delivered the opinion of the Court.
West and others exhibited their bill in chancery, against Williams and others, for the recovery of a tract of land, and the rents, and profits of the same, from the death of Eugene L. TI. Williams.
The land in controversy, was originally owned by Lewis C. Taylor, who, by his last will and testament, devised it in fee to his wife, Mrs. Elizabeth M. 0. Taylor. During her widowhood, Mrs. Taylor, by will, devised as follows: To her brother, William Overton, one-third of her negroes and $1000 in money; to her sister, Mrs. West, one-third of her negroes for life, remainder to her children; to her daughter, Mrs. Henry E. Williams, all the residue of her estate, including a tract of land in Arkansas (which is the land in controversy) for life, remainder to her children, with a proviso, that if any such child come of age, or married in their mother’s (Mrs. Williams) life time, its share should be then delivered to it. In case of Mrs. Williams5 death, without issue, at h&r death, the property devised to ber to go over to Overton and Mrs. West. If any of Mrs. Williams’ children coming of age, or marrying, and receiving tbeir share, should die in their mother’s life time, its, or their share, “to fall bach into the mass,” and go to Overton and Mrs. West., The clause carrying the property over, on the death of Mrs. Williams, without issue, provides that the whole of her share shall go over, “saving such as may have been allotted off to such of the children ás before directed.”
Mrs. Williams died in the life-time of the testatrix, leaving but ■•one child, a son, Eugene L. II. Williams, who died in infancy, without issue, after the death of the testatrix.
Mrs. Taylor also devised to certain nieces and nephews, legacies to be paid in money to the amount of $1,300 in the aggregate. Then follows item 5th of the will-, in these words: “The foregoing cash legacies and bequests, shall be paid by my son-in-law, Joseph R. Williams, out of the estate hereinafter bequeathed and devised to my beloved daughter, Henry E. Williams, wife of said Joseph R. Williams, and her children, with the accompanying limitation over in certain contingencies, as such estate hereinafter bequeathed to my said daughter and children, is to, and is hereby declared, shall be, and remain in,- the care and under the management. of him, the said Joseph R. Williams, free of rent, interest, or hire, so long as, by limitation aforesaid, said estate shall •remain in the use and possession of my said daughter, Henry E. Williams.” And the 6th item of the will, which gave Mrs. Williams all the residue of the estate — that is, one-third of the ne-.groes, all the land, and all other property, real, personal, and mixed, except a carriage and horses, declares that she is “the same to have and to hold, subject to the legacies aforesaid, separately'to herself and her children,” &c.
Joseph R. Williams, and William Overton were named as executors; and, by a codicil, $1.000 were given to Sarah B. Wilkins, a sister of the testatrix, to “be paid,” in the language of the will, “by my son-in-law, Joseph R. Williams, out of the properly devised my daughter, bis wife.” A copy of the will is made a part of the bill.
The negroes were divided, the other legacies delivered, and the pecuniary legacies paid off as directed by the will; the latter by Joseph R. Williams, out of his own funds.
The will of Mrs. Taylor was executed the 10th of November, .1846, and was admitted to probate in Montgomery county, Tennessee, the 2d of April, 1849. She having died, a short time before, in that State, where Eugene L. H. Williams also died, a month or two after the testatrix. Ever since his death, Joseph R. Williams, his father, has been in possession of the land, and in receipt of the rents and profits. After the death of the testatrix, Joseph R. Williams married Jane T. Wilkins, daughter of Jane Wilkins, vice Taylor, who was a sister of Lewis C. Taylor, the deceased husband of the testatrix.
The complainants are the heirs at law of the testatrix, and the defendants are the heirs at law of Lewis C. Taylor, deceased husband of the testatrix.
