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Of the succession of descendants.
If a man dies intestate, leaving a descendant of either sex or any degree, such desi endant, whether he derives his descent from the male or female line, or whether he is under power or not, is to be preferred to all ascendants and collaterals. And, although the deceased was himself under paternal power, yet we orduin, that his children of either sex or any degree shall be preferred in succession to the parents, under whose power the intestate died, in regard to those Uiings, ^wKich children do not "acquire for their parents, according to oar other laws: for wc would maintain the laws in respect to the usufruct, which is allowed ro parents: so that, if any of the descendants of the deceased should die, leaving sons or dauj^ters or other descendants, they shall succeed in the place of their own father, whether they are undefTiis power or sui juris, and shall be entitled to the same share of the intestate's_estatet which their' father would have had, if he hud lived; and this kind of succession has been termed by the ancient lawyers a succession in stirfiex: lor in the succession of descendants we allow no priority of degrec:,-*>iit admit the grandchildren of any person bv a deceased son or daughter to he called to inherit that person together with his sons or daughters, without making any distinctibn between males and females, or the descendants of males and females, or between those, who are under power, and those, who are not. These are the rules, which we have established, concerning tho succession of descendants. »
Ei rif Tciwi. Si quis igitur.] The three first chapters of this novel constitution deserve the attentive consideration of the reader, not only because they contain the latest policy of the civil law in regard to the disposition of the csutcs of intestates; but because they are the foundation of our statute law in this respect. Vid. Holt's cases, p. 259. J'eere Williams's rep. p 27- Prec. in chan. p. 59.3. Sir Thorn. Saymumfs rep. p 496. And they are still almost of continual use, by being the
leaving grandchildren bv three different sons, alread\ dead; to wit, three by one son, sii by another, and twelve by another; each of these classes of grandchildren would take a third of the estate without any regard to the inequality of the jiumhers in each class. But, as to this point Yn^Englaml, the law reports mention no judicialMetermination; yet it seems probable, that the courts, in which distributions are cognizable, would order the division of an estate in such a case to be made per
general guide of the courts in Englandl^apila; and this, partly from a motive of
which hold cognizance of distributions, in all those cases, concerning which our own laws have either been silent, or not sufficiently express.
E'f Toy Tv 'Sit yevtuf. In proprii parentis locum succedant. 1 Nothing is more clear in the civil law, than that grandchildren, even when alone, (although they descend from various stocks and are unequal in their numbers,) would tike the estate of their deceased grand-father per ttirjxs, and not per capita. Suppose therefore, that Titius should die,
equity, and partly from a consideration of the intent of the statute, relating to the estates of intestates; for the statute directs an equal and just distribution: and, when the act mentions representation, it must be understood to refer to it, in those cases only, where representation is necessary to prevent exclusion, but not to refer to it, in those cases, where all the claimants are in equal degree, and therefore can take suo quisque jure, each in his own right. Vid. 23, 24, Car. 2. cap. 10. Lib. 3. Inst. p. 4.
Of the succession of ascendants.
But, when the deceased leaves no descendants, if a father, or mother, or any other parents, grand-lathers, grvat-granci-faHiers, &c.' survive him, we,decree, that they shall be preferretTlo all collateral "Tchitipiis except brothers of the whole blood to th^ deceased, as shall"hereafter be more particularly declared. But, if many ascendants are living, we prefer those, who are in the nearest degree, whether they ure male or female, paternal or maternal; and, when several ascendants concur in the same degree^thc inheritance" of the deceased must Be sn divided, thaV thVltscciidants on the part of the father may receive one-half, and the ascendants on the part of fUe'TrtollTerttTe other half, Without regard to the number-ef-ptrpso.ns on either side. But, if the deceased leaves brothers and sisters of the whole blood" together with ascendants, these collaterals of the deceased shall be called with the nearest ascendants,'although such ascendants are a father or mother; and the inheritance muSt'be so divided according to the number of persons, that each of the ascendants, and each of the brothers, may have an equal portion; nor shall the father in this case take to himself any usufruct of the portions belonging 10 his sons and daughters, because by this law we have given him the absolute property of one portion: and we suffer no distinction to be made between those persons, who are called to an inheritance, whether they are males or females, or related by males or females, or whether be, to whom they succeed, was, or was not, under power, at the time of his decease.
