Statewide County NcArchives Court.....William Shepard, William Shepard & Wife V. 1819
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 February 1, 2009, 7:05 pm

Source: Nc Reports
Written: 1819

John Doe on the several demises of Wm. B. Shepard and wife et al v. William 
Shepard

May Term 1819

Claim of the half blood in the case of a purchased estate

Samuel Swann, sen., devised the lands in tail to his first son Samuel Swann, 
jun., and to his second and third sons in succession, to-wit, John and Thomas 
who were by a second wife. Samuel, the devisee, became seised in fee, by 
virtue of the act of 1784, ch. 22. He devised one part of the lands to John 
Swann, one of his brothers of the maternal half blood, and another part to 
Thomas Swann, another brother of the maternal half blood.

John died intestate, leaving issue, Samuel Johnston Swann, who died intestate 
and without issue. Thomas Swann died intestate and without issue, leaving 
Mary, a maternal sister of the half blood, and the said Samuel Johnston Swann, 
a nephew of the whole blood.

A question arose who were entitled to the lands; the kindred on the paternal 
side, who were further in degree; or the maternal half sister. The kindred on 
the paternal side are the lessors of the Plaintiff; the maternal half sister, 
the Defendant's wife.

The maternal half sister is entitled to the lands; for,

1. Both John Swann and Thomas Swann took the lands as purchasers, and the same 
person who would have been the heir of John Swann, had he died without issue, 
is the heir of Samuel Johnston Swann.

At the common law, the principle upon which the law of collateral inheritances 
depends is, that upon the failure of the issue in the last proprietor, the 
estate shall descend to the blood of the first purchaser. And he who would 
have been heir to the father of the deceased, shall be heir to the son.

When a man purchased an estate, he took it as a feudum novum; descendible to 
his heirs general, first of the paternal and then of the maternal line. If he 
died without issue, or brother or sister, or the issue of such, his eldest 
paternal uncle would take: if there were no such uncle or the issue of such, 
then his paternal aunts. If there were neither nor the issue of such, then his 
eldest great uncle of the line of his paternal grandfather, and so on until 
that line he exhausted, always giving a preference to the male stocks. On the 
failure of blood in the line of the paternal grandfather, then the same rule 
was to be followed as to the paternal grandmother's line. If that fall, then 
the maternal grandfather's line was to inherit. On the failure of that line, 
then the maternal grandmother's line was to besought for.

The issue of the eldest son of William Swann, who was the brother of Samuel 
Swann the elder, would be heir of Samuel Johnston Swann at common law.

2. But the act of 1784, ch. 22, has let the half blood into the inheritance, 
when that half blood is in the line of inheritance. That act does not change 
or alter the stocks or genealogical lines, as they were known at common law. 
They remain the same, with the addition of the half blond when in those lines.

Mary, the wife of William Sheppard, is the heir entitled to these lands under 
the act of 1784; because she is next in the degree of the blood of the 
purchasers, being a sister: and although of the half blood, the 3d and 4th 
sections of that act render her capable of inheriting.

The half blood shall not inherit when out of the common law stocks or lines, 
although in equal or in a nearer degree. Thus, where land descends on the side 
of the father to a son, who dies without issue, leaving a half blood brother 
on the maternal side, and an uncle or more remote relation of the whole or 
half blood on the paternal side; the relation next in degree on the paternal 
side shall inherit. 1st, because he is of the blood of the first purchaser. 
2dly. the proviso to the 3d section of the act of 1784, declares that the 
maternal half blood brother shall not inherit, until such paternal line be 
exhausted of the half blood, and of course, of the whole blood. Heirs shall be 
sought for in the paternal line ad infinitum, before any of the maternal 
kindred shall inherit, however near in degree. And e converso, where the lands 
shall descend on the maternal line.

Special verdict — "The Jury find that the premises described in the 
Plaintiff's declaration comprehend two tracts of land, one of 300 acres 
devised in fee, about 1733, by Thomas Swann the elder, to his eldest son 
Samuel; and another of 367 acres, purchased in 1752, from the agents of Lord 
Granville, by the said Samuel himself; which said two tracts are known by the 
name of the Elm Plantation.

