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circumstances or context.13 Conversion, however, never takes place if the purpose may be accomplished without it.14

Partition Suits. Lands sold in partition suit may continue lands during the infancy of minors, for purposes of descent.15

Proceeds of Sale of Infants' Lands. The proceeds of sale of lands belonging to infants, or other persons sub tutela and incompetent, continue land for the purposes of descent, at least until the disability is removed and their election otherwise.16

Title by Descent Preferred to Devise. Where the heirs of testator are given by will the same estate or interest they would take by descent, their title is by descent, and not by devise.17

Statute Favors Blood of Ancestor. Upon a doubtful construction the court will still favor that line of descent which permits the descent to remain in the line of ancestral blood.18

I Revised Statutes, 755, Section 28. The cases bearing on the substance of former i Revised Statutes, 755, sections 28 and 29, are given in the comments on other sections of this act.19

Trustees of Columbia College, 87 id. 438, 444; Weintraub v. Siegel, 133 id. 677; Webb v. Sweet, 187 N. Y. 172; Matter of Caldwell, 188 id. 155; Harris v. Achilles, 129 App. Div. 847. See a distinction noted between a presumption of conversion of personalty into realty and a conversion of realty into personalty. Adams v. Smith, 20 Abb. N. C. 60. 13 Dayton

Brooklyn Heights Railroad Co., 119 App. Div. 32.


14 Chamberlain v. Taylor, 105 N. Y. 185; Fraser v. United Presbyterian Church, 124 id. 479; Matter of Weinstein, 43 Misc. 577.

15 § 2359, Code Civ. Pro.; Valentine v. Wetherill, 31 Barb. 655.

16 Code Civ. Pro., § 2359; Forman

v. Marsh, 1 N. Y. 544; Matter of McComb, 117 id. 378, 383; Wells v. Seeley, 47 Hun, 109; Matter of Woodworth, 5 Den. 156; Valentine v. Wetherill, 31 Barb. 655, 657; Matter of McMillan, 126 App. Div. 155; Ferry v. Dunham, 136 App. Div. 61.

17 Pyatt v. Waldo, 85 Fed. 399; Buckley v. Buckley, Il Barb. 43; Newkerk v. Newkerk, 2 Cai. 345, 352; Matter of Chapman, 133 App.

Div. 337

18 Knowlton v. Atkins, 134 N. Y. 313, 321; and see Wheeler v. Clutterbuck, 52 N. Y. 67.

19 For cases on 1 R. S. 755, $ 29, see below under $ 84, and Morris v. Ward, 36 N. Y. 587, 593.


Inheritance or Intestate Succession to Real Property. Degrees of kinship are reckoned in three ways: by going down, by going up, and by going sideways, ex transverso, ex latere, or collaterally, as it is called. The kinship going up is that of ascendants; the kinship coming down is that of descendants; and the kinship reckoned sidewise is that of brothers and sisters and their issue, and of uncles and aunts and their issue.20 When an inheritance goes to the father or the mother of the intestate, it “ascends," not " descends;" although “ descends is both in this statute and at common law used as the equivalent of “ascends or of “intestate succession by an ascendant."21 By the law of New York, stated in this chapter, no collateral can inherit if there be either “ descendants ascendants” of intestate, and no ascendant can inherit if there be descendants. Thus the three classes are reciprocally opposed or exclusive. The existing law of New York, stated in the succeeding sections of this statute, is said by Chancellor Kent to be very similar to the Roman law, as remodeled by Justinian in the 118th Novell.2 Chancellor Kent does not refer to the 127th Novell of Justinian. The 118th Novell excluded the children of brothers and sisters. The 127th Novell corrected this, and the 118th Novell and the 127th are always to be read together. There were other Novells completing the Justinian system, notably the 74th and the 89th, “Quibus modis naturales filii efficiantur legitimi, etc.” Perhaps it is as well not to press the resemblances of the Justinian legislation to our own too far. Although, now that " adoption” and legitimatio per subsequens matrimonium are grafted on our law, the lawyer may find many more analogies in the Roman law23 than in the common law, although the points of difference between the Roman law and the law of New York are sufficiently obvious. Our present system, for that matter, also presents points of resemblance to primitive English or Saxon law,24 before the establishment of the feudal system; but such similarity is barren of results of value to the student of the existing law in New York, and need only be noticed in passing.

20 Cf. Just. Inst. 3, 6, pr.

21 E. g., $$ 84, 85, Decedent Estate Law. Cf. Armstrong v. Moran, i Bradf. Surr. 314; Howard v. Barnes, 65 How. Pr. 122.

22 4 Kent Comm. 391.

