shall belong to the wife, and the other half thereof shall go to the next of kindred of the deceased who are in equal degree, and to those who legally represent them. But in case there be no widow or children, or representatives of such children, the personal estate of the intestate shall go wholly to the next of kindred of the deceased in equal degree, and those who legally represent them. (y) Kindred are distinguished either by the right line or by the collateral; the right line is of parents and children, computing by ascendants and descendants. The collateral line is between brothers and sisters, and the rest of the kindred. Those of the right line are reckoned upwards, as parents or ascendants; or downwards, as children or descendants. Those of the collateral line are reckoned ex transverso or sidewise, as brothers and sisters, uncles and aunts, or the like, and such as are born from them. (z) It appears that under the statutes of distribution, in case of a total intestacy, or in the distribution of a surplusage under a will, kindred is reckoned in England, in accordance with the rules of the civil law, and rejecting the rules of the canon law, where these differ from those of the civil law. (a) In the right or ascending and descending lines, there is no difference between the rules of the civil and canon law; but every generation, whether ascending or descending, constitutes a different degree. Thus, the father of John is related to him in the first degree; so likewise is his son. His grandfather and grandson are related to him in the (y) 4 Burn's Eccles. Law, 394. second degree; and his great-grandfather and great grandson in the third degree, and so on. But in reckoning the collateral line, there is a difference between the rules of the civil, and those of the canon law. In the civil law, the computation is made by reckoning upwards from the one of the parties to the person from whom both are branched, and then descending downwards to the other, with whom the degree of kindred is to be traced. Thus, a brother is in the second degree of kindred, as having the same common father; an uncle and nephew are in the third degree; a great uncle and a cousin-german are in the fourth degree, and so on. By the canon law there is another mode of computation among collaterals. The canonists always commence with the stock or common ancestor, and reckon the degree of kindred downwards from him alone, without also reckoning the line of ascent upwards to that common ancestor. Thus, in regard to two brothers (who by the civil law would be in the second degree of kindred), by the canon law they are accounted in the first degree. In this case the father was the common ancestor; from him to the son was one degree. Thus, also, cousins-german, by the canon law, are accounted in the second degree between themselves; the grandfather was the common ancestor; from him to his son was one degree; to his grandson was the second degree. But if the parties proposed be not equally distant from the common stock, the most remote fixes the degree of kindred between them: thus, an uncle is in the second degree of kindred to his nephew; the grandfather was the common ancestor; from him to his son, the uncle, was one degree, but to the nephew, the son of another son, was a second degree; and he being the most remote from the common stock, they are distant among themselves in the same degree and the son of a cousin-german is by the canon law reckoned of the third degree; he was one degree further from the common stock than the cousin-german. (b) This is illustrated by the annexed diagram. 8. If a person die intestate in whole or in part, without wife, or descendants in the lifetime of his father, the father shall take the personal estate of the party dying intestate as aforesaid, to the exclusion of all the other kindred. (c) According to the rules both of the civil and canon law, the father and mother would in such case be in the first degree of kindred to the deceased. But as, during marriage, the rights of the mother were totally merged in those of her husband, the father alone would take. This rule is not in accordance with that of the Roman law. By it brothers and sisters of the full blood are made to share with parents. (d) 9. If the person intestate as aforesaid die without wife or descendants, or a father him surviving, in the lifetime of his mother, every brother and sister of the deceased, and the representatives of them, shall have an equal share with the mother; but if there be no brother or sister, or legal representatives of them, the mother in such case shall take the whole personal estate. (e) This rule as to brothers and sisters sharing with a mother was introduced by the statute of 1 James II. c. 17. According to the prior statutes, the mother in such case would have taken the whole personal estate, as next of (b) 4 Burn's Eccles. Law, 404. et sequen. (c) 2 Blacks. Com. p. 515.; 4 Burn's Eccles. Law, 413. (d) Novel, 118. c. 2. (e) 4 Burn's Eccles. Law, 394. kin, to the exclusion of all the other kindred, and she still takes it if there be no brothers or sisters, or legal representatives of them. (f) The succession of the mother, however, in such case, even when it was universal in other parts of England, was always controlled by the custom of the city of London, in regard to the orphanage part of the children of a freeman. (g) Questions have arisen under this statute of James II. what should be done if the deceased also left a wife, which was out of the words of the statute. This statute, as well as the statute of distribution, is incorrectly penned (h); and it has been found necessary, in several cases, to consider (f) 4 Burn's Eccles. Law, 427. At one time, and for a short period, the succession of the mother was rejected by the English courts. In the Duchess of Suffolk's case, it was held that the mother was not of kin to her child. In the reign of Edward VI. Charles Duke of Suffolk, having issue by one venter a son, and by another a daughter, by his will devised goods to his son, and died. After his death his son died intestate, without wife and without issue; his mother, and his sister by the father's side, born of the former venter, then living. The mother took the administration; but the sister commenced a suit before the Ecclesiastical judge, claiming that it might be revoked, and the administration granted to her. The most learned as well in the common law as in the civil law, were consulted, and the Ecclesiastical Court revoked the administration granted to the mother, and granted a new administration to the sister, albeit she were of the half-blood to the deceased. (Swinburne, p. 912.) But he adds (p. 918.), " True it is, that, in those days, "this example did so much prevail, that many judgments passed accordingly upon the like case; but yet, in process of time, the truth pre"vailed (for what is stronger than truth), and the mother was every where adjudged to be of kin to her child, who, dying intestate and without issue, the administration of his goods may be committed unto her (if "the ordinary in discretion so think good), as next of kin according to "the statute." (g) Infrà. (h) Lord Hardwicke in Stanley v. Stanley, 1739; 1 Atkyns, 458. |