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APPENDIX.

OF THE DISTRIBUTION OF THE PERSONAL EFFECTS

OF AN INTESTATE.

If the intestate leave a widow and children, the Wife. widow shall take a third part of the surplus of his effects. If he leave no children, she shall have a moiety (a).

But the statute does not extend to the estate of Husband. a feme covert; and, therefore, the husband is entitled to her effects (b).

If the intestate leave children, his effects, (i. e. Children. the whole if he leaves no widow, or two-thirds if

(a) Stat. 22 & 23 Car. II. c. 10, s. 5 & 6.

And note; the widow takes as widow, by the express words of the statute, and not as being of kin; for a wife is (as such) of no kin to her husband. See Worsley v. Johnson, 3 Atk. 761. (b) Stat. 29 Car. II. c. 3, s. 25; 2 Bl. Comm. 515, ch. 32; Squib v. Wyn, 1 P. Wms. 379; Elliot v. Collier, 3 Atk. 526.

S

(I)

Representatives among descendants.

he does leave one,) shall be equally divided among his children (I) (c); whether male or female; whether by the same or different wives (d); whether posthumous or born in his life-time (e); whether papist or protestant (ƒ). Or, if he leave but one child, to such only child. (g)

If some of the children of the intestate die in his life-time leaving children, such children shall stand in loco parentis, and shall take their deceased parent's share (h); as if there be two sons, and one die leaving three children, and the other survive

(c) Stat. 22 & 23 Car. II. c. 10, s. 5.

(d) For the half-blood shall take equally with the whole. Brown v. Farndell et al., Carth. 51; Watts et al. v. Crooke, Show. Parl. Cas. 108, 110; Janson v. Bury, Bunbury, 158; Wale v. Theedham, there cited.

(e) Wallis v. Hodson et Ux. 2 Atk. 115; Burnet v. Mann, 1 Ves. 156 [1].

(f) D'Avers v. D'Ewes, 3 P. Wms. 49.

(g) Palmer v. Garrard, Prec. Chan. 21; Brown v. Farndell, Carthew, 52; D'Avers v. D'Ewes, 3 P. Wms. 49, note (D). (h) Stat. 22 & 23 Car. II. c. 10, s. 5.

[1] It appears that the note of this case in Vesey is inaccurate. It was not a case of a posthumous son claiming under the statute of distributions, but of a claim made under the statute of 1 Jac. II. c. 17, s. 7, by a brother of the half-blood to a share of the effects of an infant who died while the half-brother who claimed was in ventre sa mere. See a note of the case extracted from the Registrar's book, 1 Mylne & Keen, 672. The reference is Reg. Lib. 1748, A. folio 634.

the intestate; the three children of the deceased son shall have one moiety, and the surviving son the other.

And this right of representation among the descendants of the intestate is not confined within any degree (i).

Grandchildren.

But if all the children of the intestate die in his Taking per capita, or per life-time leaving children, then the distribution stirpes. shall be (II) to them (such issue) per capita; (II) they now claiming in their own right and not by representation. For where all the parents are deceased, their children take per capita; but when some only, they take per stirpes (k) [1].

And note; when distribution is made among Hotchpot.

(i) See the stat. and post, (m).

(k) Walsh v. Walsh, Prec. Chan. 54; Lloyd v. Tench, 2 Ves. 215; D'Avers v. D'Ewes, 3 P. Wms. 50; Bowers v. Littlewood, 1 P. Wms. 459, [595]; Durant v. Prestwood, 1 Atk. 454; [S. C. West, 448]; 2 Bl. Comm. 517, ch. 32.

[1] The authorities here referred to do not support the position taken in the text. They are all cases of the children of deceased brothers of the intestate taking per capita, there being no mother, brother, or sister of the intestate living at his death. But in these cases the children of the brothers take as next of kindred, and not by representation, whereas the descendants of the children of an intestate take under the description of "such persons as legally represent such children." It would seem, therefore, that the grandchildren ought to be entitled per stirpes. See Burton's Compendium, p. 432.

Great-grand-
children.
(III)

Father.

(IV)

Mother and

brothers and sisters.

(V)

children, they must bring their advancement into hotchpot, as by the act is directed (7) [1].

If there be no grandchildren surviving the intestate, then the great-grandchildren (III) shall take equally per capita; and so on the lineal descendants of the intestate in infinitum, being preferred to all ascendants or collaterals (m) [2].

If the intestate leave no children, or representatives of them, the father (IV), if living, shall take, in exclusion of the mother, brothers, and sisters, &c. (n).

If the father be dead, the (V) mother, brothers and sisters of the intestate, shall take equally (0):

(1) Stat. 22 & 23 Car. II. c. 10, s. 5.

(m) See the stat. Car. II.; 1 Com. Dig. 273, tit. Administration, (H), cites Raym. (Sir Thomas), 500; 1 P. Wms. 27; 1 Atk. 457, 458; 2 P. Wms. 346.

(n) 2 Bl. Comm. 517, ch. 32.

(0) Stat. 1 Jac. II. c. 17, s. 7; 2 Bl. Comm. 516, ch. 32.

[1] See Edwards v. Freeman, 2 P. Wms. 435; 3 P. Wms. 317, note; Walton v. Walton, 14 Ves. 318.

The heir-at-law is not to account for land descended to him, but he, as well as the other children, must account for any advancement of a portion made to him. Lutwyche v. Lutwyche, Ca. temp. Talb. 276. The descendants of a deceased child must account for a portion advanced to such child. Proud v. Turner, 2 P. Wms. 560.

[2] But see note, ante p. 259.

as if there be a mother and four brothers or sisters, each shall take a fifth (p) [1].

tives.

So if some, or all, of such brothers or sisters Representadie, leaving children, such children shall stand in loco parentis: as if there be a widow, mother, and the children of a deceased only brother, the widow shall take her moiety, and the mother and the children of the brother shall have each a fourth; i.e. the mother one-fourth, and the children the other; for the children take quasi by representation (9) [2].

laterals.

But this right of representation, being among Among colcollaterals, shall not extend further than brothers or sisters' children (r).

(p) See Keilway v. Keilway, 1 Strange, 710; S. C. 2 P. Wms. 344.

(9) See stat. 1 Jac. II. c. 17, s. 7; Keilway v. Keilway, 2 P. Wms. 344; Stanley v. Stanley, 1 Atk. 455; [S. C. West, 643].

(r) Stanley v. Stanley, 1 Atk. 457; [S. C. West, 643].

[1] And this whether the brothers or sisters be of the half-blood, or of the whole. Jessopp v. Watson, 1 Mylne & Keen, 665; Burnet v. Mann, 1 Mylne & Keen, 672, note.

[2] If all the brothers and sisters of the intestate die, leaving children, the children will not stand in the place of their parents, unless the mother of the intestate be living; for, if she be dead, they will be entitled merely as next of kin of the third degree, and will take per capita along with the other relatives of the intestate of the same degree, unless the grandfather or grandmother, who will then have a prior claim, be living. Lloyd v. Tench, 2 Ves. 215; Durant v. Prestwood, 1 Atk. 454; S. C. West, 448; post, P, 264.