concurred also in the result, but entertained somewhat different views on the subject. He remarked as follows. The principal objection to the distribution, in this case, is founded upon the claim, that the appellee, being a brother of the half blood of the two deceased sisters, is entitled only to share in their real estate, and has no interest whatever in their personal property. If this claim cannot be supported, that objection fails.
Now, the property distributed, was given, by the father, to his children, who were his heirs at law, in precisely the same manner, as they would have taken it, had there been no will. The rule of law in such case, is, that they take as heirs, and not as purchasers ; and consequently, the property may well be distributed among them, as intestate estate, and according to our statute relating to the distribution of such property. Doe v. Timins, 1 Barn. & Ald. 530. Smith v. Triggs, 1 Stra. 487. Allen v. Heber, 2 Stra. 1270. 1 Jarman on Wills, 67.
By the 31st section of that statute, it is provided, that if any of the children die before becoming of age, and before marriage, the portion of such deceased child shall be equally divided among the surviving children and their legal representatives. Stat. 235. (ed. 1838.)
The two sisters died under age, and unmarried; consequently, their portions are to be equally divided among the survivors ; and no distinction is made between portions in real and in personal property. The appellee, as one of the surviving children, under the statute, becomes entitled to a share, equal to that of either of the appellants.
As no complaint is made of any inequality in the division of the property, but the claim merely is, that it has not been so divided, as that each of the appellants may have a greater share in the estate left them by their father, on account of the decease of their two sisters, than, the appellee can have ; and as they are not entitled to that preference, no injustice has been done to them.
It is however said, that the statute requires the property to be so divided, as that the male heirs may have their parts in the real estate, so far as the estate will allow, and that that *319has not been done. This provision was evidently intended r J for the benefit of the male heirs, which they can waive at pleasure. No complaint is made, by the appellee, of any injustice done to him; and none by the only other male heir, except suchas is common to him and his sisters, with whom he has joined in the appeal.
IIow the case would stand, were he the only party complaining, and insisting upon the right, which the statute gives, to have his share set to him in the real estate, it is unnecessary to consider, as that is not the ground of his complaint.
As the case is now presented, and as no injustice appears to have been done to these appellants, and no inequality in the distribution is shown, I concur in opinion with the other members of the court, that no sufficient reason is shown for setting aside that distribution.
Decree of probate to be affirmed.