1871 In re Ross's Trusts. V.-C.W. 290] *The Petition dealt only with the share of Margaret Ross, which practically was now the whole of the testator's residuary estate. The question was, whether, inasmuch as the claimants were all children or grandchildren of Alexander Ross, the son, and William Francis Ross-i. e., grandchildren or greatgrandchildren of the testator they took representatively and per stirpes under Alexander Ross, the son, and William Francis Ross, respectively or per capita? Mr. Greene, Q.C., and Mr. Millar, for the Petitioners : According to the true construction of the Statute of Distributions (22 & 23 Car. 2, c. 10, ss. 3, 5, and 7), this fund must be divided into moieties, and each moiety subdivided among the descendants, 1, of Alexander, the one son, and, 2, of William Francis, the other son, of the testator. But as those descendants in each case consist now of both grandchildren and greatgrandchildren of the testator-persons not all equally next of kin to him they can only take as representatives of their respective parents and not in their own right as the next of kin-i. e., they take per stirpes and not per capita: Davers v. Dewes (1); Williams on Executors (2); Lloyd v. Tench (3). Both Burton's Compendium of Real Property () and Watkins on Descents (5) clearly contracted Toller on Executors (6). The result is, that the Petitioners who claim under Alexander, the son, will each take one-third of their moiety. Mr. Bedwell, for the Respondents W. H. Ross, Francis Ross, James Selby, and Emma Margaret, his wife, and Thomas Ross, great-grandchildren and grandchildren of the testator, claiming under William Francis Ross : This case is a mixed one, where persons are entitled both per stirpes and per capita. If the claimants had been all grandchildren only, or all great-grandchildren only, the division of the fund would have been per capita-because all the claimants 291] would have been equally next of kin to the testator. The statute does not contemplate representation beyond "the (*) 8th Ed. 1856, pp. 433-433 (note) 434, 435. (1) 3 P. Wms. 49 (note D.). (2) Vol. ii. Ed. 1867, pp. 1385-1386. () 2 Ves. Sen. 213–216. (*) Ed. 1837, p. 259. (*) Ed. 1838, p. 374. V.-C.W. In re Ross's Trusts. 1871 children of an intestate, and such persons as legally represent such children, in case any of the said children be then dead" (sects. 3 and 5). That is to say, it looks at the possible death of the children, and the succession of their immediate descendants only, viz., the grandchildren of the intestate. This fund, therefore, ought now to be divided into sevenths-because, at the statutory limit of representation, there were seven grandchildren of the testator, each one entitled, as equally his next of kin, to take per capita. But their children, the great-grandchildren of the testator, can only take their parent's share, by representation, i.e., per stirpes; and the fund should be distributed accordingly. There is no reported case exactly like this one. Mr. Everitt, for the Respondents, the other great-grandchildren claiming under William Francis Ross, supported the same view. Mr. Methold, for the trustees. Mr. Greene, in reply: The statute alone is to be regarded in this case, and it only alludes to the next of kin in the 3d and 6th sections. In the latter it says that "in case there be no children, nor any legal representatives of them, then one moiety of the estate is to be allotted to the wife, and the residue distributed equally to every of the next of kindred of the intestate who are in equal degree, and those who legally represent them." That clearly shows that as long as there are lineal descendants the division must be per stirpes, and not per capita; and the distribution of the fund contended for by the Petitioner is the correct one. Dec. 21. SIR JOHN WICKENS, V.C.: The question reserved for judgment in this case is one as to the operation of the Statute of Distributions, where the intestate left grandchildren and great-grandchildren, but no children. Alexander Ross, by his will, dated the 17th of November, 1819, 1871 In re Ross's Trusts. V.-C.W. 292] *gave one-fifth of his residuary estate to his daughter Margaret Ross for life, with remainder to her children; and in default, "in trust for the person or persons who, under the statutes made for the distribution of the estates of intestates, would then be entitled thereto, in case I were then to die possessed thereof and intestate; and to be divided between and among such persons, if more than one, in the proportions in which the same would be divisible by virtue of the same statutes." Margaret Ross died on the 8th of June, 1871, unmarried. The testator died in November, 1819, leaving five children, of whom Margaret was the youngest. Of these the second and fourth died before 1871 without issue. Alexander, the eldest son, had three children, of whom two survived him in June, 1871; and one died before June, 1871, leaving a daughter still living. William Francis, the third son of the testator, and the only one besides Alexander, who left descendants living in 1871, had four children, viz., William, who died in December, 1870, leaving two children now living, Emma and Thomas, who are both still living, and Grace, who died in January, 1870, leaving four children, now living. Therefore, in June, 1871, there were two subsisting lines of the testator's descendants; the one springing from Alexander Ross the younger, and represented by two grandchildren of the testator and one great-grandchild, the only child of a deceased grandchild; the other springing from William Francis Ross, and represented by two grandchildren of the testator, two greatgrandchildren springing from his dead grandchild William, and four great-grandchildren springing from his dead grandchild Grace. The question on the Petition is as to the shares in which Alexander Ross's estate is to be distributed among those per sons. It is singular that a question of this sort should be uncovered by judicial authority; but no case bearing on it was cited at the Bar, and I have been unable to find any. The Statute of Distributions deals separately with the case of descendants, and that of next of kin not descendants. The case of children is provided for by the 5th section (which is referred to in the 3d), and the case of next of kin, not being descendants, by the 6th and 7th sections. The general effect of the pro V.-C.W. In re Ross's Trusts. 1871 visions is *that (supposing there to be no wife) the estate, [293 in case there are descendants, shall go between the children and their representatives; and in case there are no descendants, shall go amongst the next of kin or their representatives; and that the division is per capita where all the takers claim in their own right; and per stirpes where they, or some of them, claim as representatives of another person. It has been long settled that the word "representatives" in this Act includes only "descendants.” It has been further settled that where all the persons entitled to claim are collaterals equally near of kin, for instance, second cousins twice removed, they take per capita, because they all take in their own right; but that where there are no ancestors or descendants, and the nearest of kin are brothers and sisters, but there are also children of dead brothers and sisters, the latter, though not of the next of kin, may claim as representatives of the brother or sister from whom they spring, and may stand in the place of that brother or sister for the purpose of distribution; so that the distribution is per stirpes. This privilege is expressly limited by the statute, and does not extend to any more remote descendants of brothers and sisters than their children, and does not apply at all to any case where the next of kin are all more remote than brothers and sisters. There are, therefore, two cases provided for by the statute, viz., 1, where there are children, or the representatives — i. e.g the descendants of children; 2, where there are no descendants. It is the former case alone that has to be dealt with here. Considering the question as one solely on the construction of the statute, it is difficult, I think, to resist the conclusion that, if there are descendants but no children living to share the estate, it is to be divided into as many shares as there are children who have left living descendants, and that the descendants of each such child are to take as representing the child, and, of course, only the child's share. The Statute of Distributions were drawn by a civilian, Sir Walter Walker ('), and seems to have been intended to introduce the rules of the Roman civil law into this branch of English law. 294] It is therefore, perhaps, not irrelevant to remark that the (1) See Rex v. Raines, 1 Ld. Raym., 571–574. |