dissenting:
Not concurring with the majority in the decision mad’e,it is incumbent upon me as an act of duty to set forth the grounds of my dissent.
There is no difficulty as to the facts of the case, which are agreed to be as follows: Jacob Sum-merlin departed-this life some years since,- leaving a large- estate,, both real and personal, which was divided among: his widow and-seven children. One of these children, Caroline Summerlin, died in infancy, after her father, leaving' considerable-personal property derived and inherited from him, which is the subject of the present controversy. His widow intermarried with James S. Jones, by whom she has-*294three children, by whom and the wife this snit is instituted to recover full shares of this property, claiming to be entitled thereto as distributees and heirs of Caroline Summerlin in common with the other children of Jacob Summerlin.
The law of the case is as follows:
“ Property remaining in the hands of the executor or administrator, after all debts and legacies have been paid, shall be distributed according to the law of descents.” — ■ Thompson, 191.
The law of descents, so iar as it is applicable, is in these words:
“Whenever any person, having title to any real estate of inheritance, shall die, it shall descend in parcenary to the male and female hindred in the following course: that is to say, if there is no father, then to his mother, brothers and sisters and their descendants, or such of them as there be: Provided, however, That whenever an infant shall die without issue, having title to any real estate'of inheritance derived by gift, devise or descent from the father of such infant, and there be living at the death of such infant his father or any brother or sister of such infant on the part of the father, then such estate shall descend and pass to the paternal hindred without regard to the mother or other maternal hindred living at the death of the infant; saving, however, to such mother any right of dower which she may have in such real estate of inheritance.” — Thomp., 188-9.
Yery clearly the express words of the law give the property of this infant, Caroline Summerlin, derived from her father, to her brothers and sisters on the father’s side, the Summerlins, and not to her mother, Mrs. Jones, nor to her children by Jones.
Not because there is actual difficulty, (for, with due def*295erenee, I think the case is too plain to admit of argument,) it may be necessary to refer to the state of the law when the act of 1829, as to. descents, was passed.
One of the first laws passed by the Territorial Legislature, as early as the 12th of August, 1822, was “ a law regulating descents.” During the same session, also, was passed the law quoted as to the distribution of the personalty, which has remained in force all the time. In 1829 a law was passed containing the leading sections of the act of 1822, but with some new provisions. By this law of 1829, “ all acts and parts of acts now in force and. coming within its provisions were repealed.” — Duval, p. 363. So far, then, as the law of 1829 repeals that of 1822, to that extent the latter thereafter ceased to be a rule of action, so that the inquiry is an important one, to ascertain what was repealed. There were no provisions, such as the 10th section of the law of 1829 quoted above, with the 11th, making a like regulation as to the property derived from the mother, in the law of 1822, so that by it the personalty certainly (if not the realty) passed to the mother and brothers and sisters, whether of the whole or half blood, as by the statute and common law of England. — 1 Will., 252; 2 Will, on Ex’ors, 925. The incorporation of these provisions in the law of 1829, and the express repeal of all acts and parts of acts then in force and coming within its purview, abrogated this descent to the mother and brothers and sisters as existing by the law of 1822.
The mischief under the old law would seem to have been the giving the property to those not connected by blood with • the person from whom it was derived. The remedy was the passage of a law with clauses prohibiting such transfer, and by the primary canon of construction it is declared to be “the duty of the Judges at all times to *296make such construction as should suppress the mischief and advance the remedy, putting down all subtle inventions and evasions for the continuance of the mischief et pro pri/oato commodo, and adding force and life to the cure and remedy, according to the true intent of the makers of the act, pro bono publico1 Black., 87; Dwar. on Stat., 717.
How a provision that has been expressly and directly repealed can be made to confer a right of property, is wholly beyond my powers of comprehension. The 10th and 11th sections do not apply to personalty, it is said, because of its nature, the difficulty of identifying it, the title by which it is holden, and, still farther, for want of reciprocity. As to the two former, no difficulty exists in this case, as all the property of the infant is admitted to have been derived from the father. It is strange that all the objections did not occur to the Legislature to prevent the passage of the law- — stranger still, that in practice in no case for near thirty years since its enactment has complaint been made on this account. By common consent of lawyers, judges and people, this has been the settled construction, and estates during all this time have been settled and adjusted and rights derived and acquired under it. Our digests and compilations have been on this understanding. These same objections, scarcely varying in language or form of expression, were stated by one of the Judges of the Court of Appeals of Virginia and earnestly insisted on, but overruled by four of his associates, and again urged on other occasions and overruled upon statutes almost identical with ours.
Thus Fleming, Judge: “It is in vain, therefore, to urge the confusion and difficulties which it is said must ensue from, this mode of interpreting the law, because the Court are bound down by its positive precepts and have no dis*297cretion in the matter ; for, whatever latitude a Court may think proper to indulge where the expressions are ambiguous, they certainly have no right to do so when the words are clear; but if inconveniences follow from a literal construction, they must be redressed by the Legislature and not by the Court, who are not to torture the words in order to discover meanings which the Legislature never had, but are to preserve the plain import of the statute without regard to the consequences.” Carrington, Lyons and Pendleton, President, expressed themselves more strongly to the same effect. — 3 Call, 115. Another effort was made before the same Court in favor of the same views, but with less success than on this occasion, as not one of the Judges favored the objections. — 1 Munford, 183; 2 Munf., 279.
In Kentucky a similar statute and similar provisions were enfored. In this State a distribution was decreed to the same effect. — Young’s adm’r vs. McKinnie, 5 Florida, 542, 551. And yet these exploded notions of a single Judge, uttered in 1801, denounced by his own Court of four to one, condemned by the action of other Courts and not followed anywhere, are fixed upon as the views of the action of this Court in direct opposition to rules and principles declared over and over again as applicable to such subjects. One of these is, that where a statute is in the terms of the law of another State, or of an English statute, the construction of their Courts is to be regarded as much so as if it had been detailed at length in the statute.— Reeves on Descents, 26.
If the provisos of the 10th and 11th sections are not in force as to the personalty, how are they to be separated and detached from the section to which they pertain? They are part and parcel of the third section, under which the mother, brothers and sisters derive their descent, and may no more be dispensed-with than the section itself. *298If one is stricken out and disregarded the other must be so too, otherwise the anomaly is presented of an enactment carried into effect stripped of a leading and direct provision qualifying it in a most important and essential point. The statute says the property shall go to the mother, brothers and sisters, provided that when it is derived from the father it shall go to the paternal kindred, and not to the mother, and from the mother to the maternal kindred. Now by what process is a part of the statute saved and enforced and the other destroyed or disregarded ? If availing for the personalty in the one case, why not in the other ? “ The effect of repealing a statute is to obliterate the statute repealed as completely as if it had never passed, and it must be considered as a law that never existed except for the purpose of those actions or suits commenced, prosecuted and concluded while it was an existing law.” — Smith’s Con., 889; Key vs. Godwin, 4 M. & C., 341, 351.
Now, considering the act of 1829 and the law for distribution of the personalty together, without reference to the act of 1822, can any doubt exist as to the operative force and influence of the provisos — the 10th and 11th sections — . as to personalty ? There seems to me to be an entire misconception as to the subject of reciprocity. What can' there possibly be between these complainants and the the children of Jacob Summerlin ? Reciprocity would dictate,, if Jones’ children succeed here, that the Summerlins would share with the children of Jones in case of their deriving property from their father or mother, and yet is anything of this kind pretended?