(3). The distribution of personal property of intestates in these United States, has undergone considerable modification. In many of them, the English statute of distribution, as to personal property, is pretty closely followed. *In a majority of the states, the descent *427 This is the case in Tennessee, North Carolina, Maryland, Delaware, New-Jersey, and Vermont. The English statute of distributions was adopted in New-Jersey, by an act of assembly, as early as 1681. (Smith's Hist. of New Jersey, 130, and is re-enacted in 1847. N J. R. S. p. 355. The New-York Revised Statutes, which went into operation on the 1st January, 1830, have essentially re-enacted the English statute of distributions, which had been adopted and continued the law of the state down to that period; and, for greater precision, they have particularly specified the course of distribution. After the account is rendered, and finally settled, the surrogate decrees distribution of the surplus of personal estate, and decides all questions arising thereon. The distributions is 1. One third thereof to the widow; and the residue, by equal portions, among the children, and such persons as legally represent them, if dead. 2. If no children, or their representatives, one moiety to the widow; and the residue to the next of kin. 3. If no descendant, parent, brother or sister, nephew or niece, the widow takes the whole surplus. If there be a brother or sister, nephew or niece, and no descendant or parent, the widow takes the whole surplus, if it does not exceed two thousand dollars. If it does, she takes her moiety and two thousand dollars only. 4. If no widow, the surplus goes equally to the children, and those that represent them 5. If no widow or children, or their representatives, the surplus goes to the next of kin, in equal degree, and their representatives. 6. If no children, or their representatives, or father, a moiety of the surplus goes to the widow, and the other moiety in equal shares, to the mother, and brothers and sisters, or their representatives. If no widow, the whole surplus goes to the mother, and brothers and sisters, and their representatives. 7. If there be a father, and no child or descendant, he takes a moiety, if there be a widow, and the whole if there be none. 8. If there be a mother. and no child, or descendant, or father, brother, sister, or representative of a brother or sister, the mother takes a moiety, if there be a widow, and the whole if there be none. And if the intestate was an illegitimate and left no child, descendant or widow, the mother takes the whole and shall be entitled to administration. N. Y. Act of May 13th, 1845, ch. 236. 9. When descendants, or next of kin, are in equal degree, they take per capita. 10. When they stand in unequal degrees, they take per stirpes. 11. No representation is admitted among collaterals, after brothers' and sisters' children. 12. Relatives of the half blood take equally, and in the same manner as those of the whole blood. 13. Posthumous children take equally as if born in the lifetime of the person they represent. (N. Y. Revised Statutes, vol. ii. p. 96. sec. 75.) Any advancement to a child, by settlement or portion of real or personal estate, of real and personal property is to the same persons, and in the same proportions, and the regulation is equal or superior to his share, will exclude him and his descendants from the distribution; and if the same was not equal, he will be entitled only to so much as will supply the deficiency. The maintaining, or educating, or giving money to a child, without a view to a portion or settlement in life, is not to be deemed an advancement; nor does the provision as to advancement apply, if there be any real estate of the intestate to descend to his heirs. (N. Y. Revised Statutes, vol. ii. p. 97. sec. 76, 77, 78.) The most striking feature in the new provisions introduced into the New-York Revised Statutes, on the subject of intestate estates, and of testamentary matters, is the enlarged and equitable jurisdiction conferred upon the surrogates in the respective counties. This branch of our jurisprudence will apply more frequently than any other, and with great force and interest, to family concerns; and it will rise into correspondent importance, and awaken much public solicitude. It is in analogy to the powers vested in the ordinary in England, and in the orphans' courts, or testamentary jurisdictions, in the other United States. The surrogate under the New-York statutes has concurrent jurisdiction with chancery, to call executors and administrators to account. But a prior suit pending in chancery by the complainant is a bar to the proceeding before the surrogate. So a decree in chancery for the benefit of claimant upon the estate of the decedent, is a bar to a proceeding before the surrogate for an account. Rogers v. King, 8 Paige's Rep. 210. It was further held in Heyer v. Burger, 1 Hoffman's Ch. Rep. 1, that the surrogate had the sole jurisdiction to try the validity of a will of personal estate, and that chancery had no original jurisdiction in the case. The surrogate in New-York has the like power touching the payment and distribution of the proceeds of real estate, when the will is proved in his office, as in the case of the personal estate. N. Y .R. S. vol. 2. 