2. Did the examination of the title and the proceedings of the board respecting it, presuppose an examination of the preliminary proofs, and an acquiescence in its sufficiency?

We think not. The proof of interest, and the certificate which was to precede payment, if the claim should be admitted, are distinct parts of the case to be made out by the assured. Neither of those parts depends on the other. The one or the other may be first considered without violating propriety or convenience. The consideration of the one does not imply a previous_consideration and approval of the other. The language of the ninth rule does not imply that the proof it requires is first in order for consideration. After stating what shall be done by the assured, the rule requires the affidavit and certificate in question; and adds, that "until such affidavit and certificate are produced, the loss claimed shall not be payable." The affidavit and certificate must precede the payment, but need not precede the consideration of the claim.

54*] *The testimony of the secretary, if not conclusive on this point, is, we think, entitled to great weight. He states the invariable usage of the office to have been, to consider the merits of the claim before looking into the preliminary proof, which, after deciding favorably on the claim, was always referred to him for examination and report. In this case the decision having been unfavorable to the claimant, no reference was made to him.

We do not think the assured can be presumed ignorant of the standing usage of the office to which he applied for insurance; or be admitted to found upon that ignorance a claim to exemption from the necessity of producing a document required by the policy, as indispensable to his demand of payment for his loss. We think the case exhibits no evidence of waiver; no evidence from which the jury could infer it, and consequently that this instruction of the court is erroneous.

It would have been subject of much regret, had the merits of the case been clearly in favor of the defendants in error, to reverse the judgment of the Circuit Court on account of the non-production of a document, which may perhaps be so readily supplied. But the cause must go back on the opinion expressed by the Circuit Court to the jury, that the title proved at the trial agrees with that stated in the offer

for insurance.

After the opinions which have been stated had been delivered to the jury, the defendants offered evidence to prove the insolvency of the plaintiffs, so as to disable them from obtaining a legal title; and additional embarrassments on the property; and again moved the court to instruct the jury that the assured had not such an interest in the property as entitled them, or either of them, to recover. This instruction the court refused to give, being still of opinion

The additional incumbrances to the title, and the circumstances of Lawrence & Poindexter, might constitute additional objections to the representation contained in the offer *for [*55 assurance; but do not, we think, disprove an insurable interest in those who were still in possession of the property, and claimed title to it under executory contract.

The defendants in the Circuit Court then proved that the mill was a square building built of stone to the eaves, that the roof was framed and covered entirely of wood, and that the two gable ends running up perpendicularly from the stone wall to the top of the roof were also constructed of wood. They also offered evidence to prove the general understanding, that the description of a stone house covered with wood was not verified or supported by a house whose gable ends were of wood; that the gable ends were understood to be a part of the wall, not of the roof or covering. They then moved the court to instruct the jury, that if two of the exterior walls terminated in upright gable ends, such gable ends not properly forming, according to ordinary rules and terms of architecture, a part of the covering or roof, it was necessary, in order to verify the said description, that such gable ends should have been of stone; and if, in point of fact, such gable ends as well as the covering or roof were of wood, which under any circumstances of actual conflagration might have increased either the risk of catching fire or the difficulty of extinguishing it, it amounted to a material misrepresentation, and avoids the policy; and it is not material whether the said misrepresentation was willful and fraudulent, or from ignorance and without design; nor whether that actual loss was produced by such misrepresentation, or by having gable ends of wood instead of stone.

The court refused to give this instruction, being "of opinion that it was competent to the jury, from all the facts given in evidence, to decide whether, in order to verify the said description in the said policy, it was necessary that the whole of the exterior walls from the foundation to the top of the roof should be of stone. And being also of opinion that under the first of the rules annexed to the said policy, and referred to therein, no variation in the description of the property insured from the true description thereof, not made fraudulently, would vitiate the policy, unless, by reason of such variation, the insurance was [*56 made at a lower premium than would otherwise have been demanded."

