Kelly's Heirs v. McGuire , 15 Ark. 555 ( 1855 )

Hon. S. H. Hempstead, Special Judge,

delivered tbe opinion of tbe Court.

Whatever may have been tbe original foundation of tbe right of property, it admits of no question tbat its protection, in some shape, is engrafted into tbe jurisprudence of every civilized nation. In most of them, it constitutes an important feature of their organic law. No government, however powerful, and who-ther free or despotic, could long command tbe affections and allegiance of its members, or preserve tbe order and tranquility of civil society, without respecting and seeming this right, and affording adequate redress for its violation.

Tbe transmission of property, whether by descent, succession, -or purchase, depends upon the municipal regulations of each 'State, and no duty more delicate can be imposed on courts of justice, than to pass upon and enforce these regulations. It is for the judiciary to construe, not legislate; and when the real intention of the law-maker is ascertained, it must be declared, regardless' of consequences. If cases are omitted, which ought to have been included, or hardships arise not foreseen, the remedy for the evil rests in the wisdom and discretion of another department. For us, it is sufficient to know, ita lex sorvpta.

This voluminous, and really difficult case, involves the construction of our statute of Descents — presenting .questions not hitherto decided in our courts, and we can safely affirm, that they have been examined with care, diligence and patience. "We have to ■thank the respective counsel for their very able arguments in the «case. ■ '

The facts, as far as they have a bearing on the present branch of the subject, are, that, about the year 1810j Charles Kelly emigrated to what is now Arkansas; and, in 1815, married Mrs. •Craig, a widow, who had two daughters by a former marriage, named Elizabeth and Emeline. Charles Kelly, an enterprising, ■shrewd, business man, aided by the prudence, skill, and good management of his wife, .accumulated in Arkansas, where he lived, a large estate, consisting of real and personal property. He died intestate in 1834, and, by the law in force, his real estate descended, and his personal property was distributed to James De Witt ■Clinton Kelly, who was the only surviving issue of the marriage with Mrs. Craig. She died in 1836, and the son above mentioned, ■called, for brevity, Clinton Kelly, died intestate in Arkansas, the ■place of his domicil, in 1844, at the age of seventeen years, without having married and without issue, leaving, as claimants for bis property, bis paternal grandfather, Greenberry Kelly, the descendants of Mary Eikelburner, bis paternal aunt, and bis two sisters of the half-blood, Elizabeth and Emeline; the first of whom is the present Mrs. Marsh, and the second, Mrs. McGuire.

The half-blood claim the entire estate of Clinton Kelly, real and personal, as his nest of kin, and to the exclusion of all other persons.

"W"e shall say nothing, at present, of Greenberry Kelly, or the Eikelburner heirs; because, if the pretensions of the half-blood to the whole, realty and personalty, should prove to be well founded, it would be an useless enquiry.

To form anew system of descents, will always be found a work of difficulty. Human wisdom is inadequate to making out and establishing a perfect one at once. It is quite impossible to foresee all the consequences of an attempt so important, extensive and ramified. Omissions and imperfections, however, as they are discovered, must be supplied and remedied by subsequent laws.

Excepting the first section, and some minor provisions, our statute of descents was borrowed from one in New York, but with additions not calculated to improve, and with attempts at brevity and perspicuity, neither happy nor successful. The original was,, what it purported, and was intended to be, a pure statute of descents; using appropriate technical terms, regulating the inheritance of real estate, and not looking to the distribution of personal property at all. 2 Rev. Statute, New York, 750; Digest 436.

The first section of ours was extracted from some other statute of descents; amended by the revisers, by the interpolation of so much as relates to the distribution of personal estate; thus blending two subjects of a totally different nature, and governed by totally different rules. And it is this, which produces no small degree of difficulty in our system. We must, however, apply to it that universal rule of construction, that a statute should be so considered as that every clause, sentence, or part, shall stand, if possible; or, in other words, such construction as will best answer tbe intention, of the makers. 9 Bac. Abr., Statute, J. 2, J. 5. General words or clauses in a statute, may be restrained by particular words, or clauses in the same statute. And when one section in a statute may be both general and particular, or where there are different provisions for different purposes, and penned in different words, in the same chapter, they ought to be so construed as to avoid inconsistency. Id.; Campbell's case, 2 Bland. 209. The application of these rules to the case in hand, will be readily perceived.

The 1st section is general and comprehensive, embracing all lands, whether ancestral or newly acquired, subject to certain exceptions and qualifications hereafter more particularly noticed, and these exceptions refer to real estate alone. This section also constitutes the table, by which real estate is to descend and personal property be distributed. As, by its express language, it relates to both real and personal property, it was manifestly the design of the Legislature, when there were descendants of the intestate, to send down both to them jpeer capita, if in equal degree, and per stirpes, if in unequal degree, without any regard to the fact as to how the property had been acquired. And as to personal property, where there are no descendants of the intestate to distribute it to, collaterals will take in the same way as descendants, if there had been any: that is to say, without any inquiry as to how it was acquired, and, peer capita, if in equal degree, and per stirpes, if in unequal degi’ee. This was manifestly the design of the Legislature. The sections of the statute which have reference to both real and personal property, and expressly name or allude to both, or embrace them in their spirit, are the 1st, 4th, 5th, 15th, 16th, 17th, and 18th. The 15th, 16th, 17th, and 18th, touch the subject of advancement. And, to attain the object in view, it was necessary to blend real and personal property together; because the amount received is the inquiry; and, whether in land or personal property, produces the same result.

It may not be unworthy of remark, that neither in the 1st, 4th, 5th, nor in these sections, is the technical term "“inheritance,57 used at all.

The 1st, 4th, 5th, 15th, 16 th, 11th, and 18th sections, are the •only ones designed, in our opinion, to apply to both real and.per-■sonaT estate. All the rest embrace real estate alone.

The effect of the 1st section is, to constitute the persons, who take the personal property, whether per capita, or p&r etvrpes, •and whether of the whole or half-blood, the absolute owners. Nor ■is it material, whether those persons are of the paternal or maternal, or the lineal or collateral line. By that section, as already remarked, real and personal estate goes in the same channel, and if no subsequent provisions had been introduced, touching real ■estate, the precise bearing of which, it is probable the revisers ■■did not perceive, our labors would have been comparatively easy. ■At present, nothing further need be said as to personal property, ■as we shall find it necessary to allude to that hereafter, and shall •now speak in reference to real estate.

