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SECTION IV.

The rights of the next of kin of the intestate under the Statute of

Distributions.t

Who are the next

The 6th section of the statute provides, that in case there be no children or legal representatives of them, in existence, a moiety of the intestate's estate shall be allotted to his widow, and the residue shall be distributed equally among his next of kin in equal degree, and their representatives (1); and by the 7th section, in case there be neither wife nor children, then all the estate shall be distributed among the next of kin, in equal degree ; but the same section enacts, that there shall be no representations admitted among collaterals after brothers' and sisters' children.

The next of kin referred to by the statute, are to be ascertained by the same rules of consanguinity, as those which determine who are entitled to letters of administration (m). of kin; These rules have been already considered in a former part of this treatise (n) ; but it may be convenient to repeat in this place some of their results.

When a child dies intestate, without wife or child, leaving a father, the latter is entitled as the next of kin, in the first de

right of the gree, to the whole of the personal estate of the intes- father : tate, exclusive of all others (o).

If a man dies intestate, without a child, but leaving a *widow, and a father, then the personal estate shall go in moieties between the wife and father (p).

So with respect to the mother; before the statute of 1 Jac. II. c. 17, if a child had died intestate, without a wife, child, or

right of the father, his mother was entitled, as his next of kin, in mother : the first degree to his whole personal estate : But by 1 Jac. II. c. 17: that statute, sect. 7, it is enacted, “ that if after the the brothers and

sisters shall share death of a father, any of his children shall die intestate, with the mother : without wife or children, in the lifetime of the mother, every brother and sister, and the representatives of them, shall have an equal share

+ See American note at end of this (n) Ante, p. *355 et seq. Section.

(0) Blackborough v. Davis, 1 P. Wms. (1) But see the Intestates' Estates Act, 51. Ante, p. *359. 1890, ante, p. *1359.

(7) Keilway v. Keilway, Gilb. Eq. (m) Lloyd v. Tench, 2 Ves. Sen. 214. Cas. 190, per curiam. See the effect 2 Black. Comm. 515. Toller, 381. 4 of the Intestates' Estates Act, ante, Burn, E. L. 280, 8th edit.

p. *1359, in such a case.

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with her.” The principle of this provision is, that otherwise the mother might marry, and transfer all to another husband (1).

This statute as well as the Statute of Distributions, was described by Lord Hardwicke as very incorrectly penned (r): and several ques.

tions have arisen upon the construction of this section they shall share with the mother, of it. In Keilway v. Keilway (s), the intestate left no widow :

child, but a wife, a mother, three brothers and sisters, and two nieces, the children of a deceased brother : It was insisted, on the part of the mother, that the case was not within the statute of 1 Jac. II. c. 17, s. 7, because here the intestate left a wife; whereas the statute was only meant to operate where the mother, before the making of it, would have gone off with the whole personal estate, and it was urged, on her behalf, that the words of the statute “without wife or children," must be understood “without wife and children;" for it could not possibly be intended in the disjunctive, i. e., that in either case the brothers and sisters should share with their mother, inasmuch as if, after the death of the father, the child should die without wife, but leaving children, they would clearly take the whole, to the exclusion of the intestate's brothers and sisters : But Lord *Chancellor King decreed that the wife of the intestate should have one moiety, and his mother should come in for no more than her share of the other moiety with the intestate's brothers and sisters, and the two nieces, the representatives of the deceased brother : And his lordship laid down, that the intention of the statute was, in prejudice of the mother, that in every case where, before the statute, she would have had the whole, the deceased child's brothers and sisters should come in equally with the mother as to the whole ; and where, before the statute, the mother would have been entitled to the half, the deceased child's brothers and sisters should now come in for a share of that moiety.

In Stanley v. Stanley (t), the intestate left a wife, a mother, and thongh there be

several nephews and nieces, the children of a deceased no brother of the brother : Besides raising the objections taken in the yet if there be above case of Keilway v. Keilway, it was insisted, on they shall share the part of the mother, that the words of the statute of with their grand.

