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to next of k'm, in equal degree, and their representatives; but no representation among collaterals after brother's and sister's children.
If no widow, equally among children, and if no widow and no children, to next of kin in equal degree. (Same as 22, 23 Charles II, cap. 10, as explained by 29 Charles II, cap. 30.)
If after the death of the father, any of his children shall die in the lifetime of the mother, intestate without wife or children, every brother and sister and their representatives shall have equal share with the mother. (Same as 1st James II, cap. 17, differing in this respect from Real Estate.)
In Ontario. Con. Stat. cap. 82, p. 829. The Real Estate, in case of Intestacy, goes:
1st. To children and their representatives, per stirpes in equal parts.
2nd. If Intestate dies without descendants, leaving a father, the estate will go to the father, unless the Intestate acquired it on the part of the mother, and she be living, and if such mother be dead, then the estate so acquired goes to the father for life, reversion to the brothers and sisters; if no brothers or sisters, or descendants, &c., to father absolutely.—Sec. 27.
If Intestate die without descendants, and without a father (or a father entitled, as under the last section), and leaving a mother, and a brother or sister, then the estate goes to the mother for life, reversion to the brother or sister, or their descendants, &c.; and if no brother or sister, or descendants of any, then to mother absolutely.—Sec. 28.
If Intestate dies without descendants, and without father or mother, then estate goes to brothers and sisters, and their descendants, per stirpes, however remote.—Sects. 29, 30, 31.
If no heirs, under any of the preceding sections, then the estate, if acquired on the father's side, shall go to the brothers and sisters of the father of the Intestate, and their descendants, in equal shares, per stirpes (or their descendants); and if none on the father's side, then to those on the mother's side.—Sects. 32, 33.
If the estate should have come on the mother's side, failing heirs, &c., then to the brothers and sisters of the mother, and their descendants, per stirpes, in equal shares, &c.; and if none on the mother's side, then to those on the father's side.—Sect. 34.
If acquired neither on father or mother's side (failing ut ante), then estate shall go to brothers and sisters of father and mother, alike, and their representatives, per stirpes.—Sec. 35.
Half-blood succeeds with whole-blood.—Sec. 36.
And, failing heirs, under all those Sections, the estate goes to next of kin, according to the rules of the English Statute of Distribution of Personal Estate.—Sec. 37.
Posthumous children to inherit as if born in lifetime.—Sec. 39.
With respect to Real Estate.
The law of New Brunswick differs from that of Ontario in this, that while the Law of Ontario, in case of failure of lineal descendants, provides, specifically, that the estate shall go to the father or mother, or their representatives, quoad, the fact, from whom the estate may have been derived; the New Brunswick Law simply provides, "that in case there be no children of the "Intestate, then it shall go to the next of kindred, in equal "degree, and their representatives."
The next of kindred would be determined by the Civil Law, and is the same as in the distribution of Personal Estate, (under 22nd and 23rd Charles II., cap. 10, as explained by 29, Charles II., cap. 30 in England, and in New Brunswick by 1st vol. Revd. Stat., page 283). And, therefore, the mother, as well as the father, would conjointly succeed to the Real Estate of the deceased (inasmuch, as they, being next of kin in equal degree, would succeed to the Personal Estate of the Intestate, who, leaving no widow, died without issue, in exclusion of his brothers and sisters); and, assuming the father was dead, she, being the nearest of kin, according to the Civil Law, would be entitled to the whole.
(The Stat, of 1st James II., cap. 17, which provides, that the father being dead, the mother, and brother and sisters, shall share alike, applies only to Personal Estate, and in no way alters the Rule as to who next of kin may be under the Civil Law, so that with reference to Real Estate in New Brunswick, the mother is in a better position than she is with reference to Personal Estate.)
As to Personal Property.
The Law in Ontario and New Brunswick is the same; the Stat. 22 & 23 Charles II. cap. 30, modified by 1st James II., cap. 17, prevailing in Ontario under the Act respecting property and Civil Rights (chap. 9, page 30, Cons Stat.); and in New Brunswick by specific re-enactments of their several provisions.
The Nova Scotia law differs from both,—See Revised Statutes, 3rd series, 747.
With reference to Real Estate.
1st. It first provides for an equal destribution among children and their descendants, per stirpes.
2nd. If no children, one half of Real Estate goes to father; the other half to widow, in lieu of dower; if no widow, all to father.
3rd. If no children and no father, one-half to widow; the other half, in equal shares, to his mother, brothers and sisters, and their representatives, and failing all these, then to next of kin, in equal degree. If there be no kindred, all to widow for her own use, if there be one. Minors unmarried, without father or mother, property to brothers and sisters in equal degree.
The Civil Law to prevail, and half-blood to inherit with wholeblood.
With reference to Personal Property.
1st. Widow has all her paraphernalia, apparel, ornaments, apparel of minor children, and provisions for 90 days, and such other necessaries as shall be allowed by Judge of Probate, deceased's wearing apparel, to $40 value, to be distributed among family by the administrator.
