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BOOK III

DESCENT BY STATUTE

59. Object and sources of the statutes.

When a man dies intestate, that is, without having made any valid will, disposing of his property (see ante § 34), that property passes upon his death to his relatives. Those who inherit his lands or real property are called his heirs, while those to whom the personal property passes are known as his next of kin. It may be imagined that unless there were some fixed and speedy way of determining the identity of these heirs and next of kin, and of thus removing all uncertainty as to the ownership of property made vacant by death, a situation might easily arise provoking much strife, and imperiling the peace and harmony of families. From consideration, then, of general expediency and common advantage, the law has arbitrarily specified those of a man's relatives who, upon his death, shall become vested with the ownership of his property. That

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which governs the course of succession of land is known as the Statute of Descent, and that which traces the succession of personal property is termed the Statute of Distribution.

The Statute of Descent is of domestic origin, and has no English ancestry. The English system of descent is founded upon the principles of the common law and contains many traces of feudal influence. The heir is, except in the case of daughters who inherit equally, a single individual to whom the real property passes by operation of law, whereas, under the Roman law, and by our own, the heirs might be, and frequently are, many in number. Moreover, under the common law, no one could be an heir who was not of the blood of the last previous owner, so that if the lineals of an intestate were exhausted, his collateral relatives could not inherit unless they were related by blood to the one from whom the title descended, or, as it was called, the "first purchaser." This was quite at variance with the Roman law which paid no heed to the source whence the property came, but admitted to heirship indiscriminately first the descendants, then the ascendants, and finally collaterals.

In the United States the system of descent in England has been more completely repudiated than any other of its legal institutions, and each state has for itself adopted laws according to its own views, based in almost every instance upon the rules of the Roman law.

The several Statutes of Distribution have had a different history. We have already seen how the administration of estates in the early days of England was conducted by the Ecclesiastical Courts through the Ordinary. His duties were few and abuses were many. An early statute, intended to remedy the evil, required him to pay the debts of the testator instead of applying the residue, as was his wont, to "pius uses. This doubtless suited the creditors, but not the next of kin. In the reign of Edward III a new statute discontinued administration of estates by the Ordinary, and he was required to “depute of the next and most lawful friends of the dead person intestate to administer his goods." But there still was no rule regulating the distribution of the estate among the intestate's relatives, and the administrator continued to claim the privilege, formerly exercised by the Ordinary, of dealing with the property about as he pleased. This grievous system finally led to the birth of the parent of our own statute of distribution (22 and 23 Charles II, C. 10), which in turn was taken from the 118th Novel of Justinian, and has been made the basis of most of the similar statutes throughout the United States. It can, by no possibility, add anything to the interest of the general reader to trace the variations in the several state statutes, and it will be enough, we think, if the descent and distribution of property, according to the New York law, be given as an illustration.

60. Degree of kinship.

Relationships may be divided into descendants, as children and grandchildren; ascendants, as parent and grandparent, and collaterals, such as brothers and sisters, uncles and aunts, cousins, etc. They may also be classed as relationship by marriage, by blood and by adoption.

As will be noted from what is to follow, the proximity or remoteness of kinship is a determining factor in solving questions of distribution. Where there are lineal descendants, there is no likelihood of much difficulty; but if there be none, then it is necessary to determine who are of equal, and who of unequal, degrees of consanguinity to the intestate.

Under the rules of the Canon law, from which the English system has been handed down, and which apply even in this country in cases not provided for by the statutes, the degree of kindred is fixed by counting down from the common ancestor to the one more remote from him. But

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