To this opinion also an exception was taken. The rule referred to in the opinion requires,

that

"And if any person cause the same to be described in the policy otherwise than as they really are, so as the same be charged at a lower premium than would otherwise be demanded, such insurance shall be of so foræ,“

If the court was correct in the construction of this rule, and of its effect upon the policy, it will become unnecessary to examine their opinion, leaving the question whether the property insured was, truly described, entirely to the jury.

This rule takes up the subject of describing the property, and provides for it. It requires that the materials of which the walls and roof are constructed shall be truly stated, and prescribes the penalty for a misstatement. The penalty is, that the insurance shall be void, if the assured shall cause the building to be described in the policy otherwise than it really is, so as the same be charged at a lower premium than would otherwise be demanded.

The rule does not place the invalidity of the policy on an untrue description of the building, but on such a description as shall reduce the premium which would otherwise have been demanded. This was a question of fact which the jury alone could decide.

The rule having provided for the case, and prescribed the precise state of things in which the penalty shall be incurred, we do not think that it could be applied in any other state of things. The jury was of opinion that if the building was untruly described, still the mis. representation was not such as to cause the same "to be charged at a lower premium than would otherwise have been demanded." If this verdict was against evidence, the remedy was a new trial.

This court is of opinion that the Circuit Court erred in instructing the jury that the in57*] terest of the assured in the *property insured is such as is described in the original offer for insurance and in the policy; and also in the opinion given to the jury that the evidence was sufficient to be left to them, from which they might infer that the defendants waived the objections to the certificate and other preliminary proof required by the ninth rule annexed to the policy.

The judgment is to be reversed, and the cause remanded to the Circuit Court that a venire facias de novo may be awarded.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Columbia, and was argued by counsel; on consideration whereof, this court is of opinion that the said Circuit Court erred in this: in instructing the jury that the interest of the assured in the property insured is such as is described in the original offer for insurance and in the policy. And also that the said Circuit Court erred in this: in the opinion to the jury, that the evidence was sufficient to be left to them, from which they might infer that the defendants waived the objections to the certificate and other preliminary proof required by the ninth rule annexed to the policy. Whereupon, it is considered by this court that the said judgment of the said Circuit Court in this cause be, and the same is hereby reversed and annulled, and that the said cause be, and the same is hereby remanded to the said Circuit Court with directions to award a venire facias de novo, and for further proceedings to be had therein according to law and justice.

See S. C. 10 Pet. 507; overruled-9 How. 390, 403, 404.

statute of a State relative to real property has been Where the question upon the construction of the settled by any judicial decision in the State where the land lies, this court, upon the uniform principles adopted by it, would recognize that decision as a part of the local law. [85] The statute of descents of Rhode Island of 1822, enacts, "that when any person having title to any real estate of inheritance shall die intestate as to such estate, it shall descend and pass in equal portions to his or her kindred in the following course." It then provides. "if there be no father, then to the mother, brother, and sister of such intestate, and, their descendants, or such of them as there be;" and then declares, in the nature of a proviso, that, "when the title to any estate of inheritance as to which the person having such title shall die intestate came by descent, gift or devise from the parent or other kindred of the intestate, and such intestate die without children, such estate shall go to the kin next to the intestate of the blood of the person from whom such estate came or descended, if any there be." An estate situated in Rhode Island was devised by John Collins to his daughter, Mary Collins, in fee. Mary Collins intermarried with Caleb Gardner, and upon her death, in 1806, the estate descended to her three children, John, George, and Mary C. Gardner. John and George Gardner died intestate and without issue, and Mary C. Gardwhole estate and died in 1822. ner, as heir to her brothers, became seized of the Held, that under

the provision of the law of descents of Rhode Island two-thirds of the estate of Mary C. Gardner descended to Samuel F. Gardner, Eliza Phillips, formerly Eliza Gardner, and Mary Clark, formerly Mary Gardner, children of Caleb Gardner by a former marriage; they being brothers and being admitted that the remaining one-third which sisters of the half blood of Mary C. Gardner; it Mary C. Gardner took by immediate descent from her mother, belongs to the heirs of the whole blood of John Collins. [86]

