CH. 3, s. 2. of kin are 6. If there is no widow, and there are no descendants PT. III. T. 1, and no next of kin, the whole shall go to the Crown. 1415. For the purpose of ascertaining who is nearest of kin or How next of blood with reference to personal estate exclusively, the ascertained. civil law mode of computing the degrees of relationship is adopted (c). And there is no preference between those on the side of the father and those on the side of the mother, or between the whole blood and the half; all in equal degree taking together (d). 1416. Where relatives take though not next of kin, or some As regards the next of kin there are three exceptions: (1). If the father is dead, but the mother is living, though she is the next of kin, yet each of the intestate's next of kin brothers and sisters or their children, but not remoter issue, shall take an equal share with her under the statute 1 Jac. 2, c. 17 (e). 1417. (2). When there are surviving brothers and sisters of the intestate who are the only next of kin, they shall not take the entirety, or, in case there is a widow, the whole of the moiety, to the exclusion of the child or children of any deceased brother or sister; but such child or children shall take the share which would have fallen to his, her, or their parent, if living. But the right of representation among collaterals does not extend to any other case (f). 1418. (3). Grandfathers and grandmothers, though they are in the second degree, as well as brothers and sisters, shall be excluded by a brother or sister (g). 1419. take in exclusion of others. ments. And with regard to the shares of the children, it must be Advance. observed that no child of the intestate for whom he has in his lifetime made any provision in lands, except his heir at (c) 2 Bl. Com. 515; Wms. Exors. 4th ed. 345; Burton, § 1409; Cooper v. Denison, 13 Sim. 290. (d) Wms. Exors. 4th ed. 348, 1292, 1297. (e) 2 Bl. Com. 516; Wms. Exors. 4th ed. 1293-5; Burton, § 1409. (f) 2 Bl. Com. 515; Wms. Exors. 1299; Burton, § 1411, n. (g) Wms. Exors. 4th ed. 1296; see Burton, § 1410. CH. 3, s. 2. PT. III. T. 1, law, and no child for whom he has made any pecuniary provision, shall have any part in the residue, if such provision was equal to the distributive shares of the other children; but if such provision was not equivalent thereto, then the child for whom it was made, or the representatives of such child, shall receive as much of the residue as will make it equivalent thereto (h). 1420. VI. The Mode of Distribution of the Personal Estate of an By the old law, if an intestate, who was a freeman of the city of London, or an inhabitant of the province of York (except the diocese of Chester), or of some parts of Wales, left a widow and children, one third of his personalty belonged to the widow, one third to the children, and one third to the administrator. If he left a widow but no children, or children but no widow, the widow in the first case, and the children in the second, took one moiety, and the administrator the other moiety. If he left neither widow nor children, the whole passed to the administrator. 1421. The part which passed to the administrator, and which was called "the dead man's part," might formerly be applied by the administrator to his own use, but since the stat. 1 Jac. 2, c. 17, it was distributable in the same manner as intestates' effects by the general law. 1422. As to the wife's customary part, a settlement of personalty on her before marriage will ordinarly be presumed to be and will operate as a bar of such customary part; and of course a jointure of land before marriage, in bar of her customary part, would have the same effect. But in both (h) Burton, § 1404-1407; Wms. Exors. 4th ed. 1285-1292. See Boyd v. Boyd, L. R. 4 Eq. 305. CH. 3, s. 2. cases, though the customary distribution was made in the PT. III. T. 1, same manner as if there were no widow, yet she had her share of the administrator's part under the statute, unless barred by special agreement. And before any division was made according to a custom, a deduction was to be made of the widow's apparel, and of the furniture of her bedchamber (which in London was called the widow's chamber), or £50 in lieu of it, if her husband's estate exceeded in value £2000. 1423. There was the same rule for equalization of the shares of the children, in the case of pecuniary advancements, as in corresponding cases under the general law. But in London an advancement out of real estate was not taken into account; while in the province of York, the heir at common law who inherited any land in fee, or in tail, however inconsiderable, in possession or reversion, was excluded from any filial portion or reasonable part (i). 