Opinion
July Term, 1827.
From Pasquotank.
The next collateral relation to the person last seized, though ex parte paterna, shall inherit, under the act of 1784, an estate descended ex parte materna. And the same rule is, though this collateral relation be of the half blood, and come in esse after the death of the person last seized.
EJECTMENT. The jury in the court below found a special verdict, the material facts of which are that the premises in dispute were devised in 1791, by the will of Thomas Davis, to his wife, Rebecca, who afterwards intermarried with one Robertson Seville, had issue by him, a son called William, and died in 1804, leaving the son surviving, upon whom the premises descended. Robertson Seville, the husband, also survived his wife, and intermarried with another, by whom he had issue, the lessor of the plaintiff, born in October, 1805. William, the son of Rebecca, died seized in August preceding the birth of his half-brother, the lessor of the plaintiff, and Robertson, the second husband of Rebecca, died in 1810. Upon these facts the jury prayed the advice of the court if the plaintiff was entitled, etc., and in the court below, by Paxton, Judge, judgment was rendered for the plaintiff, from which the defendant appealed.
In the principal feature of this case it is not distinguishable from Ballard v. Hill, 7 N.C. 410, the maternal half-brother was preferred to a more distant collateral, though the estate descended upon the brother, under whom he claimed, from the father. It was a contest between the maternal brothers and sisters and the paternal cousin, who was heir at common law. In this case the lessor of the plaintiff is paternal half-brother, and the estate descended to his brother from his mother. The record not disclosing that there are any heirs nearer in degree on the side of the mother, (171) the plaintiff is entitled to recover.
The other question arising out of the facts stated has also been adjudged in Cutlar v. Cutlar, 9 N.C. 329. There the lessor of the plaintiff was born after the death of his brother; but upon his birth he became heir to him, and is consequently entitled according to the principles of the common law.
PER CURIAM. Judgment affirmed.