This is not the rule that has recently been declared in New-York, for that excludes, in all cases, the grandparents from the succession, and the direct lineal ascending line stops with the father. The grandparents are equally excluded in New-Jersey and North Carolina; and in Missouri the grandparents lose their preference as nearest of kin, but they are admitted into the next degree, and take equally with uncles and aunts. In New-Jersey, in default of issue, and brothers and sisters of the whole and half blood, and their issue, and parents, and there be several persons, all of equal degree of consanguinity to the intestate, the estate descends to them as tenants in common. The grandparents take the estate before uncles and aunts, in most of the United States, as being nearer of kin to the intestate, according to the computation of the civil law; and, therefore, I lay it down as a general rule in the American law of descent. I apprehend it to be the rule in the states of Maine, New-Hampshire, Vermont, Massachusetts, Rhode Island, Connectict, Pennsylvania, Delaware, Maryland, Ohio,d *408 Illinois, South Carolina, Georgia, *Alabama, Mis

b

New-York Revised Statutes, vol. i. 752, sec. 10.

Act of New-Jersey, 1838. Elmer's Dig. 131. This would seem from the breadth of the language to reach uncles and aunts, and exclude grandparents.

• In Massachusetts, grandparents take before the descendants of brothers and sisters, as being nearer of kin. Revised Statutes, 1835. So it must be in every state where the estate descends to the next of kin after brothers and sisters, and there be no saving of their descendants. The Massachusetts and Alabama law of descents saves the necessity of any further special provisions after default of issue, parents, brothers and sisters, and their descendants, by declaring, as a general rule, that the estate shall then descend to the next of kin in equal degree, and that the degrees of kindred shall be computed according to the rules of the civil law. Mass. Revised Statutes, 1835, part 2, tit. 2, c. 61, sec. 1. 5. Aikin's Alabama Dig. 2d edit. p. 129. This is a clear, simple rule well settled, and saves the trouble of all further entangled investigations.

a In Ohio, if the father and mother be dead, the estate passes to the next of kin to, and of, the blood of the intestate. Statutes of Ohio, 1831, p. 253.

sissippi, and Louisiana." In Virginia, in default of issue, parents, brothers and sisters, and their descendants, one moiety of the estate goes to the paternal, and the other to the maternal kindred, as follow: first to the grandfather, and next to the grandmother, and uncles, and aunts, on the same side, and their descendants. This is also the rule in Kentucky, by the statute of 1785 and 1796. In Indiana, in default of issue, and parents and brothers and sisters, and their descendants, all the personal estate, and two-thirds of the real estate, descends to the widow, and if dead, leaving children by a previous marriage, they take half of the estate, real and personal, and the residue, or if there be no widow, or her children, then the whole, descends, one half to the paternal, and the other half to the maternal kindred, giving in either case preference to the grandfather, and next to the grandmother, and in default of either, to uncles and aunts, and their descendants. In Rhode Island, if there be no grandfather, then the estate goes to the grandmother, and uncles and aunts on the same side, and their descendants, or such of them as exist. The rule is the same as that existing under the English statute of distributions of personal estates, by which it has been repeatedly held, that the grandmother took the personal estate in preference to uncles and aunts, as nearer of kin. The analogies of the law would have been preserved, and, perhaps, the justice of the case better promoted, if, in the New-York Revised Statutes, remodelling the law of descents, the claim of kindred on part of the grandparent had not been rejected.

the

• In Arkansas in default of issue, and parents, brothers and sisters, and their descendants, the estate descends to the grandfather, grandmother, uncles and aunts, and their descendants in equal parts. Arkansas R. S. ch. 49. Revised Code of Virginia, edit. 1814, vol. i. 236.

• Revised Statutes of Indiana, 1838, p. 237.

Blackborough v. Davis, 1 P. Wms. 41. Woodroff v. Wickworth, Prec. in Ch. 527.

VI. In default of lineal descendants, and parents, and brothers and sisters, and their descendants, and grandparents, the inheritance goes to the brothers and sisters, equally, of both the parents of the intestate, and to their descendants. If all stand in equal degree of consanguinity to the intestate, they take per capita; and if in unequal degrees, they take per stirpes.

This is the rule declared in New-York with the exception of the grandparents; and I presume it may be considered with some slight variations in particular in

stances, as a general rule throughout the United *409 States. It is confined, *in New-York, to cases in which the inheritance had not come to the intestate on the part of either of his parents. The rule is controlled in that, as in some other states, by the following rule.

