Bladen County NcArchives Court.....William Hendon, Alexander M'Kay Et Al V. 1819
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 January 29, 2009, 9:02 pm

Source: Nc Reports
Written: 1819

Alexander M'Kay, Eliza M'Kay and John M'Kay v. William Hendon

From Bladen

May Term 1819

H 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 D, 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, the sister of the whole blood would exclude brothers and sisters of 
the half blood.

If a man devise his lands 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 ancestors 
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 ancestors 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 possession, 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 heir, and the one is not 
an heir without the other.

Here the grandson, the devisee, was not the sole heir of his grandfather, the 
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. William James Salter, under whom Complainants and 
Defendant both claim, died in 1807, seised of the lands in question, intestate 
and without issue. William Salter, the grandfather of the said William died in 
1802, having published his last will duly executed to pass his real estate, 
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 lifetime 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 McKay, 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.

Taylor, Chief-Justice: 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; and the question 
is, whether the land shall be divided between them and the Defendant's wife, 
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 v. Coor, 4 N. C. 14, and Ballard 
v. Griffin. Id. 237. 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, Id. 289, 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 were the only heirs at law, had been created joint tenants under 
a will made before 1784, they took by purchase. Campbell v. Herron. 1 N. C. 
468. And in this case, if William James Salter had been the sole 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 record, 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 design 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; 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; 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; as 
where one 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 
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 Filiae et Cohaeretti," it will be ill. Besides, if it were 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 was 
determined in Reading v. Royston, 1 Salk., 242. There, D. C., having two 
daughters, one of whom had issue a son, and died, devised the land to his son 
and his 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 with him, and it was argued, that where two titles concur, 
the elder 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; and therefore, since the devise worked no 
alteration in point of estate as to that, the grandson should take it in 
potiori jure, 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. C. Litt., 163, b. Salk. 242. 2 
Ld. Raym. 829. 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 laud 
with the Defendant.

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