The effect of the 1st section, subject to the exceptions and qualifications alluded to, is to vest an absolute -estate of inheritance in lands in the person who takes. And every -estate, interest and right, legal and equitable, in lands and tenements and heredita-ments, excepting only leases for years, and estates for the life of another person, are thus inheritable and descendable; or,'as the 1st section expresses it, “having title to any real estate of inheritance,” constitutes an inheritable estate, thus abolishing the common law doctrine, derived from feudal times, of actual seizin in the ancestor. Whoever claimed by descent, was bound to ■show that he was heir to the first purchaser; and the seizin of the last possessor, from whom he claimed as heir, was' 'considered as presumptive evidence of his being of the blood of the first purchaser. It supplied the difficulty of investigating a descent from a distant stock, through a line of succession become dim by the lapse of ages. 4 Kent 386.

But, with us, ownership, or title to property, is substituted for seizin; and that maxim seisina faoit stipitem, of such controlling eonsequen.ce in the English scheme of descents, is entirely superseded. By descent or hereditary succession, is understood the title whereby a person, upon the death of his ancestor, acquires the estate of the latter as his heir at law. 3 Bac. Abr., Descent 104.

We pass now to the more particular consideration of the 10th section.

The manifest intention of the first part of this section, was to presexwe ancestral estates in the line of the blood from whence they came. It was a partial adoption or recognition of the common law principle, which invariably followed the line of the blood.. If the estate comes to the intestate by the father, or as it may be differently, and as well expressed, on the part of the father, then it must ascend to the father and his heirs, and thus overturning the inflexible rule of the common law, that an estate could never ascendbut should, rather escheat to the lord. And so, if it comes by or on the part of the mother, it goes to the mother and her heirs, in exclusion of the heirs of the father.. In other words, it remains in the paternal or maternal line, from whence it was derived.

The expressions, “come by the father,” or “mother,” or on “the part of the father” or “mother,” mean the same thing. Maffit vs. Clark, 6 Watts & Serg. 260. They are familiar to, and derived from, the common law, having an appropriate, technical meaning, which we must suppose the Legislature intended to adopt. They embrace not only the father, but all of the ancestors of the father, both paternal and maternal. Co. Litt. 12 a. "Whenever, says Lord Coke, lands do descend from the part of the mother, the. heirs of the part of the father shall never inherit. And, likewise, when lands descend from the part of the father, the heirs of the part of the"mother shall never inherit. Co. Litt. 13 a.

The 10th and 22d sections must be construed together, although the exact expressions used in the latter, are not contained in any part of the statute. But words of equivalent signification, are employed, and they are embraced within the spirit of the 22d section. Any other exposition would render the section entirely nugatory; and we must so construe statutes as that every part may bare its proper effect, if possible!

The expression, then, “come by tbe father, or’mother,” is not limited to an estate acquired by descent merely; but includes an estate which comes to the intestate by gift, devise, or descent from the parent referred to, or from any relation of the blood of such parent. Such is the letter and spirit of the statute. In other"words, there are two classes of eases provided for: one, where the blood of the person, from whom the estate came, whether it be by descent, devise, or gift, is regarded; and the other, where the blood of the intestate forms the sti/rps, or stock of descent, without respect to ancestral blood.

Chancellor EeNt says there is a difference in the laws of the several States, between the succession to estates, which the intestate had acquired in the course of descent,' or by purchase. “If the inheritance,” says he, “was ancestral, and came to the intestate by gift, devise, or descent, it passes to -the l&mdred, who are of the Mood of the ancestor from whom it came, whether in the paternal or maternal line.” 4 Kent 404.

The portion of the 10th -section, as to new acquisitions, gives the father and mother a life estate -only, with remainder to the collateral heirs of the intestate: such as brothers and sisters, and their descendants, and so on. A new acquisition, or newly acquired estate, does not afford, of itself, an exact idea of the mode of acquisition. By the common law, there were two modes of acquiring an estate — distinguished by the general appellations of descent and purchase. In the first, it was by operation of law; and, in the second, by act or agreement of parties. Devises and gifts fall in the latter class. An estate by purchase there became inheritable to the heirs general of the purchaser,, first of the paternal, and then of the maternal line. 2 Bl. Com. 243.

It must be understood, however, that a new acquisition, in the sense intended -by the statute, is one which the intestate has-acquired by his exertions-and industry, (Brewster vs. Benedict, 14 Ohio 385), or by will. or. deed from a stranger. In. other words,,, it is an estate deriyed.fr.om any source other than descent, devise, or gift, from father or. mother, or any relative in the paternal or maternal line. Butler vs. King, 2 Yerg. 116.

If the son should purchase land, from the father or mother, for a valuable consideration, it. would be a new acquisition, and descend as such; because nothing is received by way of bounty at the hands of ancestors; which is the case as to lands descended, from, or devised, or given by them to the intestate, and it was thought reasonable that, they should remain in the blood from,, which they came..

Land is to-be considered as having come from, or by, or on the-part of, the father, or mother, when it comes by gift, devise, or-descent, either mediately or immediately from them, or from any person in their respective lines. Shippen vs. Izard, 1 Serg. & Rawle. 223.

The 12th section provides that, “relations of the half-blood shall inherit equally with those of the whole-blood, in the same degree, and the descendants of such relatives shall inherit in the same manner as descendants of the whole-blood; unless the inheritance come to the intestate by descent, devise,, or gift of some one of. his ancestors — in which case, all those who are not of the blood-.©f such ancestor, shall he excluded.from such inheritance.

It has been contended, with much ability and ingenuity, that the restriction in the latter clause of the section, applies to the descendants ’ of the half-blood only; and that such is the gram*--matical.and logical construction.

Lut we are unable to subscribe to this argument. It would be-unsafe to construe a statute according to mere grammatical rules,., or to rely on punctuation, as any material aid, in ascertaining the-true meaning. Neither bad grammar nor bad English, will vitiate a statute any more than a deed. It is well known that ancient statutes were without sections or punctuation, and hence-the reasonable and universal rule that the sense must be collected, from the whole act...

It is clear tbat tbe meaning and intention of tbis section was to» prohibit tbe half-blood, and their descendants alike, from sharing', in the inheritance of an estate which might come to the intestate-by descent, devise, or gift, from an ancestor; in all cases, wh&re-they were not of the Mood of suóh ancestor. The reason for excluding the half-blood, is j ust as strong as for excluding their descendants, and it is impossible to conceive any well founded distinction between the two. And whatever opinion we might entertain, as to the hardships of such a rule, in any given case, oí-as to the impolicy of establishing lines of blood at all, in a new country, where almost.every man is the■ architect of his own fortune and the stock of descent; yet the Legislature has spoken its. will; the language is too plain to be doubted, and addresses a. prohibition to the courts, not to be disregarded or evaded.

