This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
At common law, in case of failure of lineal descendants of the person last seised, the land passed to his collateral relations only when they were of the blood of the first purchaser, by whom the land was brought into the family.48 This rule of the common law survives to some extent in the statutory provisions, found in a number of states, to the effect that, if the land came to the intestate either by descent, or by gift or devise from an ancestor, or sometimes, "on the part of" or "from" his father or mother, it shall pass to such kindred as are of the blood of the ancestor from whom it was derived by him.49 The statutes of this
45. Byrd v. Lipscomb, 20 Ark. 19; Houston v. Davidson, 45 Ga. 574; In re Nigro's Estate, 172 Cal. 474, 156 Pac. 1019; Baker v. Bourne, 127 Ind. 466, 26 N. E. 1078; Snow v. Snow, 111 Mass. 389; Nichols v. Shep-ard, 63 N. H. 391; Staubitz v. Lambert, 71 Minn. 11, 73 N. W. 511; Eshleman's Appeal, 74 Pa. St. 42; Fisk v. Fisk, 60 N. J. Eq. 195, 46 Atl. 538; Wagner v. Sharp, 33 N. J. Eq. 520; Miller's Appeal, 40 Pa. St. 387; Stent v. Mcleod, 2 Mccord Eq. (S. C.) 354; Davis v. Rowe, 6 Rand. (Va.) 355; Ball v. Ball, 27 Gratt. (Va.) 325.
46. Mccomas v. Amos, 29 Md. 132; Odam v. Caruthers, 6 Ga. 39; Crump v. Faucett, 70 N. C. 345; Jackson v. Thurman, 6 Johns. (N. Y.) 322.
The English statute of Distribution has been construed as giving the property to the direct descendants of the intestate, when in equal degree, per stirpes, and to the collateral relatives, when in equal degree, per capita. Lloyd v. Tench, 2 Ves. Sen. 213; Re Ross's Trusts, L. R. 13 Eq 286; In re Natt, 37 Ch. Div. 517.
47. 1 Stimson's Am. St. Law, Sec. 3137. See Ellis v. Harrison, 140 N. C. 444, 53 S. E. 299; Witherspoon v. Jernigan, 97 Tex. 98, 76 S. W. 445; Moore v. Conner - (Va.) - , 20 S. E. 936.
48. Litt. Sec. 4; 2 Blackst. Comm. 220. See ante. Sec. 487. Thus. If A purchased land and it descended to his son B, who was seised, and B died without issue, the land descended to such collateral relatives of B only as were of the blood of A.
49. 1 Stimson's Am. St. Law, general character differ to so great an extent in their phraseology that any general statements with reference thereto are difficult, if not impossible, to make.49a In some the exclusion of collateral kindred not of the blood of the ancestor from whom the property was derived applies only as between kindred in equal degree, and in some only in case there is a relative of the blood of that ancestor within a certain degree named, and in some it excludes the kindred not of the ancestor's blood in favor of any existing kindred of his blood, though not ordinarily, by the terms of the statute, to the extent of allowing the property to escheat for failure of heirs.50
The statutes have ordinarily been construed as restricting the right of inheritance to the blood of the ancestor from whom the land passed directly to the intestate, and not to the blood of the ancestor who first brought the property into the family, as at common law.51
When the statute speaks of a gift or devise from an ancestor, the expression "ancestor" might reasonably, it would seem, be construed as referring to a person from whom the donee or devisee did actually inherit, or would have inherited had the gift or devise not been made, rather than as referring to one from whom he might have inherited had some other heir not intervened.52 For instance, the fact that the person who devised the land to the intestate was his uncle or his cousin, so that, had the latter not left a brother surviving, the property would have come to the intestate by descent, would not seem to make such testator the ancestor of the intestate within the meaning of the statute. A brother or sister may be an ancestor within such a provision.53 That the statute provides for the descent of property, in a certain contingency, from husband to wife, or from wife to husband, has in at least one state been regarded as not making the one consort the ancestor of the other, for the purpose of the statutes referred to.54
Sec. 3101; 1 Dembitz, Land Titles, Sec. 36.
49a. The cases construing the statutes in this regard are most conveniently collected in note to L. R. A. 1916C, 902 et seq. See also editorial note 15 Columbia Law Rev. 526.
50. That the property does not escheat, see State University v. Brown, 1 Ired. L., 23 N. Car. .".87; Dowell v. Thomas, 13 Pa. St. 41; Parr v. Bankhart, 22 Pa. St. 291.
51. Gardner v. Collins, 2 Pet. (U. S.) 58, 7 L. Ed. 347; Clark v. Shailer, 46 Conn. 119; Smith v. Croom, 7 Fla. 81; Murphy v. Henry, 35 Ind. 442; Cutter v. Waddingham, 22 Mo. 206; Den v. Jones, 8 N. J. L. 340; Wheeler v. Clutterbuck, 52 N. Y. 67; Hyatt v. Pugsley, 33 Barb. (N. Y.) 373; Clayton v. Drake, 17 Ohio St. 367; White v. White, 19 Ohio St. 531; Morris v. Putter, 10 R. I. 58; Arnold v. O'connor, 397 R. I. 557, L.. R. A. 1916C, 898, 94 Atl. 145. Contra. Lewis v. Gorman, 5 Pa. St. L64; Wil-kerson v. Bracken, 2 Ired L.
