This clearly cannot be so for all purposes, otherwise no question as to intermediate rents could ever have arisen, and it is difficult to see how the right of entry and distress could relate back to a time anterior to the birth. The law certainly is that the qualified heir, is entitled, at any rate, to all the rents actually received, and consistently with this it cannot be said that the heirship relates back for all purposes.

Do the tenants owe a double duty? On the contrary, just as the qualified heir owes the duty to the lord, so the tenants owe their duty to the qualified heir. The tenant cannot owe a duty to the unborn heir, whom the law does not recognize as the person to perform the services incident to the estate, and therefore not as the person to enjoy the benefits of heirship. The case of Basset v. Basset [3 Atk. 203], which was relied on, really seems to be in favor of the infant. Lord Hardwicke held that case to be within the meaning of the statute, the estate being by way of remainder, though not to a person in the position expressly contemplated by the statute; but he distinctly notices that the statute says nothing about descent, and lays down in the very same case the doctrine, that, in the case of estates descended, the qualified heir is entitled to the intermediate rents. The present case comes within the second branch of that decision, and I shall make a declaration that all the rents which accrued during the period of suspense became the property of the qualified heir.

SECTION 2.-OTHER AFTER-BORN HEIRS

CUTLAR v. CUTLAR.

(Supreme Court of North Carolina, 1823. 9 N. C. 324.)

This was a petition for partition, filed by Frederick J. Cutlar, Jane Cutlar, and Euphemia Cutlar, setting forth that in 1790 their father, Roger Cutlar, intermarried with Ellen Spillar, by whom he had issue, James Spillar Cutlar; that Ellen, wife of said Roger, died in 1794; that James Spillar Cutlar acquired, by purchase, certain lands, and died intestate and without issue, in August, 1797; that Roger Cutlar, in 1796, intermarried with Nancy Jones, mother of the petitioners; that the said Roger and Nancy Cutlar, in January, 1797, had issue born, a daughter, Anna E. Cutlar; that after the death of James Spillar Cutlar the petitioners were born, Jane in 1798, Frederick in 1801, and Euphemia in 1803. The petitioners claimed as co-heirs

Local statutes should be consulted.

at law with Anna E. Cutlar of their half-brother James Spillar Cutlar, and claimed, each, one-fourth part of the real estate of which James died seised and possessed.

To this petition there was, in the court below, a demurrer, which was sustained, and plaintiffs appealed.

TAYLOR, Chief Justice. The petitioners are unquestionably entitled, each; to a fourth part of the estate of which J. S. Cutlar died seised; for notwithstanding the great and radical changes in the law of descent, which are introduced by our statute, the principle relative to posthumous and after-born children remains unaltered, and adapts itself to the course of descent instituted here. According to the British law, if lands are given to a son, who dies leaving a sister his heir, if the parents have, at any distance of time afterwards, another son, this son shall divest the descent upon the sister, and take the estate as heir to his brother. Nor is it uncommon for the same estate to undergo frequent changes by the subsequent birth of presumptive. heirs who are nearer, before it finally rests upon an heir apparent. An estate may be given to an only child, upon whose death it may descend upon an aunt as the nearest presumptive heir, who may be deprived of it by an after-born uncle, on whom a subsequent sister may enter, and who will again be deprived of the estate by the birth of a brother. 2 Blackstone's Com. 209 (Chris. Note). A more precise analogy is presented by the case where a man has issue, a son and a daughter; the son purchases land in fee, and dies without issue, the daughter shall inherit the land; but if the father hath afterwards issue another daughter, she shall be coparcencer with her sister. Co. Litt. 11b. So in this state, if the son purchases land, and dies without issue, it descends for the present upon the brothers and sisters then being, but if any are subsequently born, they become equally entitled; and the same law must prevail relative to half-blood, where they are entitled to inherit. It follows, that the judgment sustaining the demurrer and dismissing the petition must be reversed, and the cause. remanded for further proceedings.*

BATES v. BROWN.

(Supreme Court of the United States, 1866. 5 Wall. 710, 18 L. Ed. 535.) Ejectment. It appeared from the agreed statement of facts that: 1. On the 29th of September, 1830, Alexander Wolcott bought of the state of Illinois certain lands, of which those in controversy were

The rule in North Carolina seems to have been changed by statute in 1823. Caldwell v. Black, 27 N. C. 463 (1845). Though not so as to take away the rights of a child en ventre sa mere. Grant v. Bustin, 21 N. C. 77 (1835). See 1 Revisal 1905 N. C. § 1556, rule 7.

COST.WILLS-31

a part. At the time of the transaction he paid the purchase money, and received the usual certificate.

2. He died on the 30th of October, 1830, leaving a daughter, Mary Ann Wolcott, his only child, and his wife, Eleanor, him surviving. He left a will, duly executed, which contained the following provision: "I further give and devise to my said wife, Eleanor M. Wolcott, and my said daughter, all my freehold estate whatsoever, to hold to them, the said Eleanor M. Wolcott and Mary Ann Wolcott, their heirs and assigns forever."

3. Mary Ann Wolcott, the daughter, died on the 16th of January, 1832, aged seven years, intestate and without issue.

4. On the 13th of May, 1833, Eleanor M. Wolcott conveyed to David Hunter, his heirs and assigns, with a covenant of general warranty, the premises in controversy.

5. On the 5th of July, 1833, a patent was issued by the Governor of Illinois for the land purchased by Alexander Wolcott, as before stated, to his "legal representatives, heirs and assigns."

6. Eleanor M. Wolcott, his widow, married George C. Bates on the 26th of May, 1836.

7. The plaintiff, Kinzie Bates, was the issue of that marriage, and was born on the 13th of April, 1838, and was the only child of his parents.