1424. The custom of London adhered to the person, though resident in the country, or though his property were situate in the country. But the custom of York was confined to persons whose fixed and principal residence was within the province at the time of their decease. 1425. By the custom of London, the grandchildren or more remote issue took none of the customary part. And where there was more than one child, the orphanage part of the children was not fully vested in them till twenty-one; for, if they died before that age, their orphanage part survived to the other children. 1426. By the custom of London, terms for years attendant on the inheritance were not assets within the custom. And, ordinarily, leases were not assets within the custom of the province of York; though they were so by the special custom of some places within the province (k). 1427. (i) See 2 Bl. Com. 518-520; Wms. Exors. 4th ed. 1309-1328. (k) Wms. Exors. 4th ed. 1329. PT. III. T. 1, Special customs the distribution of personal estates of certain places to cease. Where a freeman of the city of London made a bequest on trusts which failed for remoteness, the property comprised in the bequest became distributable according to the general law; because by availing himself of the statutory power to make the bequest, he displaced the custom (7). But where he appointed no executor, and only made a bequest for life of a term, the residue of the term was distributable according to the custom (m). 1428. By the stat. 19 & 20 Vict. c. 94, entitled "An Act for concerning the uniform administration of intestates' estates," special customs of distribution are abolished, in the case of all intestates in persons dying on or after the 1st of January, 1857, and the personal estates of all persons so dying are to be distributed according to the rules of the general law: "The special customs concerning the distribution of the personal estate of intestates observed in the city of London, or in relation to the citizens and freemen of such city, and in the province of York, and certain other places, shall, with reference to all persons dying on or after the first day of January one thousand eight hundred and fifty-seven, wholly cease and determine, and the distribution of the personal estate of all parties so dying shall take place as if such customs had never existed, and as if the rules for the distribution of the personal estate of intestates generally prevalent in the province of Canterbury had prevailed throughout England and Wales, any law or statute to the contrary notwithstanding." 1429. (1) Pickford v. Brown, 2 K. & J. 426, 432. (m) Chappell v. Haynes, 4 K. & J. 163. TITLE II. OF ESCHEAT. TITLE II. Definition. ESCHEAT is an accidental determination of the tenure and PART III. reverting of the land to the original grantor or lord of the fee, by the death of a legal tenant in fee, without heirs inheritable to the estate or any devisee or alienee to claim it, or by an attainder for treason or murder (a). 1430. title para On an escheat, the lord is in by a title paramount and Lord in by extraneous to that of the tenant, or, as it is technically mount. termed, in the post: he is in of an estate from which the estate of the tenant was originally derived; in contradistinction to those who derive their title through or under the tenant, and therefore are said to be in the per (b). 1431. of an equit Where a person who has only an equitable estate dies No escheat without heirs, the estate does not escheat; for neither the able estate. Crown nor the lord can enter or seize where there is a legal tenant in possession; the right to the service of the tenant in possession being all that the Crown or lord can properly require. And hence where a mortgage in fee is made, and the mortgagor dies intestate and without heirs, the equity of redemption does not escheat, but belongs to the mortgagee, subject to the debts (c). 1432. exemptions By the stat. 13 & 14 Vict. c. 60 (which repeals the statutory stat. 11 Geo. 4 & 1 Will. 4, c. 60; 4 & 5 Will. 4, c. 23, from s. 2; and 1 & 2 Vict. c. 69, whereby similar provisions (a) Co. Litt. 13 a. Before the stat. 54 Geo. 3, c. 145, escheat was caused by attainder in many cases of felony. See 1 Steph. Com. 3rd ed. 423, 427; 2 Bl. Com. 246; 1 Steph. Com. 3rd ed. 415, 427. (b) Watk. Conv. 3rd ed. by Prest. 94; Co. Litt. 271 b, n. 1, II. (c) Beale v. Symonds, 16 Beav. 406. escheat. |