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The Napoleon code, in imitation of the rule in the civil law, gives to the parents of a child dying without issue a moiety of his estate, and to the brothers and sisters the othe moiety. Touillier" justifies the ascent of the inheritayce to parents in default of issue, as being laid on the
foundations of natural law equally with lineal descent; and Me severely arraigns, as unjust and dangerous, the theory of Montesquieu, who refers the whole right of succession in the descending, as well as in the ascending line, solely and exclusively to positive institution. Montesquieu is not singular, for Arch Deacon Paley refers the right of succession entirely to the law of the land. The elder text writers on public law, have generally placed the claim of children to the inheritance of their parents on the law of nature, and the claim of parents to the child's estate on failure of issue, as partaking of the same reason, though in an inferior degree. But Grotius admits, that the law of succession, in its modifications, has exceedingly varied in different countries and ages, and that the law of nature is not of precise and absolute obligation on this subject.e
(2.) Of the mother.
If the inheritance came to the intestate on the part of the mother, though his father survive him, or if he does not survive him, and the mother survives, and there be a brother or sister, or their descendants, the mother takes an estate for life only, and if there be no brother or sister, or their issue, or father, she takes the inheritance in fee.
a Sec. 746, 747, 748. 751.
e Grotius De Jure, B. & P. b. 2. c. 7. sec. 5. 11. Puff. Droid des Gens, par Barb. 4. 11. 13.
This is the rule in New York, and it is the rule also in Pennsylvania, but it cannot be said to be a general rule in this country. In New-Jersey the mother is wholly excluded from the inheritance, and in North Carolina she takes with the father, or as survivor, an estate for life only in default of issue, and in default of brothers and sisters. She takes no other estate in Tennessee, nor even that estate, unless in default of a father. On the other hand, in Rhode Island, Illinois, and Louisiana, she is received on the most favourable terms, and, in default of issue, she takes the inheritance with the father, as next of kin, in preference to the brothers and sisters. In Georgia, the widow of the intestate takes a child's share of the estate, and if no issue, then she takes a moiety. If no widow, issue, or father, the mother takes an equal share, as one of the next of kin, with the brothers and sisters. The mother, in Vermont, takes equally with the sisters of the intestate, and a sister's portion is only half as much as a brother's portion. On default of issue, and widow, (for she takes half of the estate,) and father, and brothers, and sisters, the mother takes the whole estate as next of kin. The law in Maine, and New-Hampshire, is nearly similar, but with this variation, that the mother takes equally with the brothers and sisters, and they all take alike, and the widow of the intestate is confined to her common law dower. In Massachusetts, Connecticut, Ohio, Delaware, Maryland, Alabama, and Mississippi, the mother takes the inheritance in default of issue, and of brothers, and sisters, and father. But if there be brothers and sisters, then, by the laws of Massachusetts, Indiana,
a. N. Y. Revised Statutes, vol. i. 752. sec. 6.
b I have assumed, on the authority of Mr. Griffith's Law Register, tit. Pennsylvania, No. 6. that the mother, under the Pennsylvania statute, takes, eventually, a fee; but I have not perceived that provision in the statute published by Mr. Anthon, nor in Ch. J. Reeve's elucidations of the Pennsylvania law of descents.
Virginia, Kentucky, and South Carolina, in default of issue, and father, the mother shares equally with the brothers and sisters; and, in Missouri, she shares equally with them, and the father, though he be living; and, in Connecticut, she shares equally with the father.
In the ancient Attic laws of succession, the inheritance of an intestate withour tosuo, went to the collateral kindred on the father's side, with a uniform preference of males, and it did not descend to the kindred on the mother's side, until the relations in the paternal line, to the degree of second cousins, had failed. The mother, at Athens, as well as at Jerusalem, was excluded from the inheritance of her son. This appears from the speech of Isæus on the estate of Hagnias. The exclusion was even broader, for the whole of the collateral, as well as the lineal ascendants; were excluded at Athens from the succession. Among the Jews, in default of issue, the father succeeded to the purchased estate of the son, excluding the brother. The decemviral law at Rome, and which seems, in this instance; says Sir William Jones, to have been borrowed from that of Solon, excluded mothers from the right of succession to their children. This rigour was sometimes mitigated by the lenity of the prætors. Relief was promoted by the Senatus consultum Tertullianum, in the time of Hadrian; and completed, with some restrictions, by the Justinianean code.
