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The first clause of the will standing alone, and without the limitation over, would have given Henrietta Palmer an estate in fee in an undivided half of the lands in question; * but taken together, 23 and considered with the second clause, that estate is qualified and converted into a tenancy in common in tail, with cross-remainders over in fee.

As a bastard can have no heir but issue of the body, I consider the words "if either of the children" (both being illegitimate,) "should die without heir," of the same import and meaning, in legal signification, as saying if either of the children should die without issue. Judgment reversed, &c.

COURT OF APPEALS, (E. S.) JUNE TERM, 1820.

MAXWELL et al. vs. SENEY'S Lessee.

Under the Act of 1786, ch. 45, where one dies intestate and without issue, seized of an estate in land by purchase, and not derived from or through either of his ancestors, such estate descends to his brothers and sisters of the whole blood, and their descendants, in equal degree; and if one of said brothers or sisters die, leaving a grandchild, or any the most remote descendant, as his or her heir-at-law, such child, or descendant, is entitled to the same interest in the estate, as the ancestor would have been if living, and takes the same per stirpes and not per capita. (a)

APPEAL from a judgment in an action of ejectment, rendered in favor of the plaintiff in Talbot County Court, for an undivided thirtieth part of a tract of land called Londonderry. The following case was stated for the opinion of that Court, viz. That Mark Benton died intestate, and without issue, on the 4th of November, 1808, seized of the lands and tenements mentioned in the declaration; and that said lands and tenements were acquired by the intestate by purchase, and not derived from or through either of his ancestors. That the intestate had three brothers and three sisters, to wit, John, Vincent, George, Susan, Ruth and Mary, all of whom departed this life long before the intestate. That John, the eldest brother, had three children, viz. Abel, Polly and Sarah. That Abel is still living, Polly married Charles Burgess, and died before Mark, the intestate, leaving three children, viz. Sarah, George and Mary; the two last are still living, and the first died intestate, and without issue. That Sarah Benton, the niece of Mark, the intestate, married Henry Rochester, and died long before the intestate, leaving a daughter named Elizabeth, who afterwards married Samuel Cacy, and died before Mark, the intestate, leaving a son named Francis, who is still living. That Vincent the second brother of the intestate,

(a) Affirmed in McComas vs. Amos, 29 Md. 141.

*

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had the following sons and daughters, viz. James, John, Vincent, Elizabeth and Mary, of whom James-departed this life long before the intestate, and left two children, viz. Elijah, and Susanna the wife of Horatio Rochester, which said Elijah and Susanna are both alive; John departed this life long before the intestate, and left one son, who died in his infancy, before the intestate; Vincent and Elizabeth are still living; Mary married James Meeds, and died long before the intestate, leaving only one daughter named Rebecca, who is now the wife of Blackiston. That George, the third brother of the intestate, died without issue, and before the intestate. That Susan, the eldest sister of the intestate, married Joseph Baxter, and died long before the intestate, leaving the following children, viz. Vincent, John, Joseph, Sarah, and Susanna, all of whom are still living. That Ruth, the second sister of the intestate, married John Seney, and departed this life long before the intestate, leaving the following sons, viz. Joshua, Samuel, Horatio, Jonathan and Robert, of whom Joshua departed this life long before the intestate, leaving three sons, viz. John, Joshua and Robert; the first of whom died since the intestate, leaving one son named Joshua, (the lessor of the plaintiff,) who is an infant under the age of 21 years. Joshua and Robert last mentioned, are still alive. That Samuel, the second son of Ruth, departed this life long before Mark, the intestate, leaving three children, viz. Jonathan, Joshua and Elizabeth, of whom Jonathan and Elizabeth are still living; and Joshua was alive at the intestate's death, but has since died leaving two children. That Horatio, Jonathan and Robert, the other sous of Ruth, all died before the intestate, and without issue. That Mary, the youngest sister of Mark, the intestate, married Charles Thomas, and died long before the intestate, leaving one daughter, named Mary, who married Charles Vanhkle, and departed this life after the intestate, leaving three children, viz. Charles T., Lydia, and Elizabeth, all of whom are still living. That Joshua Seney, the infant son of the late John Seney, the lessor of the plaintiff, claims a share of the lands and premises mentioned in the declaration. The County Court gave judgment on the case stated for the plaintiff; and the defendants appealed to this Court.

