ancestors and their issue. (8.) Then A.'s more remote paternal ancestors, and their Other paternal issue in similar order, the nearer ancestor and his issue being always preferred to the more remote ancestor and his issue. (9.) When all the paternal line is exhausted, the maternal Maternal ancestors and their issue take in similar order. Where the intestate has himself acquired the land by descent, the descent on his death must be traced to the last purchaser, i.e. to the person who last acquired the land otherwise than by descent (b). In the application of this rule a question has arisen in the case of a man who after purchasing land dies intestate leaving two daughters, one of whom afterwards dies intestate leaving a son, whether the moiety of the deceased daughter passes entirely to the grandson, or to the other daughter and grandson equally. It has been held that the grandson takes the whole, he being in respect of that moiety the heir of the purchaser (c). ancestors and their issue. Descent to be purchaser. traced to last personal estate (except in The personal estate of an intestate (subject to the Succession to payment of his debts and funeral and testamentary regulated expenses) is distributable (unless the intestate is a case of marmarried woman) according to the rules laid down in ried woman) the Act 22 & 23 Car. 2, c. 10, as amended by 1 Jac. 2, Distributions. c. 17, sect. 7. The general result of these enactments General result. is as follows: by Statute of share. (1.) If the intestate (whom we may call A.) leaves a widow, Widow's she takes one-third, if there are children, and if not, one-half. sentatives. (2.) The children take equally between them two-thirds, if Children and there is a widow, and if not, the whole. If any child their reprehas died before A. leaving issue, the issue take per stirpes the share which the deceased child would have. taken if he or she had survived A., and this distribution per stirpes takes place when all A.'s children have died before him leaving issue (d). If any child of A. (b) 3 & 4 Will. 4, c. 106, s. 2. 313. (d) Re Ross's Trusts, L. R. 13 Eq. 286; In re Natt, 37 C. D. 517, Advancements into hotchpot. to be brought Father. Mother, brothers and sisters, and their representatives. Half-blood take equally with whole blood. Mother. Next of kin. No representation after brothers and sisters. Grandparents. Uncles, aunts, nephews, nieces. Great grandparents, great uncles and aunts, great nephews and nieces, first cousins. (not being his heir-at-law) has any estate in land by the settlement of A., or has received any advancement from A. by way of portion, he must bring any such advancement into hotchpot (e). (3.) If A. leaves no issue, his father takes one-half or the whole, according as A. has left a widow or not. (4.) If A. leaves no issue nor a father, one-half or the whole (according as A. has left a widow or not) goes to his mother (ƒ) and brothers and sisters equally. If there are several brothers or sisters and some or one of them (but not all) have died leaving issue, the issue take per stirpes the share which their parent would have taken if living. The half-blood take in equal rank with the whole blood. (5.) If A. leaves no issue, father, brother, or sister, one half or the whole (according as A. has left a widow or not) goes to his mother (if any), and if he leaves no mother, then to his nearest of kin in equal degree, but no representation is allowed among collaterals after brothers and sisters. (6.) Grandparents (on both sides without distinction) being in the second degree from A. take after brothers and sisters (g). (7.) After grandparents come uncles, aunts, nephews, and nieces (h), who all take per capita, being in the third degree. (8.) Then come great grandparents, and after them great uncles and aunts, great nephews and nieces, and first cousins, being in the fourth degree, and so on to kindred in the fifth and more remote degrees, all in the same degree taking per capita. (e) 22 & 23 Car. 2, c. 10, s. 3. (g) Strictly they ought to come Exors. (7th ed.). (h) It will be borne in mind that if A. had left a brother or sister, and nephews or nieces, being the children of a deceased brother or sister, the nephews or nieces would have taken a share under (5); but if A. leaves no brothers or sisters, nephews and nieces can only come in as above stated. advancement. An advancement by portion within the 3rd section What is an of the Statute of Distributions is a sum given by a parent to establish a child in life or to make a provision for such child; as, e.g., on marriage, or by buying a commission or outfit for a son going into the army, or by buying the goodwill of a business, or by paying a son's admission fee to an Inn of Court, or the premium and stamp on his being articled to a solicitor, but mere annual payments will not be treated as advancements, e.g., the payment of a fee to a special pleader in the case of a son going to the bar, or the price of outfit and passage-money of an officer in the army going out to India with his regiment (i). And a sum of money given by a father to a son, to enable him to pay a debt or debts may be an advancement, as well as money given for any other purpose (k). The Statute of Distributions does not apply to case of a wife dying possessed of personal estate. such case the husband is entitled to administer and take the whole for his own use (1). the Husband In whole of