The half-blood are not excluded from inheritances, and they and their descendants may inherit even an ancestral estate, provided they can show they are of the blood of the ancestor from? whom it was transmitted to the intestate. Gardner vs. Collins, 2 Peters 58. In newly acquired estates, they inherit equally with the whole-blood in the same degree.

TTtt.t.ta-rt),. in his Treatise on Neal Property, {vol. 5, 201), says»; “In Arkansas, if there are no descendants, and the estate came-, from the father, it passes to him and 'Ms heirs. The half-blood, and descendants inherit unless the estate is ancestral,, in. which case, none inherit lnit those of the cmpestoxil Mood.”

The word “blood,” in its technical and natural sense, includes, the half-blood. Baker vs. Chalfant, 5 Wharton 477. In a note,, in the last edition of his commentaries, Eeett says, “the words in the laws of the several States, regulating the descent of ancestral, inheritances, require that the-heir should be of the blood of the-ancestor. This would, in the ordinary sense of the words, admit the half-blood, for they may be of the blood of the ancestor though only half-blood to the intestate.” The 12th section of" eur statute is an exact transcript of the 15th section of the New York Revised Statutes.,, and, in considering that section, .he fuiv-ther said that, not being of the blood of the ancestor, was the only ground on which the half-blood was excluded from, ancestral inheritances. 4 Kent 404, note b., mid authorities there cited.

In Torrey vs. Shaw, 3 Edw. Ch. R. 362, the Yice Chancellor, in commenting on a similar provision, observed that here is an' exclusion as well where property comes by devise or gift — each of which is a species of purchase' — as where it comes by descent; unless the parties claiming be of the blood of the donor. This proceeds, said he, upon the principle that the blood of the ancestor is necessary to enable collateral relations to take, where the property came from an ancestor by either of the modes of transmission spoken of.

In Dew vs. Jones, 3 Halstead 340, the half-blood of the person dying seized, was held entitled to inherit an ancestral estate; be•cause he was of the half-blood to the person dying seized, as well as of the blood of the ancestor from whom the lands came.

■Our statute provides for ancestral and newly acquired inheritances. Hie half-blood may inherit both, and will be excluded 'from the first only when lacking ancestral blood. "With that exception, the half-blood and descendants stand upon the same footing with the whole-blood and descendants.

After carefully considering each of the provisions of the statute, and all together as a whole, we have come to the following conclusions :

1st. That, as to both real and personal property, it was the •design of the Legislature, when there were descendants of the intestate, to send down both to them, goer capita, if in equal degree, andyw stirpes, if in unequal degree, without any regard to the fact as to how the estate was acquired.

2d. That, as to personal property, it was the design, where there were no descendants, that it should go to collaterals in the same way it would have gone to descendants, if there had been any: that is to say,y?<3r capita, if in equal degree, and per stirpes, if in unequal degree, and without enquiry as to how the property was acquired by the intestate.

3d. That, as tó real estate, it was tbe design of tbe Legislature, where there were no descendants, to point Out tbe lines of tbe succession, and tbat this is to depend on tbe fact, whether the inheritance is ancestral or new; and, if ancestral, then whether it come from the paternal or maternal line.

4th. If the inheritance was ancestral, and come from the father’s side, then it will go to the line on the part of the father, from whence it came, not. in postponement, but in exclusion, of tbe mother’s line; and so, on the other hand, if it come from the mother’s side, then to the line on the part of the mother, from whence it came, to the exclusion of the father’s line.

5th. If the inheritance be not ancestral, but a new acquisition, then, after a life estate, reserved in succession to the father and mother, if alive, it will go in remainder, first to the line of the intestate’s-paternal uncle and aunts, and their descendants, in postponement of the mother’s line, until the former becomes extinct ; and then to the line of the intestate’s maternal uncles and aunts, and their descendants; unless there should be kindred, lineal or collateral, who, either in right of propinquity, or by right of representation, stand in a nearer relation to tbe intestate than the uncles and aunts; in which case, such nearer kindred would take the inheritance to the exclusion of both of these collateral lines; and, in their hands, it would become an ancestral estate, and afterwards go in the blood of the relative from whence it came, in the ordinary course of descent prescribed for ancestral inheritances. Digest, sees. 10 and 11, ¶. 43T.

6th. That, when the inheritance is fixed, by these facts, in any given line, it will pursue that line until it becomes extinct, and the objects of bounty, and the order in which they succeed on© another, and the proportion they take, are to be ascertained by the 1 st-section, which is to be considered as the general table of descent. The father, mother, brothers, sisters, and so on, mentioned in that section, are those who are to be considered when, counting from any propositus, whether the propositus of a single.lino only, or tbe concurrent propositus of both, lines, as the intestate is, as to pérsonal property.

7th. In all cases where the inheritance is in any one line, it there goes in succession, per capita, if in eqqal degree, and p&r ■stvrpes, if in unequal degree, precisely as if the other line was ■extinct, and precisely as the inheritance of a bastard would take '■a course in his mother’s line, he haring no father’s line at all.

8th. The half-blood, and their descendants, take personalty, as well as realty, equally with the whole-blood, except that they ■are excluded from real estate when ancestral, if they lack the blood of the transmitting ancestor.

It is manifest, that Mrs. Marsh and Mrs. McGuire can take nothing in the real estate, which descended to Clinton from Ms father, Charles Kelly. They are excluded by an express provision of the statute, not because they are of the half-blood merely, ■but because the estate is ancestral, and they are not of the blood ■of the ancestor who transmitted it to the intestate.

On the same principle, the intestate’s mother, -and all his kindred on her side, are peremptorily excluded. It is, therefore, -only his paternal kindred, who are called to the inheritance. And fhe intestate having left no children, or their descendants, and no •father and no mother, no brothers or sisters, or their descendants, -capable of inheriting, his grandfather, grandmother, uncles and grants, and their descendants, of the blood of his father, Charles Kelly — from whom the inheritance came to him, and who held it as first purchaser, as an cmcient fe,e‘} and was, therefore, the true stock of descent — -were his next of kin called to the inheri-tance. Of these he left, him surviving, a grandfather, Greenberry Kelly, and the descendants of an only paternal aunt, Mary Eckel-burner, and these descendants together, by the right of repi’esen-tation, were entitled to share the inheritance equally with the grandfather, under the general provisions made in the 1st section of the Statute. And the grandfather, having died after succeeding to this inheritance, these same descendants, of his daughter, Mrs. Eikelburner, as his lineal descendants, took the inheritance from him, as Ms beirs of the blood of Charles Kelly, tbe first and last purchaser of the estate; and aré, therefore, entitled to the entire real estate that descended from Charles to Clinton Kelly.

