Miller v. Speer. The lands in question had come to the intestate by descent from her father. On these facts, the inquiry is raised, Who now own the lands? The title passes under the sixth section of the act directing the descent of real estates (Rev. p. 297), which enacts that— "When any person shall die seized of any lands, without devising the same in due form of law, and without lawful issue, and without leaving a brother or sister of the whole blood or half blood, or the issue of any such brother or sister, and without leaving a father or mother, capable of inheriting, by this act, the said lands, and shall leave several persons, all of equal degree of consanguinity to the person so seized, the said lands shall then descend and go to the said several persons of equal degree of consanguinity to the person so seized, as tenants in common, in equal parts, however remote from the person so seized the common degree of consanguinity may be, unless where such inheritance came to the said person so seized by descent, devise or gift of some one of his or her ancestors, in which case all those who are not of the blood of such ancestor shall be excluded from such inheritance, if there be any person or persons in being, of the blood of such ancestors, capable of inheriting the said lands." Upon this section, it was decided, in Schenck v. Vail, 9 C. E. Gr. 538, that the degrees of consanguinity were to be reckoned according to the civil law, that there was no right of representation, and that those nearer in degree to the intestate took the land, in exclusion of those more remote. According to this decision, and disregarding, for the moment, the source whence the intestate derived the land, the appellants would evidently be entitled to the estate, for they stand in the third degree of consanguinity to the person dying seized, while the respondents stand in the fourth degree only. Does, then, the fact that the intestate obtained her title by descent from her father, interfere with this devolution of the property? That depends upon the interpretation of the statutory clause, which says that all persons who are not of the blood of the ancestor from whom the estate came to the intestate, shall be excluded from the inheritance. Are the appellants of the blood of the intestate's father, within the meaning of this pro Miller v. Speer. vision? If they are not, they are excluded; otherwise, they inherit. To be of the blood of any person means to be able to trace descent from some progenitor of that person. This is the common acceptation of the phrase, apart from the theoretical notion which makes "of one blood all nations of men." It is also its legal sense, as the following cases indicate: Gardner v. Collins, 2 Pet. 58, where Justice Story says: "A person is, with the most strict propriety of language, affirmed to be of the blood of another, who has any, however small a portion, of the same blood, derived from a common ancestor;" Beebee v. Griffin, 14 N. Y. 235; Hart's Appeal, 8 Pa. St. 32; Cutter v. Waddingham, 22 Mo. 206, and Delaplaine v. Jones, 3 Hal. 340. Within this definition, the appellants are of the blood of the intestate's father; they and he are descended from Henry Miller, their common grandfather. But the respondents insist that the section under review, taken altogether, signifies that, when lands have come to the intestate by descent, devise or gift from an ancestor, those persons shall inherit who are related to the intestate in the nearest degree of consanguinity, by virtue of the blood of such ancestor, and this construction was adopted in the court below. This view is said to be commended by the principles of natural right, which should prefer the nearest in blood to the ancestor. But when the descent is to be cast among the more distant relatives provided for in this section, I think the claims of nature are but slight, and, in many instances, the increased value which the estate has received, in the hands of the person last seized, will entitle his nearer kindred, rather than his ancestors, to even these claims. There is nothing in such principles sufficiently decisive to disturb the simple exposition of the statute. Turning, then, to this positive law, it may, in the first place, be remarked, with reference to the interpretation contended for by the respondents, that if such had been the intention of the legislature, it would probably have been expressed more clearly than it is in the present enactment. The phrase employed by the learned vice-chancellor, to indicate his idea of the meaning of the Miller v. Speer. law, that it casts the inheritance upon the person who stands nearest, in virtue of the blood of the ancestor, to the person last seized, is so apt, and, at the same time, so obvious, that the draftsman of this important statute could scarcely have failed to use it, or some plainly equivalent words, if he had designed to embody that thought. On the contrary, the language of the act first points. out as the heirs those who, in virtue of any blood, are nearest in consanguinity to the person dying seized, and then excludes these persons only in case they are not of the blood of the ancestor