CHAPTER VI

LAW OF DESCENT AND DISTRIBUTION

§ 48. Importance of Subject. It has been said (§ 30) that the amount of inheritance taxes, as distinguished from estate taxes, depends in part upon the degree of relationship to the decedent of the persons who will receive the property by the death. It is therefore essential that one who would understand these taxes have a thorough knowledge of the passage of property on death. If there is a valid will, the property is of course transferred in accordance therewith, subject, however, to dower and similar rights (§ 36). If the decedent dies intestate, which condition, as shown in § 38, may arise even if a will has been made, his property is distributed under what are called the laws of descent and distribution. Since, to compute inheritance taxes it is necessary to know how the property will pass, and since, in the case of an intestate, it passes under the laws of descent and distribution, the importance of a knowledge of these laws will be evident.

§ 49. Terms Used. In dealing with these laws of descent and distribution we encounter a great many technical words which unfortunately have both a technical meaning and a popular meaning. Technically, descent is the hereditary devolution of real estate, while distribution applies to the disposition of the personal property of an intestate. Those who take the real estate of an intestate are known as heirs while those who receive the personal property of an intestate are known as distributees or, sometimes, next of kin.

The confusion between the technical and popular meanings of these words has undoubtedly been due largely to the fact that originally in England nothing but real property was inheritable. The personal property on the death of an intestate became bona vacantia and was seized by the king on that account and by him as grand almoner was applied to pious purposes for the good of the soul of the former owner. In modern times, however, in both England and the United States provision is made for the distribution of goods of an owner dying without a will. Hence, in both popular and technical usage the word descent is often used with reference to both real and personal property. The word is so used, for example, in the Illinois statute.

Likewise, the word heirs is used in a general sense to designate

those who on account of some legal relation to the deceased owner take the property of an intestate. The legal relation here referred to may be one of three kinds, consanguinity, affinity or adoption.

Relation by consanguinity is relation by being of the same blood, or in other words, having a common ancestor. Relation by affinity is relation by marriage. Originally the wife did not inherit from a deceased husband but under modern statutes she may. Adopted children inherit from the foster parents but they do not inherit from kindred of the foster parents, either lineal or collateral. An illegitimate child inherits only from its mother in Illinois. At common law it was nullius filius, the child of no one, and could inherit from no one.

The statutes of descent and distribution take effect immediately upon the death of the intestate. For practical purposes it is very important to understand that the title to the real estate ordinarily passes immediately to the intestate's heirs (§ 47), while the title to the personal property passes to the administrator.

The heirs and next of kin are said to take either per capita or per stirpes. One who takes per capita takes by his own right. One who takes per stirpes takes by representation or by reason of the fact that he is the descendant of one who would have taken per capita. In other words, if there are four children of the intestate each would take one-fourth per capita. If, however, there are three children and also descendants of a deceased child the descendants of the deceased child would take per stirpes the share of the deceased child. These descendants would take per capita as to the share of the deceased child divided among them.

§ 50. Descent of Property. In most of the states the degree of relationship is determined according to the civil law and not according to the common or canon law. In other words, where the property is divided among uncles, cousins and other collaterals of the intestate the degree of relationship is determined by the civil law, which requires that we go back from the intestate to a common ancestor and then descend to the collateral. Thus, a first cousin is related to the intestate in the fourth degree, the father of the intestate being the first step, the grandfather the second step and the common ancestor of the intestate and of the first cousin. The next step is a descending one from the grandfather to the uncle, who would be related in the third degree. The next step or the fourth degree is the first cousin. Likewise a granduncle would be related in the fourth degree by the civil law. In this case the great-grandfather is the common ancestor and the next step or the fourth is the granduncle.

At common law in England property descended according to what were known as the canons of descent. These canons of descent favored the male line and property always descended and never ascended. These canons of descent have never been favored in the United States, the tendency being more and more liberal all the time and tending more toward equality. Provision is also made in the United States for property to descend by ascending. In other words, the father may inherit from the son, in which case in technical language the son would be regarded as the ancestor of the father.

