$648. This Title does not affect any limitation of Certain an estate or interest by deed or will. 1 R. S., 754, § 20; omitting the reference to Dower and estates, &c. not to be affected. $649. The interest of any person in real property Trusts. held in trust for him, if not devised by him, vests in his successors, according to the provisions of this chapter. 1 R. S., 754, § 21. 1 $650. Upon the death of a sole trustee of an express trust, whether a resident of this state or not, the trust estate does not devolve by succession, but the trust, if then unexecuted, vests in the supreme court, with all the powers and duties of the original trustee, and must be executed by a person appointed for that purpose, under the direction of the court." in common. $ 651. On the death of one of several owners in Property common, his title passes in like manner with his other property. property. $ 652. On the death of one of two or more joint Joint owners, with right of survivorship, his title passes to the surviving joint owners. property $653. On the death of a partner, the surviving Partnership partners succeed to all the partnership property, whether real or personal, in trust for the purposes of liquidation,' even though the deceased was appointed by agreement sole liquidator; and the interest of the deceased in the ultimate distribution of the partnership assets passes to those who succeed to his other personal property. When ad vancement or deducted. $ 654. When any real or personal property, or both, to be set off whether within or without this state, of a person who dies intestate as to all his property, has been advanced by such intestate, directly, or by virtue of a beneficial power, or of a power in trust with a right of selection, to a person entitled to succeed to his property, and with a view to a portion or settlement in life, and so expressed in the instrument establishing the settlement or portion, the value thereof as expressed in the instrument must be reckoned, for the purposes of this section only, as part of the property of such intestate which his successors are to receive; and if such advancement equals or exceeds the share which such relative would be entitled to receive, of the property so reckoned, then such relative and his successors have no share in the property of the intestate. But if the advancement is less than such share, he and his successors are to have so much only of the property as is sufficient to make it equal to such share. Id. Modified from 1 R. S., 754, §§ 23, 24, 25. The provisions from which this section is taken, although in terms embracing the case of any intestate, apply only in cases of total intestacy (Thompson v. Carmichael, 3 Sandf. Ch., 120). Questions of considerable embarrassment, which frequently arise in determining what is to be deemed an advancement, and what is to be taken as its value, have led the commissioners to insert the provision, that in order to constitute a settlement an advancement, within these provisions, its purpose and value must be expressed in the instrument. $655. The exclusion from succession, and the adjustment of shares under the provisions of the last section, take effect only upon judgment in a civil action. There seems to be no sufficient reason why the succession should be interrupted or affected until the fact of the existence of the advancement, and its value, have been finally determined. Under the present statute, so long as the question whether gifts made by the deceased were advancements or not, is undetermined, the question as to who is entitled to succeed, or in what shares they are to take, is also in suspense. The commissioners have thought it better, therefore, for the settling of titles, to $656. Unless both the purpose and the value of Id the settlement or portion, are expressed in the instrument of settlement, there is no legal advancement within the provisions of section 654. 1 R. S., 737, § 127. $657. Relatives of the half blood, on either the paternal or maternal side, and their descendants, and the successors of both, succeed equally with those of the whole blood, except that to real property, which came to the decedent by succession, devise or gift of his relative, none who are not in any wise of the blood of such relative can succeed. 1 R. S., 753, § 15; 2 id., 97, § 75, sub. 10. The modifica- In McCarthy v. Marsh, 5 N. Y., 263, it was held that The words "of the blood" in the latter part of section Relatives of the half blood. tion of § 658. In determining succession, degrees of rela- Computer tionship are reckoned by counting from the decedent degrees. up to the common ancestor, and then down to the relative in question; reckoning a degree for each person. In such computation the decedent is excluded, the relative included, and the common ancestor counted but once. Id. Aliens. Mother, $ 659. Brothers and sisters are in the first degree of relationship, which rule applies for the benefit of their successors. McGregor v. Comstock, 3 N. Y., 408. $660. Aliens may take in all cases, by succession, as well as citizens; and no person, capable of succeeding under the provisions of this chapter, is precluded from such succession, by reason of the alienage of any relative.2 This provision is new. See section 170, and note on page 51. 2 From 1 R. S., 754, § 22, and see M'Carthy v. Marsh, 5 N. Y., 263. S661. The mother of an illegitimate child, and the gitimate de relatives on the part of the mother, succeed to its property as if the child were legitimate. cedent may succeed. Illegitimate child may mother's property. $ 662. In case of the death of a mother leaving no succeed to lawful issue, and no husband, and leaving illegitimate children or their descendants, such children and descendants succeed in the same manner as if such children were legitimate. Illegit macy. Posthu mous relatives. Divorce bars succession be tween the parties. Laws of 1855, ch. 547. $ 663. No person can succeed through an illegitimate relationship, except in the cases herein before provided. 1 R. S., 754, § 19. S.664. Relatives of a decedent, conceived before his death, but born thereafter, succeed, as if born in his lifetime and surviving him. 1 R. S., 754, § 18; 2 id., 97, § 75, subd. 13. $665. Where a marriage has been dissolved for the misconduct of either party thereto, the guilty party is not entitled to succeed to the property of the other. This provision already exists as against the wife, in cases of dower and succession to personal property (2 R. S., 146, § 48). of one who the dece S666. Where a person, who would have been en- Successors titled, if living at the death of another, to succeed dies before to his property, dies before the latter, the property dent. which he would thus have taken by succession, if living, passes to those who would have been entitled to succeed thereto, if he had so taken it, and had died immediately thereafter. $ 667. If there is no one capable of succeeding Escheat. under the preceding sections, the property of a decedent devolves to the people of the state. S 668. Real property passing to the state under the last section, whether held by the state or its grantees, is subject to the same charges and trusts to which it would have been subject if it had passed by succession; and the supreme court has power to direct the attorney-general to convey the same to the parties entitled, or to a new trustee appointed by the court. 1 R. S., 718, §§ 1, 2. $669. Those who succeed to the property of a decedent are liable for his obligations in the cases, and to the extent, prescribed by the CODE OF CIVIL PROCEDURE. See Appendix D, chapter III, in the original draft o' this Code. 25 |