Williams, in his answer, also claims the land as heir of his deceased son, Eugene L. IT. Williams, and that if not, that it went to the heirs of his deceased wife, (the mother of Eugene), who are both the plaintiffs and the defendants; that is to say, as well the heirs of the testatrix as of her deceased husband, Lewis C. Taylor. He also sets up that if the land should not be decreed to him, the legacies paid by him should be charged upon it, and the land sold:to re-imburse him, and that the rents and profits should not be charged against him further back than to the 1st January, 185.0; because, under the laws of Tennessee, he has already distributed sounuch of them as accrued for the unexpired portion of the year 1849, as part of the personal ''state of the testatrix. And that against the rents and profits, for which he might be held accountable, all valuable and lasting improvements made upon the land ought to be set off. He also submitted that the charge of the pecuniary lega cies, upon the property devised to his son, so changed its nature as to make- it a.new acquisition and not ancestral, within the meaning of the statute, and that thus bis son was constituted a new stock of descent. He does not, however, in any way, allege, or set up that the personalty, devised along with the land, was insufficient to pay off the legacies charged in gross upon the whole estate devised.
The court below decreed the land to the complainants, and that Williams should account to them for the rents and profits, from the 1st day of January, 1850; and directed the master to enquire into, and report the dates when the legacies were paid, the amount of rents and profits, that ought to have been received, the value of permanent and lasting improvements made on the land, with annual rests and interest on both sides. The value of such improvements, and the amount of the legacies paid to be set off against the rents and profits, and that the defendants pay all the costs.
From that decree, both parties appealed to this court.
It is shown, very clearly, by the reasoning, and the authorities cited by counsel on the one side, and is admitted by the counsel on- the other, that, under the facts of this case, the legacy of the residuum to Mrs. ITenry E. Williams for life, with the limitation, over, did not lapse, but immediately upon the death of the testatrix, vested in Eugene L. H. Williams, her grand son. The lands in controversy, then, belong either to all the heirs of the. latter, or else to such of them, onljq as under the provisions of our statute of descents and distributions are capable of inheriting them from him.
Coming to him by devise from his maternal grandmother, Mrs. Taylor, who had taken them by purchase from her deceased husband, and held them as an ancient fee, they were in his hands, an ancestral estate ex parte materna, within the meaning of the 10th section of our statute, explained and enlarged by the 22d section; and the question is, who of the parties in'this controversy, are entitled, under our laws, to inherit these lands from Eugene L. H. Williams, who died intestate, thus seized and possessed of them ?
According to the interpretation of the statute in the case of Kelly et al. vs. McGuire & wife et al., decided at the present term, where the whole subject was fully discussed and elaborately considered, it was held that ancestral estates embrace not only descended estates, but also all others, which may have come to the intestate by gift, or devise, from either parent, or from any relative of the blood of either parent, and that, as to all such, it is the manifest intention of the Legislature, upon the death of the intestate, without issue, to preserve them in the line of the blood from whence they come, to the same extent that descended estates-were so preserved at common law-
To carry out this intention, it is obvious, that the same means, must be resorted to, that were used- at common law, to make it effectual as to descended estates, and should these fall short in any case, when applied to estates given or devised, then that analogous means must be used.. Hence, the inevitable principle, substantially announced in the case cited, that to be of the blood of the last purchasing ancestor, in the line of the transmitting' relative, is as indispensable to enable a collateral to inherit, as heir of the intestate, an ancestral estate which was given or devised to the intestate, as to be of the blood of the last purchasing ancestor was, according to the principles of the common law, to enable him to inherit, as heir of the intestate, an ancestral estate which had come to- the intestate by descent. Consequently, whether an ancestral estate come to the intestate by gift, devise, or by descent, upon the failure of issue, it can be inherited by such of his heirs only as are of the blood of the last purchasing ancestor, in the line of the blood from whence it came, either maternal or paternal, as the case may be. 4 Kent 404. And this is in exact harmony with the provisions of the statute in excluding the half-blood and their descendants from inheritances only, when these are ancestral, and they, not of the blood of the-transmitting ancestor.