23 See below "Adoption," under § 81, Decedent Estate Law.

24 Scrutton, Rom. & Eng. Law, passim. Cf. 2 Black. Cornm. 516.

Section 80 of this Act Has no Reference to the Sections Reenacting the Statute of Distributions. This section has no reference whatever to the sections of this article of the Decedent Estate Law, beginning with section 98. The Statute of Distributions, now incorporated in section 98 of this article, still regulates intestate successions to everything which is not lands, tenements, or hereditaments; in other words, it regulates distribution of personal property.25 The prior sections of this article exclusively regulate the devolution of the title to real property by descent, and the Real Property Law alone regulates the provision for the wife out of land called dower. Logically,"title to lands by descent” belongs to the "Real Property Law.” At least it might have been well, therefore, had the framers of this act made a new article of this chapter, beginning it with section 98, so as to emphasize the historical division so firmly imbedded in the law of this State.26 The legal workings of the statute regulating descents and that regulating the distribution of personal property are so different that placing them in the same article is confusing. With descent of real property surrogates' courts, as a rule, can have nothing whatever to do; but with the distribution of personalty they have all to do. Title to land by descent is founded on a totally distinct set of principles, or on statutes modifying the common law.27 The Statute of Distributions, on the other hand, never belonged to the common law; it recognizes a title through a relationship by affinity, such as marriage. The only real heir under the Statute of Distributions is the executor or the administrator, although he may be compelled in equity, or in the spiritual or surrogates' courts, to divide up his inheritance.28

In all events, the reader must observe with some care, that the present section, now under review, has nothing to do with property which is not lands, tenements, or hereditaments or with the sections of this article which do not relate to them.

25 Matter of Davenport, 172 N. Y. 454; Terry v. Dayton, 31 Barb. 519; Matter of Thompson, 41 Misc. 223; affd., 87 App. Div. 609; Matter of Fleming, 48 Misc. 589; Matter of Harden, 97 App. Div. 493 ; Matter of Hoes, 119 id. 288.

26 See above pp. 23, 40, 305, 321, 333, 334.

27 The common law is always a datum in statutes regulating descent. Collateral succession is founded on a "parentelic scheme" in the common law.

28 Among collaterals the scheme of division is what is called the “gradual scheme" as distinguished from the “parentelic scheme " which prevailed at common law.

Statute Which Governs Descent. As a rule the Statute of Descents, in force at the death of intestate governs. But where there is a testamentary trust with remainder to the heirs-at-law of the beneficiary for life, those who are such heirs-at-law, under the Statute of Descents in force when the remainder vests take, and not those who would have been his heirs under the statute in force at the time of testator's death.29

29 Gilliam v. Guaranty Trust Co., 186 N. Y. 127.

§ 81. General rule of descent. The real property of a person

who dies without devising the same shall descend :

1. To his lineal descendants.
2. To his father.
3. To his mother; and

4. To his collateral relatives, as prescribed in the following sections of this article.

Formerly $ 281, the Real Property Law (chap. 46, General Laws) chap. 547, Laws of 1896:

§ 281. General rule of descent.—The Real Property of a person who dies without devising the same shall descend:

1. To his lineal descendants.
2. To his father.
3. To his mother; and

4. To his collateral relatives,
as prescribed in the following sections of this article.30

$ 281 was formerly i Revised Statutes, 751, § 1: ģ

1. After this Chapter shall take effect, the real estate of every person, who shall die without devising the same, shall descend in manner following:

I. To his lineal descendants : 2. To his father: 3. To his mother: and 4. To his collateral relatives : Subject in all cases to the rules and regulations hereinafter prescribed. 21

Title by Descent. Descent, or hereditary succession, is the title whereby a person, on the death of his ancestor,82 acquires his estate by right of representation.33 The term "descent" is also employed to denote the rules regulating the devolution of a title to lands by hereditary transmission. Title by descent is by operation of law,34 and all canons of descent are regulated by law and are, therefore, juris positivi.95 Title by descent is favored over


30 Repealed by $ 130, Decedent Estate Law.

31 Repealed by chap. 547, Laws of 1896.

350, note; and see below under $ 90, Decedent Estate Law.

32 The term “ancestor in this article includes collateral kinsmen. McCarthy v. Marsh, 5 N. Y. 263 ; Wheeler v. Clutterbuck. 52 id. 67; Conkling v. Brown, 8 Abb. Pr. (N. S.)

23 4 Kent Comm. 374; 2 Black. Comm. 2012

34 2 Black. Comm. 201.

35 Matter of Mericlo, 63 How. Pr. 62, 65; Miller v. Miller, 18 Hun, 507, 516.

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