"And the Jury further find, that the said Samuel Swann, being so seised of the 
premises, duly made and published his last will in writing, bearing date 31 
October, 1766; and therein and thereby devised the said premises to his eldest 
son Samuel, and the heirs of his body lawfully begotten, and for the want of 
such, to his second son John, and the heirs of his body lawfully begotten, and 
for the want of such, to his third son Stephen, and the heirs of his body 
lawfully begotten, and for the want of such to the child with which his wife 
was then pregnant (who was afterwards born and named Thomas) and the heirs of 
its body lawfully begotten;" and afterwards died without revoking or altering 
the said will.

"And the Jury, further find that after the death of the said Samuel Swann, the 
elder, Samuel the devisee entered upon the premises by virtue of the said 
devise and was therefore seised; and being so seised, duly made and published 
in writing his last   will, bearing date 4 May, 1786, and therein and thereby 
devised the said premises to his brother John Swann, the aforesaid second son 
of the said Samuel the elder, to him the said John and his heirs for ever; and 
afterwards died without revoking or altering the said will.

"And the Jury further find, that the said John Swann, after the death of his 
said brother Samuel, entered upon the premises and was thereof seised, and 
being so seised, afterwards, to-wit, on 3 March, 1793, died intestate, leaving 
an only child, Samuel Johnston Swann, to whom the said premises, descended, 
and he entered and was thereof seised.

"And the Jury further find, that the said Samuel Johnston Swann, afterwards, 
to-wit, on 11 February, 1796, died intestate and without issue, or brother or 
sister, or the issue of such.

"And the Jury further find, that the aforesaid Samuel Swann the younger, was 
the only child of his father Samuel the elder, by a first wife and that the 
aforesaid John Swann, Stephen Swann and Thomas Swann, were children of the 
said Samuel the elder by a second wife. And that after the death of the said 
Samuel the elder, his widow intermarried with Frederick Blount, by whom she 
had issue a daughter, Mary, now the wife of William Shepard of New Bern, under 
whom the Defendant claims the premises, and which said Mary is the nearest 
collateral relation of the said Samuel Johnston Swann, either paternal or 
maternal, the aforesaid Samuel Swann the younger, Stephen Swann and Thomas 
Swann the younger, being dead without issue.

"And the Jury further find, that at the time of the devise hereinbefore 
mentioned, from Samuel Swann the younger to his brother John, the aforesaid 
Thomas Swann the younger was in full life.

And the jury further find, that the aforesaid Samuel Swann the younger, was at 
his death seized of another tract of land, which he devised to his brother, 
the aforesaid Thomas Swann the younger; that the value of the said tract was 
£2,000: and the value of the premises contained in the Plaintiff's 
declaration, was £6,000.

And the Jury further find, that Samuel Swann, the elder, had a brother named 
William Swann, and a sister, Elizabeth Vail, who are long since deceased. That 
the said William Swann left issue, of all whom are since dead, and of whom two 
only, John and Wilson have left issue. That Rebeccah, the wife of William B. 
Shepard, and one of the lessors of the Plaintiff, is the daughter and only 
child of the said John. And that Polly, the wife, of Isaac Williams, and 
Comfort, the wife of Daniel Williams, (which said Polly and Comfort are also 
lessors of the Plaintiff) are the only children of the said Wilson. That 
Elizabeth Vail, the sister of Samuel Swann the elder, left issue, Elizabeth 
Pemburn and Rebeccah Williamson, both of whom were in being at the death of 
Samuel Johnston Swann, and who, afterwards, duly conveyed and released all 
their right, estate and interest in the premises unto Mary, the wife of 
William Shepard of New Bern, under whom the Defendant claims.

The Jury further find, that the demises set forth in the Plaintiff's 
declaration,  were executed on the day, and in the manner therein set forth; 
and afterwards, to-wit, on the said day, by virtue of the said demises, that 
the said John Doe entered into the premises with appurtenances and was thereof 
possessed; and that the said John Doe being so possessed, the Defendant, by 
command of the said William Shepard of New Bern, and Mary his wife, 
afterwards, to-wit, on the same day, entered upon the premises with the 
appurtenances in and upon the possession of the said John Doe thereof, and 
ejected him from his said farm.

But whether upon the whole matter aforesaid, the said defendant be guilty of 
the said trespass and ejectment complained of in the said declaration, the 
Jury are ignorant, and thereof pray the advice and consideration of the Court.