Upon this ground, not only is Joseph E. Williams, the father-of the intestate, excluded from this inheritance, but also all the next of kin of the intestate on the side of bis grandfather, Lewis. C. Taylor; none of them being of the blood of his grandmother,. Mrs. E. M. 0. Taylor, from whom the estate came to him, and who held it as purchaser. It is, therefore, only the complainants below, all of whom are of this blood, that are called to the inheritance in question.
In response to the position of the counsel of Joseph E. "Williams,, that inasmuch as the devise was to the same person, who would have taken the estate as heir at law, the devise shall be held inoperative, and the devisee as in by descent, it is to be remembered that, although it might be so held, the result would be pre_ cisely the same, because in that case none of his next of kin could have inherited, upon his death without issue, except such onhj as were of the blood of his grandmother, from whom, as representing his mother, he inherited the estate; his grandmother having held it as last purchaser. In that case, however, the result would have been very different, as to future descents from those who, in either ease, would inherit from Eugene and die without issue; because, only such of the heirs of such intestate-inheriting from Eugene and dying without issue, could be called to the inheritance, as were of the blood of Jhugene's grandmother, who would still remain the last purchaser in the line of descents; whereas, under the actual state of the case, Eugene, having taken an ancestral estate by devise from his grandmother, is m by purchase, and thereby becomes himself a stock of descent as to all those who might inherit from those who inherited from him, it being the rule of the American law, as to such future descents of ancestral estates, to stop at the last purchaser, and ascend no higher for blood. Gardner vs. Collins, 2 Peters Rep. 58; 2 Hilliard, chap. 17, sec. 64; 4 Kent 405.
And, in addition to the reasons already given, this rule would peremptorily exclude all the next of kin of the intestate, who-are of the blood of Lewis C. Taylor, even had he (Lewis) been some relative, either paternal or maternal, of Mrs. Taylor, instead of being her husband, and of no kin to her at all — so far as appears upon this record — because, although he had been such a relative, and had devised the land to Mrs. Taylor, as he did, in calling the next of kin of Eugene to the inheritance left by his failure of issue, the law would have gone no higher v/p the ancestral line for blood, than to the first purchaser of the estate, who, in that case, also, would have been Mrs. Taylor.
According to the actual state of case, however, as it appears upon this record, the estate, when in Mrs. Taylor’s hands, was not an ancestral estate at all, but a new acquisition, within the definition of such estates given in the case of Kelly et al. vs. McQuire & wife et al.; because, she held it by devise from her husband, Lewis 0. Taylor, who, so far as this record shows, was a stranger to her blood, both paternal and maternal; but, in the hands of Eugene, it was an ancestral estate, expa/rte materna; because it had come to him from his maternal grandmother. And this being so, in accordance with the ancient maxim of the common law, “that he who would have been heir to the father of the deceased, and of course to the mother, or any other real or supposed pwehasinq ancestor, shall also be heir to the son” — a maxim that twill hold universally, except in the case of a brother or a sister .of the half-blood. 1 Black. Com. 223; 1 Lomax on Heal Property, 589. None of the heirs of Eugene could inherit the lands from him, who would not also have been heirs of Mrs. Taylor, his grandmother, and these, in this case, are those who were the •complainants below, to whom the Circuit Court of Pulaski county correctly decreed them.
There being, in our opinion, nothing in the position taken in behalf of Joseph E. Williams, that the legacies, charged upon the whole, estate, devised, real and personal, so changed the nature of the real estate as to make it, in the hands of the intestate, a new acquisition, within the meaning of our statute : And there being no pretence that the personal estate was insufficient to pay the legacies charged in gross, upon the whole estate devised, it is perfectly clear, in the light of the immense array of authority, cited to the point, that so much of the decree as directed that the-pecuniary legacies paid by Joseph H. Williams should be set off against the rents and profits of the land since the first day of January, 1850, for which he was properly held accountable to the plaintiffs below, is erroneous, and must be reversed. The residue of the decree is equitable, and ought to be affirmed and executed. The cause will, therefore, be remanded to the Chancery Court for Pulaski county, with instructions to this effect.