But, for the half-blood, it has been contended that the Eikel-burner heirs cannot recover, because, conceding that Greenberry Kelly was the lawful father of Charles Kelly, and that the half-sisters would not inherit the estate, the grandfather would only take an equal part with Mrs. Eikelburner’s descendants, and that this is not the case made by the bill; and, it is further urged that the obj ection could not be cured by the death of Greenberry Kelly, and the descent of his estate to the Eikelburner heirs; and that, to meet such case, they should have claimed, as they would have derived, one-half of the estate directly from Clinton Kelly, at his death, in 1844, and the other half from Greenberry Kelly, at his death, in 1847.

This position is not tenable, because the cross-bill states the facts fully in their propel" order; and, with sufficient certainty, traces out the genealogy, and asks for general relief. Now, there can be no question of the soundness of the rule that it is only necessary to state the facts in a bill in chancery; and it tends to prolixity, and is generally improper to state matters of law; unless, perhaps, law and fact be so blended as to render it necessary. TJnder a prayer for general relief, the court may grant any that the facts stated will warrant, although it may be inconsistent with the special relief prayed. Story’s Eq. Pl. 40, 41, 42; Cook vs. Bronaugh, 13 Ark. 183.

The personal estate, including the slaves of Clinton Kelly, stands on a different footing, as we will now proceed to demonstrate.

It may, pferhaps, be regretted that the Legislature omitted to frame a separate law providing for the distribution of personal property to the next of Mn in all cases, after the model of the English statute of Charles II, instead of resting it on a few general expressions, and a few sections in a statute of descents. However, we sit here to ascertain the legislative will, as best we can, and, after moulding it into form and shape, to execute it; because the intention constitutes the law. 1 Kent 462; 15 Johns. 380.

As already remarked, tbe only sections of the statute, which, name or refer to both personal and real property, axe the 1st, 4th, 5th, 15th, 16th, llth, and 18th. The 4th and 5th, are general, and were intended to legitimate children in certain cases, and the effect of them no doubt would be, to enable such children to inherit real, or take personal property precisely as if born legitimate. The other sections of the statute, were not, in our opinion, designed by the Legislature, to apply to or embrace personal property. They use technical terms of fixed legal import, applicable alone to real estate, such as “inherit,” “inheritance,” “descend,” “descent,” “ascend,” “descendants,” “heirs,” “blood of the ancestor,” “estate,” and others of like import, not, properly speaking, applicable to personal property. When we speak of that, we speak of it as subject to distribution to the next of kin, and not as inheritable. "We do not doubt that some of these terms, in common parlance, and even in judicial opinions, and in treatises by eminent juridical commentators, are sometimes, for the sake of convenience, applied to personal p>roj)erty, in a popular sense. That is the case with the term “estate,” although it signifies the interest which a man has in lands. 2 Bl. Com. 103. Standing by itself, this is the idea it conveys; and hence some other word is generally used, when a different idea is to be expressed, such as “personal,” or “moveable,” and from which it receives a popular ini^ad of a technical meaning. If .technical words are used in a statute, they are to be taken in a technical sense, unless it clearly appears, from other parts of the statute, that the words are intended-to be applied differently from their legal acceptation. 1 Kent 462.

Now, so far from that being the case, it is reasonably certain that the Legislature did not intend these terms to have any other than their legally received meaning; because, if so, it would have been easy to have expressed that intention in plain language. If terms and language are used in some sections, so as to require the in-elusion of personal property, and not used in others, where, without them, such property could not be embraced either by the letter or spirit, the inference is irresistible that it was purposely omitted. There are other reasons for the exclusion equally cogent. Personal property is moveable from place to place, exists to-day and perishes to-morrow; while land remains the same, although the ownership may change with the seasons. In view of this difference, and out of deference to the common law, it is reasonable to suppose that the statute never designed to embrace personal property throughout. If so, inquiry would have to be made as to ancestral and newly acquired property, which, in many instances, could hardly be satisfactorily done, and, in some, not at all: and the litigation that would spring up from such a prolific source, would be truly alarming. Families would be plunged into open hostility with each other; the ties of blood and kindred severed, and the peace and quietude of domestic life disturbed by an unworthy scramble for property. When the administrator proceeds to make distribution of the moneys in his hands, would it not be truly absurd to talk about ancestral and newly acquired estates? Prom the very nature of the thing, would it not be almost, or quite, impossible to ascertain the facts, or apply such a rule? The statute of New York, from which ours was taken, would, in the absence of any thing else, be decisive of this question, because it was framed 'and adapted to the descent of real estate alone.

But, if any thing further was necessary to produce complete conviction, it is to be found in the 20th section of our statute which expressly declares, that the term “inheritance,” as used in the act, should be understood to mean real estate. Digest, 439. This is a legislative declaration which, in plain language, excludes the idea that personal property was intended to be embraced in any other than the sections alluded to, and also negatives the idea that the terms, therein employed, were used in a mere popular sense. No construction is tobeindulged that would produce absurd consequences, or avoid a part of a statute: both of which would happen, if personal property should be held to be included in all tbe .sections; whereas, by construing the 1st, 4th, 5th, 15th, 16th, 17th, and 18th, as alike embracing realty and personalty, and the others as extending to real estate alone, the whole statute- has its proper effect, and each part may stand. And if there maybe some omitted cases, or real and personal property may go to different persons,. the remedy, for any supposed eyil consequences, must be provided by the Legislature.

Now, under the statute of distributions, the half-blood are admitted equally with the whole-blood, for they are equally as near of kin. And so posthumous children, whether of the whole or half-blood, take equally as other children. 2 Kent 422, 424; 1 Vernon 437. Ever since the case of Crooke vs. Watt, 2 Vernon 124, it has been settled? that, in the distribution of personal property, the half-blood should have an equal share with the whole-blood, as next of kin. Smith vs. Tracy, 2 Mod. 204; Crooke vs. Watt, Shower's Parl. Cas. 108. By the civil law, brothers and sisters of the half-blood are equity next of kin with those of the whole-blood. A half-brother or sister, is of the blood of the intestate, because each of them has some of the blood of the common parent in his or her veins. Gardner vs. Collins, 2 Peters 87. This construction was put on the English statute of distributions more than a century ago, as appears by the case of Crooke vs. Watt, above cited, and has ever since been adhered to in England. The same construction appears to have been adopted in this country. Gardner vs. Collins, 3 Mason 403; Hillhouse vs. Chester, 3 Day 166; 2 Yeates 545; Sheffield vs. Levering, 12 Mass. 490.

