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5. In default of lineal descendants, and parents, and brothers, and sisters, and their descondante dhe inheritance ascends to the grandparents of the intestate, or to the survivor of them
This is not the rule that has recently been declared in New-York," for it excludes, in all cases, the grandparents from the succession, and the direct lineal ascending line stops with the father. The grandparents are equally excluded in New Jersey and North Carolina ; and in Missouri the grandparents lose their preference as nearest of kin, but they are admitted into the next degree, and take equally with uncles and aunts. In Virginia and Kentucky, the claim of the grandmother is reduced, from its natural priority, to the rank of that of the aunt ; but the grandfather has his right to the inheritance preserved, as being nearer of kin than uncles and aunts. The grandfather takes the estate before uncles and aunts, in most of the United States; as being nearer of kin to the intestate ; and, therefore, I lay it down as a general rule in the American law of descent. I apprehend it to be the rule in the states of Maine, New-Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, Pennsylvania, Delaware, Maryland, Ohio, Indiana, Illinois, South Carolina, Georgia, Alabama, Mississippi, and Louisiana. The rule is the same as that existing under the English statute of distributions of personal estates; by which it has been repeatedly held, that the grandmother took the personal estate they take equal deg
equal footing as to inheritance, except that amongst kindred, claiming through one and the same ancestor of the first purchaser, preference shall be given to the whole blood of the first purchaser ; but when that blood fails, the inheritance to pass as if the person last seised or entitled had been the purchaser.
a N. Y. Revised Statutes, vol. i. 752. sec. 10.
6 Blackborough v. Davis, 1 P. Wms. 41. Woodroff v. Wickworth, Prec. in Chan. 527.
This is hey take
in preference to uncles and aunts, as nearer of kin. The analogies of the law would have been preserved, and, perhaps, the justice of the case better promoted, if, in the New-York Revised Statutes, remodelling the law of descent, the claim of kindred on the part of the grandparent had not been rejected.
6. In default of lineal descendants, and parents, and brothers and sisters, and their descendants, and grandparents, the inheritance goes to the brothers and sisters equally, of both the parents of the intestate, and to their descendants. If all stand in equal degree of consangui nity to the intestate, they take per capita, and if in unequal degrees, they take per stirpes.
This is the rule declared in New-York, with the exception of the grandparents, and I presume it may be considered, with some slight variations in particular instances, as a general rule throughout the United States. It is confined, in New-York, to cases in which the inheritance had not come to the intestate on the part of either of his pa. rents. The rule is controlled in that, and in some other states, by the following rule:
7. If the inheritance came to the intestate on the part of his father, then the brothers and sisters of the father, and their descendants, shall have preference, and, in default of them, the estate shall descend to the brothers and sisters of the mother, and their descendants. But if the inheritance came to the intestate on the part of his mo. ther, then her brothers and sisters, and their descendants, have the preference, and, in default of them, the brothers and sisters on the father's side, and their descendants, take.
This rule is so declared in the New-York Revised Stalutest, and the adoption of the same distinction in several of the states, and the omission of it in others, has been already sufficiently shown, in discussing the merits of the fourth rule of inheritance.
lbid. 753. sec. 13.
a N. Y. Revised Statutes, vol. i. 752. sec. 10. b Ibid. sec. 10, 11, 12.
8. On failure of heirs, under the preceding rules, the inheritance descends to the remaining next of kin to the intestate, according to the rules in the English statute of distribution of the personal estate, subject to the doctrine in the preceding rules in the different states, as to the half blood, and as to ancestral estates, and as to the equality of distribution.
This rule is of very prevalent application in the several states. But there are some peculiarities in the local laws of descent, which extend their influence to this ultimate rule. Thas, in North Carolina, the next of kin must be the kip of the person last seised, and the rules of consanguidity are ascertained, not by the rules of the civil law as Applied under the statute of distribution, but by the rule of the common law in its application to descent. In South Carolina, the widow, under this last rule, will take a moiety, or two thirds of the inheritance, according to circumstances. In Virginia, Kentucky, Maryland, and Alabama, the inheritance, in default of heirs, under the preceding rules, continues to ascend to the great-grandfathers, and, in default of them, to the great-grandmothers, and to the brothers and sisters of them respectively, and their descendants. In Louisiana, the direct lineal ascending line, after failure of brothers and sisters, and their descendants, is first to be exhausted before the estate passes to the collateral relations. The ascendants take according to proximity to thfintestate, so that the grandfather will exclude the great Grandfather. T'he ascendants in the paternal and maternal lines, in the same degree, take equally.
a Civii Code of Louisiana, art. 901—904. The law of succession in Louisiana, is taken from the Code Napoleon, art. 746,747.
New-York forms, also, a distinguished exception to this last rule of inheritance, for, in all cases not within the seven preceding rules, the inheritance descends according to the course of the common law.
The common law rules of descent were the law of the colony and state of New York, down to 1782. The law was then altered, and the statute altering it was re-enacted in an improved state, in 1786. The law still required the heir to be heir to the person dying seised, and the inheritance descended, (I. to his lawful issue, standing in equal degree, in equal parts ; (2.) to his lawful issue, and their descendants, in different degrees, according to the right of representation ; (3.) to the father; (4.) to brothers and sisters ; (5.) to the children of brothers and sisters; the right of primogeniture, and preference of males, was, in these cases, superseded. In all cases of descent beyond those five cases, the common law was left to govern. The Revised Statutes, as we have seen, have carried the innovation much farther; and the estate descends under the principle of equality of distribution ; (6.) to the descendants of brothers' and sisters' children to the remotest degree ; (7.) to the brothers and sisters of the father of the intestate, and their descendants, and then to the brothers and sisters of the mother of the intestate, and their descendants, or to the brothers and sisters of both father and mother of the intestate, and their descendants, according to the various ways in which the estate may have been acquired. It is a matter of some surprise, that the Revised Statutes of New-York did not proceed, and, in cases not provided for, follow the example of the law of descents in most of the states of the Union, and direct the inheritance to descend to the next collateral kindred, to be ascertained, as in the statute of distribution of the per
a N. Y. Revised Statutes, vol. i. 753. sec. 16.
sonal estates of intestates, by the rules of the civil law. Instead of that we have retained in this state, in these re møte cases, the solitary example of the application of the stern doctrine and rules of the common law. But, except for the sake of uniformity, it is, perhaps, not material, in cases under this last rule, which of the provisions is to govern. The claims of such remote collaterals are not likely to occur very often ; and as the stream of the natural affections, so remote from the object, must flow cool and languid, natural sentiments and feelings have very little concern with the question.
The distinguishing rules of the common law. doctrine of descent, are the converse of those in this country. They consist of the following principles of law, viz. : preference of males to remates ;-primogeniture among the males : the inheritance shall never lineally ascend ;--the exclusion of the half blood ;-the strict adherence to the doctrine of succession, per stirpes ;—the collateral heir of the person last seised, to be his next collateral kinsman of the whole blood ;-and kindred derived from the blood of the male ancestors, however remote, to be preferred to kindred from the blood of the female ancestors, however near, unless the land came from a female ancestor. These rules are of feudal growth, and, taken together, they appear to be partial, unnatural, and harsh, in their principles and operation, especially when we have just parted with the discussion of our own more reasonable and liberal doctrine of descent. Sir Matthew Hale, however, was of a very different opinion. He was well acquainted with the Roman law of distribution of real and personal estates, which we, in this country, have closely followed, and yet he singles out the law of descent, and trial by jury, as being two titles showing, by their excellence, a very visible preference
a 2 Blacks. Com. ch. 14.