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* 426 nephews and nieces, stand in the same third * degree, and
take equally per capita. (a) If a person dies without children, leaving a widow and mother, brother and sister, and two nieces by a deceased brother, then, according to the established doctrine, the widow would take a moiety, and the mother, brother, and sister would each take one fourth, and the two nieces the other one fourth of the remaining moiety. This point was ruled in Keylway v. Keylway ;(6) and the doctrine was declared to be correct by Lord Hardwicke, in Stanley v. Stanley. (c)
(3.) The distribution of personal property of intestates in the United States has undergone considerable modification. In many
of them the English statute of distributions as to personal * 427 property is pretty closely followed. (d) * In a majority of
v. M'Leod, 2 M'Cord Ch. (S. C.) 354. Hallett v. Hare, Paige, 316. Nephews and nieces, under the statute of descents in South Carolina, of February, 1796, which abolished primogeniture, and distributed real and personal property in the same manner, would, in the case stated, take per stirpes, contrary to the rule in the Eng. lish law.
(a) Durant v. Prestwood, 1 Atk. 454. Lloyd v. Tench, 2 Vesey, 213. Buissieres v. Albert, 2 Lee, 51. (Eng. Eccle. vol. vi. p. 30, edit. Philadelphia, 1841.)
(b) 2 P. Wms. 344.
(c) i Atk. 457. The English doctrine of distribution of personal property, according to the statutes of 22 and 23 Charles II., and 29 Charles II., and 1 James II., is fully and clearly explained by C. J. Reeve, in his Treatise on the Law of Descents, under the head of Introductory Explanation. It is the most comprehensive, neat, and accurate view of the English law on the subject that I have anywhere met with.
Mr. Robertson, in his learned Treatise on the law of Personal Succession, p. 386, (12 Law Library, 214,) thinks that the Scottish rules of succession in regard to personal estate require revision, and are not just or expedient, as they (1.) limit the power of a husband or father to make a will; (2.) allow brothers and sisters and their descendants to exclude the father from the succession, though he be the nearest in blood, and allow uncles and aunts and their descendants to exclude the grandfather; (3) exclude the mother entirely from any share in the succession of her child ; (4.) totally exclude maternal relations from the succession ; (5) totally exclude representations in every case in regard to the succession of personal estate ; (6) disable bastards from disposing of their personal estate by will.1
(d) 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 reënacted in 1847. N. J. R. S. p. 355. The New York Revised Statutes, which went into
1 (7.) Among collaterals, kindred of the full blood exclude those of the half blood in the same line of succession. Robertson on Succession, p. 379. Graham v. The Public Administrator, 4 Bradf. (N. Y.) 127.
the states the descent of real and personal property is to the same persons and in the same proportions, and the reg.
operation on the 1st January, 1830, have essentially reënacted the English statute of distributions, which have 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 are, 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 of 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, 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, secs. 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 their 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 other testamentary jurisdictions in the United States. The surrogate, under the New York stitutes, 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, 210. It was further held, in * 428 ulation is the same in substance * as the English statute of
distributions, 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, 540. The half blood take equally with the whole blood, as they do under the English statute of distributions. (a) Such a uniform rule in the descent of real
Heyer v. Burger, 1 Hoff. Ch. 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. ii. p. 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 docketed on the books for docketing judgments therein. Laws of N. Y. April 1, 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 How. (Miss.) 255; but not against the sureties in an administration bond. Green v. Turnstall, 5 Ibid. 638. The surrogate's courts in New York, with all their enlarged powers, are courts of inferior jurisdiction, and a party seeking to make the title to real estate under their proceedings, must show affirmatively that they had jurisdiction. Bloom v. Burdick, 1 Hill (N.Y.) 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, 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 Ch. (N. J.) 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, pp. 165, 359–370, 382, 444. New Jersey seems to have doubled and trebled her consistorial courts. See N. J. R. S. of 1847, tit. 7, ch. 5.
(a) 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 and personal property gives simplicity and symmetry to the whole doctrine of descent. The English statute of distributions, being
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 the classes collectively. Nixon v. Nixon, 8 Dana, 7,) Missouri, (but there brothers and sisters, and parents, take equally,) 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 Greenl. 151 ; 2 N. Hamp. 461 ; Dana's Abridgment, vol. iv. pp. 538, 539 ; Statutes of Connecticut, 1784, p. 51; Ibid. 1821, p. 207; Ibid. 1838, p. 235; 5 Conn. 233; 1 M'Cord, 161, 456 ; Edwards v. Barksdale, 2 Hill Ch. (S. C.) 417 ; Reeve's Law of Descents, passim; Statutes of Georgia, December 23d, 1789, and December 12th, 1804; Territorial Act of Michigan, April 12th, 1827 ; Purdon's Penn. Dig. 550, 551 ; Aikin’s Alabama Dig. 2d edit. pp. 128, 151.) 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 different. 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 surplus. 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, and 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, December 12, 1804, and December 23, 1826. Prince's Dig. 2d edit. 1837, pp. 233, 234. In South Carolina, their statute of distributions of 1791 gives to the husband only a ratable 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,
founded in justice and on the wisdom of ages, and fully and profoundly illustrated by a series of judicial decisions, was well selected, as the most suitable and judicious basis on which to establish our American law of descent and distribution.
(4.) There has been much discussion as to the rule of distribution of personal property, when the place of the domicil of the
intestate, and the place of the situation of the property * 429 were not the same. But it has become a settled * principle
of international jurisprudence, and one founded on a comprehensive and enlightened sense of public policy and convenience, that the disposition, succession to and distribution of personal
(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 mother 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, 1836, 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 distributions, 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 minutiæ 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, pp. 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 “Re vised Statutes of the State of Mississippi.” It appears to be a work of much labor, 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 additions and amendments. The doctrine of descent, and consequently, in a great degree, of distribution, in the different states, has been minutely illustrated and ably discussed, by the late C. J. Reeve, of Connecticut, in his laborious Treatise on the Law of Descent in the several United States of America. This work does honor to his memory; but it is not calculated to suit the taste of those general readers who have not mathematical heads, by reason of the numerous algebraical statements of hypothetical cases with which the work abounds, and by which it is perplexed.