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"as if they were all daughters of the ” intestate. But as parceners held more as joint tenants than as tenants in common, the Revised Statutes saw fit to omit this illustration contained in the act of 1786. In essentials, the Revised Statutes only enlarged the scope of “Rule I of Descents," as formulated in 178244 in New York, and perpetuated in 1786.45 While this rule of partible inheritances seems novel, it is highly probable that it was but a return to Saxon institutions, for before the “Conquest," the descent of all, or nearly all, the lands in England was according to the custom of gavelkind, which prescribed equal partition among the male children of an intestate. 46 The existing limitations on the rule of partible inheritances are subsequently mentioned.47

Children. By this first rule of descents, all lineal descendants,48 male and female alike, in the same degree of descent from the common ancestor, take equally and per capita, as tenants in common. Thus, if intestate leave three children, A. and B., males, and C., a female, each child takes one-third of the inheritance. 19

Grandchildren. So, if intestate leave all grandchildren, but no children, all the grandchildren (each being in the same degree of descent from the grandparent) take equal shares, or per capita, and as tenants in common. Thus, if intestate leave four grandchildren by his son A., deceased, and one grandchild by his son B., deceased, each grandchild takes one-fifth of the inheritance.51

Great-grandchildren. If intestate leave all great-grandchildren and no children or grandchildren, the great-grandchildren do not take the share of their respective immediate ascendant, but

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all share equally in the inheritance of the common ancestor, being equal in degree of consanguinity from intestate. 52

Adopted Children. Adopted children now take by descent from parents by adoption.53

52

4

Kent Comm. 375; Pond v. Bergh, 10 Paige, 140, 148; Remsen, Intest. Success. 42. Cf. Adams v. Smith, 20 Abb. N. C. 60, 62.

53 Matter of Cook, 187 N. Y. 253, 261, and see above under $ 81, Decedent Estate Law; and § 114,

The Domestic Relations Law, which is set out in full on pp. 359, 360, supra. The Domestic Relations Law is express and clear, in that it confers the right of inheritance from adoptive parents on children by adoption.

8 83. Lineal descendants of unequal degree. If any of the de

scendants of such intestate be living, and any be dead, the inheritance shall descend to the living, and the descendants of the dead, so that each living descendant shall inherit such share as would have descended to him had all the descendants in the same degree of consanguinity who shall have died leaving issue been living; and so that issue of the descendants who shall have died shall respectively take the shares which their ancestors would have received.

Formerly $283, The Real Property Law (chap. 46, General Laws), chap. 547, Laws of 1896:

§ 283. Lineal descendents of unequal degree.— If any of the descendants of such intestate be living, and any be dead, the inheritance shall descend to the living, and the descendants of the dead, so that each living descendant shall inherit such share as would have descended to him had all the descendants in the same degree of consanguinity who shall have died leaving issue been living; and so that issue of the descendants who shall have died shall respectively take the shares which their ancestors would have received.54

§ 283 was formerly 1 Revised Statutes, 751, $$ 3 and 4:

$ 3. If any of the children of such intestate be living, and any be dead, the inheritance shall descend to the children who are living, and to the descendants of such children as shall have died; so that each child who shall be living, shall inherit such share as would have descended to him, if all the children of the intestate who shall have died leaving issue, had been living; and so that the descendants of each child who shall be dead, shall inherit the share, which their parent would have received if living 55

$ 4. The rule of descent prescribed in the last section, shall apply in every case where the descendants of the intestate, entitled to share in the inheritance, shall be of unequal degrees of consanguinity to the intestate; so that those who are in the nearest degree of consanguinity, shall take the shares which would have descended to them, had all the descendents in the same degree of consanguinity, who shall have died leaving issue, been living ; and so that the issue of the descendants who shall have died, shall respectively take the shares, which their parents, if living, would have received. 56

56 Repealed by chap. 547, Laws of 1896, The Real Prop. Law, art. 10.

54 Repealed by $ 130, Decedent Estate Law.

55 Repealed by chap. 547, Laws of 1896, The Real Prop. Law, art. 10.

History of this section. The archetype of this section of the Decedent Estate Law was derived indirectly from the second canon of descents in the act of 1782,57 revised in 1786.58