The great diversity of opinion and policy among diffe: ren nations, as to the succession of parents, and which zopears so strongly in our American codes, is very stri
a Lord Ch. J. Holt, in Blackborough v. Davis, 1 P. Wms. 52. says, that this was according to the construction of the Jewish doc-. tors upon the 27th chapter of Numbers, and it is so stated in Selden de Successionibus apud Hebræos, ch. 12.
b Jones's Isæus, Pref. Discourse. His Commentary on Iscus, p. 183. &c. Novel 118. ch. 2.
kingly illustrated in the jurisprudence of Holland. la South Holland, the inheritance, in default of issue, ascends to the parents in case they are both alive. But if only one of them survives, (and it is immaterial which of them,
the survivor is wholly excluded, because there is a separaUltion of the bed. On the other hand, in North Holland, the
surviving parent divides the estate with the brothers and sisters of the deceased, whether they be of the full or hali blood, and if there be no brother or sister, the surviving parent takes the whole.
4. If the intestate dies without issue, or parents, the estate goes to his brothers and sisters, and their representatives. If there be several such relatives, and all of equal degree of consanguinity to the intestate, the inheritance descends to them in equal parts, however remote from the intestate the common degree of consanguinity may be. It be brothers and sisters, or nephews and nieces, they inher equally, but if some be dead leaving issue, and others by ing, then those who are living take the share they woul have taken if all had been living, and the descendants o those who are dead inherit only the share which their pas rents would have received if living. The rule apphies to other direct lineal descendants of brothers and sisters, and the taking per capita when they stand in equal degree, and taking per stirpes when they stand in different degrees of consanguinity to the common ancestor, prevails as to su descendants to the remotest degree.
The succession of collaterals, in default of lineal heirs the descending and ascending lines, has existed among an nations who had any pretensions to civility and science, though under different modifications, and with diversite extent. In this fourth rule, the ascending line, arte parents, is postponed to the collateral line of brothers ar
sisters. The rule I have stated is declared by the New-York Revised Stalutes, and it is universally the rule, with the exception in Louisiana, that brothers and sisters are preferred, in the order of succession, to grandparents, though the latter stand in an equal de gree of kindred. This is by analogy to the rule of distribution of the personal estate of intestates, as settled in the civil, and in the English law. But there are very considerable differences in the laws of the several states, when the next of kin, in this collateral line, are nephews and nieces, and the claims of uncles and aunts to share with them are interposed. The direct lineal line of descendants from brothers and sisters, however remote they may be, take exclusively under the rule in New York,
so long as any of that line exist ; but this is not the case in ymany of the United States, and the rule is, therefore, to be
received with this qualification, that in most of the states, nephews and nieces, and their descendants, take as there stated, but they do not take exclusively. Uncles and aunts take equally with nephews and nieces, as being of equal kin, in the states of New Hampshire, Vermont, (though in that state the claim of the males to double portions is preserved,) Rhode Island, North-Carolina, and Louisiana, But nephews and nieces take in exclusion of them, though they be all of equal consanguinity to the intestate, in the states of Maine, Massachusetts, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Ohio, Indiana, Illinois, Missouri, Kentucky, Virginia, Tennessee, South-Carolina, Georgia, Alabama, and Mississippi. I draw this conclusion, because the inheritance appears to be given, in those states, to the brothers and sisters, and their descendants or children, before recurrence is had to la distinct branch of the grandparent's stock. The principle on which the rule is declared to be founded, in the
a N. Y. Revised Statutes, vol. i. 752. sec. 7, 8, 9, 10, 1. See Vol. ii. 340, 341. of this present work.