¶1 On Rehearing
¶2 (101 P. (2d) 414)
¶3 In our former decision herein we expressed the opinion that, because of the language contained in the first paragraph of section 10-101, Oregon Code 1930, “not having lawfully devised the same”, the common-law rule that an heir shall not take by devise where he may take the same estate by descent has been abrogated by the statute. After rehearing, we are now convinced that the rule does prevail in this state.
¶4 The whole purpose of section 10-101 is to regulate and control the descent of intestate real property and clearly, under our statute, the devise by the father to the son of his entire estate was a lawful devise and, hence, upon the death of the testator, his entire estate vested immediately in the son subject only to the terms of the trust. The rule of the common law, however, applied only in cases where the ancestor had made a lawful devise of his real estate to his heir and, hence, it could be applicable in this state only where there *316 had been a lawful devise to an heir by his ancestor of his real property. We are now convinced that the common-law rule above referred to has not been changed or abrogated by the statute and that such rule, although never heretofore announced in any decision of this court, we think is binding upon the courts of this state like any other applicable common-law rule which has not been abrogated by statute, under the doctrine announced in Peery v. Fletcher, 93 Or. 43, 182 P. 143; United States F. & G. Co. v. Bramwell, 108 Or. 261, 217 P. 332, 32 A. L. R. 829; and Fidelity & Deposit Co. v. State Bank of Portland, 117 Or. 1, 242 P. 823. That rule is stated by Blackstone as follows:
“… But if a man, seised in fee, devises his whole estate to his heir at law, so that the heir takes neither a greater nor a less estate by the devise than he would have done without it, he shall be adjudged to take by descent, even though it be charged with incumbrances ; this being for the benefit of creditors and others, who have demands on the estate of the ancestor. 1 Chitty, Bl. Comm., *242.”
¶5 Nor do we think that, because the estate of the father was devised in trust for the son, who was not to come into possession thereof until he reached the age of twenty-one years, it was sufficient to take the case out of the operation of the rule of the common law above stated, since the father devised his entire estate to the son subject only to the trust and this devise was neither a greater nor a less estate than that which would have passed to the son had there been no will. Moreover, we think that the words “descend” and “descended”, as used in subdivision 5 of section 10-101, should not be given the narrow technical common-law meaning but should be given a broader meaning so that, where any unmarried child dies under the *317 age of twenty-one years, the real estate which was derived by such child from an ancestor shall pass to the heirs of snch ancestor the same as if the child had died before the death of the ancestor.
¶6 Based upon the grounds above stated, our former decision will be adhered to, but without costs to either party.