The case was argued in this Court before BUCHANAN, JOHNSON, MARTIN and DORSEY, JJ.

* Hammond, for the appellant, relied upon the Act of 1786, ch. 45; Sir T. Raym. 496; Cooper's Justinian, 393-400.

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Goldsborough, for the appellee, also relied upon the Act of 1786, ch. 45, and Collier vs. Stewart, decided in this Court in 1812.

BUCHANAN, J. delivered the opinion of the Court. Mark Benton, under whom the plaintiff in the ejectment claims, died seized of an

estate of inheritance in the land mentioned in the declaration, which he acquired by purchase, leaving no child or descendant, or brother or sister, alive at the time of his death, but a number of collateral relations, the children, grandchildren, and great grandchildren, of his brothers and sisters, all of the whole blood. Joshua Seney, the lessor of the plaintiff, is a great grandson of Ruth Benton, one of the sisters, and seeks to recover an undivided part of the land of which Mark Benton died seized; and the question, which lies within a very narrow compass, is, whether he is entitled to any and what proportion of that land, and it is not necessary to look beyond the provisions of the Act to Direct Descents, (1786, ch. 45,) on which it depends, to arrive at the intention of the Legislature. The second section of that Act, after directing in what manner an estate descended to an intestate shall go, provides, "that if the estate is or shall be vested in the intestate by purchase, and not derived from or through either of his ancestors, and there be no child or descendant of such intestate, then the estate shall descend to the brothers and sisters of such intestate of the whole blood, and their descendants, in equal degree," &c. And by the fourth section it is enacted, "that if, in the descending or collateral line, any father or mother may be dead, the child or children of such father or mother shall, by representation, be considered in the same degree as the father or mother would have been if living, and shall have the same share of the estate as the father or mother, if living, would have been entitled to, and no more; and in such case, where there are more children thau one, the share aforesaid shall be equally divided among such children." It is contended, on the part of the appellant, that in the collateral line, only those in equal degree, and none more remote than the children of brothers and sisters, can take, and that they 26 must take "per capita," and not "per stirpes," and the argument in support of these positions, as applicable to the first section of the law of descents, was very forcible. But whatever would be the true construction of that branch of the Act, if it stood alone, the fourth section, the office of which is to ascertain who shall be considered as standing in the same degree, and the proportions to which they shall be respectively entitled, furnishes an interpretation that cannot be resisted, and is a full answer to any argument that can be drawn from the second section. If none could take but those in the same degree, it would follow, that where there are brothers and sisters, and children of a deceased brother or sister, as the brothers and sisters could alone stand in equal degree, they would take the whole estate, to the exclusion of the nephews and nieces. But this is obviated by the fourth section of the Act, which, if it has any meaning, contemplates and provides for such a case, by declaring the children of a deceased father or mother, to be in the same degree, by representation, as the father or mother would have been if living, and giving to them the same share of the estate that their father or

mother, if alive, would have been entitled to, and thus the nephews and nieces, in the case put, are placed, not in fact, (which cannot be,) but by representation, in the same degree of relation to the intestate, with the surviving brothers and sisters, and are not excluded from a participation in the estate, but are entitled to whatever would have been the proportion of their father or mother.

