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 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. (a) 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 intes- 423 tate, and 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. (b) The K. B. declared, in Blackborough v. Da

(a) Sir John Strange, in Lloyd v. Tench, 2 Ves. 213.

(b) It has been decided in Maryland, in Griffith v. Griffith, 4 Harr. & M'Henry, 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 trustee. 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. The 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's R. 163.1

1 The rule as to the undisposed revenue is thus expressed in Ellcock v. Mapp, 16 Eng. 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."

vis, (a) 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 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 Moor v. Barham, decided by Sir Joseph Jekyll, (b) 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, (c) 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. (d)

(a) 1 P. Wms. 41. 2 Ves. 215.

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

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

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; (a) and it was determined in chancery that they were of equal kin, and took equally with the whole blood; and the decree was affirmed upon appeal to the house of lords. (b) So posthumous children, whether of the whole or half blood, take equally as other children, under the statute. (c)

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, (d) 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. (e)

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 repre

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

(b) 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.

(c) Burnet v. Mann, 1 Ves. 156.

(d) 1 Salk. Rep. 250. 1 P. Wms. 25, S. C. Duvall v. Harwood, 1 Harr. & Gill, 474, S. P.

(e) Bowers v. Littlewood, 1 P. Wms. 593. Parker v. Nims, 2 N. H. Rep. 460. Porter v. Askew, 11 Gill & Johnson, 346.

sentation 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. (a) Uncles and aunts and *426 nephews and nieces, stand in the same third *degree, and take equally per capita. (b) 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; (c) and the doctrine was declared to be correct by Lord Hardwicke, in Stanley v. Stanley. (d)

(3.) The distribution of personal property of intestates in

(a) Walsh v. Walsh, Prec. in Ch. 54. Davers v. Dewes, P. Wms. 50. Stent v. M'Leod, 2 M'Cord's S. C. Ch. Rep. 354. Hallett v. Hare, 5 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 English law.

(b) Durant v. Prestwood, 1 Atk. Rep. 454. Lloyd v. Tench, Ves. 213. Buissieres. Albert, 2 Lee, 51. (Eng. Eccle. Rep. vol. vi. p. 30, edit. Philadelphia, 1841.) (c) 2 P. Wms. 344.

(d) 1 Atk. Rep. 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 Ch. 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.

the United States has undergone considerable modification. In many of them the English statute of distributions as to personal property is pretty closely followed. (a) *In *427

(a) 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 operation on the 1st January, 1830, have essentially reënacted the English statute of distributions, which had 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, sec. 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