It follows from the premises, that Mrs. Marsh and Mrs. McGuire^ sisters of the half-blood, and as next of kin to the intestate, are entitled per capita, share and share alike, to his whole personal estate, including slaves and their increase, to the exclusion of all other persons. And it necessarily -follows, too, that' no others than themselves, or those claiming in their right, could require an account for waste or mismanagement, or hold any one responsible in that regard. Manifestly, neither James Kelly, nor the Eikelburner beirs, could be entitled to any relief whatever, as-far as the personal estate is concerned, nor entitled to any account of it whatever.

We come now to enquire whether the conveyance, from Green-berry to James Nelly, was valid.

And first, it is to be observed, that the party to be charged in a contract, must not only express his assent that he will be bound, but he miist be endowed with such degree of reason and judgment as to enable him to comprehend the subject. The assent, which is requisite to give validity to a promise, supposes a free, fail-, and serious exercise of the reasoning faculty. Chitty on Contracts 134. The law presumes.there is full capacity to contract, and mental incapacity forms an exception to the general rule; which must be shown by those who would set aside the contract. Id. 135.

It would be wholly impracticable to lay down any exact general rule as to incapacity to contract; because each case will be found influenced by its own peculiar circumstances. But it may be freely admitted that mere weakness of understanding, is not, of itself, sufficient to invalidate a contract, if the person is capable of comprehending the subj ect. The law does not seem to have attempted to draw any discriminating line by which to determine how great must be the imbecility of mind to render a contract void; or how much intellect must remain to uphold it. The difficulty of making such a discrimination, is apparent. Jackson vs. King, 4 Cow. 218.

"While the solemn contracts between men, should never be disturbed on slight grounds; yet it may, perhaps, be assumed, as a safe general rule, that, whenever a person, through age, decrepitude, affliction, or disease, becomes imbecile, and incapable of managing his affairs, an unreasonable or improvident disposition of his property, will be set aside in a court of chancery. In re James Barker, 2 John. Ch. Rep. 232.

To analyze all the cases, on this subject, cited by counsel, would carry this opinion to an unreasonable length. The case of Sears vs. Shafer, 1 Barb. 410, best accords witb our idea of tbe true doctrine on tbis subject. If a contract is freely and understandingly executed, by a party, witb a full knowledge of bis rights, and of tbe consequences of tbe act, it must stand. Tbis court disclaims all jurisdiction to interfere on account of tbe improvidence or folly of an act done by a person of sound tbougb impaired mind. But, on tbe other band, contracts have been set aside and cancelled, when want of consideration, or tbe improvident nature of tbe transaction has raised tbe presumption that fraud and misrepresentation were employed. Shelford on Lunacy, 267. When a gift is disproportionate to tbe means of tbe giver, and tbe giver is a person of weak mind, of easy temper, yielding disposition, liable to be imposed on, tbe court will look upon such a gift witb a jealous eye, and strictly examine tbe conduct and behavior of tbe person in whose favor it is made, and •if it can discover that any acts or stratagems, or any undue means lave been used, to procure such gift; if it see tbe least speck of imposition, or that tbe donor is in such a situation witb respect 4o tbe donee as may naturally give him an undue influence over him; in a word, if there be the least scintilla of fraud, a court of equity will interpose. 1 Bro. Ch. R. 560; 2 P. Wms. 208; 2 Atk. 325; 3 P. Wms. 130; 1 Vesey Jr. 19; 2 Vernon 189; 11 Wheaton 125; 1 Barb. 413.

Let us look, then, to tbe position of tbe parties and tbe cir-eumstances of tbe case, anci see whether any suspicious marks •can be discovered, or any re^fons exist why a court of equity should not lend its sanction to tbis contract; for, whoever sets up a contract, and invokes tbe aid of a court of equity to enforce it, must show that it is certain, fair, and just, and ought to be performed, or that tbe party should be enabled to reap tbe fruits it gives him.

The conveyance was made by Greenberry Kelly to James Kelly, bis nephew, on tbe 20th of February, 1847, in consideration of love and natural affection, and purported to convey, without any reservation, all tbe real and personal property in Arkansas or elsewhere, which had descended to the donor, or to which ho was entitled, as the representative of his grandson, Clinton Kelly. The donor, at the time of this transaction, had passed the period usually allotted to human existence. He was in the last stages of second childhood, with his physical energies wasted, and his mental powers decayed. A century had passed over his head, and still he lived, as he had been living for at least twenty-five previous years — the recipient of the public bounty — an inmate of the poor-house — where, three months afterwards, he ended his long and profitless life. The hands of strangers smoothed his brow in death — the feet of strangers followed his remains to the grave. If he had not outlived his race, he appears to have outlived their affections.

Long before the execution of the deed, his memory was so impaired as to render Mm unconscious of events, and he appears to have been as ignorant of what was going on in the world, as if he had not existed at all. In stirring political times, when taken to the polls, to exercise the right of suffrage, ho could not retain the names of candidates for whom he was expected to vote, although repeated to him over and over again, or, as one of the witnesses expressed it, repeated “an hundred times.” It is true that the boisterous and riotous scenes of his early manhood shed their light, like a dim taper, on his memory, thus affoi’ding, perhaps, the strongest evidence of his old age. It is a wise dispensation that those, who are no longer capable of mingling in the active scenes of life, or appreciating its enjoyments, should not also be deprived of the happiness, incident to longevity, of re-perusing the volume of earlier life.

He was, undoubtedly, a very infirm and feeble old map— usually in bed — had been afflicted with general palsy for at least twenty-five' years — was partially deaf — had been an intemperate man — would become intoxicated whenever opportunity offered — ■ had been a county charge and under the control of keepers for about thirty years — was never known to have property; transact business, or make contracts — was indifferent to property, and incapable of managing or taking care of it. Surely, sncb a man. must be tbe prey of tbe artful and designing, and is a fit subject of guardianship in a court of chancery. Indeed, tbe mind is shocked at the idea that such a man could understandingly dispose of a large estate, in a foreign jurisdiction.

These deductions will be found fully warranted by the evidence; and this, also, to have been the condition of the donor.