The phrase "of the blood," in the statute includes the half blood.' This is the natural meaning of the word "blood," standing alone and unexplained by any context. A half brother or sister is of the blood of the intestate; for each of them has some

of the blood of a common parent in his or her veins. A person is with the most strict propriety of language affirmed to be of the blood of another, same blood derived from a common ancestor. who has any, however small a portion of the In the common law the word "blood" is used in the Whenever it is intended to express same sense. any qualification the word whole or half blood is generally used to designate it, or the qualification is implied from the context, or known principles of law. [87]

A descent from a parent to a child cannot be construed to mean a descent through, and not from a parent. So a gift or devise from a parent must be construed to mean a gift or devise by the act ancestor more remote passing through the parent. of that parent, and not by that of some other [90]

It is true that in a sense an estate may be said to come by descent from a remote ancestor to a person upon whom it has devolved through many intermediate descents. But this, if not loose language, is not that sense which is ordinarily anhave descended from A to B, the natural [*59 and obvious meaning of the words is, that it is an immediate descent from A to B. [91] herit who was of the whole blood of the intestate, At the common law a man might sometimes inwho could not have inherited from the first purchaser. As in the case of a purchase by a son who dies without issue, and his uncle inherits the same, and dies without issue, the father may inherit the same from the uncle, although he could not inherit from his own son.

nexed to the terms. When an estate is said to

NOTE. Descent and distribution among kindred of the half blood-see note, 29 L.R.A. 541.

N the Circuit court of the United States for

William C. Gardner, instituted an action of ejectment for the recovery of two-thirds of certain real estate in the State of Rhode Island, of which Mary C. Gardner died seized and intestate.

The facts of the case agreed upon were as follows:

ner.

"The estate in question, two-thirds of which is demanded by the plaintiff, in his said writ, was the estate in fee-simple of the late John Collins, Esq., deceased, the father of the defendant, and the purchaser of said estate. That the said late John Collins died in 1817, leaving lawful issue, viz.: John A. Collins, Abigail Warren, and Mary Collins; and leaving a last will and testament, wherein and whereby he devised the estate in question to his daughter, the said Mary Collins, in fee-simple; who became seized and possessed thereof accordingly, and continued so seized and possessed thereof to the time of her death, viz., the 2d of October, 1806, and died intestate. That the said Marry Collins intermarried with Caleb Gardner, or or about the day of and at her death left lawful issue, viz.: John Collins Gardner, George Gardner, and Mary C. GardThe said John Collins Gardner died the 17th of November, 1806, aged about of course intestate, and without issue. The said George Gardner died the 18th of September, 1811, aged about of course intestate, and without issue. The said Mary C. Gardner died the 31st of December, 1822, aged about intestate and without issue. That at the death of their mother the said John Collins Gardner, George Gardner, and Mary C. Gardner, took from their said mother the said estate, as her heirs-at-law, in equal parts, and became seized and possessed of the same accordingly in fee-simple, and continued so seized and possessed till the death of 60*] the said John Collins Gardner, viz., *till the 17th of November, 1806. That thereupon his part of the said estate descended to and vested in his surviving brother and sister, viz., George Gardner and Mary C. Gardner, in feesimple, in equal moieties; and thereupon the said George Gardner and Mary C. Gardner became seized and possessed of the estate in question in equal and undivided moieties and feesimple, and so continued seized and possessed till the death of the said George Gardner the 18th of September, 1811. That thereupon his part of said estate descended to and vested in his sister, the said Mary C. Gardner, in fee simple, and she became seized and possessed of the same accordingly, and thereby became seized and possessed of the whole estate in question in fee-simple; and so continued seized and possessed to the time of her death, viz., to the 31st of December, 1822. That at the death of the said Mary C. Gardner, the defendants, viz., the said John A. Collins and Abigail Warren, went into possession of the estate in question, claiming to be the heirs of the said Mary C. Gardner; and the defendants have continued possessed thereof, claiming it as their inheritance without interruption or adverse claim till the plaintiff's suit as aforesaid.

