 13 Ohio St. 21, and Dunn v. Evans, was overruled. It came before the Supreme Court of Indiana in Cox v. Mathews, 17 Ind. 367, and received there also a thorough examination. The result was the same as in the last case in Ohio. The doctrine was repudiated.
The court said: "Under the laws of this State it is contemplated that such change of title from one living person to another is to be made by deed duly executed, rather than by our statutes of descent. . . . The feudal policy of tying up estates in the hands of a landed aristocracy, which had much to do with the shifting of descents as recognized by the English canons of descent, is contrary to the spirit of our laws and the genius of our institutions. It has been the policy in this State, and in this country generally, not only to let estates descend to heirs equally, without reference to sex or primogeniture, but also to make titles secure and safe to those who may purchase from heirs upon whom the descent may be cast. Our laws have defined and determined who shall inherit estates upon the death of a person seised of lands. When those thus inheriting make conveyances, the purchasers have a right to rely upon the title thus acquired. If titles thus acquired could be defeated by the birth of nearer heirs, perhaps years afterwards, great injustice might, in many cases, be done, and utter confusion and uncertainty would prevail in reference to titles thus acquired. We are of opinion that the doctrine of shifting descents does not prevail under our laws, any more than the other English rule, that kinsmen of the whole blood only can inherit."