provisions among children, as every child may properly be said to have spes accrescendi. This question was very much debated among the civilians in their construction of the 118th novel of Justinian; and the generality of them, of whom Ferriere and Domat are of the number, were of opinion that the grandfather and the brother took equally; but Voet was of a different opinion; and his opinion, though without any strong foundation in reason, is the one prevailing in the English courts. (b)

*425

The question whether the half blood took equally with the whole blood, under the statute of distributions, was debated in the case of Watts v. Crooke; (c) and it was determined in chancery that they were of equal kin, and took equally with the whole blood; and the decree was affirmed upon appeal to the House of Lords. (d) So posthumous children, whether of the whole or half blood, take equally as other children, under the statute. (e) As the statute of distribution says that no representation shall be admitted among collaterals after brothers' and sisters' *children, it was held, in Pett v. Pett, (a) that a brother's grandchildren could not share with another brother's children. And, therefore, if the intestate's brother A. be dead, leaving only grandchildren, and his brother B. be dead, leaving children, and his brother C. be living, the grandchildren of A. will have no share, and cannot take. One half of the personal estate will go to the children of B., and the other half to C. But if all the brothers and sisters and their children be dead, leaving children, those children cannot take by representation, for it does not extend so far; but they are all next of kin, and in that character they would take per capita. Representation in the descending lineal line proceeds on ad infinitum, restrained by no limits. It has also been decided, that if the intestate leaves no wife or child, brother or sister, but his next of kin are an uncle by his

(b) Voet, Com. ad Pand. lib. 38, tit. 17, c. 13. Dr. Irving, in his Introduction to the Study of the Civil Law, 4th ed. London, 99-101, contends that the reasoning of Voet and the decision in England were fallacious and erroneous, and not founded on a true construction of the novel.

(c) Shower's Cases in Parliament, 108; 2 Vern. 124, s. c.

(d) In Maryland, so late as 1827, in the case of Seekamp v. Hammer, it was decided that, under the act of 1798, the half blood took equally with the whole blood in the distribution of the personal estate of an intestate. 2 Harr. & G. 9.

(e) Burnet v. Mann, 1 Ves. 156.

(a) 1 Salk. 250; 1 P. Wms. 25, s. c.; Duvall v. Harwood, 1 Harr. & G. 474, s. p.

mother's side, and son of a deceased aunt, the uncle takes the whole, and the representation is not carried down to the representatives of the aunt. (b)

It is the doctrine under the statute of distributions, that the claimants take per stirpes only when they stand in unequal degrees, or claim by representation, and then the doctrine of representation is necessary. But when they all stand in equal degree, as three brothers, three grandchildren, three nephews, &c., they take per capita, or each an equal share; because, in this case, representation, or taking per stirpes, is not necessary to prevent the exclusion of those in a remoter degree; and it would be contrary to the spirit and policy of the statute, which aimed at a just and equal distribution. (c) Uncles and aunts, and nephews and nieces, stand in the the same third degree, *426 and take equally per capita. (a) If a person dies without children, leaving a widow and mother, brother and sister, and two nieces by a deceased brother, then, according to the established doctrine, the widow would take a moiety, and the mother, brother, and sister would each take one fourth, and the two nieces the other one fourth of the remaining moiety. This point was ruled in Keylway v. Keylway; (b) and the doctrine was declared to be correct by Lord Hardwicke, in Stanley v. Stanley. (c)

*

(b) Bowers v. Littlewood, 1 P. Wms. 593; Parker v. Nims, 2 N. H. 460; Porter v. Askew, 11 Gill & J. 346; [Page v. Parker, 59 N. H. —.]

(c) Walsh v. Walsh, Prec. in Ch. 54; Davers v. Dewes, 3 P. Wms. 50; Stent v. M'Leod, 2 M'Cord Ch. (S. C.) 354; Hallett v. Hare, 5 Paige, 316. Nephews and nieces, under the statute of descents in South Carolina, of February, 1796, which abolished primogeniture, and distributed real and personal property in the same manner, would, in the case stated, take per stirpes, contrary to the rule in the English law.

(a) Durant v. Prestwood, 1 Atk. 454; Lloyd v. Tench, 2 Ves. 213; Buissieres v. Albert, 2 Lee, 51; (Eng. Eccle. vi. 30, ed. Philadelphia, 1841.)

(b) 2 P. Wms. 344.

(c) 1 Atk. 457. The English doctrine of distribution of personal property, according to the statutes of 22 and 23 Charles II., and 29 Charles II. and 1 James II., is fully and clearly explained by C. J. Reeve, in his Treatise on the Law of Descents, under the head of Introductory Explanation. It is the most comprehensive, neat, and accurate view of the English law on the subject that I have anywhere met with.

