prætors. Relief was promoted by the Senatus consultum Tertullianum, in the time of Hadrian, and completed, with some restrictions, by the Justinianean code."

The great diversity of opinion and policy among different nations, as to the succession of parents, and which appears so strongly in our American codes, is very strikingly illustrated in the jurisprudence of Holland. In South Holland, the inheritance, in default of issue, ascends to the parents, in case they are both alive. But if only one of them survives, (and it is immaterial which of them,) the survivor is wholly excluded, because there is a separation of the bed. On the other hand, in North Holland, the surviving parent divides the estate with the brothers and sisters of the deceased, whether they be of the full or half blood; and if there be no brother or sister, the surviving parent takes the whole."

IV. If the intestate dies without issue, or parents, the estate goes to his brothers and sisters, and their representatives. If there be several such relatives, and all of equal degree of consanguinity to the intestate, the inheritance descends to them in equal parts, however remote from the intestate the common degree of consanguinity may be. If they all be brothers and sisters, or nephews and nieces, they inherit equally; but if some be dead leaving issue, and others living, then those who are living take the share they would have taken if all had been living, and the descendants of those who are dead inherit only the share which their parents would have received if living. The rule applies to other direct lineal descendants of brothers and sisters, and *401 *the taking per capita when they stand in equal degree, and taking per stirpes when they stand in

* Jones' Isœus, Pref. Discourse. His Commentary on Isæus, 183, &c. Novel, 118, c. 2.

↳ Vander Linden's Institutes of the Laws of Holland, by J. Henry, Esq., 159.

different degrees of consanguinity to the common ancestor, prevails as to collaterals, to the remotest degree, equally as in the descent to lineal heirs."

The succession of collaterals, in default of lineal heirs, in the descending and ascending lines, has existed among all nations who had any pretensions to civility and science, though under different modifications, and with diversified extent. In this fourth rule, (and which is the rule in New-York,) the ascending line, after parents, is postponed to the collateral line of brothers and sisters. The rule I have stated is perhaps universally the rule in this country, that brothers and sisters are preferred, in the order of succession, to grandparents, though the latter stand in an equal degree of kindred. This is by analogy to the rule of distribution of the personal estate of intestates, as settled in the civil, and in the English law. But there are very considerable differences in the laws of the several states, when the next of kin, in this collateral line, are nephews and nieces, and the claims of uncles and aunts to share with them are interposed. The direct lineal line of descendants from brothers and sisters, however remote they may be, take exclusively and by representation, under the rule in New-York, so long as any of that line exist. But this is not the case in many of the United States; and the rule is,

Pond v. Bergh, 10 Paige, 140.

b New-York Revised Statutes, vol. i. 752, sec. 7, 8, 9, 10. The law of descent, in New-York, is on this point altered and improved; for it appears that by the law of 1786, nephews and nieces took per stirpes in all cases. Jackson v. Thurman, 6 Johns. Rep. 322.

By the Civil Code of Louisiana, art. 908, and in Arkansas, if a person dies, leaving no descendants, nor father nor mother, his brothers and sisters, or their descendants, inherit the whole succession, to the exclusion of the ascendants, and other collaterals. The old Civil Code of Louisiana was different; since, according to that code, before collateral relations could set up a claim to the inheritance, they must have shown that the relations in the ascending line had ceased to exist. Hooter's Heirs v. Tippet, 12 Martin's Rep. 390. Bernardine v. L'Espinasse, 18 ibid. 94.

therefore, to be received with this qualification, that in most of the states, nephews and nieces, and their descendants, take as there stated, but they do not take exclusively. In Massachusetts, if there be no lineal descendants, nor father, the estate descends in equal shares to the brothers and sisters and mother, and to the children of any deceased brother or sister by right of representation; but if there be no brother or sister living, the estate descends to the mother in exclusion of the issue, if any, of deceased brothers or sisters. Uncles and aunts take equally with the nephews and nieces, as being of equal kin, in the states of New-Hampshire, Vermont, and North Carolina. But nephews and nieces take in exclusion of them, though they be all of equal consanguinity to the intestate, in the states of Maine, Massachusetts, Rhode Island, Connecticut, New-York, New-Jersey, Pennsylvania, Delaware, Maryland, Ohio, Indiana, Illinois, Kentucky, Virginia, Tennessee, South Carolina, Georgia, Alabama, Louisiana, Mississippi, and Missouri. I draw this conclusion, because the inheritance appears to be given, in those states, to the brothers and sisters, and their descendants, or children, before recurrence is had to a distinct branch of the grandparent's stock. The principle on which the rule is founded, is, that collateral kindred, claiming through the nearest ancestor, are to be preferred to the collateral kindred, claiming through a common ancestor more remote. The claim of the nephew is through the intestate's father, and of the uncle, through the intestate's grandfather.

b

In several of the states, as in Maine, New-Hampshire,

Massachusetts Revised Statutes, 1835.

b Davis v. Rowe, 6 Randolph's Rep. 355. In this case, the Virginia act of descents, of 1785, and its analogy to the principles and rules of the English statute of distribution of the personal estate of intestates, and the rules of the civil law from whence it was borrowed, are examined with great industry and legal erudition.