Ei v.ai tracing i fj*'*g «ikt«v. Si ct pater ailt ma'.er foriim 3 ti\ th law of England, when r. p< win dies intestate, leaving a lather, tlie fai her is solely entitled to the whole personal esu.te of the intestate, exclusive of 11 others; and nciently, [i e in the reign of Hi nry the first, vid II Hen primi, Wili.ins edilore, p. 2t>6] • surviving father, or mother, could have taken even the real estate of their deCeased child. But this law of succession was altered soon afterwards; for we find by Canvi'/e, that, in the time of Henry the second, a fa her or mother could not have taken the real estates of their deceased children, the inheritance being then carried over to the collateral line Vid Glar.ville, lib. 7- cap 1, 2, &c. 1 Ptere William* 50. And it has ever since been held as an inviol ble maxim, that an inheritance cannot ascend. Co. Liu 11. a. But this alteration in the law, made since the reign of Henry the first, did not extend to personal estate, sn that, before the statute of the first of Jamen the second, if a child had died intestate without a wife, child, or father, the mother would have been entitled to the whole personal estate, exclusive of the brother- and sisters of the intestate; but it is enacted by that statute," that, it', after the "diat'i of a father, any of his children shall "die intestate, without wife or children, in
"the lifetime of the mother, every brother "and sister, and their representatives, shall "have an equal share with her." 1 Jac, 2. cap. 17- § 6.
But, should it here be asked, whether the brother of an intestate would exclude the grand-father by the civil law? the novel appears at first sight to answer it very fully in the negative by enacting," that, if the deceas"ed leaves brotlttri and sistert together with "ascendants in the right line, these collaterals "shall be catfcd with the nearest ascendants" &c And indeed the generality of writers, namely, Gudclin, Forster, Fernere, Donxut, and others, all understand this passage, as admitting ascendants and brothers to take jointly; yet a contrary interpretation hath been given by some civilians, of whom Voet is the principal, whose arguments in support of it are therefore here oopied at large.
"Illud non satis expeditum est, an eliam "cum avo ant pioavo, ubi alius proximior "ascendens non est, fratres germani ejus, "qui deftinctus est, concurrere debeant, aa "magis avo proavovc praeferendi sunt, eos"que < xcludant! Concuistim enim asi enden"tium naturaliter gradu remotiorum, quos "niillus imeimedius existens excludit, cum "fratribus gertnanis dtfuncti turcntur pleri"que, moti eo, quod cum proxime ascender.
"Hints fratres veniunt Vid. novel. 118. Proxi"mus autem sit, quern nemo antecedit."
