SEC. 1385. NOTE. For adopting the term "Succession," and discarding the more familiar expression, "Descents and distributions," used so long, an apology, if no paramount reason exists, is due from us. We have not, for the mere love of change, done anything; for it is better to adhere to everything tried and found well enough, unless a substantial reason exists for the change. It is not a matter of surprise that originally, in the preparation of all our laws, a similitude existed between ours and those of our mother country; yet our governments and system of laws, if not entirely, are greatly, different. Then as we progress in the perfection of our own system, it is expected that we shall become more and more "sui generis." The following reasons for the change are given by the New York Code Commissioners, and are deemed sufficient: "The term 'descent,' hitherto chiefly used in this State to denote the devolution of an inheritance, was derived from the ancient principle of the English law, that an inheritance could never ascend or pass from son to father, but must descend or pass to descendants. But as the American law allows property to pass in both ways, there arises an incongruity in continuing this use of the term; an incongruity which causes practical embarrassment, since the word descendants' must still be confined to its strict meaning, and cannot embrace all those who may take by our statute of descents, so called, and the word 'descend' must often be used in the same view and in contradistinction to the devolution of property in the ascending line. The term succession' is the more appropriate phrase of the civil law, and this, already in common use among us, the Commissioners have adopted to denote the transmission of the property of a decedent by operation of law.” The property, both real and personal, of any one who dies without disposing of it by will, passes, in the first instance, to the personal representative who has qualified as his executor, administrator, or administrator with the will annexed, as the Trustee of such decedent 1. To make the provision for the surviving husband, or wife, or child, which is directed by Tit. XI, Part III, of the CODE OF CIVIL PROCEDURE. 2. To apply the property to the payment of the debts. of the decedent, according to the Title on Wills and the provisions of the CODE OF CIVIL PROCEDURE; and, 3. To distribute any remaining property among those entitled to succeed to the property of the decedent, according to the provisions of this Title. N. Y. C. C., Secs. 638-9, modified. SEC. 1386. When any person having title to any estate Succession not otherwise limited by marriage contract dies without disposing of the same by will, it is succeeded to, and must to and distribution property. Succession be distributed, subject to the payment of his debts, in the tribution of following manner: to and dis property. 1. If the decedent leaves a surviving husband or wife, and only one child, or the lawful issue of one child, in equal shares to the surviving husband or wife and child, or issue of such child. If the decedent leaves a surviving husband or wife, and more than one child living, or one child living, and the lawful issue of one or more deceased children, one-third to the surviving husband or wife, and the remainder in equal shares to his children, and to the lawful issue of any deceased child, by right of representation. If there be no child of the decedent liv. ing at his death, the remainder shall go to all of his lineal descendants; and if all the descendants are in the same degree of kindred to the decedent they share equally, otherwise they take according to the right of representation. 2. If the decedent leaves no issue, the estate goes in equal shares to the surviving husband or wife and to the decedent's father. If there be no father, then one-half goes in equal shares to the brothers and sisters of the decedent, and to the children of any deceased brother or sister, by right of representation; if he leaves a mother also, she takes an equal share with the brothers and sisters. If decedent leaves no issue, or husband, or wife, the estate must go to his father. 3. If there be no issue, husband, wife or father, then in equal shares to the brothers and sisters of the decedent and to the children of any deceased brother or sister, by right of representation; if a mother survives, she takes. an equal share with the brothers and sisters. 4. If the decedent leaves no issue, husband, wife or father, and no brother or sister is living at the time of his death, the estate goes to his mother, to the exclusion of the issue, if any, of decedent's brothers or sisters. 5. if the decedent leaves a surviving husband or wife, and no issue, and no father, mother, brother or sister, the whole estate goes to the surviving husband or wife. 6. If the decedent leaves no issue, husband or wife, and no father, mother, brother or sister, the estate must go to the next of kin, in equal degree, excepting that when there are two or more collateral kindred, in equal degree, but claiming through different ancestors, those who claimed through the nearest ancestors must be preferred to those claiming through an ancestor more remote; however 7. If the decedent leaves several children, or one child and the issue of one or more other children, and any such surviving child dies under age, and not having been married, all the estate that came to the deceased child by inheritance fro 1. such decedent descends in equal shares to the other children of the same parent, and to the issue of any such other children who are dead, by right of representation. 