where he leaves no issue in preference to collateral persons claiming through him. Every lineal ancestor is capable of being heir to any of his issue, and in every case where there shall be no issue of the purchaser, his nearest lineal ancestor shall be his heir in preference to any person who would have been entitled to inherit, either by tracing his descent through such lineal ancestor, or in consequence of there being no descendant of such lineal ancestor, so that the father shall be preferred to a brother or sister and a more remote lineal ancestor to any of his issue other than a nearer lineal ancestor or his issue. (a) The male line is to be preferred. None of the maternal ancestors of the person from whom the descent is to be traced, nor any of their descendants, shall be capable of inheriting, until all his paternal ancestors and their descendants shall have failed; and no female paternal ancestor of such person, nor any of her descendants, shall be capable of inheriting until all his male paternal ancestors and their descendants shall have failed; and no female maternal ancestor of such person, nor any of her descendants, shall be capable of inheriting until all his male maternal ancestors and their descendants shall have failed. (b) When there shall be a failure of male paternal ancestors of the persons from whom the descent is to be traced, and their descendants, the mother of his more remote male paternal ancestor, or her descendants, shall be the heir or heirs of such person, in preference to the mother of a less remote male paternal ancestor, or her descendants; and where there shall be a failure of male maternal ancestors of such person and their descendants, the mother of his more remote male maternal ancestor and her descendants shall be the heir or heirs of such person, in preference to the mother of a less remote male maternal ancestor and her descendants. (c) (a) Sect. 6. (b) Sect. 7. (c) Sect. 8. The statute so far abolishes the distinction between the whole and half blood as to admit the latter in certain cases. Any person related to the person from whom the descent is to be traced by the half blood shall be capable of being his heir, and the place in which any such relation by the half blood shall stand in the order of inheritance, so as to be entitled to inherit, shall be next after any relation in the same degree of the whole blood, and his issue, where the common ancestor shall be a male, and next after the common ancestor where such common ancestor shall be a female, so that the brother of the half blood on the part of the father shall inherit next after the sisters of the whole blood on the part of the father and their issue, and the brother of the half blood on the part of the mother shall inherit next after the mother. (a) No brother or sister shall be considered to inherit immediately from his or her brother or sister, but every descent from a brother or sister shall be traced through a parent. (b) The statute abolishes the rule of law which prevented the heir from taking as a purchaser under a devise to him, and which prevented a limitation to the grantor and his heirs from creating an estate by purchase. When any land shall have been devised by any testator who should die after the thirty-first day of December 1833 to the heir or to the person who shall be the heir of such testator, such heir shall be considered to have acquired the land as a devisee and not by descent; and when any land shall have been limited by any assurance executed after the said thirty-first day of December 1833 to the person or to the heirs of the person who shall thereby have conveyed the said land, such person shall be considered to have acquired the same as a purchaser by virtue of such assurance, and shall not be considered to be entitled thereto as his former estate or part thereof. When any person shall have acquired any land by purchase, under a limitation to the heirs or to the heirs of the body of any of his ancestors contained in an assurance executed after the said 31st day of December 1833, or under a limitation to the heirs of the body of any of his ancestors, or under any limitation having the same effect, contained in a will of any testator who shall depart this life after the said 31st day of December 1833, then and in any of such cases such land shall descend, and the descent thereof shall be traced as if the ancestor named in such limitation had been the purchaser of such land. (a) SECTION III. SUCCESSION TO MOVEABLES BY THE LAW OF ENGLAND. Statute of distributions.-Children.-Representatives of children.-Husband. -Widow.-Ascendants.-Collaterals.-The order of succession under the customs of London and York. THE succession to moveable estate by the law of England is regulated, except in certain places having particular customs, by the statute of distributions, 22 & 23 Car. 2, c. 10. That statute, after empowering the ordinary on the granting of administration to take a bond of the administrator, enacts that a just and equal distribution of what remaineth clear of the goods of any person dying intestate, (after all debts, funerals, and just expences of every sort first allowed and deducted) shall be made amongst the wife and children, (a) Sect. 4. or children's children, if any such be, or otherwise to the next of kindred to the dead person in equal degree, or legally representing their stocks pro suo cuique jure, according to the laws in such cases, and the rules and limitation thereafter set down. The whole surplusage of the estate of any person dying intestate, is to be distributed in manner and form following, that is to say, one third part of the said surplusage to the wife of the intestate, and all the residue by equal portions to and amongst the children of such person dying intestate, and such persons as legally represent such children, in case any of the said children be then dead, other than such child or children (not being heir at law) who shall have any estate by the settlement of the intestate, or shall be advanced by the intestate in his lifetime, by portion or portions equal to the share which shall by such distribution be allotted to the other children to whom such distribution is to be made. And in case any child other than the heir at law shall have any estate by settlement from the said intestate, or shall be advanced by the said intestate in his lifetime by portion not equal to the share which will be due to the other children by the said distribution as aforesaid, then so much of the surplusage of the estate of such intestate is to be distributed to such child or children as shall have any land by settlement from the intestate, or were advanced in the lifetime of the intestate, as shall make the estate of the said children to be equal as near as can be estimated; but the heir at law, notwithstanding any land that he shall have by descent or otherwise from the intestate, is to have an equal part in the distribution with the rest of the children, without any consideration of the value of the land which he hath by descent or otherwise from the intestate. (a) (a) Sect. 5. In case there be no children, nor any legal representatives of them, then one moiety of the said estate is to be allotted to the wife of the intestate, and the residue of the said estate to be distributed equally to every of the next of kindred of the intestate who are in equal degree, and those who legally represent them. (a) No representation is admitted among collaterals after brothers' and sisters' children, and in case there be no wife, then all the said estate is to be distributed equally to and amongst the children; and in case there be no child, then to the next of kindred in equal degree of or unto the intestate, and their legal representatives as aforesaid. (b) The order of succession established by this statute bears some resemblance to that adopted by the Roman law. It has been considered a restoration, with some refinements and regulations, of the old constitutional law which prevailed in England as an established right and custom, from the time of King Canute downwards, many centuries before Justinian's laws were known or heard of in the western parts of Europe. After the allotment of a third to the widow, the statute, it has been seen, directs a distribution of the residue by equal portions to and amongst the children of the intestate, and "such persons as shall legally represent such children, in case any of the said children be then dead;" in case there be no wife, then all the estate is to be distributed to and amongst the children. (c) By the words "such as shall legally represent such children," their lineal representatives to the remotest degree are admitted. But the term must be understood of descendants, and not next of kin, as for example, if a son of the intestate is dead, leaving a widow and child, the widow shall take nothing, and the child the whole of the father's share. Yet the widow, though not strictly (a) Sect. 6. (b) Sect. 7. (c) Ib. |