PART II. CHAPTER I. THE LAW OF DESCENT AND DISTRIBUTION. Sec. 1028. DESCENT AND DISTRIBUTION PART OF THE LAW OF AFTER DEATH.-The law of Descent and Distribution, as we have seen (Sec. 922), is a part of the general subject of the law of succession after death, the statutes of Descent and Distribution being the legal distribution of a decedent's estate where he has failed to make a distribution for himself by will, that is, in effect, it is the will which the law makes for a man as distinguished from the will of the owner. This "Will of Law" is divided into-1. Substantive or declaratory law, and 2, adjective law, or the machinery of the law, as pleading, practice, evidence, etc., by which the substantive law is carried into effect. The statutes of descent and distribution form the declaratory law under this subject, and "Administration" includes the machinery of the law to carry the substantive provisions into effect. Sec. 1029. MEANING OF THE WORDS "DESCENT" AND "DISTRIBUTION."-Where the owner of property has left no will at his death, or has left property which his will does not dispose of, the law determines the disposition which shall be made of it. The will of the law is declared by statutes called usually, when referring to real property, "Statutes of Descent," and when referring to personal property, "Statutes of Distribution." While the whole subject is styled the law of "Descent and Distribution." Sec. 1030. NATURE OF THE RIGHT TO TAKE PROPERTY BY STATUTES OF DESCENT AND DISTRIBUTION.-The right to take property by descent or distribution is not an absolute one, but depends entirely on the statutes. These statutes may be changed at any time before the title to property has become vested under them. And all mere expectant rights and interests may be cut off by such change in the statutes, but not vested rights or inter ests. These statutes sometimes provide, that the same person shall take both the real and personal estate of the intestate, but usually a distinction is made. The law in force at the time of the intestate's death is the law which controls the division of the property. This excludes prior statutes and subsequent ones. Sec. 1031. WHAT LAW GOVERNS DESCENT AND DISTRIBUTION?-The descent of real property is governed by the law of the place where the land is situated, technically called the lex rei sita.* Personal property is distributed in accordance with the law of the intestate's domicile at the time of his death. *Jones v. Robinson, 17 O. S. 171; Jennings v. Jennings, 21 O. S. 56. ་ A person's domicile is where he has his true, fixed and permanent home and principal establishment to which when he is absent, it is his intention to return.* Every person is deemed in law to have a domicile somewhere. And by the American rule one's original domicile continues until a new one is gained.‡ Mere absence from one's fixed home though long continued does not work a change of domicile so long as there is an intention to return, but a temporary absence may become general and unlimited, and will work a change of domicile.§ The domicile of a minor child is prima facie that of the parent, or the father. The domicile of a married woman is prima facie that of her husband,|| but she may gain a separate residence for the purpose of a suit with her husband.** PROVISIONS OF THE Sec. 1032. THE STATUTES OF DESCENT.-The rules of descent, *Anderson v. Anderson, 42 Vt. 250; Horne v. Horne, 9 Ired. L. 99; Daniel v. Sullivan, 46 Ga. 277. †Abington v. No. Bridgewater, 23 Pick. (Mass.) 170; Crawford v. Wilson, 4 Barb. (N. Y.) 504. Abington v. No. Bridgewater, 23 Pick. 170; Littlefield v. Brooks, 50 Me. 575; Clark v. Likens, 26 N. J. L. 207. §Wilbraham v. Ludlow, 99 Mass. 587; Wayne v. Greene, 21 Me. 357; McKowen v. McGuire, 15 La. An. 637; Henrietta v. Oxford, 2 O. S. 32. Hart v. Limbsey, 17 N. H. 235; Warren v. Hofer, 12 Ind. 167. ||Davis v. Davis, 30 Ill. 186; Green v. Green, 11 Pick. 410. **Green v. Windham, 13 Me. 227. as they prevailed at Common Law, have been almost entirely abrogated and amended by the State statutes in this country. At Common Law there were six canons of descent, which may be found in the various works on real property.* The statutes in the several States vary to some extent and must be consulted in each case to determine the exact order of descent, but certain general provisions are common to all and these we will now discuss briefly. if 1. Quite universally, the children of the deceased, any, inherit his real estate in equal shares. The descendants of any deceased child taking by right of representation the same share that the deceased child would have taken if living, that is, technically speaking the rule of descent is per stirpes.† 2. Adopted children will take as heirs of their adopted parents, where that is the effect of the statute authorizing the adoption. They may also take as heirs of their natural parents unless excluded. But their adopted parents can not take as their heirs.‡ 3. Children born after the death of the intestate, take as though born in his life time.§ 4. Illegitimate children, had at Common Law no in *See Williams on Real Property and also a later volume of the Cyclopedia of Law, covering the subject of Real Property; also see Abbott's Law Dictionary, "Descent." †Rev. Stat. of Ohio, Secs. 4158-4159. Rev. Stat. of Ohio, Sec. 3140; Upson Admr. v. Noble, 35 O. S. 655. §Rev. Stat. of Ohio, Sec. 4179. |