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under the Civil law adopted in most states of the union, the degree of relationship is ascertained by counting up the line from the intestate to the common ancestor, and then down the other line to the kin in question, reckoning a degree to each person in both directions. A glance at the diagram opposite will make this clear.
Thus, under the Canon law, the son of the intestate is in the same degree of kinship to the intestate as the cousin and grandfather, i. e., the third; but under the Civil law, the son is in the first, the cousin, fourth, and the grandfather, second.
It is also to be noted that in considering who are the descendants or next of kin of the intestate, those begotten before his death, but born thereafter, are to be included in the same manner as if they had been born in his lifetime and had survived him.
61. Taking "per stirpes” and “per capita." When all the heirs or next of kin are of equal degree of consanguinity to the intestate, they naturally share equally in the inheritance, or per capita; that is a share per head. And this is so no matter how numerous may be the issue of one of the deceased persons of the previous class of kin. Thus, if the next of kin are seven nephews and nieces, they take equal shares, although two are children of one deceased brother of the intestate and five are children of another.
But when the descendants or next of kin are of a different or unequal degree of relationship, then the more remote take per stirpes, or by stocks. This involves the well-known doctrine of representation, which means simply this, that where originally there were a number of relations of equal kinship to the intestate, but one or more of them have died leaving children, these children, irrespective of their number, take only the share their parent would have taken if living. In so doing they are said to "represent” their deceased parent. Referring to Fig. 1, suppose, for example, that an intestate I had four brothers, A, B, C, and D, of whom A had two children, B had one and C and D none. And suppose further that A and B died before the intestate who had no descendants or parents. Obviously, C and D and the children of A and B are his next of kin, but what are their shares? It would be grossly unjust if C and D were to take anything less than they would have received had A and B remained alive. It would be as though a penalty were being imposed upon them for the death of their brothers. So the statute awards to each of them their full one quarter of the estate in their own right, while the children of A and B take, not in their own right, but in the right of their respective fathers, the shares which the latter would have received had they survived; the share of each
deceased parent going in equal parts to his own children. They are said to take by "representation,” according to their respective stocks (stirpes), so that each of the two children of A will receive one half of a quarter, or one eighth of the estate, while the single child of B will take B's full quarter in the right of his father.
It is important to notice, however, that this doctrine of representation cannot apply unless the deaths of the parents (A and B in the case supposed) occur during the lifetime of the intestate, for if they survive and die afterwards, but before distribution of the intestate's estate, their shares having vested in them do not go to their children, but must be paid to their own executors or administrators to be disposed of as part of their respective estates.
Another point in connection with this subject must be observed. If all of the original class of those who would have been his heirs (the brothers A, B, C, and D) die before the intestate, the doctrine of representation does not apply to any of that class. The next class, namely, their respective children, become his heirs and share with the issue of any deceased in that class. Thus, referring to Fig. 2, suppose the heirs are the two children of A, the one child of B, two children of a deceased son of C, and three children of a deceased son of D, the estate is not divided equally among the four families "representing' the original four brothers, because they are all dead and their class is exhausted. The division now to be made is into as many equal parts as there are members of the new class, living and dead. Had all the nephews and nieces survived they would have been five in number. So the estate is divided in five parts; each of the children of A gets one part; the single child of B gets another part; a fourth part is divided between the two grandchildren of C because they "represent" their deceased father, and the fifth part is divided between the three grandchildren of D for the same reason.
There is much that will appear difficult to understand about this subject, but it is hoped that the reader will give it careful