James are in the conjunctive, “every brother and sister and the representatives of them,” and therefore that the statute can

&

mother :

(9) Blackborough v. Davis, 1 P. Wms. 49, by Lord Holt.

(r) Stanley v. Stanley, 1 Atk. 457.
(8) 2 P. Wms. 344. S. C. Gilb. Eq.

Cas. 189. 2 Stra. 710. 2 Eq. Cas. Abr. 441, 442.

(t) 1 Atk. 455.

the

of

the and

testate shall not

with his

not operate in a case where there is no brother or sister of the intestate living : But Lord Hardwicke, C., held the contrary ; and after recognizing Keilway v. Keilway, as far as it applied, decreed, that the personal estate should be divided into four equal parts, two-fourth parts to be allotted to the widow, one-fourth part to the mother, and the remaining fourth to be equally divided among the nephews and nieces : And his lordship said, that the word and in the statute, immediately preceding the words the representatives, must be construed in the disjunctive.

In the last case a further objection was raised, that if it should be held, that the nephews and nieces were entitled by

representarepresentation, it might be carried to the fourth or fifth tives

brothers generation, which would create great confusion and sisters of the infractions ; for there was nothing to restrain it in this share

mother, beyond act, as there was in the Statute of Distributions : But the brothers and

sisters' children : Lord *Hardwicke said, that the proviso in the statute of James was to be incorporated into the statute of Charles, which expressly says that representation shall not be carried beyond brothers' and sisters' children ; agreeably to the rule, that statutes made in pari materia shall be construed into one another.

In Jessopp v. Watson (u), a widow, having an only daughter by her deceased husband, married a second husband, and had two sons by the latter marriage : Afterward her daugh- sisters ter by the former marriage died intestate, without ever share with their having married : And the question was, whether her mother was entitled exclusively to her daughter's personal estate, or whether the brothers of the half-blood, her children by the second marriage, were entitled to share with her : And Sir John Leach, M. R., held, that by force of the statute of James, the brothers were entitled to a share with their mother (x).

If the intestate left neither wife, nor child, nor father, and there be neither brother or sister, nor nephew or niece, the case is without the statute, and the whole of such intes- mother shall take tate's effects shall devolve, as before the statute, to his mother (y). (u) 1 M. & K. 665.

stated by Vesey, that the claim of the (x) The same point appears to have posthumous brother of the half-blood been determined by Lord Hardwicke in was there made, under the Statute of DisBurnet v. Mann, 1 Ves. Sen. 156, post, tributions : but in Jessopp v. Watson, p. *1383 ; though it is inaccurately Mr. Seaton, who was of counsel in the

brothers and

of the half blood shall

mother.

In what case the

(y) Jackson v. Prudehome, MS.

11 Viner Abr. 196, tit. Exors. (Z. 12).

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law.

to

It is clear that the mother-in-law or stepmother of an intestate, not of the mother-in-being of his blood, can claim nothing under the Statute

of Distributions (2). If the intestate left neither children nor parents, but his *nearest surRight of brothers viving relations be brothers and sisters, and a grandand sisters :

father or grandmother, then, since they are all in the preferred

second degree of kindred, in strictness they ought all to grandfather, &c.

share the personal estate of the intestate equally under the statute. But in the year 1686, in the case of Lord Winchelsea v. Norcliffe (a), Lord Chancellor Jeffreys decided that a grandmother should have no share with brothers and sisters of the intestate. And it was again decided, in 1708, by the Barons of the Exchequer in the case of Poole v. Wishaw (b), by the unanimous opinion of the court, after hearing civilians, that a grandmother had no right to share in distribution with a brother. This decision was followed by a similar one, as to a grandmother, in the case of Norbury v. Richards, before Fortescue, M. R. (c). And the same point was afterward determined by Lord Hardwicke, in Evelyn v. Evelyn (a), on the authority of the two preceding cases, as well as the prevailing usage since the Statute of Distributions : And his lordship observed, that if it was res integra, he should think there was just ground to prefer the brother : That the words of the statute must be taken together, amongst the next of kin, pro suo cuique jure," according to the laws in such cases ; and that if, by settled determinations, an equality or preference had been given, it was confirmed by the statute : And by our law it had been established, previously to the statute, that between brother and brother there was only one degree (e) : That, besides, it would be a great inconvenience to carry the portions of *children to a grandfather, who must be supposed to have been provided for, and may very probably cause, stated that he had examined the

