7040. Descent of property of intestate. 7040 M 7838 SECTION 1. Whenever any person having title to any real estate or property having the nature or legal character of real estate, or personal estate, undisposed of or not otherwise limited by marriage settlement, shall die intestate as to such estate, it shall descend and be distributed in parcenary to his kindred, male and female, subject to the payment of his debts, in the following course and manner, namely: if such intestate leave a husband or wife and children, or the descendants of children, him or her surviving, one-half of such estate shall descend to such surviving husband or wife, and the residue thereof to such surviving children and descendants of children as hereinafter limited; if such intestate leave a husband or wife, and no child nor descendants of any child, then the whole of the estate of such intestate, real and personal, shall descend to and vest in such surviving husband or wife as his or her absolute estate, subject to the payment of debts as aforesaid. Dower and the tenancy by courtesy are abolished, and neither husband nor wife shall have any share in the estate of the other, save as herein provided. Except in the cases above enumerated, the estate of every intestate shall descend and be distributed as follows: First-To his children surviving, and the descendants of his children who are dead, the descendants, collectively, taking the share which their parents would have taken if living. Second-If there be no children, nor their descendants, then to his father and mother share and share alike; if there be no father, then to his mother; if there be no mother, then to the father; if there be no father or mother, then to the brothers and sisters, and to the descendants of brothers and sisters who are dead, the descendants, collectively taking the share of their immediate ancestors, in equal parts. Third-If there be no children nor their descendants, nor father, mother, brothers, sisters, nor descendants of deceased brothers or sisters, nor husband nor wife living, then to the grandfather, grandmother, uncles, aunts, and their descendants, the descendants taking collectively the share of their immediate ancestors, in equal parts. Fourth-And if none of the relatives above enumerated be living, then to the nearest lineal ancestors and their descendants, the descendants collectively taking the share of their immediate ancestors, in equal parts. Legislation. Sec. 7040. Act of 1903 p. 469 § 1, entitled: AN ACT In Relation to Probate Matters, Including Estates of Minors, Deceased Persons and Persons Mentally Incompetent and the Administration Thereof, and to Repeal Certain Acts in Relation Thereto. Framed on G. S. § 1039; G. L. § 882. Act of 1876 p. 65 § 1, which amended R. S. p. 258 § 1 Act of 1861 p. 246 § 1. The wife had no dower under the statute of 1868.-Holladay v. Dailey, 1 C. 460. Drake v. Root, 2 C. 689. Dower was allowed by act 1861 p. 363.-Tierney v. Whitney, 2 C. 624. Hanna v. Palmer, 6 C. 160. Nichols v. Lee, 16 C. 152, 26 P. 157. The right to tenancy by courtesy was taken away by statute of 1868.-Keller v. Klopfer, 3 C. 134. Title by occupancy of land subject to entry under acts of congress descends as real estate.-Gillett v. Gaffney, 3 C. 361. Filmore v. Reithman, 6 C. 120. Keeler v. Trueman, 15 C. 143, 25 P. 311. The husband inherits his interest subject to the payment of the wife's debts.-Nichols v. Lee, 16 C. 152, 26 P. 157. Under the third paragraph the estate vests in the grandpar ents, uncles and aunts collectively; if there are no grandparents then in the uncles and aunts as a separate class.-Thatcher v. Thatcher, 17 C. 405, 29 P. 800. By sundry statutes, interests in lands such as chattels real, leases for a term of years and the like are regarded as real estate instead of personalty.-McKee v. Howe, 17 C. 542, 31 P. 116. The disposition of his property by a husband to defeat his wife's right as heir, but reserving a benefit, is a Iraud upon her rights. Smith v. Smith, 22 C. 484, 46 P. 130. Where a policy of insurance is payable to the legal heirs, one half is payable to the widow and the other to the children. -Anderson v. Groesbeck, 26 C. 14, 55 P. 1090. Held prior to act 1903 that marriage, although without issue operated to revoke a will, and wite took by descent.-Brown v. Scherrer, 5 A. 259, 38 P. 429. (Affirmed 21 C. 481, 42 P. 668.) 7041. Posthumous children inherit as if born during life of intestate. SEC. 2. All posthumous children or descendants of the intestate shall inherit in like manner as if born in the lifetime of the intestate, but no right of inheritance shall accrue to any person other than the children or descendants of the intestate, unless they are in being and capable in law of taking as heirs at the time of the intestate's death. [See also section 676.] Legislation. Sec. 7041. Act of 1903 p. 470 § 2, cited under § 7040. G. S. § 1040; G. L. 3 883; R. S. p. 259 § 2; Act of 1861 p. 247 § 2. 