VII. If the inheritance came to the intestate on the part of his father, then the brothers and sisters of the father, and their descendants shall have preference; and, in default of them, the estate shall descend to the brothers and sisters of the mother, and their descendants. But if the inheritance came to the intestate on the part of his mother, then her brothers and sisters, and their descendants, have the preference; and, in default of them, the brothers and sisters on the father's side, and their descendants, take.

• New-York Revised Statutes, vol. i. 752, sec. 10. Ibid. 753, sec. 13. In Rhode Island, in default of grandparents, and uncles and aunts, and their descendants, the estate goes to the great grandfathers; and if none, then to the great grandmothers, and the brothers and sisters of the grandparents, and their descendants. See Statute of Descents, January, 1822. In Louisiana, representation only takes place in favour of lineal descendants, and the descendants of brothers and sisters; and in the ascending line, the nearest ancestor in degree excludes the more remote. Civil Code, No. 892, 893. And in the case of a default of heirs to the extent stated in the text, the inheritance goes to the collateral relations; and in that case, he who is nearest in degree, excludes all the others; and if there be several in the same degree, they take per capita. Ibid., No. 910.

This rule is so declared in the New-York Revised Statutes, and the adoption of the same distinction in several of the states, and the omission of it in others, has been already sufficiently shown, in discussing the merits of the fourth rule of inheritance.b

VIII. On failure of heirs, under the preceding rules, the inheritance descends to the remaining next of kin to the intestate, according to the rules in the English statute of distribution of the personal estate, subject to the doctrine in the preceding rules in the different states, as to the half blood, and as to ancestral estates, and as to the equality of distribution.

This rule is of very prevalent application in the several states. But there are some peculiarities in the local laws of descent, which extend their influence to this ultimate rule. Thus, in North Carolina, in the descent of acquired estates, the collateral need only to be the nearest relation of the person last seised; but, in descended estates, he must be of the blood of the first purchaser; and the rules of consanguinity are ascertained, not by the rules of the civil law as applied under

■ Vol. i. 752, sec. 10, 11, 12. At common law, says the vice-chancellor, in Torrey v. Shaw, 3 Edwards' N. Y. Ch. Rep. 356, the words ex parte materna, apply to a descendible estate, when it is a question of inheritance among collaterals on the father's or mother's side. But under the construction given to the New-York Revised Statutes, if the point be as to property acquired by purchase, and the party last seised dies without issue or lineal descendants, the heirs on the father's side are preferred, and those ex parte materna do not take until the father's side are extinct. If the estate comes to the person last seised by descent, and no act has changed it, the descent goes to the blood of the first purchaser, so that if the property came by descent from, or through the mother, it will descend ex parte materna.

Vide, supra, p. 405. Ibid. n. a.

• In Michigan, by Act of March 12, 1827, when the lineal line fails, the estate goes to the next of kin in equal degree, and those who represent them, computing by the rules of the civil law; and there is no representation among collaterals beyond brothers' and sisters' children. But if the intestate leaves no issue or wife, the mother takes equally with the brothers and sisters. a Bell v. Dozier, 1 Devereux, 333.

*410

In

the statute of distribution, but by the rule of the common law in its application to descent. South Carolina, the widow, under this last rule, will take a moiety, or two-thirds of the inheritance, according to circumstances. In Rhode Island, Virginia, Kentucky, and Maryland, the inheritance, in default of heirs, under the preceding rules, continues to ascend to the great grandfathers, and, in default of them, to the great grandmothers, and to the brothers and sisters of them respectively, and their descendants. If there be no kindred on either side, the estate goes, in Rhode Island, New-Jersey, Virginia, Kentucky, and Ohio, to the husband or wife of the intestate, or their next of kin if dead. In Indiana, the estate, in default of issue, and parents, and brothers and sisters, and their descendants, and grandparents, and uncles and aunts, in the paternal line, and their descendants, great grandparents, and great uncles and aunts, and their descendants, the whole estate, real and personal, descends to the widow, or if dead to her children by a former marriage, and in default, then to the state, for the use of common schools." In Alabama, in default of children and their descendants, and brothers and sisters and their descendants, and father and mother, the next of kin computed by the rules of the civil law, take equally. In Louisiana, the direct lineal ascending line, after failure of brothers and sisters, and their descendants, is first to be exhausted, before the estate passes to the other collateral relations. The ascendants take according to proximity to the intestate; so that the grandfather will exclude the great grandfather. The ascendants in the

• North Carolina Revised Statutes, 1837, vol. i. p. 237.

Revised Statutes of Indiana, 1838, p. 238. In Arkansas if there be no children or their descendants, or father, mother, or their descendants, or any paternal or maternal kindred, capable of inheriting, the whole real and personal estate goes to the wife. R. S. c. 49.

• Digest of Laws of Alabama, 885.