(24 N. C.) 315
In case the legal and equitable titles to the land in question came to the intestate from different sources, it is the source of the legal title, rather than of the equitable, which determines whether it is to be regarded as coming from a particular ancestor.55 But the fact that the ancestor paid for the land, or that it was paid for from his estate, has been regarded as making it a gift to the intestate from the ancestor, though it was con-veved by the vendor directly to the intestate.56
52. Such construction was adopted in Burgwyn v. Devereux, 1 Ired. Law (23 N. C.) 583; Osborne v. Widenhonse, 3 Jones Eq. (56 N. C.) 238. But in Greenlee v. Davis, 19 Ind. 60, the word "ancestor" was construed as equivalent to "kindred." And to that effect is Hostetler v. Peters, 94 Ohio 17, 113 N. E. 656.
53. Benedict v. Brewster, 14 Ohio, 368; Cutter v. Waddingham, 22 Mo. 206.
54. Brower v. Hunt, 18 Ohio St. 311; Stemhel v. Martin, 50 Ohio St. 495. Contra. Cornett v. Hough, 136 Ind. 387, 35 N. E.
55. Goodright v. Wells, Dougl. 771; Selby v. Alston, 3 Ves. Jr. 339; Hill v. Heard, 104 Ark. 23, 42 L. R. A. (N. S.) 446, Ann. Cas. 1914C, 403, 148 S. W. 254; Wells v. Head, 12 B. Mon. (Ky.) 166; Nicholson v. Halsey, 1 Johns. Ch. (N. Y.) 417; Higgins v. Higgins, 57 Ohio St. 239, 48 N. E. 943; Russell v. Bruer, 64 Ohio St. 1; Shepard v. Taylor, 15 R. I. 204, 3 Atl. 382, 16 R. I. 166, 13 Atl. 105.
56. Galloway v. Robinson, 19 Ark. 396; Cotton v. Citizens' Bank. 97 Ark. 568. 135 S. W. 346; Frick Coke Co. v. Longhead,
Generally speaking, land acquired by means of ancestral land, as by purchase with the proceeds of the sale of the latter,57 or by exchange,58 is not ancestral. But ancestral land would not ordinarily lose its character as such because a partition thereof between the heirs is effected.59 If one who owns land which came to him from an ancestor conveys it to another and takes a reconveyance back, the land will ordinarily lose its ancestral character and pass, on his death intestate, as having been newly acquired by him.60
Of somewhat the same nature as the statutory provisions above referred to, as making the course of descent dependent upon the source of the intestate's title, are the provisions found in a number of states to the effect that, upon the death of a minor unmarried, leaving property which came from either parent, by descent or, in some states, by gift or devise, it shall descend to the other children of the same parent, or to the issue of such children.61 The effect of a statute of this character has in several cases been said to be to make the property pass to the surviving children as by descent, not from the deceased child, but from the parent,
203 Pa. 168, 52 Atl. 172. Contra, Patterson v. Lamson, 45 Ohio St. 77. Compare Carter v. Day, 59 Ohio St. 96, 69 Am. St. Rep. 757, 51 N. E. 967.
57. Watson v. Thompson, 12 R. I. 466; Martin v. Martin, 98 Ark. 93, 135 S. W. 348. See Adams v. Anderson, 23 Miss. 705; Cornett v. Hough, 136 Ind. 387.
58. Armington v. Armington, 28 Ind. 74; Brower v. Hunt, 18 Ohio St. 311.
59. Martin v. Martin, 98 Ark. 93, 135 S. W. 348; Conkling v. Brown, 8 Abb. Pr. N. S. (N. Y.) 345; Lawson v. Townlev, 90 Ohio, 67, 106 N. E. 780. Sae ante. Sec. 203.
60. Co. Litt. 12b; Watkina, Law of Descents (4th Ed.) 241 et seq; Holme v. Shinn, 62 N. J. Eq. 1, 49 Atl. 151; Kihlken v. Kihlken, 59 Ohio St. 106, 69 Am. St. Rep. 757, 51 X. E. 967; Nesbitt v. Trindle, 64 Ind. 183. But see Dudrow v. King, 117 Md. 182, 83 Atl. 34, and the editorial note thereon, 12 Columbia Law Rev. 625.
61. 1 Stinisnn's Am. St. Law,. Sec. 3101; 1 Dembitz, Land Titles, Sec. 36. See In re Van Orsdol's ate, 94 Neb. 98, 142 N. W. 686; and editorial note, L. R. A. 1916C, at p. 926.
As if such child had died in the parent's lifetime.62 But nevertheless it has been occasionally decided that property which came, by force of the statute, to the deceased minor child upon the death of another deceased minor child, did not come from the deceased parent, so as to be within the operation of the statute.63 The statute does not apply when the property came from a grand parent and not from a parent,64 and when it in terms applies only to property acquired by descent, it does not apply to property acquired by devise.65