If it shall appear to the Court, upon the whole matter, that the lessor of the 
Plaintiff, or any of them had title to the whole of the premises, at the date 
of their respective demises aforesaid, then the Jury say that the Defendant is 
guilty of the trespass and ejectment in manner and form as the said John Doe 
hath complained of, and assess the damages of the said John Doe to one 
shilling and costs: If it shall appear to the Court, that the lessors of the 
Plaintiff, or any of them, had not title to the whole, but had title to any 
undivided part of the premises, at the date of their aforesaid demises, then 
the Jury find that the Defendant is guilty of the trespass and ejectment 
complained of, as to such part only of the premises, and not guilty of the 
residue, and assess the damages of the said John Doe, to six-pence and costs: 
And if it shall appear to the Court, that the said lessors of the Plaintiff, 
nor any of them, had not, at the date of the demises aforesaid, title to the 
whole, nor any part of the premises, then the Jury say, that the Defendant is 
not guilty of the trespass and ejectment, whereof the said John Doe hath 
complained."

The questions of law arising out of this special verdict, were argued in this 
Court, in the case of "Den on the demise of William B. Shepard and Wife, and 
others v. Josiah Relf," in 1807. In the special verdict then sent up, an 
additional fact was inserted, to-wit, "That after the death of Samuel Johnston 
Swann, to-wit, on 30 November, 1803, his mother Penelope Swann, widow of John 
Swann, conveyed all her right, title, interest, estate, claim and demand in 
and to the premises, to the said Mary, wife of the said William Shepard of New 
Bern." The arguments then made on each side, were again relied on in this case 
for the respective parties: and as the decision in this case, and in the one 
made at this term in the case of "Ballard and others v. Hill and others," have 
served in a great degree to settle questions that have been long agitated, and 
to establish an uniform rule of descent in such cases, the arguments delivered 
in the case of Shepard and others v. Relf, are here given, to show the grounds 
of the diversity of opinion which has existed upon the construction of the act 
of 1784, ch. 22, regulating descents among collaterals. These arguments were 
delivered by Peter Browne, Esquire, for the lessors of the Plaintiff, who were 
the heirs at common law: and by William Gaston, Esquire, for Mary, the 
maternal half sister, wife of William Shepard, of New Bern, under whom Relf 
claimed.

Browne, for Plaintiff. 
Gaston, for the Defendant.

By this Court. This being an acquisition by purchase on the part of John and 
Thomas Swann, the wife of the Defendant is clearly entitled as heir, according 
to the several decisions which have been made to that effect. Judgment must be 
entered up accordingly.

Daniel, Judge: The two tracts of land known by the name of the Elm plantation, 
were devised in tail by Samuel Swann the elder, to his first, second, third 
and fourth sons in succession. Samuel Swann the younger, the devisee, was 
seised and possessed of the Elm plantation at the time entails were docked by 
the act of 1784, ch. 22. The other tract mentioned in the special verdict, 
Samuel Swann the younger, held in fee. Samuel Swann the younger made and 
published his last will, on 24 May, 1786, and therein and thereby devised the 
Elm plantation, to his brother, John Swann, in fee. John Swann is considered 
in law as the purchaser of this plantation, as he did not get title thereto by 
descent.

John Swann died intestate, leaving an only child named Samuel Johnston Swann, 
an only maternal half sister, by the name of Rebeccah Blount (who married the 
Defendant) and the lessors of the Plaintiff, who are his second cousins of the 
paternal line; all his brothors having died without issue.

Samuel Swann the younger, devised the other tract of land to his brother, 
Thomas Swann, in fee; and Thomas Swann the devisee, having died without issue, 
this tract descended to his nephew, Samuel Johnston Swann. Thomas Swann is to 
be considered a purchaser of this tract of land, and, as he stood precisely in 
the same relation to the lessors of the Plaintiff, and to the Defendant, as 
John Swann the younger did, the person or persons who are entitled to the Elm 
plantation, will be entitled to the tract devised to him.

Samuel Johnston Swann died intestate and without issue, or brothers or 
sisters, or the issue of such. And the question submitted to this Court is, 
who are the heirs of Samuel Johnston Swann?