7042. Adopted children-Foster parents. SEC. 3. Children and descendants of children, of the half blood, shall inherit the same as children and descendants of the whole blood, but collateral relatives of the half blood shall inherit only the half measure of collateral relatives of the whole blood, if there be any of the last named class living. Legally adopted children shall be, to all intents and purposes, children and legal heirs of the persons so adopting them, entitled to inherit as fully as children of the foster parents begotten in lawful wedlock, and in case any such adopted child shall die leaving no husband, wife or children, then the foster parents shall inherit as though such adopted child had been a child of such foster parents born in lawful wedlock. [For adoption of children see sections 526-529.] 7042 M 7840 147 P 693 Legislation. Sec. 7042. Act of 1903 p. 471 § 3, cited under § 7040. Framed as to children of the half blood on G. S. § 1041, G. L. § 884, R. S. p. 259 § 3. Act 1861 p. 247 § 3. As to adopted children it reinforces § 529. 7043. Advancement. SEC. 4. Where any of the children of the intestate shall have received in his lifetime any real or personal estate, by way of advancement, and the other heirs desire it to be charged to him, the county judge shall cite the parties to appear before him, shall hear the proof upon the subject, and shall determine the amount of such advancement or advancements to be thus charged. Legislation. Sec. 7043. Act of 1903 p. 471 § 4, cited under § 7040. G. S. § 1012. G. L. § 885. R. S. p. 259 § 4. Act 1861 p. 247 § 4. 7044. When maintenance not advancement. SEC. 5. The maintenance, education or supply of money to a child under the age of majority, without any view to apportionment or settlement in life, shall not be deemed an advancement under section 4 of this chapter. [Section 4 referred to is section 7043.] Legislation. Sec. 7044. Act of 1903 p. 471 § 5, cited under § 7040. 7045. Alienage. SEC. 6. The alienage of the descendants shall not invalidate Legislation. Sec. 7045. Act of 1903 p. 471 § 6, cited under § 7040. 7046. Illegitimate children. SEC. 7. Illegitimate children shall inherit the same as those born in wedlock, if the parents subsequently intermarry, and such children be recognized after such intermarriage by the father to be his, and illegitimate children shall inherit from their mother the same as those born in wedlock. * Legislation. Sec. 7046. Act of 1903 p. 471 § 7, cited under § 7040. G. S. 1045, G. L. § 888, R. S. p. 260 § 7, Act 1861 p. 247 § 7, but the text added the clause which follows the star. 7047. Divorce. SEC. 8. Divorces of husband and wife shall not affect the right of children previously begotten to inherit their property. [Legitimacy of children not affected by divorce. Section 2112.] Legislation. Sec. 7047. Act of 1903 p. 471 § 8, cited under § 7040. G. S. § 1046, G. L. § 889, R. S. p. 260 § 8, Act 1861 p. 247 § 8. 7048. Estate by whom distributed. SEC. 9. County judges and the administrators of the estates of persons dying intestate within this state shall apportion and distribute estates of intestates according to this act. Legislation. Sec. 7048. Act of 1903 p. 471 § 9, cited under § 7040. F Sec. 7049 7049. Descent of property of bastard or illegitimate person. SEC. 10. The rule of descent of all property of whatsoever kind or nature, real and personal, of any bastard or illegitimate person, dying intestate in this state, and leaving property and effects therein, shall be as follows, to wit: On the death of any such person intestate, his or her property, estate and effects shall descend to and vest in the widow or surviving husband and children, as the property and effects of other persons in like cases. In case of the death of any such illegitimate person leaving no children or descendants of a child or children, then the whole property and estate, rights, credits and effects shall descend to and vest in the widow or surviving husband. In case of the death of any such illegitimate person, leaving no widow, surviving husband or descendants, then the property and estate of such person shall descend to and vest in the mother and her children, and their descendants; to the mother one-half, and the other half to be equally divided between her children and their descendants, the descendants of a child taking the share of their deceased parent or ancestors. In case of the death of any such illegitimate person, leaving no heirs as above provided, then the property and effects of whatsoever kind or nature shall pass to and vest in the next of kin to the mother of such illegitimate person, in the same manner as the estate of legitimate person would by law pass to the next of kin. Legislation. Sec. 7049. Act of 1903 p. 472 § 10, cited under § 7040. |