the next of kin to the intestate, who are in equal degree.— This point has been already twice determined in courts of equity. First in the case of Pool and Wilshaw, and afterwards in the case of Norbury and Vicars. But it has been insisted on for the grandfather that both these decrees are erroneous. Notwithstanding I shall adhere to the determination of the case of Pool and Wilshaw. I have seen the Lord Chief Baron Ward's and Mr. Baron Price's reports of this case; and also that of Mr. Dodd (afterwards Chief Baron . The last of which, though but short, is the clearest of the three. It was a bill brought by the grandmother, for a share of her grandson's estate, equally with his brother. And it was insisted on for her, that she was in equal degree of consanguinity, and equally intitled; but the reporter says, "All the "court contrary, and there has been no such usage since "the making of the statute." And I know of none since; though it is eighty-three years since that statute was made. The subsequent decree at the rolls was conformable to this; and therefore I shall not attempt to overthrow these determinations. And after a full discussion of the subject, the Lord Chancellor concludes, by saying, that since not only the reasons are on this side the question, but the determinations have been that way, and to overthrow them would tend to introduce inconveniences, as it might disturb distributions already made, which is an argument of the greatest weight in the law, I shall determine this point in favour of the brother, to the exclusion of the grandfather m.

Where the intestate leaves a grandmother and an aunt, the grandmother will be intitled in exclusion of the aunt; and as to this, Lord Chief Justice Holt said, that as by the common law father and mother were nearer than brother and sister, so grandfather and grandmother are nearer than uncle and aunt. And the grandmother is the root of the kindred, whereas the aunt is only a branch". So in a cause in the

m 4 Burn's Eccles. Law, 351. The case of Evelyn v. Evelyn is now reported by Mr. Ambler in his reports of 1790.

" Blackborough and Davis, 1 Salk. 38. 351. 12 Mod. 623. 1 P. Will. 51.

court of chancery, it was clearly agreed, that if one dies intestate, leaving a grandmother and uncles and aunts, the grandmother is intitled to the personal estate, in exclusion of the uncles and aunts °.-Where the next of kindred to the intestate were a grandfather by the father's side, and a grandmother by the mother's, it was decreed, that they shall take in equal moieties, as being in equal degree; for though the grandfather by the father's side may in some respects be more worthy of blood, yet in this respect dignity of blood is not material; though it is in respect of the descent of lands, as we shall see in the ensuing chapter.-Where the intestate left two aunts, and a nephew, and a niece, children of a deceased brother, Lord Chancellor Hardwicke ordered the surplus to be divided into four parts equally amongst them, they being all in equal degree 9, and therefore the children do not take by representation, but in their own right; but if the father of the nieces had been living, he would have taken the whole.

Here, as was proposed, we may observe, who those persons are that will be entitled to the intestate's personal estate, pursuant to the statutes of the 22 & 23 Car. II. and 1 Jac. II. As in the first instance, where a man dies leaving a wife and children; the wife has a third, the children and the representatives of deceased children the other twothirds. 2. If there be no wife, the children, and representatives of deceased children, have the whole; and that in exclusion of all ascendants and collaterals whatever. 3. In case there be no child or representative of any child, that is lineal descendant; then the wife has always one half, whoever has the other half. 4. If there be no wife nor lineal descendant, then the intestate's father, if living, has the whole. 5. If the father be dead, then the intestate's mother, brothers and sisters, and the children of the deceased brothers and sisters (if any), have the whole. 6. If there be no brother or sister of the intestate, or child of a brother or

• Woodroffe and Wickworth, Prec.

Cha. 527.

P1 P. Will. 53.

455.

Durand and Prestwood, 1 Atk.

sister, then the mother has the whole. 7. Where the deceased leaveth neither wife nor child, nor representative of such child, nor father, nor mother; but leaves brothers and sisters, and children of other brothers and sisters deceased; the brothers and sisters, and the children of the brothers and sisters deceased, have the whole, and the children of the brothers and sisters deceased take per stirpes, and not per capita; for the children of the deceased, being not equal in degree with their uncles and aunts, do take in this case, not in their own rights, but by way of representation of their parents deceased. As if there had been three brothers of the deceased, A, B, and C ; and A had died, leaving three children, and B leaving two; the distribution must be one-third to A's three children, another third to B's two children, and the remaining third to C the surviving brother. But if the three brothers had all been living, then the intestate's estate must have been divided into three equal portions, and distributed per capita, one to each, as has been said concerning the intestate's children and grandchildren. Where all the brothers and sisters of the intestate are dead, some having left children, as it may be, some a greater, others a less number; those children of the brothers and sisters deceased, take per capita each an equal share, as has been observed before respecting the intestate's grandchildren. 9. If a person die intestate, leaving neither wife nor child, nor representative of such child, nor father nor mother, nor brother nor sister, but hath a grandfather or grandmother living; then the grandfather or grandmother has the whole personal estate, in exclusion of the intestate's uncles and aunts; and if there be a grandfather on the father's side, and a grandmother on the mother's side, the whole is divided between them; and so it is if there be a grandmother on the father's side, and a grandfather on the mother's side. 10. If a person die intestate, leaving neither wife nor child, nor representative of such child, nor father nor mother, nor brother nor sister, nor grandfather nor grandmother, but leaving uncles and aunts, and brothers' or sisters' children; those uncles and aunts, whether on the

father's side or mother's, will share the intestate's whole personal estate, together with his brothers' and sisters' children.

If a person die intestate, leaving none of those relations, the general rule by the statute of distributions is, that his personal estate shall go to his next of kindred in equal degree; and those may be the children of his uncles or aunts, and his brothers' or sisters' grandchildren, all of whom, being in the fourth degree, will share equally alike; and if there is but one person that can take, as being the only person who is the nearest of kin, the statute vests the whole in that person. -For further discovering the degrees of kindred, when none of those that have been mentioned are to be found, we may observe the following table, which is laid down comformable to what has been before mentioned respecting the mode in which the different degrees of kindred are to be reckoned. We may likewise observe, that where there are relations, both by the father's side and mother's, in equal degree of kindred, they shall share equally alike; for here there is no difference (though there is in respect of real estate, as will be seen in the ensuing chapter), whether the relations be by the father's side or by the mother's: but those who are nearest of kin will be preferred, be it by either side'; and the half-blood will be equally intitled with those of the whole blood.

1 P. Will. 53.

If the intestate have no kindred, his real estate, which will be the subject of our ensuing chapter, will escheat to the king, or to the lord of the manor, or other person entitled thereto, by virtue of any grant from the crown; for where no person can claim any property, there the king shall be entitled by his prerogative. As to personal estate, concerning which we have been treating; where a bastard who has no kindred, being as the law terms him, nullius filius,