(d) 3 Atk. 762. case of Burnet v. Mann, in the regis- (e) See Collingwood v. Pace, 1 Ventr. trar's book, from which it appeared 424, by Hale, C. B. Blackborough 0. that the claim was made under the Davis, 1 P. Wms. 50. Buissieres t. statute 1 Jac. II. c. 17, s. 7; and that Albert, 2 Cas. temp. Lee, 53, by Sir the decision in that case, was, conse

George Lee. It is enough in law quently, an express decision in point. to say, frater et hæres, or, soror et

(z) Rutland v. Rutland, 2 P. Wms. hæres : 1 Salk. 38. See stat. 3 & 4 216.

Will. IV. c. 106, s. 5, by which it is (a) 2 Freem. 95.

enacted that no brother or sister shall (6) Cited per curiam in Evelyn v. be considered to inherit immediately Evelyn, 3 Atk. 763, and in Thomas v. from his or her brother or sister, but Ketteriche, 1 Ves. Sen. 333.

every descent from a brother or a sister (c) Cited in 3 Atk. 763.

shall be traced through the parent.

a

shall share with

mother's side.

be in a dying condition, and not want it; and it would be contrary to the very nature of provisions among children, as every child may very properly be said to have a spes accrescendi.

Nevertheless, if the intestate leaves no nearer kindred than a grand. father or grandmother, and uncles or aunts, the grand- Grandfather prefather or grandmother, being in the second degree, will ferred to uncle : be entitled to the whole personal estate, exclusive of the uncles or aunts, who are only in the third degree ($).

Hence, also, great-grandfathers or great-grandmothers, great-grandfather being in the third degree, are entitled to a distributive ancle: share with uncles and aunts (g).

Where the intestate leaves a grandfather by the father's side, and a grandmother by the mother's side, his next of kin, they grandfather by shall take in equal moieties, as being in equal degree; for here dignity of blood is not material (1).

Aunts and nieces, uncles and nephews, being all in the third degree, are all equally entitled (i). Hence, where the Uncles and intestate left two aunts, and a nephew and niece, chil- nephews. dren of a deceased brother, Lord Hardwicke ordered the surplus to be divided into four parts equally among them, holding that as they were all in equal degree, the children were to take in their own right, and not by representation ; but that if their father had been living he would have been entitled to the whole (k).

Brothers and sisters of the half-blood are entitled to an equal share of the intestate's estate with the brothers and *sisters of

Half-blood: the whole blood, although there are some precedents of judgments given, since the statute, allowing the half-blood to have but a half share (1). However, since the decision of the House of Lords, in the case of Watts v. Crooke (m), affirming, on appeal, a decree in chancery, the law has been settled in favor of the full title of the half-blood (n). And this shall extend to a posthu- posthumous. mous brother of the half-blood : In Barnet v. Mann (o),

(f) Mentney v. Petty, Prec. Chanc. (k) Durant v. Prestwood, 1 Atk. 454. 593. Blackborough v. Davis, 1 P. S. P. Lloyd v. Tench, 2 Ves. Sen. 213. Wms. 41. Woodroff v. Winkworth, Buissieres v. Albert, 2 Cas. temp. Lee, Prec. Chanc. 527.

51. (g) Lloyd v. Tench, 2 Ves. Sen. 215. (1) Show. P. C. 108. Ante, p. *360.

(m) Ibid. (1) Moor o. Barham, cited in Black- (n) See ante, p. *359. borough v. Davis, 1 P. Wms. 53.

(0)1 Ves. Sen. 156. See ante, p. (2) Buissieres v. Albert, 2 Cas temp. *1380, note (x). Lee, 51.

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