"Sed juris rationibus convenientius vide"tur, avum proavumve defuncti a fratrihus "ejus germanis in successione excludi; quia "imperstor in dicta Novella 118. cmphatice ".dixit, fratres et sorores cum proximi» gra"du ascendentibus vocari; qualis mentto/»rojc"imorum gradu imitilis plane ac superflua ** esset, si non per graduproximo» denotaren"tur illi.qui in primo linear ascendentis gra** du sunt; cum juris certi atque indnbitati *' «it, nunquam in ascendente linea locum es"sejuri representations, per quod remotior "subintrarctin locum proximioris defuncti; "atque adeo suffecisset, si generaliter ex"pressum esset, fratres cum ascendentibus "vocari. Ne dicam hoc ipso, quo in linea "ascendente repiasentatio persons proxi"mioris admissa non est, fieri non posse, ut "avus vel proavus defuncti, qui a palre vel "matre defuncti certo certius excluditur, "concurreret cum fratribus, qui cum patre "matreque defuncti coucurriint Quihus ac"cedit, quod sententia, de avo defuncti cum "get manis ejus fratribus concurrente, ad ab"surda ducit. Si enirn verum est, quod in "casu quo fratres et sorores cum proximis ** gradu ascendentibus ita concurrant, ut hse*' reditas inter eos secundum personarum nu
■ merum dividends sit, ac asccmientium et "fratrum singuli xqualem babeant portio"nem secundum d. Nov. 118. evcniret neces"sario, ut remotiores ascendentes ob defec"tum proximiorum cum fratribus defuncti "concurrcntes plus fratribus nocituri essent, "quam proximiore»; dum, positis duobus "fratribus germanis defuncti, pater et mater "concurreus duas tantum partes artpules au"ferendo efficerent, ut fratres singuli quar"tam hsereditatis fraternjc partem capiant; "quatnor auteni avi aviarque existentes, vi
■ riles totidem partes occupando, non nisi "sextain singulis defuncti fratribus relicturi "essent; sicuti tantum partem decimam duo "fratressinguli essent h.ibituri, si cum pro•avis atque proaviabus (quales octo esse "possunt) deberent conrurrere.Quam autem "a ratione id alienum sit, ut magis aliis "concursu suo noctant remotiores, quam qui "ejusdem lines proximiore» sunt, nemo, ut "opinor, non sponte satis agnosr.it. Oenique "tantum concursum esse fratrum cum patre *et matre, non vero cum aliis ascendentibus "remotioribus, ubi pater matcrque deficit,
"aperte probant verba Novellje 118. dnm il"lie diperte rautum, si cum ascendentibus "inveniuntur fratres aut sorores ex utrisque "parentibil? conjuncti defuncto, eos cum. "proximis gradu ascendentibus vocari, si aut "patfr aut mater fuerint: unde sequitur, cog "non omni casu, nee promiscue cum omni"bus ascendentibus, venire; sed si pater aut "mater fuerint: ideoque mox igitur suhjici*• tur, in hoc casu patrem nullum usnm, ex "Jiliorum aut jiliarum portior.c, posse sibi peni"tus vindicare, nulla mi facta mentione; cum "tamenidatio a:qua interdicendum fuisset, "si et avus cum defuncti nepotis fratribus "surcedere pmuisset, dum fratres succe"dentes «que potuissent in avi quam in pa"tris potcstate esse. Ut proinde nihil in con"trarium efficiat, quod, in jure, proximui "dicatur, quern nemo antecedit; cum id turn "demum admitti debeat, quando nulla inde "absurditas proftuit; prout in hoc casu futu"rum, supra monstratum est." Vid. Jaannis Voet. com. ad Pandectas, torn. 2. lib. 38. t. 17 § 13.
But this question seems now to be settled in England in consequence of three determinations; the first of which was given in the Exchequer in the case of Poole v. Wils/iavt on the 9tli of July, 17(18:—the second in the case of Norbury v. Vicars, before Mr. Fortescue, master of the rolls in November 1749:— and the third was delivered on the 14th January, 1754, in the case of E-vetin v. Evelin, by the lord chancellor, who decreed in favour of the brother in exclusion of the grand-father, having founded his opinion partly in deference to the former determinations; partly in consideration of the present common law computation of degrees, relative to real es. tates; and partly upon the benefit, which must accrue to the public by preferring a younger man to an older, the brother of a deceased person to the grand-father, propter spem accrescendi.
And it was also declared to be the opinion of the court, that, if the point in question had been res intrgra, and solely determinable by the Roman law, the decree would still have been the same; which declaration, from so high an authority, must have great weight in ascertaining of the Novel, and must incline civilians in general to think more favourably for the future of Voce's arguments, which were particularly quoted and muck relied upon by the court.