Joseph Story

“ On the other hand, with reference to the line of pedigree or consanguinity, a descent is often said to be immediate, when the ancestor, from whom the party derives his blood, is immediate, and without any intervening link or degrees, and mediate when the kindred is derived from him mediante altero, another ancestor intervening between them. Thus, a descent in lineals from father to son is, in this sense, immediate; but a descent from grandfather to grandson (the father being dead) , or from uncle to nephew (the brother being dead) , is deemed mediate ”

“ Rep. 213, turned upon the known distinction, that an alien who cannot inherit, shall not prevent the descent to a citizen, who can make title as heir, not through the alien, but aside from him; as in the common case in England, of a younger brother inheriting from his father, though he has an elder brother living, who is an alien. ”

“ By an act of the legislature of New York, passed on the 27th of February 1788, chap. 90, sect. 38, it is enacted, 'that none of the statutes of England or Great Britain shall be considered as laws of this state.' And by the statute of descents of New York, of the 23d of February 1786, chap. 12, it is enacted 'that in all cases of descents not particularly provided for by this act, the common law shall govern.' These statutes were in full force at the time of the descent cast in the present case; and of course govern the rights of the parties. ”

“ Pace, then, does conclusively establish the doctrine of the common law to be, by the admission of all the judges, that if the pedigree must be traced through a mediate alien ancestor, the party cannot take by descent, for the inheritable blood is stopped, and there is a flat bar to the assertion of any title derived through the alien ”

“ But in mediate descents, it is agreed, the disability of being an alien, or attainted in him that is the medius antecessor, will disable the other, though he have no such disability. And therefore Patrick here, though born in England, cannot inherit John his uncle, nor John to him, by reason of the disability of Nicholas, the medius antecessor. But it is said that the descent from brother to brother, though it be a collateral descent, yet it is an immediate descent, and so no impediment could hinder a descent between them. ”

“ As in our case, though Patrick the son of Nicholas be a natural born subject, yet because Nicholas his father was an alien, there is a consecutive impediment derived upon Patrick, whereby he is consequentially disabled to inherit John his uncle: and this consecutive disability is parallel to that which we call corruption of blood, which is a consequent of attainder. If the father be attainted, the blood of the grandfather is not corrupted ”

“ The common law is constantly and generally used in contradistinction to statute law. This very distinction is pointed out in the clause of the constitution of New York, already cited, 'such parts of the common law of England, and of the statute law of England and Great Britain, and of the acts, &c. ”

“ That as the estate cannot descend to them, so neither do any of them stand in the way to hinder the descent to George. The difference hath been often put between the case of a son or brother, aliens, who are in law as non-existentes, and the brother or son of a person attainted, as to this point. 3. That there is no difference between the descent to George and the descent to John his son, the lessor of the plaintiff, who, jure representationis, is the same with the father. ”

“ Two of the lessors of the plaintiffs, Bella Cohen and Rhina Mordecai are citizens of South Carolina, and claim to be the heirs at law of the testator and of his posthumous child, and as such are entitled to the premises. ”