8. His mother died on the 1st of August, 1849, leaving her husband, George C. Bates, then and still surviving. The plaintiff, Kinzie Bates, claimed title as the heir at law of his deceased half-sister, Mary Ann Wolcott. *

Mr. Justice SWAYNE. Mary Ann Wolcott, from whom the plaintiff in error claims to have derived his title by inheritance died nearly four years before his birth. During all the intervening time it is not denied that the title was vested in his mother and her grantee. Such was the effect of the statute. It is clear in its language, and there is no room for controversy upon the subject. Although born after the title became thus vested, he insists that upon his birth it became, to the extent of his claim, divested from the grantee and vested in him. His later birth and relationship to the propositus, he contends, is to be followed by the same results as if he had been living at the time of her death.

It is alleged that the rule of "shifting inheritances," in the English law of descent, is in force in Illinois, and must govern the decision of this case.

The operation of this rule is thus tersely illustrated in a note by Chitty, in his Blackstone: "As if an estate is given to an only child, who dies, it may descend to an aunt, who may be stripped of it by an

The statement of facts is abbreviated, and part only of the opinion is given.

after-born uncle, on whom a subsequent sister of the deceased may enter, and who will again be deprived of the estate by the birth of a brother. It seems to be determined that every one has a right to retain the rents and profits which accrued while he was thus legally possessed of the inheritance. Harg. Co. Litt. 11; 3 Wils. 526." Such is undoubtedly the common law of England. Watkins on Descents, 169.

*

The Ordinance of 1787 contains a complete series of provisions. upon the subject. They are the type and reflex of the action of many of the states at that time. The ordinance declared that the estates of persons dying intestate "shall descend to and be distributed among their children, and the descendants of a deceased child, in equal parts; the descendants of a deceased child or grandchild to take the share of their deceased parent in equal parts among them; and when there shall be no children or descendants, then in equal parts to the next of kin, in equal degree; and among collaterals the children of a deceased brother or sister of the intestate shall have, in equal parts among them, their deceased parent's share; and there shall in no case be a distinction between kindred of the whole and half blood."

We find here not a trace of the common law. These provisions are diametrically opposed to all its leading maxims. We cannot infer from their silence that anything not expressed was intended to be adopted from that source by implication or construction.

We apply to the
It speaks in the

The statute [of Illinois] governing the descent of real estate, already referred to, is also a complete code upon the subject of which it treats. It is to be presumed to cover every case for which the Legislature deemed it proper to provide. If the same question had come before us under the Ordinance, we should have said, with reference to the common law, conflict is abrogation and silence is exclusion. The spirit and aims of the two systems are wholly different. One seeks to promote accumulation; the other diffusion. One recognizes and cherishes the exclusive claim of the eldest son; the other the equal rights of all his brothers and sisters. The latter makes no distinction on account of age, sex or half blood. statute also the remark that silence is exclusion. present tense of the state of things existing at the time of the death of the intestate, and not of any change or different state of things which might occur thereafter. If the Legislature had designed to provide for this case, according to the rule insisted upon, we cannot doubt that they would have said so in express terms. The statute bears no marks of haste or inattention. We cannot believe it was intended to leave a rule of the common law so well known, and so important, to be deduced and established only by the doubtful results of discussion and inference. The draughtsman of the bill could not have overlooked it, and the silence of the statute is full of meaning. One class of posthumous children are provided for. We see no

reason to believe that another was intended to be included, especially when the principle involved is so important. The intention of the Legislature constitutes the law. That intention is manifested alike by what they have said and by what they have omitted to say. Their language is our guide to their meaning, and under the circumstances we can recognize none other. We cannot go farther than they have gone. The plaintiff in error asks us, in effect, to interpolate into the statute a provision which it does not contain. Were we to do so, we should assume the function of the Legislature and forget that of the court. The limit of the law is the boundary of our authority, and we may not pass it.

The principle contended for was applied in the case of Dunn v. Evans, 7 Ohio, 169, pt. 1. The case is briefly reported and no arguments of counsel appear. It was also adopted in North Carolina, in Cutlar et al. v. Cutlar, 9 N. C. 324, and in Caldwell v. Black, 27 N. C. 463. No recognition of it is to be found, it is believed, in any other American adjudication.

The subject was elaborately examined by the Supreme Court of Ohio in Drake v. Rogers, 13 Ohio St. 21, and Dunn v. Evans was overruled. It came before the Supreme Court of Indiana in Cox v. Matthews, 17 Ind. 367, and received there also a thorough examination. The result was the same as in the last case in Ohio. The doctrine was repudiated.

The court said: "Under the laws of this state it is contemplated that such change of title from one living person to another is to be made by deed duly executed, rather than by our statutes of descent. * * The feudal policy of tying up estates in the hands of a landed aristocracy, which had much to do with the shifting of descents as recognized by the English canons of descent, is contrary to the spirit of our laws and the genius of our institutions. It has been the policy, in this state, and in this country generally, not only to let estates descend to heirs equally, without reference to sex or primogeniture, but also to make titles secure and safe to those who may purchase from heirs upon whom the descent may be cast. Our laws have defined and determined who shall inherit estates upon the death of a person seised of lands. When those thus inheriting make conveyances, the purchasers have a right to rely upon the title thus acquired. If titles thus acquired could be defeated by the birth of nearer heirs, perhaps years afterwards, great injustice might, in many cases, be done, and utter confusion and uncertainty would prevail in reference to titles thus acquired. We are of opinion that the doctrine of shifting descents does not prevail under our laws, any more than the other English rule, that kinsmen of the whole blood only, can inherit."

The rule is sanctioned by no American writer upon the law of descents. Judge Reeve [on Descents, p. 74, Introduction], speaking of distributees, says: "I am of opinion that such posthumous chil