The argument, that among collaterals none beyond the children of brothers and sisters can take, however ingenious and well urged, cannot be sustained. The words, "any father or mother," in the fourth section of the Act, cannot be restricted to the brothers and sisters of the intestate; that would be an arbitrary interpretation, not warranted by anything to be found in the law itself, and contrary to any known rule of construction, but are unlimited, and must apply to any father or mother in the descending or collateral line, in any the remotest degree. Thus, if there be a brother and a nephew, the son of a deceased brother, the nephew, by representation, stands in the same degree with the brother, and will take one-half of the estate, being the share to which his father would have been entitled if alive; and if the nephew be dead, leaving a child, that child is * considered by representation, in the same degree as his father 27 would have been, if living, and so on ad infinitum; and as the same section directs, that where there are more children than one, the share of their deceased father or mother, and no more, shall be equally divided among such children, it follows that they must take "per stirpes" and not "per capita," and that was settled in the case of Collier and Stewart; for no matter on what ground John Stewart, the defendant, claimed, Helen Collier could on no other principle have been entitled to one-eighth part of the estate of the intestate, the proportion that was adjudged to her in that case; and the same principle governs this case. The collateral relations of Mark Benton were the descendants of two brothers and three sisters, making five stirpes; there were six grandchildren of Ruth Seney, one of the five stirpes; and Joshua Seney, the lessor of the plaintiff, is the only child of Joshua Seney, who is dead, and was one of the six grandchildren of Ruth; he therefore is entitled to a sixth part of a fifth of the land mentioned in the declaration, being one-thirtieth of the whole. Judgment affirmed.

COURT OF APPEALS, (E. S.) JUNE TERM, 1820.

MERCER vs. WALMSLEY.

An action on the case per quod servitium amisit, will not lie by a father for the seduction of his daughter, where she is above the age of 21, and not in his actual employment—Otherwise where she is under that age. (a)

(a) Affirmed in Greenwood vs. Greenwood, 28 Md. 381, and Bullett vs. Worthington, 3 Md. Ch. 104.

Where a daughter, either of age or under age, is seduced in the father's house, he may maintain either an action of trespass q. c. fregit, and lay the seduction and loss of her service, as consequential, or an action on the case against the seducer. (a)

Where a daughter is above 21, very trifling acts of service are sufficient evidence of her being in fact his servant.

Whether a father can support an action per quod servitium, &c. where the daughter is above age, without proving some acts of service? Quere. Where the evidence is all on one side the Court have a right to say that it is not sufficient to entitle the party to a verdict.

A father, as such only, cannot maintain an action per quod servitium amisit. for the seduction of his daughter.

Whether a father may not bring this action for the seduction of his daughter, under age, although she does not reside with him, and has no intention of doing so, and although such intention is known and assented to by the father? Quere.

APPEAL from Cecil County Court. This was an action on the case, brought by the appellee against the appellant. The declaration stated "That whereas the said John Mercer contriving, and wrongfully and unjustly intending, to injure the said William Walmsley, and to deprive him of the service and assistance of Margaret Walmsley, the daughter and servant of him the said W. heretofore, to wit, on the 1st day of July, 1816, and on divers other days and times between that day and the day of issuing forth the original writ in this cause, at Cecil County aforesaid, debauched and carnally knew the said M. then and there, and from thence, for a long space 28 of time, to wit, hitherto being the daughter and servant of the said W. whereby the said M. became pregnant, and sick with child, and so remained and continued for a long space of time, to wit, for the space of nine months then next following; at the expiration whereof, to wit, on the 7th day of April, 1817, at Cecil County aforesaid, the said M. was delivered of the child with which she was so pregnant as aforesaid; by means of which said several premises, she the said M. for a long space of time, to wit, from the day and year first above mentioned, hitherto became and was unable to do or perform the necessary affairs and business of the said W. so being her father and master as aforesaid, and thereby he the said W. during all that time, lost and was deprived of the service of said daughter and servant, to wit, at Cecil County aforesaid; and also by means of the said several premises he the said W. was forced and obliged to, and did necessarily pay, lay out and expend, divers sums of money, in the whole amounting to $500, in and about the nursing and taking care of his said daughter and servant, and in and about the delivery of the said child, to wit, at Cecil County aforesaid. Wherefore the said W. saith he is injured," &c. The defendant pleaded not guilty, and issue was joined.

(a) Affirmed in Keller vs. Donnelly, 5 Md. 216.

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