2nd. Residue of Personal Estate, after payment of the debts of deceased, &c., to be distributed, one-third to widow, residue to persons entitled to the Real Estate, and if no widow, all residue to the latter. (Changed from one-half, R.S. 747, to J by Amend. Stats., 1865, chap. 3.)
3rd. There is a provision under the Law relating to Intestacy, that a posthumous child, unprovided for by the Testator in bis will, shall have the same interest in the estate, both Real and Personal of the father, as if the father had died intestate, and for such purposes, all the devises and bequests made in the will shall abate proportionably.
4th. Advancements to be taken into consideration in the apportionment, and if exceeding the proportion, that would come to the child on a division, he is to be excluded from the division, but cannot be called on to refund.
5th. All gifts and grants arc to be deemed advancements, if stated to be so made in the gift or grant, if charged in writing as such, or acknowledged in writing, or on examination before the Judge of Probate on oath, and not otherwise.
6th. — Tenancy by courtesy, or of a widow in dower, not affected.
Of both Real and Personal Property, by amended Statutes of 1865, chap. 3, sec. 2.—" If a married woman shall die intestate, "without issue surviving, one-half of the Real and Personal "Estate owned by her, in her own right, or held by her for her "separate use, shall go to her husband, and the other half to her "father; if she have no father, then to her mother, brothers and "sisters, in equal shares; and the children of any deceased "brother or sister, by right of representation, and if there be no "issue, father, mother, brother or sister, or child of brother or l; sister, the whole shall go to her husband."
In the Province of Quebec the law respecting Intestacy is thus laid down in the Civil Code:—
Art. 625. Children or their descendants succeed to their father and mother, grandfathers and grandmothers, or other ascendants, without distinction of sex or primogeniture, and whether they are the issue of the same or of different marriages. •
They inherit in equal portions and by heads when they are all in the same degree and in their own right; they inherit by roots when all, or some of them, come by representation.
Art. 626. If a person dying without issue, leave his father and mother, and also brothers or sisters, or nephews or nieces in the first degree, the succession is divided into two equal portions, one of which devolves to the father and mother, who share it equally, and the other to the brothers and sisters, nephews and nieces of the deceased, according to the rules laid down in the following section:
Art. 627. If, in the case of the preceding article, the father or mother had previously died, the share he or she would have received accrues to the survivor of them.
Art. 629. In the case of the preceding article, the succession is divided equally between the ascendants of the paternal line and those of the maternal line. The ascendant nearest in degree takes the half accruing to his line to the exclusion of all others.
Ascendants in the same degree inherit by heads in their line.
Art. 630. Ascendants inherit, to the exclusion of all others, property given by them to their children or other descendants who die without issue, where the objects given are still in kind in the succession, and if they have been alienated, the price, if still due, accrues to such ascendants. Vol. I. i't' No. 4.
They also inherit the right which the donee may have had of resuming the property thus given.
Art. 631. If the father and mother of a person dying without issue, or one of them, have survived him, his brothers and sisters, as well as his nephews and nieces in the first degree, are entitled to one-half of the succession.
Art. 632. If both father and mother have previously died, the brothers, sisters, and nephews and nieces in the first degree, of the deceased, succeed to him, to the exclusion of the ascendants and the other collaterals. They succeed either in their own right, or by representation.
Art. 633. The division of the half or of the whole of the succession coming to the brothers, sisters, nephews or neices, according to the terms of the two preceding articles, is effected in equal portions among them, if they be all born of the same marriage; if they be the issue of different marriages, an equal division is made between the two lines paternal and maternal of the deceased, those of the whole blood sharing in each line, and those of the half blood sharing each in his own line only. If there be brothers and sisters, nephews and nieces, on one side only, they inherit the whole of the succession to the exclusion of all the relations of the other line.
Art. 634. If the deceased, having left no issue, nor father nor mother, nor brothers, nor sisters, nor nephews, nor neices in the first degree, leave ascendants in one line only, the nearest of such ascendants takes one-half of the succession, the other half of which devolves to the nearest collateral relation of the other line. If, in the same case, there be no ascendant, the whole succession is divided into two equal portions, one of which devolves to the nearest collateral relation of the paternal line, and the other to the nearest of the maternal line. Among collaterals, saving the case of representation, the nearest excludes all the others; those who are in the same degree partake by heads.
Art. 935. Relations beyond the twelfth degree do not inherit. In default of relations within the heritable degree in one line, the relations of the other line inherit the whole.
Art. 636. When the deceased leaves no relations within the heritable degree, bis succession belongs to his surviving consort.
Art. 637. In default of a surviving consort, the succession falls to the Crown.
Art. 2098. The transmission of immoveables by succession must be registered by means of a declaration setting forth the name of the heir, his degree of relationship to the deceased, the name of the latter, the date of his death, and, lastly, the designation of the immoveable.
So long as the right of the purchaser has not been registered, all conveyances, transfers, hypothecs or real rights granted by him in respect of such immoveable are without effect.
J. H. Ghat.