both be descended not only from the same person, but from the same marriage of that person, that is, the claimant must have been a kinsman of the whole, and not of the half, blood. So, one could not inherit from his half brother, even though the land had descended from their common parent to such half brother, and though otherwise the land would escheat for want of heirs.28 This rule has been changed by statute in most, if not all, the states, but the statutory provisions on the subject are very divergent. In a few states, kindred of the half blood have the same rights of succession as those of the whole blood; and in some they inherit half shares only as against the whole shares passing to those of the whole blood. In a number of states, while the distinc tion between the whole and half blood no longer exists in connection with land purchased by the intestate, it does exist as to ancestral land, so as to exclude from any share therein collateral kin not of the blood of the ancestor from whom the land was derived. In a few states the half blood does not take except in default of kindred of the whole blood in the same degree of relationship.27

431. Representation.

The statutes frequently provide that the descendants of a person deceased shall inherit the share which would have passed to such person had he survived the intestate, the descendants being then said to take "by representation." Since the statutes expressly give the right of succession to the direct descendants of the intestate, and declare whether they are to take per stirpes or per capita, the application of the principle of representation is not usually called for in their favor. As regards collateral kindred, there is in some states

26 Litt. §§ 6-8; 2 Bl. Comm. 227.

27 1 Stimson's Am. St. Law, § 3133; 1 Woerner, Administration. 70; 1 Dembitz, Land Titles, § 37.

a general provision that any descendants of one deceased shall take the share which such person would have taken, but, more usually, the right of representation among collaterals is restricted to the descendants of a deceased brother or sister of the intestate, who are thus given the right to stand in the place of the former as regards the inheritance, and share the property of the intestate with any surviving brothers and sisters or descendants of other deceased brothers and sisters. Thus, if the intestate left surviving a brother, and the grandchildren of a deceased sister, though such grandchildren could not otherwise assert any right to share the intestate's property with the surviving brother, since he stands in a closer degree of relationship to the intestate, they can do so by reason of their right of representation. In some states, however, the right of representation is not conceded to all descendants of a deceased brother or sister, but is restricted to the children of such brother or sister, the result of which would be, in the case stated above, that the surviving brother would take all the intestate's property, to the exclusion of the grandchildren of the deceased brother, though the children of the deceased brother would have been entitled.28 The statutes allowing representation have no application, it seems, except for the purpose of entitling to a share of the inheritance a person or persons who would otherwise take nothing, owing to the existence of persons more closely related to the intestate, and so the descendants of deceased brothers and sisters of intestate, if all in the same generation, take not by representation, but directly as heirs. When the descendants of one deceased take by representation, however many there be of them, they can, all together, take only the share which their ancestor would have taken,that is, they take per stirpes, although, if they had taken in

281 Stimson's Am. St. Law, §§ 3103, 3138; 1 Woerner, Adminis tration, 71; 1 Dembitz, Land Titles, § 35.

their own right, and not by representation, they would have taken per capita.

At common law, in case of failure of lineal descendants of the person last seised, the land passed to his collateral relations, provided only they were of the blood of the first purchaser, by whom the land was brought into the family.29 This rule of the common law survives to some extent in the statutory provisions, found in a number of states, to the effect that, if the land came to the intestate otherwise than by purchase, or, in some states, if it came to him either by descent or by gift or devise from an ancestor, it shall pass, not to his kindred generally, but only to such kindred as are of the blood of the ancestor from whom it was derived by him.3 80 Of the same nature is the provision found in many states that, upon the death of a minor unmarried, leaving property inherited from either parent, it shall go to the other children of the same parent.31 The word "ancestor," used to describe the person from whom the land must have come in order to be within the operation of the provision, refers to any person, whether lineally or collaterally related to the intestate, from whom the land might pass to the latter under the laws of descent, and from whom the land did in fact actually pass directly to the intestate.32

$433. Illegitimate children.

At common law, a child born out of wedlock was regarded as filius nullius, and as consequently bearing no relationship

29 Litt. 84; 2 Bl. Comm. § 220.

80 1 Stimson's Am. St. Law, § 3107.

81 1 Dembitz, Land Titles, § 36; 1 Stimson's Am. St. Law, § 8101. 82 Buckingham v. Jacques, 87 Conn. 402; Wheeler v. Clutterbuck, 52 N. Y. 67; Prickett's Lessee v. Parker, 3 Ohio St. 394; Brower v. Hunt, 18 Ohio St. 311; Morris v. Potter, 10 R. I. 58.

to any persons other than his own offspring. Consequently he could be the heir neither of his own father or mother, nor of any other person, and no persons could inherit from him except the heirs of his body.38 This rule has been changed generally in this country by various statutory provisions. In the first place, the state statute frequently provides that the intermarriage of the parents after the birth of the child, or such intermarriage when accompanied by the father's acknowledgment of the child, shall render the child legitimate, and in some states the acknowledgment by the father without intermarriage has this effect. In some states the statute provides, however, that an acknowledgment of the child shall not enable the child to inherit from the kindred of the father.34

In most states, by statute, the illegitimate children inherit from the mother equally with the legitimate children, and in some states they inherit also from her kindred, though in a majority of the states, while inheriting from the mother, they do not inherit from her kindred. In a few states they inherit from the mother only in case of default of lawful 18sue.35 The property of an illegitimate child will descend to the surviving husband or wife, or to the children, as in the case of any other person dying intestate. In default of such others entitled to inherit, the decedent's property goes usually, under the statute, to his mother and her kindred."

434. Unborn children.

At common law, a child en ventre sa mere at the time of

88 1 Bl. Comm. 459; 2 Kent's Comm. 212.

84 1 Stimson's Am. St. Law, §§ 6631, 6632.

§ 75..

1 Stimson's Am. St. Law, § 3151; 1 Woerner, Administration,

86 1 Stimson's Am. St. Law, § 3154; 1 Woerner, Administration, 75.

the death of the intestate is regarded as living for the purpose of taking from him by descent. This rule is confirmed by statute in many states, but in some the statute applies only to a child of the intestate born after his death, and, in others, only to posthumous children descended from him.38

An advancement is a giving, by anticipation, to a child or other relative, of a part or the whole of what the donee would receive on the death of the donor intestate, with the result, generally speaking, that the amount thereof is deducted in determining the share of such donee after the donor's death. This doctrine of advancements is based exclusively on statutes, and these differ very considerably in the different states. In some states the statute applies only in the case of an advancement to a child or children of the intestate, so that a gift to a grandchild would not be charged against him as an advancement. In some states a gift to any descendant of the intestate is regarded as an advancement to him, for the purpose of determining his share of the inheritance, and in a number of states a gift to a child or other descendant is, in case such child or descendant dies before the donor, charged against the share which he would have taken, and so deducted from the share taken by his children or descendants. In a few states a gift to any possible heir is regarded as an advancement in case the donee turns out to be the actual heir.39

* 4 Kent's Comm. 412; Challis, Real Prop. 111; Doe d. Clarke v. Clarke, 2 H. Bl. 399.

88 1 Stimson's Am. St. Law, §§ 2844, 8135, 3136; 1 Woerner, Administration, § 74.

89 1 Stimson's Am. St. Law, §§ 3163, 3164, 3168; 2 Woerner, Ad. ministration, § 559.