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case there be no wife, then the estate is to be distributed equally among the children ; and if no child, then to the next of kin, in equal degree, and their lawful representatives, in the manner already mentioned. It is further provided, that if any child shall die intestate after the death of the father, and without wife or children, and in the lifetime of the mother, every brother and sister, and their representatives, shall have an equal share with her.

This is the substance of the English statute of 22 and 23 Charles II., which was borrowed from the 118th novel of Justinian ; and, except in some few instances mentioned in the statute, it is governed and construed by the rules of the civil law.a

(2.) The next of kin is determined by the rule of the civil law; and under that rule the father stands in the first degree, the grandfather and the grandson in th esecond ; and in the collateral line, the computation is from the intestate up to the common ancestor of the intestate, and the person whose relationship is sought after, and then down to that person. According to that rule, the intestate and his brother are related in the second degree, the intestate and his uncle in the third degree. The half blood are admitted equally with the whole blood, for

they are equally as near of kin ; and the father *423 succeeds to the whole personal estate of a *child,

who dies intestate, and without wife or issue, in exclusion of the brothers and sisters; and the mother would have equally so succeeded as against the collaterals, had it not been for a saving clause in the act, which excludes her from all but a rateable share.

She is ex

that it means the children of the brothers and sisters of the intestate. If, therefore, the intestate dies without issue, and leaves an aunt, and children of uncles and aunts, the aunt succeeds to the whole estate. Bowers v. Littlewood, 1 P. Wms. 593.

• Seo vol. i. p. 542, note; and also, Carter v. Crawley, T. Raym. Rep. 496. Palmer v. Allicock, 3 Mod. Rep. 58. Edwards v. Freeman, 2 P. Wms. 436.

o Sir John Strange, in Lloyd v. Tench, 2 Ves. 213.

cluded, lest, by remarrying, she would carry all the personal estate to another husband, in entire exclusion, forever, of the brothers and sisters; but she still takes the whole personal estate as against more remote relations of the intestate.a The K. B. declared in Blackborough v. Davis, b that the father and mother had always the preference before the brothers and sisters, in the inheritance of the personal estate, as being esteemed nearer of kin; and for the same reason, the grandmother is preferred to the aunt. The grandmother is preferred, not because she is simply in the ascending line, for, under the statute of distributions, a nearer collateral will be preferred to a more remote lineal, but because she is nearer of kin, according to the computation of the civilians, by one degree. And in Moor v. Barham, decided by Sir Joseph Jekyll,c the grandfather on the father's side, and the grandmother on the mother's side, take in equal moieties by the statute of distribution, as being the next of kin in equal degree;

. It has been decided, in Maryland, in Griffith v. Griffith, 4 Harr. f M. Henry, 101, and Coomes v. Clements, 4 Harr. & Johns. 480, that by the common law of England, as it existed at the time of the colonization of Maryland, and by the common law of Maryland, the widow is entitled to a reasonable share of her husband's personal estate, after payment of his debts; and which reasonable part was one third, or one half, according to circumstances; and it was a right paramount to the power of the husband, and he could not deprive her of it by will. In Pennsylvania, under the act of 1807, a widow is entitled to a distributive share of the residue of her husband's estate undisposed of by his will, in common with the next of kin; and if there be no widow or next of kin, the state will take in preference to the executor, who holds snch a residuum as a mere trustee. Darrah v. M'Nair, 1 Ashmead, 236. At common law, such residuum went to the executor. The courts of equity then intersered, and gave it to the next of kin, if they could, even by a strained construction of the will, make out such an intention. The widow in such cases, came in, of course for her share, with the next of kin. The Pennsylvania law wisely puts an end to all matter of construction, and equitably gives at once, and in all cases, the undisposed surplus to the next of kin. In Virginia, the executor is not, in any case, entitled to the residuum of personal property uudisposed of by will. It goes to the next of kin. Paup v. Mingo, 4 Leigh's R. 163.

01 P. Wms. 41. 2 Ves. 215. c Cited in 1 P. Wms. 53. VOL. II.

41

and the half blood take equally with the whole blood. A brother and a grandfather of the intestate are equally near of kin, and each related in the second degree, and therefor it would seem from the directions in the statute,

that they would take equally ; but it has been *424 *decided in England, and it is also said to be the

better construction of the novel of Justinian, that the brother of the intestate will exclude the grandfather of the intestate. This was so decided in Pool v. Wilshaw, in 1708; and Lord Hardwicke, in Evelyn v. Evelyn,a followed that determination, as being correct, though it may be considered an exception to the general rule.

. He said it would be a very great public inconvenience, to carry the portions of children to a grandfather, and contrary to the very nature of provisions among children, as every child may properly be said to have spes accrescendi. This question was very much debated among the civilians in their construction of the 118th novel of Justinian: and the generality of them of whom Ferriere and Domat are of the number, were of opinion, that the grandfather and the brother took equally; but Voet was of a different opinion, and his opinion though without any strong foundation in reason, is the one prevailing in the English courts.b

The question, whether the half blood took equally with the whole blood, under the statute of distributions, was debated in the case of Watts v. Crooke ;c and it was determined in chancery that they were of equal kin, and took equally with the whole blood; and the decree was affirmed upon appeal to the house of lords. So posthu

* 3 Atk. Rep. 762. Amb. Rep. 191. Burns' Eccl. Law, vol. iv. p. 416.

