The opinion of the court was delivered by
Beasley, C. J.The question before this court relates to the descent of lands in this state by force of the sixth section of the statute regulating descents of lands. Rev. p. 298.
The controversy originated in the court of chancery on a bill filed for partition, and in that proceeding his Plonor 'Vice-Chancellor Van Fleet decided that the complainant, who is a great-uncle of the intestate, was equally entitled to the land with the defendant, who was a cousin of such intest»m. This distribution of the title was the only point in litigation, aud is the only question this court is called upon to adjudge.
In the cases of Taylor v. Bray, 3 Vr. 182, and Schenck v. Vail, 9 C. E. Gr. 538, it was conclusively settled as the law of this state, that in ascertaining the persons who should stand as next of kin, and to whom the lands of intestates should go by force of the statutory provision alluded to, the rule of computation of the degree of consanguinity should be the canon of the civil and not that of the common law. The consequence is, that if such rule, in its purity, is to be applied in this case, there can be no doubt as to the correctness of the decision rendered in the court below, for, by the test of that rule, it cannot be denied that these parties are related to the decedent in the same degree of kindred.
But it is insisted, in behalf of the defendant, that this rule of computation is not to be applied irrespectively of the canons of the common law, but is subject to qualification by them. And in turning this theory to account, it is contended that to make the first common ancestor the terminus a quo is imperative *299at common law, and therefore the grandfather, in the present genealogy, cannot be passed and the line carried back to bring in the complainant through the great-grandfather. But the reason why, at the common law, the issue of the nearest lineal ancestor was preferred over the issue of one more remote, was that by the rule of computation of that system the former were nearer of kin than the latter.
This result was occasioned by the doctrine of representation. Blackstone says: “The issue of descendants, therefore, of John Stile’s brother are all of them in the first degree of kindred with respect to inheritance, those of the uncle in the second, and those of the great-uncle in the third, as their respective ancestors, if living, would have been, and are severally called to the succession in right of such their representative proximity.” But when the doctrine of the representation of the ancestor by his descendants, no matter how far removed, has been abolished, why should the doctrine founded on it, that the collateral kindred claiming through the nearest ancestor should be preferred to collaterals claiming through a common ancestor more remote, be retained ? Such retention would have no tendency, as is supposed in the brief of the counsel for the appellant, to give the inheritance to those who have in their veins more of the blood of the ancestry of the intestate. It is certain that in the present case these two contestants have the ancestral blood of the intestate in the samp proportion) that is to say, such blood has been affected by two divisions in descending through each line respectively. This complainant and this defendant completely fulfill the description of the statutory clause in question, for they are “ of equal degree of consanguinity” with the decedent. It is true that in the case of Taylor v. Bray, 3 Vr. 182, it was held that running parallel with this tenth clause of this statute regulating descents, and in a measure modifying it, the canon of the common law which forbade the lineal ascent of the inheritance, still existed in our system of law, but such result was reached from what were deemed clear indications apparent in the general legislative plan with respect to descents. But no such implications are perceived which tend to sustain or favor the view that this other canon of the common law has been designedly retained; *300indeed, every reasonable consideration and inference seem to wear an aspect adverse to such a theory. To admit such a doctrine would introduce much confusion in the entire subject. The vice-chancellor has very clearly stated the legal rule applicable in this instance, and the decree advised by him should be affirmed.