109, sec. 57. Decrees of surrogates for the payment of money by an executor, administrator or guardian, as well as decrees in chancery, are liens on real estate in any county, on the transcripts or certificates of the same being filed with the clerk thereof and entered and docketted on the books for docketting judgments therein, Laws N. Y. April 1st, 1844, ch. 104. In Mississippi, the probate courts in each county have exclusive jurisdiction in all testamentary and administration matters, in dower, and in lunacy, &c. Carmichael v. Browder, 3 Howard, 255; but not against the sureties in an administration bond. Green v. Tunstall, 5 Ib. 638. The surrogate's courts in New-York with all their enlarged powers are courts of inferior jurisdiction, and a party seeking to make title to real estate under their proceedings, must show affirmatively that they had jurisdiction. Bloom v. Burdick, 1 Hill's N. Y. Rep. 130. In New-Jersey, by the constitution of 1844 the chancellor is declared to be the ordinary or surrogate general, and judge of the prerogative court, the same in substance, *as the English statute of dis. tributions, with the exception of the widow, as to the real estate, who takes one third for life only, as dower. In Georgia the real and personal estate of the intestate is considered as altogether of the same nature and upon the same footing, both in respect to their statute of distributions and the descent of property. Prin. Dig. 229, 1 Kelly R. 540. The half blood take equally with the whole blood, as they do under the English statute of distributions. Such a uniform rule in the descent of real and has ample jurisdiction in granting letters testamentary, of administration, and of guardianship; in compelling executors, administrators and guardians, to account in his prerogative court, and to control them, and to decree distribution, and the payment of legacies, and to try contested facts by a jury and before a master, and to decree the sale of real estate to pay debts. The orphans' court consists of the judges of the court of common pleas in each county, and seems to be clothed with similar and concurrent jurisdiction, and with power to award partition of land among heirs and devisees. It is the more ordinary and proper tribunal for the settlement of the accounts of executors and administrators. 1 Green's N. J. Ch. Rep. 480. R. S. of New-Jersey of 1847, tit. 7. ch. 5. The surrogate of each county is the register of the orphans' court, and an essential member of it, and has also power concurrent with the orphans' court, to grant letters testamentary, of administration, and of guardianship, in cases arising within his county, and to hold courts in matters cognizable before him, with appeal to the orphans' court. The orphans' court seems to be the most efficient of the consistorial jurisdictions. The prerogative court or ordinary, the orphans' courts and the surrogates, all have jurisdiction in testamentary and administration cases. Acts of 2d March, 1795, 13th June, 1820, and the acts supplementary thereto. See Elmer's Digest, p. 165. 359-370. 382. 444. New-Jersey seeins to have doubled and trebled her consistorial courts. See N. J. R. S. of 1847, tit. 7. ch. 5. This is essentially the case in Maine, New-Hampshire, Vermont, Rhode Island, Connecticut, (but there the whole blood are, in certain cases, preferred to the half blood, and even when in equal degree,) New-Jersey, Pennsylvania, Virginia, (but there the half blood inherit only half as much as the whole blood,) Indiana, Illinois, Michigan, Kentucky, (by the Kentucky statutes if part of the collateral kindred be of the whole blood, and part of the half blood, the latter inherit only half so much as those of the whole blood, and the ratio of apportionment has reference to the individuals of the two classes, and not to the classes collectively. Nixon v. Nixon, 8 Dana, 7,) Missouri, (but there brothers and sisters, and parents, take equal and personal property, gives simplicity and symmetry to the whole doctrine of descent. The English statute of : ly,) Mississippi, (but there brothers and sisters, and their descendants, take before parents,) South Carolina, (but there parents, and brothers and sisters, take equally and a brother of the half blood does not share with a mother. First cousins of the whole and half blood are, however, next of kin in equal degree, and take equally of the estate of the intestate,) Georgia, and Alabama. (In Alabama, brothers and sisters take before parents, and when in equal degree, the whole blood is preferred to the half blood. See Griffith's Law Register, h. t. 1 Greenleaf's Rep. 151. 2 N. H. Rep. 461. Dane's Abridgment, vol. iv. p. 538, 539. Statutes of Connecticut, 1784, p. 51. Ibid. 1821, p. 207. Ibid. 1838, p. 235. 5 Conn. Rep. 233. 