That the plaintiff by deeds duly executed became seized and possessed of all the right and title of the said Samuel F. Cardner, Eliza

Phillips, and Mary Clarke, in and to the deF. Gardner and Eliza Phillips are children of the said Caleb Gardner by a former marriage. That the said Mary Clarke is also a child of said Caleb Gardner by a former marriage, and are brother and sister of the half blood to the said Mary C. Gardner. That the said plaintiff and Samuel F. Gardner, Eliza Phillips, and Mary Clarke, are not of kin to the said late John Collins, Esq., deceased, and have not any of his blood in their veins. And if, upon the foregoing facts, the court shall be of opinion that the plaintiff and those under whom he claims are heirs-at-law of the said Mary C. Gardner and entitled to said estate, then judgment to be given for the plaintiff; but if not, then judgment to be rendered for the said defendant."

premises. plaintiff and Samuel

The statute of Rhode Island upon which the plaintiffs in the ejectment claimed to [*61 recover, was passed in January, 1822, and is entitled:

"An act directing the descent of intestate estates and the settlement thereof, and for other purposes therein mentioned: "Section 1. Be it enacted by the General Assembly, and by the authority thereof it is enacted: That henceforth when any person having title to any real estate of inheritance shall die intestate as to such estate, it shall descend and pass, in equal portions, to his or her kindred in the following course:

To his or her children, or their descendants, if any there be:

If there be no children, nor their descendants, then to the father of such intestate:

If there be no father, then to the mother, brothers and sisters of such intestate and their descendants, or such of them as there be:

If there be no mother, nor brother, nor sister, nor their descendants, the inheritance shall go in equal moieties to the paternal and maternal kindred, each in the following course:

First to the grandfather:

If there be no grandfather, then to the grandmother, uncles and aunts, on the same side, and their descendants, or such of them as there be:

If there be no grandmother, uncle or aunt, nor their descendants, then to the great-grandfathers, or great-grandfather if there be but one:

If there be no great-grandfather, then to the great-grandmothers, or great-grandmother if there be but one, and the brothers and sisters of the grandfathers and grandmothers, and their descendants, or such of them as there be, and so on in other cases without end; passing to the nearest lineal male ancestors, and for want of them, to the lineal female ancestors, in the same degree and the descendant, of such male and female lineal ancestors, or such of them as there be.

But no right in the inheritance shall accrue to any person whatsoever other than to the children of the intestate, unless such persons be in being and capable in law to take as heirs at the time of the intestate's death.

And when herein the inheritance is directed to go by moieties to the paternal and [*62 maternal kindred, if there be no such kindred on the one part, the whole shall go to the other part; and if there be no kindred either on one

part or the other, the whole shall go to the husband or wife of the intestate; and if the wife or husband be dead, it shall go to his or her kindred in the like course as if such husband or wife had survived the intestate and then died entitled to the estate.

The descendants of any person deceased, shall inherit the estate which such person would have inherited, had such person survived the intestate.

When the title to any real estate of inheritance as to which the person having such title shall die intestate came by descent, gift or devise, from the parent or other kindred of the intestate, and such intestate die without children, such estate shall go to the kin next to the intestate of the blood of the person from whom such estate came or descended, if any there be." For some time prior to the passage of this Act the law of descerts of Rhode Island was regulated by an Act of 1798, the first section of which nearly resembles the clause in the statute of 1822. It was as follows:

"When the title of any real estate of inheritance, as to which the person having such title shall die intestate, came by descent, gift or devise, from the parent or other kindred of the intestate, and such intestate die without children, such estate shall go to the next of kin of the intestate of the blood of the person from whom such estate came or descended."

The judges of the Circuit Court of Rhode Island having divided in opinion upon the case, the decision was certified to this court for its decision.

Mr. Whipple, for the plaintiff, made the following points:

1. That at common law the phrase "of the blood," includes "the half blood."

2. That if this is not the case at common law, the phrase "of the blood," as it is used in the statute of Rhode Island, necessarily includes the half blood.

63*] *3. That the person whose blood is referred to in the statute, as constituting "the stock of descent," is that kindred from whom the intestate derived the estate, by immediate descent, to wit, the brothers, and not the mother of the intestate, Mary C. Gardner.