from whom the title came. The blood of the ancestor merely marks the class in which the heirs are to be found, but the person dying seized is the propositus whose nearest kindred in that class. are the heirs. Such is the effect of the plain tenor of the statute. But, in the next place, the construction adopted below cannot be maintained without overruling Delaplaine v. Jones, 3 Hal. 340. In that case, the lands in dispute had come to the intestate by descent from her mother, and were claimed for the half-brother and half-sisters of the intestate, children of her father, and not of her mother, on the one side, and for the brother and sisters of the intestate's mother, on the other side. The title depended upon the construction of the fifth section of the statute now before us, which casts the inheritance, in certain cases, upon brothers or sisters of the half blood, with the proviso that if it came to the person dying seized by descent, devise or gift of some one of his or her ancestors, all those who are not of the blood of such ancestor shall be excluded from such inheritance. The kindred of the half blood insisted that they were of the ・ blood of the intestate's mother, by the fact that she was their mother's sister (their father having married two sisters), and that, therefore, they were heirs of the intestate by virtue of their half blood. The uncle and aunts urged that the proviso required the heritable blood to be traced through the ancestor from whom the estate descended, and that, by such blood, they were related to the intestate in the third degree, while their opponents stood only in the fourth. The court held with the former, and decided that a half-brother or sister of the person dying Miller v. Speer. seized may inherit an estate which has come to the intestate from an ancestor, provided he or she can trace any degree of consanguinity to such ancestor. This decision was rendered over half a century ago, and within a few years after the passage of the statute involved (P. L. of 1817 p. 8), and has remained as an undisputed rule of property ever since. It should not now be overturned. It applies directly to the case before us. There, as here, the law excluded from the inheritance those who were not of the blood of the ancestor from whom the estate had descended to the person dying seized; there, as here, the right to inherit was claimed through another than that ancestor, and there, as here, it was sought to exclude such right, not because the claimants were not literally of the blood of such ancestor, but because the relationship on which the claim rested was not derived through him. But the decision was that relationship to the person dying seized determines the inheritance, provided only the descent shall not be cast upon those who are not partakers of the blood of the ancestor from whom the estate came. In accordance with this ancient authority, and also with the statute, as we read it, the appellants are entitled to the lands in controversy. The decree below must therefore be reversed. For affirmance-CLEMENT-1. For reversal-THE CHIEF-JUSTICE, DEPUE, DIXON, KNAPP, MAGIE, PARKER, REED, SCUDDER, VAN SYCKEL, COLE, WHITAKER-11 Penn Insurance Co. v. Semple. 38 575 THE PENN MUTUAL LIFE INSURANCE COMPANY, appellant, 53 372 บ. JOHN SEMPLE, respondent. 1. Certain machines, which were entirely finished before they were brought to and set up in a factory, and required no particular adaptation for use therein, nor any alteration in the factory itself, and which could be removed therefrom without injury to themselves or to the building, were, as between the mortgagee and a subsequent judgment creditor of the mortgagor, held not to be covered by a mortgage of lands, including the factory and also "the steam engines, boilers, shafting, belting, gearing and all other machinery appertaining to said premises, now upon said premises or that shall hereafter be placed or erected thereon." 2. Other questions touching the validity of respondent's claim as between the appellant and respondent, not embodied in the petition of appeal, and not the subject of proof or consideration in the court below, ought not to be given a hearing in this court. On appeal from a decree advised by Vice-Chancellor Bird, whose opinion is as follows: The above-named complainant is also the petitioner, asking for an injunction restraining a judgment creditor from selling certain machinery, which, the complainant insists, is included in its mortgage. The mortgage of the complainant is on "all that certain lot of land with the brick factory thereon erected, together with the steam engines, boilers, shafting, belting, gearing and all other machinery appertaining to said premises, now upon said premises, or that shall hereafter be placed or erected thereon." As between the contracting parties, this was, unquestionably, a pledge of the land, the brick factory and "all machinery appertaining to said premises," then upon said premises, or that may have been placed thereon since. But a judgment creditor makes claim to "a guide, cutting-machine, two spooling-tables, five winding-frames, two spinning frames, forty spooling-heads, one 38 575 55 626 |