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. (ƒ)

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 accord"ingly 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.

points, as to which the statutes were silent. In Keylway v. Keylway (T. 12 Geo. II.) (¿), where a person died without issue, leaving a wife, several brothers and sisters, and a mother, him surviving; the wife took a moiety; and upon a bill filed in the Court of Chancery, in regard to the other moiety, it was decided that the mother in such case did not take the whole, but only a share with the brothers and sisters of the intestate. In Stanley v. Stanley (May, 1739) a person died intestate, leaving a wife, a mother, and children of a brother deceased: the wife took her moiety; the children of the brother contended that the mother, under the statute, took only an equal share with each of them: but upon a bill filed in the Court of Chancery, Lord Hardwicke decreed, that the residue of the estate should be divided into four parts; two-fourths to go to the wife, one-fourth to the mother, and the other fourth to the representatives of the brother deceased. (k)

10. No representation shall be admitted among collaterals after brothers' and sisters' children. (1)

This rule was also the creation of the statute, introduced from the third chapter of the 118th Novel of Justinian. It is expedient that the right of representation should stop somewhere. A similar rule is embodied in the Code Civil of the French law. (m)

Under this rule questions have occurred, whether the words of the statute are to be intended of brothers and sisters to the intestate; or whether when distribution falls

(i) 2 Strange, 710., 2 P. Wms. 344.; Gilb. Eq. Cas. 189.; 2 Eq. Cas. Abr. 441, 442.; 4 Burn's Eccles. Law, 428.

(k) 1 Atkyns, 458.; 4 Burn's Eccles. Law, 428.

(1) 4 Burn's Eccles. Law, 423.

(m) Code Civil, No. 742.

out amongst brothers and sisters, though remote relations to the intestate, representation shall also be admitted amongst them. But it has been settled, that the representation should be only between the brothers and sisters to the intestate. (n)

11. In reckoning the degrees of kindred, in the succession of personal estate, no distinction shall be made between kindred of the full, and those of the half-blood; and propinquity, or kindred, is to be deduced as well from the mother, and the maternal relations, as from the father and the paternal relations. (0)

After the statute there were several precedents of judgments given, allowing only half a share to the half-blood; but the law in this particular has now become fixed and certain, since the judgment of the House of Lords, in the case of Crooke v. Watt, upon an appeal from a decree in Chancery, which had been given in favour of the halfblood, and was affirmed in the House of Lords. (p)

This is regulated otherwise in the Novel of Justinian. (q) It appears to be doubtful if the rule adopted in the case of Crooke v. Watt has fixed this matter upon its just basis. Great hardship may often occur from this rule.

12. Affinity, or relationship by marriage, gives no right to a share of the property under the statute:

(n) Maw v. Harding, T. 1691, 2 Vern. 233.; Pett v. Pett, T. 1700, 1 P. Will. 25., 1 Salk. 250.; Bowers v. Littlewood, M. 1719, 1 P. Will.

594.; 4 Burn's Eccles. Law, 424.

(0) 4 Burn's Eccles. Law, 422.

(p) Strahan's Domat. 658.; 2 Vern. 124., S. C. Show. P. C. 108.; 4 Burn's Eccles. Law, 422.

(q) Novel, 118. c. 3.

therefore, if the intestate had a son and daughter, and they both die in the lifetime of the intestate, the former leaving a wife, and the latter a husband; upon the intestate's death afterwards, such wife and husband respectively have no claim on the intestate's estate. (r)

In questions of distribution between ascendants and collaterals, not provided for by the statutes, the following points have been decided :

(1.) In questions between a brother and a grandfather, the brother is preferred to the whole succession. (s) (2.) In a question between a grandmother and uncles and aunts, the grandmother will take in exclusion of the uncles and aunts. (t) (3.) A grandfather by the father's side, and a grandmother by the mother's side, shall take in equal moieties. (u) (4.) In competition between two aunts, and a nephew and niece, children of a brother deceased, Lord Chancellor Hardwicke ordered the surplus to be divided into four parts per capita, they being all in equal degree; but if the brother had been alive, he would have taken the whole. (x) (5.) Great grandfathers, or great

(r) Toller, 386.

(s) Pool v. Wishaw, in Chancery, T. 1708. Norbury v. Richards, in Chancery, M. 1749, cited in Evelyn v. Evelyn, before Lord Hardwicke, Hil. 1754; 3 Atk. 762.; Ambl. 191.; 4 Burn's Eccles. Law, 416. (t) Blackborough v. Davis, 1 Salk. 38. 251.; 12 Mod. 623.; 1 P. Will. 51.; Ld. Raym. 684.; Woodroffe v. Wickworth, Prec. Ch. 527.; 4 Burn's Eccles. Law, 415.

(u) Moor v. Barham, May, 1723; 1 P. Will. 53.; 4 Burn's Eccles. Law, 414.

(x) Durant v. Prestwood, June, 1738; 1 Atk. 454.; 4 Burn's Eccles. Law, 424. There would clearly have been a different mode of distribution under the 118th Novel, c. 3., but this appears to have been correct under the Statute of Distribution.

grandmothers, being in the third degree, take a distributive share with uncles and aunts. (y)

It appears that the only one of the above cases, which is not reducible to a preference of the nearest of kindred by the civil law, is the first; namely, that a brother shall take in preference to a grandfather, though these are both equal in degree. In all the other cases the nearest in degree has been preferred, and those equal in degree have taken equally. And so the rule is in all other remoter degrees of kindred, that the nearest in degree takes the whole, and those who are equal in degree take equally. (≈)

13. Where a person entitled to a distributive share of an intestate estate dies within a year after the intestate, though no distribution could be made till after one year be fully expired after the intestate's death, the share of the person deceased was an interest vested and transmissible to his executors or administrators. (a)

In this sense the statute made a will for the intestate; and it is as if a legacy was bequeathed payable a year hence, which would plainly be an interest vested presently. In the case of a distribution of an undisposed surplus under a will, à fortiori, the share thereof would be vested in any of the next of kin dying before distribution.

SECT. IV.

Rules of Distribution in the Principality of Wales.

WE learn from the before mentioned statute of the

(y) Lloyd v. Tench, 2 Ves. sen. 215.

(z) 4 Burn's Eccles, Law, 404.

(a) Brown v. Farndell, Carth. 51, 52.; S. C. Comberb. 112.; Bac. Abr. Exor. I. 4.; Williams's Law of Executors, 936.