On the other hand, James Kelly, the donee, had hardly passed ■ the prime of life, was a shrewd, enterprising, business man, strong minded, far seeing; and who had amassed a large fortune in trading and trafficking in the southern States. He was well calculated to have influence over a man in the condition of Greenberry Kelly, and seems not to have been over scrupulous in its exercise for the benefit of himself. He seems to have coolly calculated the prospect and chances of the death of Clinton Kelly, and to have kept an eagle eye on the property of the latter, until he acquired it by the deed in question.

These were the parties to the deed. The deed itself was drawn up by counsel employed and paid by James Kelly, was produced at the poor-house by him; the persons who witnessed it, went there at his instigation; it was read over — the old man was propped up in his bed — his hand steadied to enable him to make his mark — and, when accomplished, the centenarian sunk back on his pillow into the lethargy from which he was roused — the company collected for the occasion departed- — -the doors of the poorhouse closed, and uncle and nephew saw each other no more.

To this instrument, there was four subscribing witnesses. Subscribing witnesses, it is said, are placed around a testator to ascertain and judge of his capacity. 3 Mass. 237, 330; 4 Mass. 593. Their attention is supposed to be directed'to that point, and they may give their opinions in respect to the sanity or capacity of the testator. 1 Greenl. Ev. 440. James W. Bullock, who took the acknowledgment and subscribed as witness, after detailing the facts, gives it, as his opinion, that the .conveyance was of very little value; meaning, as we understand it, that the capacity was wanting. "Wade B. Hampton, keeper of tbe poor-lioiise, another subscribing witness, after adverting to various facts and circumstances, states bis opinion to be, that a man of Greenberry Kelly’s age, and as low as be then was, was not capable of making a contract. Tbe other two subscribing witnesses do not establish tbe capacity to do tbe act, to our satisfaction.

Tbe witnesses, who testify as to tbe incapacity of Greenberry Kelly, are about equal in number to those who speak as to Ms capacity; but we found our judgment on facts, circumstances, and acts detailed by tbe witnesses — bolding, at tbe same time, opinions to be competent, in all cases where tbe object is to prove capacity or incapacity to make a contract, when tbe facts or circumstances are disclosed on which tbe opinion is founded. There are strong i easons for it. Human language is imperfect, and it is often impossible to describe, in an intelligible manner, tbe operations of tbe mind of another. We learn its conditions only by its manifestations, and these are indicated not alone by articulate words, but by signs, gestures, conduct, tbe expression of tbe countenance, and tbe whole action of tbe man. ' Nor is there any danger from such opinions, when tbe reasons for them are disclosed. Tbe value and. force of tbe opinion depend on tbe general intelligence of tbe witness, tbe grounds on which it is based, tbe opportunities be bad for accurate and full observation, and bis entire freedom from interest and bias. Culver vs. Haslan, 7 Barb. 321; Clary vs. Clary, 2 Iredel 78; Wheeler vs. Alderson, 5 Hagg. Eccl. Rep. 574, 604, 605; Rambler vs. Tryon, 7 S. & R. 92.

Tbe instances, in which opinions are competent, are admirably and succinctly stated by professor GbeeNLeae, in bis treatise on Evidence. 1 Vol., sec. 440; 13 Barb. 550.

It is worthy of reiteration, that James Kelly employed an attorney to draw tbe deed, and tbe donor, as we think, neither saw nor knew any thing of it until it was presented for execution. It was read over merely, but the effect of it was not explained; nor does it appear that tbe donor bad any accurate conception of of the value of the estate he was conveying, or the extent of his own right.

We have not overlooked the fact that one of -the witnesses, J. J. Ashley, a relative of James Kelly, and subscribing witness to the deed, undertakes to show the contrary, by mentioning an inquiry made by the old man of James Kelly, when they all went into the room to execute the instrument,, as to whether the deed produced was the one he, the old man, had requested James Kelly to have prepared; to which the latter, according to the statement of this witness, replied that it was. Now, other witnesses present, having equal opportunities of seeing and hearing all that transpired, heard no such inquiry or response, and they state there was no conversation on the subject before the execution of the deed. This witness too, after having made himself active in the service of James Kelly, in hunting up witnesses, and discovering testimony to sustain the deed, deliberately swears that he was indifferent in his feelings, and would as soon one party should succeed as the other. It is too plain to be questioned that he testified under a strong bias. This is manifest from his deposition, and no great degree of reliance is to be placed on his testimony, when opposed by many disinterested witnesses.

It is inferrible from the testimony, that, at previous periods, Greenberry Kelly had a vague idea that Clinton Kelly was rich; but if he knew or could recollect it at the time, it falls far short of that knowldge of the subject matter, which the law requires to render a contract valid, when executed under suspicious circumstances.

In short, after a careful examination of all the proof and circumstances, we cannot bring our minds to believe that he was in a condition to know, or had the capacity to comprehend the value of the estate, or the nature or extent of his rights, by any explanation that could have been made, and much less that he understood them from a single reading of a legal instrument.

The fact of a voluntary deed having been prepared by, or at the instance of the party, who takes a benefit under it, is generally considered a suspicions circumstance and raises a presumption of fraud, (Shelford 271; Owen’s case, 1 Bland's Ch. R. 370; Sears vs. Shafer, 1 Barb. 415), and it is incumbent on a party, wbo sets up such, a conveyance, especially when executed under suspicious circumstances, to show affirmatively that tbe transaction was fair and honest. Bears vs. Shafer, 1 Barb. 409.

Lord Coxe, in enumerating the four different classes of persons deemed in law non compos mentis, puts in the second, a man who was of good and sound memory, and has lost it. Beverly's case, 4 Co. R. 124; Co. Litt. 247 a.

If a person, although not positively non com/pos, or insane, is yet of such great weakness of mind, as to be unable to guard himself against imposition, or to resist importunity or undue influence, a contract, made by him under such circumstances, will be set aside. And it is not material from what cause such weakness arises. It may be from temporary illness, general mental imbecility, the natural incapacity of early infancy, the infirmity of extreme old age, or those accidental depressions which result from sudden fear, constitutional despondency, or overwhelming calamities. And although there is no direct proof that a man is non compos, or delirious, yet, if he is of weak understanding, and is harrassed and uneasy at the time; or if the deed is executed by him m extremis, or, when he is a paralytic, it cannot be supposed that he had a mind adequate to the business which he was about; and he might be very easily imposed upon. 1 Story's Eq. 234; 1 Fondbl. Eq. b. 1, c. 2, s. 3. Stout lays it down, as a doctrine well established by authority, and as generally true, that the acts and contracts of persons who are of weak understanding, or who are thereby liable to imposition, will be held void in courts of equity, if the nature of the act or contract justifies the conclusion that the party has not exercised a deliberate judgment, but has been imposed upon, circumvented or overcome by cunning, or artifice, or undue influence. 1 Story's Eq. 238; 1 Bro. Ch. Rep. 560, 561.

