“ This is a case of petition for partition, from Shelby Court of Common Pleas. In the Court below the suit was commenced by Hiram T. Aldridge, Jackson G. Aldridge, John Montgomery, James Montgomery, Margaret Montgomery, jr., and Samuel Montgomery, guardian of John, James, and Margaret, jr., against Margaret Montgomery, sr.
“ The petition states that Hiram Aldridge, the ancestor, died on the 7th November, 1831, leaving Margaret Aldridge, his widow, and Hiram T., Jackson C., William W., Dewitt C., and Elizabeth Ann Aldridge, his children.
“ Hiram Aldridge owned, at the time of his death, one tract of land of 160 acres, one of 72, one of 62, and one of 20, the whole amounting to 314 acres. He also owned out-lots 1, 2, 6, 7, and 8, and in-lot 6, and the west third of in-lot 7, in the town of Shelbyville.
“The widow, Margaret Aldridge, afterwards married David Montgomery, the father of John, James, and Margaret, jr. In November, 1847, David Montgomery died, leaving, surviving him, his widow, Margaret, sr.
*303“ At May term, 1843, of Shelby Probate Court, dower was set off to said widow of Aldridge, viz., out-lots 1, 2, 6, 7, and 8, and the west third of in-lot 7, in Shelbyville, and also four different pieces of ground of 20, 15, 2, and 10 acres respectively. After the death of Hiram Aldridge, the father, Hewitt Cl died, September 11th, 1835, intestate, without issue.”
On the 24th of January, 1838, Elizabeth A. Aldridge died intestate, without issue.
In September, 1846, William W. Aldridge died intestate, without issue.
11 John Montgomery was born in November, 1835, James, February 14th, 1840, and Margaret, jr., in July, 1844.
“ Samuel Montgomery is the guardian of said John, James, and Margaret Montgomery.
“ Margaret Montgomery, sr., is not in her right mind, but is partially insane.”
The Court determined the respective shares of the parties, and decreed partition accordingly. The question is as to the shares of the children, severally, under the statutes of descent.
On the 7th of November, 1831, when Hiram Aldridge, the father, died, his real estate descended to his five children, subject to the widow’s dower. It. C. 1831, p. 207.
On the 11th of September, 1835, when Dewitt C. Aldridge died, he was the owner of one-fifth of the lands descended from Hiram, which fifth descended, at his death, one-half to the four remaining heirs, and the other half to his mother. It. C. 1831, supra.
In November, 1835, John Montgomery, a brother of the half-blood, was born.
On the 24th of January, 1838, on the death of Elizabeth A. Aldridge, then the owner of a fraction less than one-fourth of the real estate descended from Hiram, her share went, one-half equally to her three brothers of the whole blood, and John Montgomery, the brother of the half-blood, and the other part to the mother. Clark v. Sprague, 5 Blackf. 412.—R. C. 1831, p. 207. That code was still in force.
O. H. Smith and S. Yandes, for the appellants.On the death of William W. Aldridge, in September, 1846, the R. C. 1843 was operative, and by that (p. 434), one-half of his share went to the mother, and the other half to his two brothers of the whole blood; because the inheritance came to the intestate by descent from his ancestor, of whose blood the heirs of the half-blood were not. R. S. 1843, s. 4, p. 436. They were not begotten by him. Had they been begotten by him upon a second wife, they would have been of his blood. This rule of descent applied to all the interest of William W., except the one-fourth of the portion which descended to him from his sister Elizabeth. She was not, perhaps, the ancestor of her brother (Webster; 4 Kent, Lecture 65); or, if she was, her half-brother was of her blood, both having had the same mother.
The Court below did not determine the shares of the parties strictly in accordance with the foregoing rules, and en-ed in its decision.
The answer of Margaret Montgomery, she being of unsound mind, should have been by a committee. 2 R. S. p. 42, s. 65.
The judgment below should, therefore, be reversed.
Per Curiam.—The judgment is reversed with costs. Cause remanded for further proceedings in accordance with this opinion (1)
Afterwards the folio-wing entry was made: But now come the parties and agree that the judgment below shall be affirmed, each party paying one-half of the costs, and it is ordered accordingly.