to entitled to The special customs concerning the distribution of personal estates of intestates which formerly prevailed in the City of London, and in the Province of York, &c., are repealed as to all persons dying after the 31st Dec., 1856, by the 19 & 20 Vict. c. 94. wife's personalty. City of Customs of &c., repealed. moveable Moveable property wherever locally situate is distri- Distribution of buted according to the law of the place where the property is intestate was domiciled at his death, but for this according to purpose a chattel interest in land is not regarded as domicile. moveable. (i) Boyd v. Boyd, L. R. 4 Eq. 305; Taylor v. Taylor, ib. 20 Eq. 154. (k) Boyd v. Boyd, ubi suprà; In re Blockley, 29 C. D. 250, where the observations of Jessel, M. R., (1) 29 Car. 2, c. 3, s. 25. law of Wills of personalty must be proved. As to probate of will relating to real estate. Transmission XII. The probate of wills and the duties on probates and letters of administration, and under the Legacy and Succession Duty Acts. Wills of personalty must be proved and administration to the effects of intestates taken out in the Probate Division of the High Court of Justice, either in the principal registry, or in the registry of the district in which the testator or intestate had a fixed place of abode at the time of his death (m). Recent Acts () provide that where an intestate's estate does not exceed £100, the widow or children of the intestate, if residing more than three miles from the Probate District Registry, may apply to the Registrar of the County Court, and obtain letters of administration through him. Previously to the Act 20 & 21 Vict. c. 77, a will which related to land only ought not to have been proved, and the probate was not evidence of the due execution of such will as to the land; but by section 64 of the above Act it is provided that in any action at law or suit in equity where according to the existing law it would be necessary to produce and prove an original will in order to establish a devise of real estate, the party intending to establish on proof such devise may give notice to the other party of his intention to produce the probate or a stamped copy in evidence, and in such case the probate or stamped copy shall be sufficient evidence, although the will may not have been proved in solemn form, unless the party receiving such notice shall within four days give notice that he disputes the validity of the devise. And by other sections of the Act, the probate or a stamped copy is made conclusive evidence of the due execution and contents of the will as to real estate, when the will has been proved in solemn form or has been established in a contentious cause or matter, and the heir-at-law has been cited (o). If an executor dies, having himself by will appointed an of representa- executor, the latter becomes the executor of the original testator, but if the first executor dies intestate, his administrator does not tion. (m) 20 & 21 Vict. c. 77, s. 46. (0) 20 & 21 Vict. c. 77, ss. 61, 62, 63. represent the original testator, but letters of administration de bonis non with the will annexed of the original testator must be taken out. In like manner, if A. dies intestate, and B. takes out letters of administration to his estate and afterwards dies, the executor or administrator of B. does not represent A., but new letters of administration de bonis non of A. must be taken out. If two or more persons are appointed executors and all prove the will, the representation passes to the executor of the last survivor. nunciation by Previously to the Act above referred to, if one of two joint Effect of reexecutors renounced probate, the renunciation might be re- executor. tracted at any time, and the renouncing executor come in and prove. Consequently, if one of two joint executors renounced, and the proving executor died first, the representation did not pass to his executor; and if the renouncing executor still refused to prove, letters of administration de bonis non to the original testator became necessary. But it is now provided that where an executor renounces probate of a will, or dies without having taken probate, or does not appear on a citation to take probate, the right of such person in respect of the executorship shall wholly cease, and the representation to the testator and the administration of his effects shall without any further renunciation, go, devolve, and be committed in like manner as if such person had not been appointed executor (p). will in exercise Probate is necessary of a will made in execution of a power Probate of and affecting personalty; but a will merely appointing a guar- of power. dian need not be proved (q). By the Customs and Inland Revenue Act, 1881 (), the following stamp duties are imposed on probates of wills and letters of administration in England or Ireland, viz. :— Where the estate and effects for or in respect of which the probate or letters of administration is or are to be granted (s), exclusive of what the (p) 20 & 21 Vict. c. 77, s. 79; 21 & 22 Vict. c. 95, s. 16. 87. (q) In re Morton, 33 L. J. Prob. (r) 44 Vict. c. 12, s. 27. (8) By the 23 Vict. c. 15, s. 4, the personalty which any person dying on or after the 3rd of April, 1860, shall have disposed of by will under a general power is made liable to probate duty as if it were his own. Stamp duties and letters of on probates administration after 1st June, 1881. |