8. If, at the death of such child, who dies under age, not having been married, and all the other children of his parents are also dead, and any of them have left issue, the estate that came to such child by inheritance from his parent, descends to the issue of all other children of the same parent; and if all the issue are in the same degree of kindred to the child, they share the estate equally, otherwise they take according to the right of represen 9. If the decedent leaves no husband, wife or kindred, the estate escheats to the State for the support of common schools. Stats. 1850, 219, Sec. 1; 1862, 569, Sec. 1. SEC. 1387. Every illegitimate child is an heir of the person who, in writing, signed in the presence of a competent witness, acknowledges himself to be the father of snch child; and in all cases is an heir of his mother, and inherits his or her estate, in whole or in part, as the case may be, in the same manner as if he had been born in lawful wedlock; but he does not represent his father or mother by inheriting any part of the estate of his or her kindred, either lineal or collateral, unless, before his death, his parents shall have intermarried, and his father, after such marriage, acknowledges him as his child, or adopts him into his family; in which case such child and all the legitimate children are considered brothers and sisters, and on the death of either of them, intestate, and without issue, the others inherit his estate, and are heirs, as hereinbefore provided, in like manner as if all the children had been legitimate; saving to the father Illegitimate inherit in events. children to certain The mother is successor to illegiti. mate child. Degrees of kindred,how computed. Advance ments con of distributive share and mother, respectively, their rights in the estates of all the children in like manner as if all had been legitimate. The issue of all marriages null in law, or dissolved by divorce, are legitimate. Stats. 1850, 219, Sec. 2. SEC. 1388. If an illegitimate child dies intestate, without lawful issue, his estate descends to his mother, or, in case of her decease, to her heirs at law. Stats. 1850, 220, Sec. 3. SEC. 1389. The degrees of kindred must be computed according to the rules of the civil law, and kindred of the half blood inherit equally with those of the whole blood, in the same degree, unless the inheritance come to the intestate by descent, devise, or gift of some one of his ancestors, in which case all those who are not of the blood of such ancestors must be excluded from such in. heritance. Stats. 1850, 221, Sec. 4. SEC. 1390. Any estate, real or personal, given by the stitute part decedent in his lifetime, as an advancement to any child, or other lineal descendant, is a part of the estate of the decedent for the purposes of division and distribution thereof among his issue, and must be taken by such child, or other lineal descendant, towards his share of the estate of the decedent. Advancements, when too much, or Stats. 1850, 221, Sec. 5. SEC. 1391. If the amount of such advancement exceeds the share of the heir receiving the same, he must not enough. be excluded from any further portion in the division and distribution of the estate, but he must not be required to refund any part of such advancement; and if the amount so received is less than his share, he is entitled to so much more as will give him his full share of the estate of the decedent. What are advance. ments. Stats. 1850, 221, Sec. 6. SEC. 1392. All gifts and grants are made as advancements, if expressed in the gift or grant to be so made, or if charged in writing by the decedent as an advancement, or acknowledged in writing as such, by the child or other successor or heir. Stats. 1850, 221, Sec. 7. SEC. 1393. If the value of the estate so advanced is expressed in the conveyance, or in the charge thereof made by the decedent, or in the acknowledgment of the party receiving it, it must be held as of that value, in the division and distribution of the estate; otherwise, it must be estimated according to its value when given, as nearly as the same can be ascertained. Stats. 1850, 221, Sec. 8. SEC. 1394. If any child or other lineal descendant, receiving advancement, dies before the decedent, leaving issue, the advancement must be taken into consideration in the division and distribution of the estate, and the amount thereof must be allowed accordingly, by the representatives of the heirs receiving the advancement, in like manner as if the advancement had been made directly to them. Stats. 1850, 221, Sec. 9. SEC. 1395. The provisions of the preceding sections of this Title, as to the inheritance of the husband and wife from each other, apply only to the separate property of the decedents. Stats. 1850, 221, Sec. 10. Value of ad vancements, how deter mined. When heir advanced to cies before decedent. Inheritance of husband and wife other. from each of the common property in case of wife. SEC. 1396. Upon the death of the wife, the entire Distribution common property, without administration, belongs to the surviving husband, if he shall not have abandoned and death of the lived separate and apart from her; but if the husband shall have abandoned his wife, and lived separate and apart from her, the half of the common property, subject to the payment of the debts chargeable to the estate owned in common by the husband and wife, is at her testamentary disposition, and in the absence of such disposition, goes to her descendants or heirs at law, exclusive of her husband. Stats. 1863-4, 363, Sec. 1. SEC. 1397. Upon the death of the husband, one-half of the common property goes to the surviving wife, and the other half is subject to the testamentary disposition of the husband, and in the absence of such disposition, goes to his descendants, equally, if such descendants are in the same degree of kindred to the decedent; otherwise, Distribution property on husband. of common death of the |