clares, that after the debts, *funeral charges, and just * 421 expenses are deducted, a just and equal distribution of what remaineth clear of the goods and personal estate of the intestate shall be made among the wife and children, or children's children, if any such there be; or otherwise the next of kin to the intestate, in equal degree, or legally representing their stocks; that is to say, one third part of the surplusage to the wife of the intestate, and all the residue, by equal portions, to and amongst the children of the intestate and their representatives, if any of the children be dead, other than such child or children who shall have any estate by settlement, or shall be advanced by the intestate in his life

and reasonable compensation for their services. Assignees in trust are allowed an equitable compensation for their services, according to circumstances. Jewett v. Woodward, 1 Edw. Ch. 195. In Maryland, the commission is from five to ten per cent. in the discretion of the court. 1 Peters U. S. 562. 1 Harr. & Gill, 13, 84. In Pennsylvania, the ordinary commission is five per cent., but it may exceed or be less than that, in the discretion of the court, according to circumstances. For receiving and paying out money it is two and a half per cent., and sometimes an additional half per cent. is held to be a sufficient compensation for trouble. In the Estate of Miller, 1 Ashmead, 323. Pusey v. Clemsen, 9 Serg. & Rawle, 204. Stevenson's Estate, 4 Wharton, 98. In Louisiana, the commission to syndics cannot exceed five per cent., by Act of 1817. That to executors is two and a half per cent. on the whole amount received, and is shared among them all. Civil Code, art. 1676. In South Carolina, the established commission is five per cent., with a further allowance to be assessed by a jury, in a case of extraordinary care and trouble. Logan v. Logan, 1 M'Cord Ch. 1. In England, it is a principle in equity, that if the testator, by will, gives a compensation, the executor is not entitled to any other which may be allowed by law, unless he promptly elects to prefer it. 3 Meriv. 24. The mode of contesting the accounts before the surrogate, by the creditors, legatees, and next of kin, is specially detailed in the New York statutes. N. Y. Revised Statutes, vol. ii. p. 93, secs. 60-70. And the manner of accounting before the surrogate by executors and administrators is also detailed in the case of Gardner v. Gardner, 7 Paige, 112. The decree of the surrogate on the final settlement of the executor's accounts is final, (subject to an appeal to the chancellor,) as to payments to creditors, legatees, next of kin, and concludes all parties. Wright v. Trustees of Methodist Episcopal Church, 1 Hoff. Ch. 214, 215.

In Pennsylvania, the registers' courts have a similar jurisdiction over the estates of testators and intestates; and the orphans' court has a species of equity jurisdiction over executors and administrators, guardians, and minors. Case of Patterson's Estate, 1 Watts & Serg. 293. But the practice and rules in the orphans' tribunals were represented to be in a state of deplorable confusion; (Duncan J., 11 Serg. & Rawle, 432;) and in January, 1831, the commissioners appointed to revise the statute code of Pennsylvania, reported new revised statutes, containing a consolidation of all the statutes, with the suggestion of improvements in relation to the registers' and orphans' courts. In Ohio, testamentary jurisdiction, or probate powers, and the appointment and control

1 Whether a gift to a child is to be deemed an advancement or not, is to be decided upon the evidence of the intentions of the giver. McClure v. Evans, 29 Beavan, 422.

time, by portion equal to the share which shall, by such distribution, be allotted to the other children to whom such distribution

is to be made. And if the portion of any child who hath * 422 had such settlement or portion, be not equal to * the share due to the other children by the distribution, the child so advanced is to be made equal with the rest. (a) If there be no children, or their representatives, one moiety of the personal estate of the intestate goes to the widow, and the residue is to be distributed equally among the next of kin, who are in equal degree, and those who represent them; but no representation is admitted among collaterals, after brothers' and sisters' children; (b) and in 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 same 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. (c)

(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 the second; 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

of guardians, are annexed to the courts of common pleas in their respective counties. Acts of 1831.

(a) Under this statute the widow cannot come into hotchpot and claim collation of advancements to the children. She only takes her share of what remains after deducting the advancements. Ward v. Lant, Prec. in Chan. 182, 184. Kircudbright v. Kircudbright, 8 Vesey, 51. This is also the law in Tennessee, under the North Carolina statute of 1784, adopted in that state. Brunson v. Brunson, Meigs, 630.

(b) The construction of the statute which declares that there shall be no representation among collaterals, after brothers' and sisters' children, is, 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.

(c) See vol. i. p. 542, note; and also, Carter v. Crawley, T. Raym. 496. Palmer v. Allicock, 3 Mod. 58. Edwards v. Freeman, 2 P. Wms. 436.

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. (d) The half blood are admitted equally with the whole blood, for they are equally as near of kin; and the father succeeds to the whole personal estate of a child, who dies intestate, and * 423 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 ratable share. She is excluded, 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

(d) Sir John Strange, in Lloyd v. Trench, 2 Vesey, 213.

(a) It has been decided in Maryland, in Griffith v. Griffith, 4 Harr. & M'Hen. 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 such a residuum as a mere trus

tee.

Darrah v. M'Nair, 1 Ashmead, 236. At common law, such residuum went to the executor. The courts of equity then interfered, 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. In 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 undisposed of by will. It goes to the next of kin. Paup v. Mingo, 4 Leigh, 163.1

(b) 1 P. Wms. 41. 2 Vesey, 215.

1 The rule as to the undisposed revenue is thus expressed in Ellcock v. Mapp, 16 E. L. & Eq. 27: "Where there appears a plain implication or strong presumption that the testator by naming an executor, meant only to give the office of executor, and not the beneficial interest, the person named is considered as trustee for the next of kin."

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 Moore 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; and the half blood take equally with the whole blood. A brother and grandfather of the intestate are equally near of kin, and each related in the second degree, and therefore, it would seem, from

the directions in the statute, that they would take equally; * 424 but it has been* 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 grandmother 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;

(c) Cited in 1 P. Wms. 53.

(a) 3 Atk. 762. Amb. 191. Burn's Eccl. Law, vol. iv. p. 307.

(b) Voet, Com. ad Pand. lib. 38, tit. 17, sec. 13. Dr. Irving, in his Introduction to the Study of the Civil Law, 4 edit. London, 99-101, contends that the reasoning of Voet and the decision in England were fallacious and erroneous, and not founded on a true construction of the novel.

(c) Shower's Cases in Parliament, 108. 2 Vern. 124, S. C.

and the decree was affirmed upon appeal to the House of Lords. (d) So posthumous children, whether of the whole or half blood, take equally as other children, under the statute. (e)

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. Pett, (a) that a brother's *425 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. (b)

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 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. (c) Uncles and aunts and

(d) 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 the whole blood in the distribution of the personal estate of an intestate. 2 Harr. & Gill, 9.

(e) Burnet v. Mann, 1 Vesey, 156.

(a) 1 Salk. 250. 1 P. Wms. 25, S. C. 474, S. P.

Duvall v. Harwood, 1 Harr. & Gill,

(b) Bowers v. Littlewood, 1 P. Wms. 593. Parker v. Nims, 2 N. Hamp. 460. Porter v. Askew, 11 Gill & Johns. 346.

(c) Walsh v. Walsh, Prec. in Ch. 54. Davers v. Dewes, 3 P. Wms. 50. Stent