Succession defined.

In case it is not thought best to adopt this change, the provisions of another chapter upon this subject contained in Appendix A, in the draft of this Code, will be found to conform to the present distinction between real and personal property as between heir and execu tor, and the statutes of distribution and descent, with some modifications which those rules seem to require.

SECTION 637. Succession defined.

638. Office of personal representatives.

639. Who are personal representatives.

640. Certain personal and other property not assets but retained

by family.

641. Who to retain such property.

642. Order of succession.

1. Husband.

2. Wife and children.

3. Wife and next of kin.

4. Wife alone.

5. Children alone.

643. Where there is neither widow nor children.

644. Successors of deceased parent.

645. Relatives in equal degree; in unequal degrees.

646. Several heirs, how to hold.

647. Abolition of dower and curtesy.

648. Certain estates, &c., not to be affected.

649. Trusts.

650. Trust estates vest in the Supreme Court.

651. Property in common.

652. Joint property.

653. Succession to real property of a copartnership.

654, 655, 656. When advancement to be set-off or deducted.

657. Relatives of the half blood.

658, 659. Computation of degrees.

660. Aliens.

661. Mother, &c., of illegitimate decedent may succeed.

662. Illegitimate child may succeed to mother's property.

663. Illegitimacy.

664. Posthumous relatives.

665. Divorce bars succession between the parties.

666. Who are representatives.

667. Escheat.

668. Title of state subject to charges.

669. Liability of successors for decedent's obligations.

S637. Succession is the coming in of another to take the property of one who dies without disposing of it by will.

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.

personal representa tives.

$638. The property, both real and personal, of any Office of one who dies without disposing of it by will, passes, in the first instance, to the personal representatives of such person, as trustees:

1. To make the provision for the surviving husband or wife or child, which is directed by section 640;

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.

personal re

tives.

$639. The personal representatives of a decedent Who are are his executors or administrators, including admin- presenta istrators with will annexed, who have duly qualified according to the provisions of the CODE OF CIVIL PROCEDURE.

See Appendix D, to the original draft of this Code.

$640. Where a decedent leaves a husband, wife or child, the following property is to be immediately delivered by the personal representative, to such wife or husband, and child or children, and is not to be deemed assets:

1. Any estate or interest, to the value of one thousand dollars, in a lot and buildings thereon, occupied

24

Certain

property

not assets

but re

tained by

family.

Who to retain such property.

Order of succession.

as a residence by the decedent, and which, by law, is exempt, as a homestead, from sale on execution;

2. All sewing machines, spinning wheels, weaving looms, and stoves, used by the family;

3. The family Bible; one pew, family pictures, and school books used by the family; and books, not exceeding in value one hundred dollars, used as part of the family library;

4. Sheep, to the number of ten, with their fleeces, and the yarn and cloth manufactured from the same; two cows and four swine;

5. All wearing apparel and clothing, and the wife's ornaments, proper for her station; all necessary beds, bedsteads and bedding; necessary cooking utensils; three tables, twelve chairs; knives and forks; plates, teacups and saucers; one sugar-dish, one milkpot, one teapot, one coffeepot, and twelve spoons;

6. All family stores,, or provisions, or supplies, for ordinary domestic use;

7. Household furniture, or other personal property, or money, to the value or amount of two hundred and fifty dollars; and,

8. Letters and other private writings.

S641. The property mentioned in the last section is to remain in the possession of the husband or wife, if there is one, during the time such husband or wife resides with and provides for the child or children of the marriage. When any child ceases so to reside, he is entitled to receive an equal share, or the value thereof, of such property, except that a wife may retain, as her own, her wearing apparel and ornaments, and one bedstead and bedding.

S 642. All property remaining after payment of a decedent's debts, and satisfaction of the dispositions of his will, is to be distributed, together with any

damages recovered by the personal representatives for any wrongful act, neglect or default which caused the decedent's death, to the successors of the decedent as follows:

1. If the decedent leaves a husband, the whole Husband. surplus goes to him, notwithstanding that it was the separate property of the wife, unless during the marriage she alienated such property, or effectually disposed thereof on her decease, by will or by gift in view of death;1

children.

2. If the decedent leaves a wife and lineal de- Widow and scendants, one-third part goes to the wife, and the other two-thirds to the nearest lineal descendants and the successors of those who are deceased;

next of kin.

3. If the decedent leaves a wife and no descend- Widow and ants, and leaves a father or mother, brother or sister, the whole surplus, if it does not exceed in value at the time of distribution ten thousand dollars, goes to the wife; if it exceeds ten thousand dollars, but does not exceed twenty thousand dollars, then ten thousand dollars go to her; if it exceeds twenty thousand dollars, then one-half goes to her; the remainder, any, goes to the father and mother or the survivor of them, or, if neither is living, to the brothers and sisters, and the successors of those of them who are deceased;

if

alone.

4. If the decedent leaves a wife, and no descend- Widow ant, parent, brother, or sister, the whole surplus goes

to the wife;

alone.

5. If the decedent leaves no husband or wife, the Children whole surplus goes equally to the nearest lineal descendants, and the successors of those who are deceased.2

'It is held that the Married Woman's Acts of 1848 and
1849, do not affect the husband's succession to pro-
perty left by a wife on her death (Ransom v. Nichols,
22 N. Y., 110). Real property is made subject to
the rule governing personal property in this respect.
This of course is contrary to the present law.
This and the following section are modified from 2 R. S.,
96, § 75, as amended by Laws of 1845, 257, ch. 236.

Where there is neither

widow nor children.

Successors of deceased parent.

Relatives

in equal degree.

$643. If a decedent leaves no husband or wife, and no descendant, the whole surplus of the estate goes to the next of kin, and the successors of those who are deceased, as follows:

1. To the father or mother, or either of them;

2. If there is no parent, to the brothers and sisters, in equal shares, and the successors of those who are deceased;

3. If there is no parent or brother or sister, or successor of a brother or sister, then to the next of kin and the successors of those who are deceased.

S 644. The successors of a deceased parent cannot take by representation in place of the parent.

S645. Where the successors of a decedent, except parents, are all in equal degree of consanguinity to the decedent, their shares are equal; but if several In unequal are of unequal degree, each of the nearest degree

degrees.

Several heirs, how to hold.

Abolition of dower

and curtesy.

succeeds to the share to which he would have been entitled had all those in the same degree; who have died leaving issue, been living; and the issue of those who have died, respectively succeed to the shares which such descendants or next of kin would have received if living.

From 2 R. S., 97, § 75, subs. 9 and 10.

S646. Whenever real property, or a share thereof, vests in several persons under the provisions of this Title, they take, as owners in common, in proportion to their respective rights.

1 R. S., 753, § 17.

S647. Dower and curtesy are abolished.

The commissioners recommend this change in connection with the provisions proposed under the chapter on Husband and Wife, and with those proposed in relation to the wife's succession to the husband's estate, in § 642.