At the common law, the heir would be searched for among the lessors of the 
Plaintiff. 1st. Because they are of the paternal line and of the male stock, 
to-wit, the grandchildren of William Swann, who was the brother of Samuel 
Swann the elder, and great uncle of Samuel Johnston Swann. 2d. Because Mrs. 
Shepard is of the half blood and never could have inherited.

Samuel Johnston Swann dying without issue, or brother or sister, or the issue 
of such, leaves the case exactly in the same situation as if John and Thomas 
Swann, the purchasers, had died intestate and without issue. The same person 
who would have been the heir of John Swann, had he died without issue, is the 
heir of Samuel Johnston Swann.

The great and general principle, upon which the law of collateral inheritances 
depends, is this, that upon the failure of issue in the last proprietor, the 
estate shall descend to the blood of the first purchaser. He who would have 
been heir to the father of the deceased, shall also be heir to the son. 2 
Black. Com. 226.

When a man takes an estate by purchase, he takes it not ut feudum paternum or 
maternum, which would descend only to the heirs on the side of the father or 
mother; but he takes it as feudom novum, to be held ut feudom antiqum, as a 
feud of indefinite antiquity, whereby it becomes inheritable to his heirs 
general, first of the paternal and then of the maternal line. The blood of the 
father is more worthy and more near in judgment of law. Coke Litt. 12 a. 12 b. 
Lord Coke says, every person has four immediate bloods in him, two on the part 
of the father, to-wit, his paternal grandfather's blood, and his paternal 
grandmothers' blood: and two on the side of his mother, his maternal 
grandfather's blood, and his maternal grandmother's blood. If a man purchase 
land and die without issue, or brother or sister, or the issue of such, his 
eldest paternal uncle would take: if there be no paternal uncle, or the issue 
of such, then his paternal aunts; if there be neither, nor the issue of such, 
then his eldest great uncle of the line of his paternal grandfather, and so on 
until that line be exhausted: always giving a preference to the male stocks. 
On the failure of blood or kindred in the line of the paternal grandfather, 
then the same rule is to be followed as to the paternal grandmother's line. If 
that fail, then the maternal grandfather's line is to inherit. On the failure 
of that line, then the maternal grandmother's line is to be sought for, and it 
shall inherit according to the rule aforesaid.  Coke Litt. 12 b.

The case does not state, which of the lessors of the Plaintiff is the issue of 
the eldest son of William Swann. One of them certainly is; and that person 
would have been the heir of Samuel Johnson Swann at common law. Let us enquire 
into the changes which the Legislature has made of these rules of the common 
law, and into the extent and reason of those changes.

In consequence of the revolution, the people of this State formed a republican 
government, and it became necessary in defending this form of government, that 
the aristocratical doctrine of primogeniture, in the descent of real estate, 
should be exploded, the principles contained in the statute de donis 
conditionalibus be no longer enforced, joint tenancy, with its jus 
accrescendi, be abolished, and the, half blood, (which had been entirely 
excluded) let in, when it was in the line of inheritance. In short, it became 
necessary, for the welfare of the government, that landed estates should 
undergo a more general and equal distribution than had hitherto prevailed. The 
Legislature never meant to change or alter the stocks or geneological lines, 
from what they were known to be at the common law. The stocks and lines remain 
the same, with the addition of the half blood, when in those lines, together 
with the ascent of real estates in certain cases.