Interpretation of this Section; Rule II of Descents. This section contains the second rule of descent, that surviving lineal descendants of the same degree take per capita, as between themselves, and that the issue or the descendants of such of that degree as are dead take the share of their immediate ancestor per stirpes inter se, or, in other words, take by representation, jure repræsentationis.69 Thus, if intestate leave a son and also two children of a deceased daughter, the son will take an undivided one-half, and the daughter's two children will each take a moiety of the other undivided one-half, and these three heirs-at-law will then hold as tenants in common, until sale or partition. The rule stated in this section is known from its numbering in the acts of 1782 and 1786, as the Second Canon or Rule of Descents.” 61

Adopted Children. Adopted children of a deceased descendant will hardly be let into an intestate succession under this section of the Decedent Estate Law.82 But the adopted children of an intestate will share,63 subject no doubt to the rule stated in section 90 of this act.

Children Legitimated per Subsequens Matrimonium Certain illegitimate children, though formerly not regarded as entitled to share in an intestate succession, now are by statute made competent as heirs after the intermarriage of their parents.64

57 Laws of 1782, chap. 2, supra, p. 350.

58 Laws of 1786, chap. 12, supra, p. 351.

69 See Adams v. Smith, 20 Abb. N. C. 60, note at pp. 61, 62 for definition of representation.

50 4 Kent Comm. 390; Rems. Intes. Suc. 40; Pond v. Bergh, 10 Paige,

62 See under $ 81, Decedent Estate Law, and $ 114, Dom. Rel. Law, supra, pp. 359, 360; Matter of Hopkins, 43 Misc. 464, 102 App. Div. 458.

63 Laws of 1896, chap. 272; $ 114, Dom. Rel. Law, supra, p. 360.

64 g 89, Decedent Estate Law; Dom. Rel. Law, $ 24; Smith v. Lansing, 24 Misc. 566. See below under § 89, Decedent Estate Law.

60

140, 148.

61 4 Kent Comm. 390.

§ 84. When father inherits. If the intestate die without law

ful descendants, and leave a father, the inheritance shall go to such father, unless the inheritance came to the intestate on the part of his mother, and she be living; if she be dead, the inheritance descending on her part shall go to the father for life, and the reversion to the brothers and sisters of the intestate and their descendants, according to the law of inheritance by collateral relatives hereinafter provided; if there be no such brothers or sisters or their descendants living, such inheritance shall descend to the father in fee.

Formerly $ 284, The Real Property Law (chap. 46, General Laws), chap. 547, Laws of 1896:

§ 284. When father inherits.- If the intestate die without lawful descendants, and leave a father, the inheritance shall go to such father, unless the inheritance came to the intestate on the part of his mother, and she be living; if she be dead, the inheritance descending on her part shall go to the father for life, and the reversion to the brothers and sisters of the intestate and their descendants, according to the law of inheritance by collateral relatives hereinafter provided; if there be no such brothers or sisters or their descendants living, such inheritance shall descend to the father in fee.65

$ 284 was formerly 1 Revised Statutes, 751, § 5, as amended by chapter 320, Laws of 1831, § 13:

$ 5. In case the intestate shall die without lawful descendants, and leaving a father, then the inheritance shall go to such father, unless the inheritance came to the intestate, on the part of his mother. 66

8 13. In case the intestate shall die without lawful descendants, and leaving a father, then the inheritance shall go to such father, unless the inheritance came to the intestate, on the part of his mother, and such mother be living; but if such mother be dead, the inheritance descending on her part shall go to the father for life and the reversion to the brothers and sisters of the intestate and their descendants, according to the law of inheritance by collateral relatives hereinafter provided; if there be no such brothers or sisters, or their descendants living, such inheritance shall descend to the father in fee. (Laws of 1830, chap. 320, 8 13.) 67

67 Repealed, chap. 547, Laws of 1896, by repeal of R. S.

65 Repealed by $ 130, Decedent Estate Law.

66 Amended, $ 13, chap. 320, Laws of 1830.

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