These methods of determining the degree of relationship have their practical application in a principle that only relatives in the closest degree in which any are living will take the property. If there are relatives of the first degree, they will, in the absence of such special provisions as dower (§ 36), divide all the property equally among themselves. If there are no relatives of the first degree the property will be divided equally among those of the second. Those of more distant degrees will not share with those of a nearer degree.

§ 51. A Typical Example. Each state has its own laws of descent and distribution. The best of these laws provide for every possible contingency. While the laws vary somewhat, yet there is so much similarity that one may be presented as an example of the scope of all. For this purpose the Illinois statute is selected. Its provisions are presented in the following paragraphs.

Where there is a surviving husband or wife together with descendants the husband or wife takes one-third of the personalty and onethird of the realty, unless he or she elects to take dower (§ 36). The children or descendants take equal shares of the remaining two-thirds of the personalty and realty unless the surviving parent has elected to take dower in the realty. In that case the children would take two-thirds of the personalty and all the realty, subject to the surviving parent's dower interest. The descendants of a deceased child would divide among themselves the deceased child's share.

In case there are children or descendants of children and no surviving parent the children would take equal shares of all the property, the descendants of a deceased child dividing among themselves the deceased child's share.

In case there are no children or descendants of children, but there are parents, brothers and sisters of the intestate, the husband or wife would take all personalty, one-half of the real estate absolutely and a dower interest in the remaining one-half of the real estate. This would leave for division among the parents, brothers and sisters, onehalf of the real estate subject to the dower interest of the surviving spouse,

Where the parents, brothers and sisters of the intestate share in the property a parent takes a child's part and if only one parent is living that parent takes a double share. Thus, if the intestate left father, brother and two sons of a deceased brother the estate would be divided into four parts, the brother taking one, the two sons of the deceased brother taking another and the father taking twofourths.

Where there is a husband or wife, but no children or descendants and no parents, brothers or sisters or their descendants, the surviving husband or wife takes all the personalty and one-half of the real estate absolutely with a dower interest in the remaining one-half. The next of kin take equal shares in one-half of the real estate subject to dower, the degree of relationship being determined according to the civil law. "Next of kin" includes grandparents, great-grandparents, uncles, great-uncles, aunts, great-aunts, grand-nephews, cousins, etc.

Where there is no surviving husband or wife or descendants or where the intestate is a bachelor or spinster, the parents, brothers, sisters and their descendants take all the property.

Where there is no surviving husband or wife, no children, descendants of children, parents, brothers, sisters, or their descendants, the property descends to the next of kin in equal degree according to the civil law.

Where there is only a husband or a wife surviving, the husband or the wife takes all.

In case there are no heirs or next of kin the property escheats to the county.

§ 52. Advancements. The descent and distribution of property are sometimes complicated by what are known as advancements. An advancement is a gift of real estate or personalty made by the decedent before his death and intended to be taken into account upon the death of the donor as a part of the donee's proper share in the donor's estate. For example, the donor may be the father of two children, a boy and a girl. He may desire that they share equally in his estate. When the son desires to enter a business of his own, the father may give him the requisite amount with the understanding that the son's share of the father's estate is to be reduced sufficiently so that, including the amount so advanced, the son and the daughter will each receive half of the father's accumulation.

If the donor in such a case was an intestate it is necessary to bring such advancements into what is known as hotchpot. In other words, they are added back to the estate before the proportionate shares are determined. This does not mean that they are added back in kind

but in computation only. It means that the sum obtained by adding the estate and advancements together is divided by the number of beneficiaries participating in the estate. This gives the amount of each share but in making settlement with the beneficiaries the shares of those who have received advancements are reduced by the amount of the advancements.

In many states the statutes provide that advancements shall be clearly evidenced by some instrument in writing or by acknowledgment of the recipient. In other words, the presumption in those states is always against considering that the testator intended the gift to be charged against the donee's share of the estate.