He argued, that the Act of the Legislature of Rhode Island, gives the estate "to the next of kin of the intestate, of the blood of the person from whom such estate came or descended;" and by the Act of 1822, there is added, "if any there be."

The defendants contend that "the blood," ex vi termini, means the whole blood; because they assert this to be the meaning at common law.

For the plaintiff, it is claimed that neither at the common law, nor by the proper construction of the statute of Rhode Island, the whole blood is intended; and that as the plaintiff claims as half blood and as representing those who were of the half blood of Mary C. Gardner, the person last seized, the whole question in the cause, and which alone is to be decided by this court, depends upon a proper construction of the law of Rhode Island of 1822.

In order to arrive at a sound conclusion upon the case, it may be proper to examine what is the meaning of the word blood at common law. Under the sixth canon of descents, in reference to the intestate, the word "whole" is

added, which would not have been necessary if that was the natural import of the term. In reference to purchasers the word "blood" simply is used; which means, when used alone, half as well as whole blood.

In a note to Chitty's Blackstone's Commentaries, Vol. II. p. 5, is the following language: "It should here be noticed, that though it is necessary that a person who would succeed, must show himself to be of the blood of the first purchaser, yet, where the persons who inherit succeed or derive title to the inheritance by virtue of remote and intermediate descents from the purchaser, it will be sufficient if they be related by half blood only to the purchaser, or to such other remote and intermediate ancestors, who were formerly and intermediately *seized of the inheritance, in the regular [*64 course of descent from the purchaser; provided, according to the rule which follows, they are the worthiest legal relatives of the whole blood, to the person last seized." Robinson on Inheritance, 45, is cited. He might have cited better authority.

In 1 Co. Litt. sec. 8, p. 14, b. it is said:

"But if there be two brothers by divers ventres, and the eldest is seized of land in fee and die without issue, and his uncle enter as next of kin to him, who also dies without issue; now, the younger son may have the lands as heir to the uncle, for he is of the whole blood to him, albeit he be but of the half blood of his elder brother."

What is the meaning of the terms "of the blood," as used in the statute?

ance,

The object of the provision was to continue the estate in the blood of the person from whom it descended; to find a stock of inheritnot to establish a new rule of descent. The provision has no application, except to a case where the purchaser or preceding holder has already transmitted it to his heirs. Under the enacting clause, the half blood take from the purchaser on the first descent. An heir of the purchaser dies, will not the same blood take from the heir that took from the ancestor?

It is to go to the kin, that is the whole or half blood of the intestate, of the whole blood of the purchaser. According to the argument for the defendant, this reverses the common law; which gives to the whole blood of the intestate, of the whole or half blood of the purchaser.

After giving it to the half blood on the first descent, you can never narrow the capacity of inheritance. You may enlarge it as the common law does, but not give in the first descent and take away in the second.

The family, the blood of the purchaser, is his whole and half blood. The object is to continue the estate in the blood.

The second question is, who is "the person" who is to constitute the stock of descent, "the first purchaser, or the last ancestor ?"

We agree that the object of the statute was to preserve estates in families. We disagree as to the extent of the *object. What [*65 but the language of the Act can determine that question. It is not the identity, but the extent of the object, about which we differ. The former might be determined by other considerations, the latter by nothing but the words of the Act.

2. The Acts of 1798 and 1822, admit of two

readings: "To such of the next of kin of the intestate as are of the blood of the person from whom such right, title or interest came or descended;" or "to the nearest of such of the kin of the intestate as are of the blood," etc. The second reading will, in most cases, give it to a more remote relation of the intestate than the first; and as the next of kin is the primary object of the statute, the former reading should be preferred.

3. Suppose we adopt the latter, however. If first purchaser had been intended, why not expressed? If the principle, why not the language of the common law? Its meaning is well settled and comprehensive. Technical words are adopted, as in other statutes. It was drawn by lawyers, who generally use technical words -not in haste. Why use eight new words to express the meaning of three old ones?

A studious rejection of the words, proves that the principle was not intended to be adopted.