Without attempting to decide, on the present occasion, what exact degree of imbecility will vitiate a contract, we find no difficulty in saying that we cannot bring ourselves to believe that this conveyance was freely and understandingly executed by Greenberry Kelly, with, a full knowledge of bis rights, and the consequences of the act. The fact that be assigned a valuable estate, without making the slightest provision for himself, and when he, so much needed it; the fact that he was a passive instrument in the hands of the man who received the bounty, and to whom he was under no obligation; the fact, amply proved, that he was incapable of managing his affairs, or making contracts, stamp this conveyance as one which no man, in the possession of his faculties; would make on the one hand, and no fair man would accept on the other. 2 Vesey Sen. 155.

If such a deed could stand, we can hardly conceive of a case where a court of chancery would interfere to protect the feebleness of old age, or guard it against fraud and imposition.

This conveyance ought to be set aside and cancelled, and, as neither James Kelly nor his representatives show any right, otherwise than by the conveyance, it follows that their hill was properly dismissed, and the relief prayed by them denied.

The next question is, whether the descendants of Mary Eikel-burner can inherit from Clinton and Greenberry Kelly. And this depends on the fact whether she was his legitimate daughter.

Hearsay, or, as it is generally termed, reputation, is admissible in all questions of pedigree. And the phrase, “pedigree,” embraces not only descent and relationship, but also the facts of birth, marriage and death, and the times when these events happened. The entry of a deceased parent, or other relative, made in a Bible, family missal, or any other book, or document, or paper, stating the fact and date of the birth,, marriage, or death, of a child or relative, is-regarded as the declaration of sueh parent or relative in a matter of pedigree." Correspondence of deceased members of the family, recitals in family deeds, descriptions in wills, and other solemn acts, are original evidence, where the oral declarations of the parties are admissible- Inscription8 on tombstones,' and other funeral monuments, engravings on rings, inscriptions on family portraits, charts of pedigree, and the like, are also admissible, as original evidence of the same facts. 1 Greenl. Ev. 103, 104, 105; The Berkley Peerage Case, 4 Campb. 401, 418; Jackson vs. Cooley, 8 John. 128, 131.

Probably the only exceptions to the rule arise in prosecutions for bigamy, and in the civil action for criminal conversation. In these cases, from the very nature of the issue, an actual marriage must be established, and reputation will not suffice. 7 John. 314; 4 Burr. 2057, 2059; Doug. 171; 1 A. K. Marsh. 331; 3 Phil Ev., note 782, page 1147. Declarations of members, or relatives of the family, or general repute in the family, are good evidence to establish marriage, death, birth, heirship, and the like, and may be proved by others as well as surviving members of the family.

It would serve no useful purpose-to reproduce, in this opinion, the testimony on this point, but it will suffice to state its effect.

It is proved, by the repeated declarations of Greenberry Kelly, running back thirty or forty years, that he was married in Pennsylvania, and by that marriage, had two children, Charles and Mary; that, he separated from his wife in Chilicothe, Ohio, she remaining there and keeping the daughter Mary, and he emigrating to Clark county, Kentucky, and taking with him his son, Charles. He always recognized these as his legitimate children; they recognized him as their father, and recognized each other as brother and sister. The marriage, and legitimacy of these children, were spoken of and known in the family, and no doubt was expressed as to the one or the other. ■ In the community, they were received and regarded as the lawful children of Greenberry Kelly, by a lawful marriage.

Considering the great lapse of time, and the fact that the parties were in the humbler walks of life, it would not be expected that any better evidence could be produced; and, indeed, it is matter of surprise that such an amount of it has been brought forward, sufficient at least to prove the marriage of Greenberry Kelly, and the legitimacy of Charles Kelly and Mary Eikelburner, as bis ■children. On these points, we entertain no doubt.

Greenberry Kelly having inherited one-half of the realty from bis grandson Clinton, as his lineal heir, and having died intestate without making any valid disposition of it, and Mary, his daughter, who inherited the other half, as paternal aunt, having died before him leaving children, the entire estate went to those children who were living, and to the issue of such as were dead, p&r stirpes, under the statute of descents.

It is proved that Mary Eikelburner and Jacob Eikelburner intermarried; that they removed to Naples, in Illinois, in 1831; .and both died within a few days of each other, in 1833 or 1834, leaving as children then surviving, as follows: First, Louisa McKee, wife of James McKee, who died without issue, in about 1836, and he about 1838; second, Martin Eikelburner, who died, in 1839 or 1840, leaving a wife and only child, a son named William Eikelburner. The widow married a Mormon, named Wea•ver, and has since died; third, Frances Nutt, wife of John F. Nutt, of the State of Ohio; fourth, Martha Ann Oobb, wife of 'Orrin Oobb, of Pike county, Illinois; fifth, Mary Jane Puttz, wife of Abraham Puttz, also of Pike county, Illinois.

William Martin Eikelburner, Frances Nutt, Martha Ann Oobb, .and Mary Jane Puttz, the first, the great grandson, and the others, the grand-daughters of Greenberry Kelly, were his heirs, and inherited the portion of the real estate, per stirpes, which had ascended to him from his grandson, Clinton Kelly, as well as the portion that had ascended to their ancestor, Mary Eikelburner.

It appears, by the pleadings in the cause, that, by deed bearing date the first day oí May, 1846, from John, F. Nutt and Fran-ges, his wife, to Edwin K. McGuire, for the consideration of $1,800, the latter succeeded, by purchase, to the rights of Nutt .and wife in the estate.

The other heirs filed their cross-bill, claiming the whole real ■and personal estate, except the. part conveyed and assigned to McGuire; and prayed, among other things, that their title to the estate might be established, confirmed and quieted, and a partition and division be had, between them and the assignee of Nutt and wife, according to their respective interests, and that if division could not be equitably and fairly made, that the property be sold and the proceeds divided, and the conveyance to James Kelly be brought into court and cancelled; that a receiver be appointed, to take charge of the lands and slaves, and for general relief.