Mr. Robertson, in his learned Treatise on the Law of Personal Succession, 386, thinks that the Scottish rules of succession in regard to personal estate require revision, and are not just or expedient, as they (1) limit the power of a husband or father to make a will; (2) allow brothers and sisters and their descendants to exclude the father from the succession, though he be the nearest in blood, and allow uncles

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3. (Of distribution by state laws.) The distribution of personal property of intestates in the United States has undergone considerable modification. In many of them the English statute

of distributions as to personal property is pretty closely * 427 followed. (d) *In a majority of the states the descent of and aunts and their descendants to exclude the grandfather; (3) exclude the mother entirely from any share in the succession of her child; (4) totally exclude maternal relations from the succession; (5) totally exclude representations in every case in regard to the succession of personal estate; (6) disable bastards from disposing of their personal estate by will.

(d) This is the case in Tennessee, North Carolina, Maryland, Delaware, New Jersey, and Vermont. The English statute of distributions was adopted in New Jersey by an act of assembly, as early as 1681 (Smith's Hist. of New Jersey, 130), and is reenacted in 1847. N. J. R. S. 355. The New York Revised Statutes, which went into operation on the 1st January, 1830, have essentially reenacted the English statute of distributions, which have been adopted, and continued the law of the state down to that period, and, for greater precision, they have particularly specified the course of distribution. After the account is rendered and finally settled, the surrogate decrees distribution of the surplus of personal estate, and decides all questions arising thereon. The distribution is, 1. One third thereof to the widow; and the residue, by equal portions, among the children, and such persons as legally represent them, if dead. 2. If no children, or their representatives, one moiety to the widow, and the residue to the next of kin. 3. If no descendant, parent, brother or sister, nephew or niece, the widow takes the whole surplus. If there be a brother or sister, nephew or niece, and no descendant or parent, the widow takes the whole surplus, if it does not exceed two thousand dollars. If it does, she takes her moiety, and two thousand dollars only. 4. If no widow, the surplus goes equally to the children, and those that represent them. 5. If no widow or children, or their representatives, the surplus goes to the next of kin, in equal degree, and their representatives. 6. If no children, or their representatives, or father, a moiety of the surplus goes to the widow, and the other moiety in equal shares, to the mother and brothers and sisters or their representatives. If no widow, the whole surplus goes to the mother, and brothers and sisters, and their representatives. 7. If there be a father, and no child or descendant, he takes a moiety if there be a widow, and the whole if there be none. 8. If there be a mother, and no child, or descendant, or father, brother, sister, or representative of a brother or sister, the mother takes a moiety if there be a widow, and the whole if there be none. And if the intestate was an illegitimate, and left no child, descendant, or widow, the mother takes the whole, and shall be entitled to administration. N. Y. Act of May 13, 1845, c. 236. 9. When descendants or next of kin are in equal degree, they take per capita. 10. When they stand in unequal degrees, they take per stirpes. 11. No representation is admitted among collaterals, after brothers' and sisters' children. 12. Relatives of the half blood take equally and in the same manner as those of the whole blood. 13. Posthumous children take equally as if born in the lifetime of the person they represent. (N. Y. Revised Statutes, ii. 96, sec. 75.) Any advancement to a child, by settlement or portion of real or personal estate, equal or superior to his share, will exclude him and his descendants from the distribution; and if the same was not equal, he will be entitled only to so much as will supply the deficiency. The maintaining or educating, or giving money to a child, without a view to a portion or settlement in life, is not to be deemed an advancement; nor does the provision as to advancement apply, if there be any real estate of the intestate to descend to his heirs.

real and personal property is to the same persons and in the same proportions, and the regulation is the same in substance,

(N. Y. Revised Statutes, ii. 97, sec. 76, 77, 78.) The most striking feature in the new provisions introduced into the New York Revised Statutes on the subject of intestate estates, and of testamentary matters, is the enlarged and equitable jurisdiction conferred upon the surrogates in the respective counties. This branch of our jurisprudence will apply more frequently than any other, and with great force and interest, to family concerns; and it will rise into correspondent importance, and awaken much public solicitude. It is in analogy to the powers vested in the ordinary in England, and in the orphans' courts or other testamentary jurisdictions in the United States. The surrogate, under the New York statutes, has concurrent jurisdiction with chancery, to call executors and administrators to account. But a prior suit pending in chancery by the complainant, is a bar to the proceeding before the surrogate. So a decree in chancery for the benefit of claimant upon the estate of the decedent is a bar to a proceeding before the surrogate for an account. Rogers v. King, 8 Paige, 210. It was further held, in Heyer v. Burger, 1 Hoff. Ch. 1, that the surrogate had the sole jurisdiction to try the validity of a will of personal estate, and that chancery had no original jurisdiction in the case. The surrogate in New York has the like power touching the payment and distribution of the proceeds of real estate, when the will is proved in his office, as in the case of the personal estate. N. Y. R. S. ii. 109, sec. 57. Decrees of surrogates for the payment of money by an executor, administrator, or guardian, as well as decrees in chancery, are liens on real estate in any county, on the transcripts or certificates of the same being filed with the clerk thereof, and entered and docketed on the books for docketing judgments therein. Laws of N. Y, April 1, 1844, c. 104. In Mississippi, the probate courts in each county have exclusive jurisdiction in all testamentary and administration matters, in dower, and in lunacy, &c., Carmichael v. Browder, 3 How. (Miss.) 255; but not against the sureties in an administration bond, Green v. Turnstall, 5 id. 638. The surrogate's courts in New York, with all their enlarged powers, are courts of inferior jurisdiction, and a party seeking to make title to real estate under their proceedings, must show affirmatively that they had jurisdiction. Bloom v. Burdick, 1 Hill (N. Y.), 130.