It is in general true, that the preamble of a statute is a key stone to open 
the minds of the makers, as to the mischiefs intended to be remedied by the 
statute. But this rule must not be carried so far as to restrain the general 
words of an enacting clause, by the particular words of the preamble. The 
preamble to every section of the act of 1784, ch. 22, clearly explains the 
intention of the Legislature. The preamble to the 2d section, shows the will 
of the Legislature to promote an equality of property, by a more general and 
equal distribution of landed estates; or in other words, to destroy the rule 
of primogeniture — the second section then lets in all the sons: on failure of 
them and their issue, it lots in all the daughters. The preamble to the third 
section complains only if the exclusion of the half blood from the 
inheritance; the section then lets in the half blood, but does not destroy the 
stocks  or lines, as established by the common law. There is no complaint of 
the common law stocks and lines. The section declares (though certainly in 
terms not very clear) that the old rule relative to stocks and lines, shall 
remain: but that the half blond shall inherit equally with the whole blood, 
when it is found in those lines, and in equal degree. And it clearly intimates 
by the proviso, that the half blood shall not inherit when out of the common 
law stocks or lines, although in equal or in a nearer degree. Thus when land 
descends on the side of the father to a son, afterwards the son dies without 
issue, but has a half blood brother on the maternal side, and an uncle or more 
remote relation of the whole or half blood, on the paternal side: the relation 
next in degree on the paternal side, shall inherit, to the exclusion of the 
maternal half brother: because, 1st. He is of the blood of the first 
purchaser. 2d. The proviso to the third section expressly enacts, that the 
maternal half brother shall not inherit, until such paternal line be exhausted 
of the half blood, (and of course, of the whole blood.) The maternal brother 
is not to be let into the inheritance as soon as the paternal line is 
exhausted of brothers and sisters: the act says, he shall not inherit until 
the paternal line be exhausted of the whole and half blood. Heirs shall be 
sought for on that line ad infinitum, before any of the maternal kindred shall 
inherit, no matter how near in degree. And the same rule e converso, when land 
shall descend on the maternal side, the paternal kindred shall be excluded as 
long as any whole or half blood can be found on the maternal side, let it be 
ever so remote.

The fourth section extends the rules laid down in the second section relative 
to lineal descendants, and, in the third section, relative to collateral 
relations ad infinitum.

That this is the most proper construction, will manifestly appear from reading 
the rules of the common law, and then the third and fourth sections of the act 
of 1784, ch. 22. This construction does not clash with any of the grand 
objects which were in the view of the Legislature at the time the act was 
passed; but runs in unison with them. It is agreeable to justice that those 
who are of the blood of him who has labored for and purchased the land, should 
inherit, and not a stranger. If this construction be not adopted, the land 
might descend to a stranger in two changes; to-wit, A purchases land, and 
dies, leaving a son B. The widow marries again, and has a son C. B dies 
without issue, and the lands descend to C, his maternal half brother, who is 
not of kin to A, the first purchaser. Such a construction was never intended 
by the Legislature. The kindred of A, the first purchaser, shall be preferred, 
no matter how remote; otherwise industry would be cramped, and men become 
careless of acquiring estates.

The preamble to the fifth section complains of entails; and the section docks 
all entails that are in possession, and turns them into fee simple estates.

The preamble to the sixth section complains of the injustice to the family of 
that joint tenant who shall die first. The section abolishes the principle of 
survivorship, and turns all joint tenancies into tenancies in common, with one 
exception.

The preamble to the seventh section complains of the rule which forbids the 
inheritance ever to ascend. "When lands are purchased, or otherwise acquired." 
(but not by descent from a deceased parent,) "and the owner dies without 
issue, or brother or sister, or the issue of such," then the seventh section 
of the act of April, 1784, and the third section of the act of October, 1784, 
let in the father first; and, if he be dead, then the mother for life: and 
then the heirs on the part of the father: and, if none on his side, (ad 
infinitum) then the heirs on the part of the mother.

The reason given for this rule by the Legislature is, that the paternal line 
is favored in all instances.

Mrs. Shepard, the wife of the Defendant, is heir to the lands in dispute, 
because she is next in the degree of the blood of the purchasers, John and 
Thomas Swann, being a sister: and although of the half blood, the third and 
fourth sections of the act of 1784, make her capable of inheriting. But if 
Mrs. Shepard should die without issue, then the next heir to these lands would 
not be of her father's line, (the Blount family), because none of the blood of 
the purchasers can be found in that line. They must be the persons who are 
next in degree and of the blood of John and Thomas Swann: 1st. of the paternal 
line, (and these would be the lessors of the Plaintiff,) and when that line is 
exhausted, then 2dly, the maternal line of John and Thomas Swann shall 
inherit, as they shall he nearest in degree, until it shall he exhausted; 
always giving preference to the paternal or male stocks, as known at the 
common law; and is clearly intimated by the seventh section of the act of 
April, 1784, and positively declared by the third section of the act of 
October, 1784.

Let judgment be entered for the Defendant.

Cited: Hilliard v. Outlaw, 92 N. C. 268.


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