Vermont, Rhode Island, Connecticut, Pennsylvania, Maryland, Georgia, and Mississippi, there is no representation among collaterals, after brothers' and sisters' children; nor in Delaware, after brothers' and sisters' grandchildren; nor in Alabama and Mississippi after the descendants of brothers and sisters; and in some of the states, as in New-Jersey, there does not appear to be any positive provision for the case. In Louisiana, representation is admitted in the collateral line, in favour of the children and descendants of the brothers and sisters of the deceased. In North Carolina, the claimants take *per stirpes, in every case, even though the *403 claimants all stand in equal degree of consanguinity to the common ancestor, and so do the descendants of brothers and sisters by the law of descent in Alabama.

The distinction between the claims of the whole and of the half blood, becomes of constant application in cases of collateral succession to real estates; and there is a wide difference in the laws of the several states in relation to that distinction. The half blood was, until lately, entirely excluded by the English law, on the very artificial rule of evidence, that the person who is of the whole blood to the person last seised, affords the best presumptive proof that he is of the blood of the first feudatory

This was also formerly the case in New-York, under the statute of descents of 1786. In Maine, the intestate died without leaving issue or parents, but leaving a child of a deceased brother, and the grandchildren of another brother deceased, and it was held that the child took the estate, and the grandchildren were not entitled to a distributive share of the estate, because the statute in that state was equivalent in its effects to the legal provision in the English statute of distribution, that there should be no representation among collaterals beyond brothers' and sisters' children. Quinby v. Higgins, 14 Maine Rep. 309.

▷ Civil Code, art. 893. But representation, for the purpose of inheritdoes not extend to the children of first cousins of the deceased. Ratcliff v. Ratcliff, 19 Martin's Rep. 335.

ance,

or purchaser. Our American law of descent would seem to be founded on more reasonable principles. The English rule of evidence may be well fitted to the case to which it is applied; but the necessity or policy of searching out the first purchaser is to be questioned, so long as the last owner of the estate, and the proximity of blood to him, are ascertained. In Maine, New-Hampshire, Vermont, Massachusetts," Rhode Island, NewYork, Illinois, North Carolina, Maryland, and Tennessee, there seems to be no essential distinction left between the whole and the half blood. They are equally of the blood of the intestate. But in the states of Connecticut,

a 2 Blacks. Com. 228-231. The rule of the English common law is, that the heir claiming by collateral descent must be the nearest collateral heir of the whole blood of the person last seised on the part of the ancestor through whom the estate descended. Leach, V. C., in Hawkins v. Shewen, 1 Sim.

Stu. 260. And the descent between two brothers was held to an immediate descent, and therefore title might be made by one brother or his representative to or through another, without mentioning their common ancestor. 2 Blacks. Com. 226. But, in 1833, by the statute of 3 and 4 Wm. IV. c. 106, the distinction between the whole and the half blood in the descent of real property and between brothers is in a great measure abolished. The half blood are to succeed to the inheritance next after any relation in the same degree of the whole blood and his issue, where the common ancestor shall be a male; and next after the common ancestor, where such ancestor shall be a female. And no brother or sister shall be considered to inherit immediately from his or her brother or sister, but every descent from a brother or sister shall be traced through the parent.

b Massachusetts Revised Statutes, 1835. Revised Statutes of Vermont, 1839, p. 292.

⚫ Gardner v. Collins, 2 Peters' U. S. Rep. 58. 3 Mason's Rep. 398. S.C. d New-York Revised Statutes, vol. i. 753, sec. 15.

e Act of 1808. North Carolina Dig. p. 237. North Carolina Revised Statutes, 1837.

f It was the object of the act of 1784, adopted in Tennessee, to preserve real estate derived by descent, in the blood of the transmitting ancestor, and the whole and half blood of such ancestor take equally. Butler v. King, 2 Yerger's Rep. 115. In Nichol v. Dupree, 7 Yerger, 415, the claims of the half blood, under the statutes of 1784 and 1797, were extensively discussed, and they were considered as equally entitled under the law of descents in Tennessee, with the whole blood. Statute Laws of Tennessee, edit. 1836, p. 248, 249, 250.