In New Jersey, by the constitution of 1844, the chancellor is declared to be the ordinary or surrogate general, and judge of the prerogative court, and has ample jurisdiction in granting letters testamentary, of administration, and of guardianship; in compelling executors, administrators, and guardians to account in his prerogative court, and to control them, and to decree distribution, and the payment of legacies, and to try contested facts by a jury and before a master, and to decree the sale of real estate to pay debts. The orphans' court consists of the judges of the Court of Common Pleas, in each county, and seems to be clothed with similar and concurrent jurisdiction, and with power to award partition of land among heirs and devisees. It is the more ordinary and proper tribunal for the settlement of the accounts of executors and administrators. 1 Green, Ch. (N. J.) 480; R. S. of New Jersey, of 1847, tit. 7, c. 5. The surrogate of each county is the register of the orphans' court, and an essential member of it, and has also power concurrent with the orphans' court to grant letters testamentary, of administration and of guardianship, in cases arising within his county, and to hold courts in matters cognizable before him, with appeal to the orphans' court. The orphans' court seems to be the most efficient of the consistorial jurisdictions. The prerogative court or ordinary, the orphans' courts and the surrogates, all have jurisdiction in testamentary and administration cases. Acts of 2d March, 1795, 13th June, 1820, and the acts supplementary thereto. See Elmer's

*428 as the English statute of distributions, with the exception of the widow, as to the real estate, who takes one third for life only, as dower. In Georgia, the real and personal estate of the intestate is considered as altogether of the same nature and upon the same footing, both in respect to their statute of distributions and the descent of property. Prin. Dig. 229, 1 Kelly, 540. The half blood take equally with the whole blood, as they do under the English statute of distributions. (a) Such Digest, 165, 359-370, 382, 444. New Jersey seems to have doubled and trebled her consistorial courts. See N. J. R. S. of 1847, tit. 7, c. 5.

(a) This is essentially the case in Maine, New Hampshire, Vermont, Rhode Island, Connecticut (but there the whole blood are, in certain cases, preferred to the half blood, and even when in equal degree), New Jersey, Pennsylvania, Virginia (but there the half blood inherit only half as much as the whole blood), Indiana, Illinois, Michigan, Kentucky (by the Kentucky statutes, if part of the collateral kindred be of the whole blood, and part of the half blood, the latter inherit only half so much as those of the whole blood, and the ratio of apportionment has reference to the individuals of the two classes, and not to the classes collectively; Nixon v. Nixon, 8 Dana, 7), Missouri (but there brothers and sisters, and parents, take equally), Mississippi (but there brothers and sisters, and their descendants, take before parents), South Carolina (but there parents, and brothers and sisters, take equally, and a brother of the half blood does not share with a mother; first cousins of the whole and half blood are, however, next of kin in equal degree, and take equally of the estate of the intes tate), Georgia, and Alabama. (In Alabama, brothers and sisters take before parents; and when in equal degree, the whole blood is preferred to the half blood. See Griffith's Law Register, h. t. ; 1 Greenl. 151; 2 N. H. 461; Dana's Abridgment, iv. 538, 539; Statutes of Connecticut, 1784, p. 51; ib. 1821, p. 207; ib. 1838, p. 235; 5 Conn. 233; 1 M'Cord, 161, 456; Edwards v. Barksdale, 2 Hill, Ch. (S. C) 417; Reeve's Law of Descents, passim; Statutes of Georgia, December 23, 1789, and December 12, 1804; Territorial Act of Michigan, April 12, 1827; Purdon's Penn. Dig. 550, 551; Aikin's Alabama Dig. 2d ed. pp. 128, 151.) In Louisiana, the legal heirs of the intestate are, (1) Children and their descendants, without distinction of sex or primogeniture. They inherit per capita when in the same degree, and per stirpes when in different degrees. If no descendants, then the parents take equally one half of the estate, and the brothers and sisters, and their descendants, the other half. If the father or mother only survive, the survivor takes only one fourth; and if no parents, brothers and sisters, and their descendants, take the whole. Civil Code, 898, 907, 908. In Ohio, by the act of 1831, the widow is entitled to the whole personal estate, after the debts are paid, if there be no children; and if there be any, she takes one half, if the estate amounts only to $400; and if it exceeds that sum, she takes only one third of such overplus. Statutes of Ohio, 1831. In other respects the personal estate goes (1) to the issue and their representatives; (2) to brothers and sisters and their representatives of the whole blood; (3) to brothers and sisters and their representatives of the half blood; (4) to the father; (5) to the mother; (6) to the next of kin of the blood of the intestate. When in equal degree they take per capita, otherwise per stirpes. Ib.

In Georgia, widow and children take equal shares, unless she elects to take her common-law dower, and then she takes no further of the real estate, and a child's portion of the personal estate. If no issue, widow takes a moiety of the estate, and