Other legislatures have made the same mistake. They intended the first purchaser if we did, for their language is simliar. Not a statute in the Union except that of the State of New York admits the first purchaser. A reference to the statutes of Connecticut, New York, New Jersey and Pennsylvania, will main tain this position.

4. Why connect "descent, gift and devise" together, if there is, in fact, no connecting medium between them? In the case of gift and devise, the last ancestor is agreed to be the stock. If he is not also in the other case of descent, what is there in common between them? Why use them in connection, when they express two separate principles, establish two distinct rules, and transfer the estate to two different sets of heirs. In those three cases, the same person shall be the stock of descent. This is common to them all, connects them in principle, and therefore they are con66*] nected in language. We never speak of a multitude, unless to say something applicable to a multitude. When something is intended applicable to a part, and something else applicable to another part, we separate them in our discourse.

Something, then, was intended, equally applicable to all the three modes of transmission; and this shows that it can be nothing else but the same stock of descent. Something was to be done, equally applicable to all; for the statute directs what shall be done in those three cases. What is it? The answer is, the same stock of descent. There is a difference between the description and the disposition of the estate. The word or belongs to the former. It has nothing to do, either distributively or collectively, with the latter. Such estate shall go, etc. What estate? The estate which came by descent, gift or devise. There is but one estate, and one channel for it to pass.

5. To show the true meaning, and necessary construction of the words that are used.

The words "parent or other kindred" embrace the brother. Parent includes father and mother. All the other kindred are included under the other terms. General words comprehending particulars, are the same as an enumeration of particulars. The order in which they stand is of no importance. "From the

brother or other kindred," would be the same as those now used.

If a descent from all is provided for, the same as if enumerated, an immediate descent is intended. They agree that an immediate descent in the case of gift and devise is intended; and in some cases of descent, as an immediate descent from the purchaser; can both be intended? Does not an immediate, exIclude an intermediate descent? Such a descent must come through those kindred who are entitled to be stocks of descent.

No other qualification is required than to be of the kindred. The words are not to such of the kindred as are first purchasers.

In the preface of Judge Swift's Treatise on Descents, p. 11, it is said in relation to our statutes: "But in the law of descents there is an almost total change of the common *law. It is radically new in each state, [*67 bearing no resemblance to the common law in most of the States, and having great and essential differences in all."

The laws of descent in every State in the Union, except New York and New Jersey, are altogether different from the common law.

The case of Hall v. Jacobs, in 4 Harris & John. Rep. 249, was this: The father devises to his three children, A, B and C, and dies. A and B die intestate, and their shares descend to C.

The court say, that the statute provides for three cases: 1. Estates descended on the part of the father. 2. Estates descended on the part of the mother. 3. Estates by purchase. This case is neither: "but it vested in the intestate by immediate descent from his brother and sister, a course of descent expressly directed by the Act of Assembly in the case of a purchaser, and is known also to the common law."

In Stewart's Lessee v. Evans, 3 Harris & John. 287, an estate descended to John Stewart's two children, Jane and Alexander. Jane died, and her portion descended to Alexander, who also died intestate. The question was, whether this estate came to the intestate on the part of the father or on the part of the sister. The defendant's counsel agreed, "that it did not come from or through the father, yet that it was on the part of the father;" and so the court decided without giving their reason.

In the case of Shippen v. Izard, 1 Serg & Rawle, 225, Tilghman, Chief Justice, says: "The words on the part of the father, and from the father, are so different that I cannot conceive how the former can be restricted to the father alone without violence to their plain meaning. Not only is there a difference in common phrase, but in legal acceptation; for the phrase, on the part of the father, is familiar to the common law, and must have been borrowed from that source by the persons who drew this Act of Assembly. That it comprehends not only the father but all the ancestors of the father, both paternal and maternal, appears by the citation of the plaintiff's counsel from Co. Litt. 12. a." Yates, Justice, was of the same opinion.

*The Act of Virginia of 1793, provides, [*68 that when an infant died seized of property, which descended "from the father," the maternal kindred should be excluded.

In 1 Munford's Rep. 183, the case of Tomlinson v. Dilliard, decided in 3 Call's Rep. 120,