1 McCord's R. 161, 456. Edwards v. Barksdale, 2 Hill's S. C. Ch. Rep. 417. Reeve's Law of Descents passim. Statutes of Georgia, December 23d, 1789, and December 12th, 1804. Territorial act of Michigan, April 12, 1827. Purdon's Penn. Dig. 550, 551. Aikin's Alabama Dig. 2d. edit. p. 151, 128.) In Louisiana, the legal heirs of the intestate are, 1. Children and their descendants, without distinction of sex or primogeniture. They inherit per capita, when in the same degree, and per stirpes, when in differ. ent degrees. If no descendants, then the parents take equally one-half of the estate, and the brothers and sisters, and their descendants, the other half. If the father or mother only survive, the survivor takes only one fourth; and if no parents, brothers and sisters and their descendants take the whole. Civil Code, 898. 907, 908. In Ohio, by the act of 1831, the widow is entitled to the whole personal estate, after the debts are paid, if there be no children; and if there be any, she takes one half, if the estate amounts only to $400, and if it exceeds that sum, she takes only one third of such overplus. Statutes of Ohio, 1831. In other respects, the personal estate goes, (1.) to the issue and their representatives; (2.; to brothers and sisters and their representatives of the whole blood; (3.) to brothers and sisters and their representatives of the half blood; (4.) to the father; (5.) to the mother; (6.) to the next of kin of the blood of the intestate. When in equal degree they take per capita, otherwise per stirpes. Ibid. In Georgia, widow and children take equal shares, unless she elects to take her common law dower, aud then she takes no further of the real estate, and a child's portion of the personal estate. If no issue, widow takes a moiety of the estate and the other moiety goes to the next of kin. If neither, the estate, real and personal, goes to the next of kin in equal degree, but no representation among collaterals beyond brothers' and sisters' children. A father, and if dead, the mother while unmarried, takes on the same footing as a brother or sister. So that, by the statute law of Georgia, the widow and children stand in the first degree of consanguinity; parents and brothers and sisters, in the second degree. Act of Georgia, distributions, being founded in justice, and on the wisdom of ages, and fully and profoundly illustrated by a series. December 12, 1804, and December 23, 1826. Prince's Dig. 2d. edit. 1837, p. 233, 234. In South Carolina, their statute of distributions of 1791, gives to the husband only a rateable share, being one third as one of the heirs at law or distributees of his wife's personal estate, though in England the husband takes the wife's entire choses in action as her administrator. In Massachusetts, the distribution of the personal estate of intestates is somewhat special. After the allowance of her apparel, &c. to the widow, and funeral charges and debts paid, the residue goes, (1.) to the husband, if the intestate was a married woman. (2.) To the widow one third part, and residue to his issue. (3.) If no issue or lineal descendants, then one half to the widow, and residue to the father. (4.) If no father, then to the mother and brothers and sisters equally, and to their issue per stirpes, if any one of them be dead, leaving a brother or sister surviving. (5.) If all the brothers and sisters be dead, then to the mother in exclusion of their issue. (6.) To the next of kin. (7.) If no kindred, the whole to the widow. (8.) If no husband, widow or kindred, the personal estate escheats. Mass. Revised Statutes, 1835, part 2. tit. 4. ch. 64. sec. 1. I do not undertake to mark minutely, or in detail, the many smaller variations from the English law of distributious, which have been made by the statute law of the different states. Such a detail would be inconsistent with the plan of these lectures, which were intended as an elementary sketch of the general principles and outlines of the law. To descend to minutiae on every subject, would render the work too extensive and too uninteresting, for the study of those persons for whom it is prepared. The law concerning wills, and the rights and duties of executors, administrators and guardians, and of the orphans' courts, and the law of distribution of intestates' estates are detailed minutely and distinctly in the Mississippi Revised Code of 1824, p. 27-70, and which was made and reported by George Poindexter, Esq, and adopted in 1822, and it equals in this respect any of the old statute codes on the subject. But the whole subject has been remodelled, and expressed with more precision, and with the introduction of the late improvements in some of the American states, by P. Rutilius R. Pray, Esq., who, by authority, digested and reported, in 1836, the statute law of Mississippi, under the title of "Revised Statutes of the State of Mississippi." It appears to be a work of much labour, research, and judgment, and does credit to the abilities and discretion of the author. I am, however, informed, that so late as January, 1839, this revised code had not been ratified or enacted, and whenever I have had occasion, in these volumes, to refer to the statute law of Mississippi, I have recurred to the revised code of 1824, or to the new edition of the Laws of Mississippi, published in 1839, by Alden & Van Hoesen, and which is in effect a republication of the code of 1824, with the subsequent statutory |