Now, for reasons already suggested, they had no claim to the personal estate of Clinton Kelly, and consequently, were not authorized to call any one to account in respect to it; and, so far as that was concerned, the relief asked was properly denied. But, as to the real estate, a partition thereof should have been decreed according to the prayer of the bill, giving one-fourth to each one of the heirs above named, and one-fourth to the above named assignee; and commissioners should have been appointed, and the division made according to law and the rules and practice of a court of chancery. And if partition could not be made, without great prejudice and injury to the owners, to decree the sale thereof according to law.

John Kinggold, administrator of Charles Kelly,,and Joseph H. Egner, guardian of Clinton Kelly, filed pleas supported by answers, averring, in substance, the final settlement and confirmation of their accounts as administrator and guardian, respectively, by the probate court; that there was no fraud therein, and prayed the benefit thereof in bar of the relief sought against them by Kelly’s heirs, and the Eikelburner heirs.

These pleas appear to have been set down for argument, and to have been disallowed, and no further steps taken with regard to them. It is said that the effect of overruling a plea, is to impose upon the defendant the necessity of making a new defence. This, the defendant may do either by a new plea, or by an an-gwer, and the proceedings upon the new defence will be the same, as if it had been originally made. 2 Daniell's Ch. Pr. 802. And, after a plea has been overruled, the same defence may be insisted on by way of answer. Goodrich vs. Pendleton, 4 Johns. Ch. R. 549.

But we shall not find it necessary to make any inquiry as to tbe sufficiency of tbe pleas, or tbe action of tbe court upon them, because, as already stated, tbe subject matter to wbicb those pleas related, was one in which James Kelly, nor bis representatives, nor tbe Eibelburner hems, bad any interest.

Mrs. Marsh and Mrs. McGuire, who succeed to tbe whole personal estate and slaves of Clinton Kelly, per capita, are tbe only persons, who bad tbe right to call for account in respect to that property. They have not complained, nor ashed for an account, nor attempted to surcharge or falsify tbe settlements made by either Kinggold or Egner.

Every case in chancery, when it comes to a bearing, should be so fully prepared as to enable tbe court to render a final decree as to all parties, and all interests involved, and thus put an end to litigation speedily. In this, tbe object of all appears to have been to try tbe question as to who would take tbe personal, and who inherit tbe real estate; losing §ight of details of some importance, and thereby protracting litigation, and imposing additional labor on this court.

Every case brought into tbe appellate court, should be so perfect in preparation, as to enable us to render such decree as tbe inferior court should have rendered, and so as to fully adjust tbe rights of litigants.

It appears that Edwin B. McGuire was appointed receiver in tbe case, on tbe 2d of .June, 1848, to safely keep tbe property in .litigation, and bold, tbe same subject to tbe order and decree of tbe court, and entered into bond with security, in tbe .sum of $8,-000, conditioned for that purpose, payable to tbe lawful heirs of James D. W. 0. Kelly. ,

A receiver is an officer and representative of tbe court, and subject to its orders, and is, at all times, entitled to its advice and protection. 3 Daniell 1949; Cammack vs. Johnson, 1 Green Ch. R. 163, 173. Property placed in tbe bands of a receiver, is considered as in tbe custody of tbe court. Tbe possession of tbe receiver is tbat of tbe court, and any attempt to disturb it, without leave of tbe court first obtained, will be a contempt on tbe part of tbe person making it. 3 Daniell 9; Vesey 335; 8 Paige 388; 2 Story’s Eq., sec. 833 a, 833 b; 7 Paige 513.

Now, before tbe final decree-, tbe court should have required tbe receiver to report bis actings and doings under bis appointment; and to render an account according to tbe usages and practice of a court of chancery. And this was necessary to ascertain tbe condition of tbe property placed in bis bands; and bow be bad discharged tbe trust; and to enable tbe court, in its final decree, to settle tbe rights and do justice to all tbe parties in a conclusive manner.

Tbe decree of the court is silent on tbat subject, thus leaving tbe property in litigation where it bad been placed, and making no disposition of it. In tbat, the decree falls short of doing justice to those entitled to tbe property. It was surely important for the court to have bad accounts taken; to have bad tbe admin-istratorship of Clinton Kelly, which had been brought into tbe Circuit Court by this proceeding, adjusted and settled, and distribution made to Mrs. Marsh and Mrs. McGuire; and also to have decreed a partition of tbe real estate, which Clinton Kelly owned or possessed at tbe time of bis death, as prayed by those heirs in their cross-bill.

If the record contained the requisite facts and information, upon which this court could render such a decree, it would proceed to do so without hesitation. To attempt it, however, we would run the risk of doing injustice to some, and falling short of tbe measure of justice to others. All we can do, is to express our views; remand tbe cause, with such directions as will most probably enable this whole controversy to be finally settled between tbe parties litigant, according to the principles of equity, and right, and justice.

On the whole case, we are of opinion that, so much of the decree as dismisses the bill and amended bill of James Kelly, ought to be affirmed with costs.

The decree, dismissing the cross-bill of the Eikelburner heirs, is erroneous, and must be reversed with costs, and the case be remanded, with the following' directions :

First, That Edwin It. McGuire, the receiver in the case, be required to account as- to the property placed in his hands, in such manner as to the court shall seem equitable and just, and required to surrender the same- for the purpose of division and distribution.

Second,, That the administratorship of James De Witt Clinton Kelly, be adjusted and settled finally, and that the slaves, moneys, assets, and all his personal property, be distributed, equally, share and share alike, to- the said Elizabeth and Emeline, half-sisters of said James De Witt1 Clinton Kelly, in such manner as shall be just and equitable, and legal, and that this be speedily done.

Tim'd, That all the real estate, of which James De Witt Clinton Kelly died possessed, or of which he was owner, or to which he had title, mentioned in tbe-pleadings in this cause, be divided, and partitioned by decree into- four parts, according to the prayer of the cross-bill of Cobb and wife, and others, one part to Martha Ann Cobb, one part to Mary Jane Puttz, with their husbands • one part to William Martin Eikelburner; and one part to Edwin It. McGuire, as assignee of John E. Nutt and Frances, his wife, and that their title be quieted, and that they hold as tenants in common.

Fowrth, That, if division and partition- cannot be made without prejudice to said heirs, that the court decree a sale according to law.

Fifth, That the deed of conveyance from Greenberry Kelly to-James Kelly, dated 20th of February, 1847, be canceled and declared void.

A decree will be entered in this court, carrying out the above directions according to law and equity, and the court below will proceed in the case in a speedy manner, and not inconsistent with, this opinion.