+ Voet, Com. ad. Pand. lib. 38, tit. 17, ch. 13. Dr. Irving in his introduction to the study of the civil law, 4 Edit. London, 99—101, contende that the reasoning of Voet, and the decisions in England were fallacious and erroneous and not founded on a true construction of the novel.

< Shower's cases in Parliament, 108. 2 Vern. 124. S. C.

a In Maryland, so late as 1827, in the case of Seekamp v. Hammer, it was decided, that under the act of 1798, the half blood took equally with

mous children, whether of the whole or half blood, take equally as other children, under the statute.a

As the statute of distribution says, that no representation shall be admitted among collaterals after brothers' and sisters children, it was held, in Pett v. *425 Pett,b that a brother's grandchildren could not share with another brother's children. And, therefore, if the intestate's brother A. be dead, leaving only grandchildren ; and his brother B. be dead, leaving children, and his brother C. be living, the grandchildren of A. will have no share, and cannot take. One half of the personal estate will go to the children of B., and the other half to C. But if all the brothers and sisters and their children be dead, leaving children, those children cannot take by representation, for it does not extend so far; but they are all next of kin, and in that character they would take per capita. Representation in the descending lineal line proceeds on ad infinitum, restrained by no limits. It has also been decided, that if the intestate leaves no wife or child, brother or sister, but his next of kin are an uncle by his mother's side, and son of a deceased aunt, the uncle takes the whole, and the representation is not carried down to the representatives of the aunt.c

It is the doctrine under the statute of distributions, that the claimants take per stirpes only when they stand in unequal degrees, or claim by representation, and then the doctrine of representation is necessary. But when they all stand in equal degree, as three brothers, three grandchildren, three nephews, &c., they take per capita, or each an equal share; because, in this case, representation or taking per stirpes, is not necessary to prevent the

the whole blood, in the distribution of the personal estate of an intestato. 2 Hart of Gill, 9.

• Burnet v. Mann, 1 Ves. 156.

b 1Salk. Rep. 250. 1 P. Wms. 25. S. C. Duvall v. Harwood, 1 Harr. f Gill. 474. S. P.

• Bowers v. Littlewood, 1 P. Wms. 593. Parker v. Nims, 2 N. H. Rep. 460. Porter v. Askow, 11 Gill & Johnson, 346.

exclusion of those in a remoter degree; and it would be contrary to the spirit and policy of the statute, which aimed at a just and equal distribution.a Uncles and

aunts and nephews and nieces, stand in the same 426 third *degree, and take equally per capita.b

If a person dies without children, leaving a widow, and mother, brother and sister, and two nieces by a deceased brother, then, according to the established doctrine, the widow would take a moiety, and the mother, brother and sister would each take one fourth, and the two nieces the other one fourth of the remaining moiety. This point was ruled in Keylway v. Keylway ;c and the doctrine was declared to be correct by Lord Hardwicke, in Stanley v. Stanley.d

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a Walsh v. Walsh, Prec. in Ch. 54. Davers v. Dewes, 3 P. Wms. 50. Stent v. MÅLeod, 2 M.Cords' S. C. Ch. Rep. 354. Hallett v. Hare, 5 Paige, 316. Nephews and nieces, under the statute of descents in South Carolina, of February, 1796, which abolished primogeniture, and distributed real and personal property in the same manner, would, in the cas stated, take per stirpes, contrary to the rule in the English law.

• Durant v. Prestwood, 3 Atk. Rep. 454. Lloyd v. Tench, 2 Ves. 213. Buissieres v. Albert, 2 Lee, 51. (Eng. Eccle. Rep. vol. 6. 30. Edit. Philadelphia, 1841.)

• 2 P. Wms. 344.

1 1 Atk. Rep. 457. The English doctrine of distribution of personal property, according to the statutes of 22 and 23 Charles II., and 29 Charles II., and 1 James II., is fully and clearly explained by Ch. J. Reeve, in his Treatise on the Law of Descents, under the head of Introductory Explanation. It is the most comprehensive, neat and accurate view of the English law on the subject that I have any where met with.

Mr. Robertson, in his learned Treatise on the Law of Personal Succesaion, p. 386, thinks that the Scottish rules of succession in regard to personal estate, require revision and are not just or expedient, as they (1) limit the power of a husband or father to make a will; (2) allow brothers and sisters and their descendants to exclude the father from the succession, though he be the nearest in blood, and allow uncles and aunts and their descendants to exclude the grandfather ; (3) exclude the mother entirely from any share in the succession of her child ; (4) totally exclude maternal relations from the succession ; (5) lotally exclude representations in every case in regard to the succession of personal estate ; (6) disable bas. tards from disposing of their personal estate by will.

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