§ 86. When collateral relatives inherit; collateral relatives of equal degree. If there be no father or mother capable of inheriting the estate, it shall descend in the cases hereinafter specified to the collateral relatives of the intestate; and if there be several such relatives, all of equal degree of consanguinity to the intestate, the inheritance shall descend to them in equal parts, however remote from him the common degree of consanguinity may be.

Formerly 286, The Real Property Law (chap. 46, General Laws), chap. 547, Laws of 1896:

§ 286. When collateral relatives inherit; collateral relatives of equal degrees.- If there be no father or mother capable of inheriting the estate, it shall descend in the cases hereinafter specified to the collateral relatives of the intestate; and if there be several such relatives, all of equal degree of consanguinity to the intestate, the inheritance shall descend to them in equal parts, however remote from him the common degree of consanguinity may be.28

§ 286 was formerly 1 Revised Statutes, 752, 8 7:

7. If there be no father or mother, capable of inheriting the estate, it shall descend, in the cases hereinafter specified, to the collateral relatives of the intestate; and if there be several such relatives, all of equal degree of consanguinity to the intestate, the inheritance shall descend to them in equal parts, however remote from the intestate, the common degree of consanguinity may be.29

Account of the Legislation Embodied in Section 86. By the common law, collateral relations inherited on failure of lineal descendants of an intestate; the eldest male being always preferred under the rule of primogeniture.30 The common-law scheme of determining what collaterals inherit was a parentelic scheme and not a gradual scheme. Under the parentelic scheme the stock of each male ancestor was exhausted before proceeding to the next.31 But the maxim, "paterna paternis, materna maternis," was fully

28 Repealed by § 130, Decedent Estate Law.

29 Repealed by chap. 547, Laws of 1896, The Real Prop.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

30 Supra, p. 352, under § 81, Decedent Estate Law.

31 2 P. & M. 293.

recognized by the common law in all collateral successions.32 By the New York act of 1782,33 as amended in 1786,34 an inheritance of intestate, failing lineal descendants and father, went to his brothers and sisters in equal parts, and to the children of deceased brothers and sisters; the latter taking the share of their respective parents, jure repræsentationis or per stirpes.35 If there were no surviving brothers and sisters of intestate, still their children in every case took the inheritance per stirpes and not per capita, although such children all stood in equal degree from the intestate.3° This rule the Revised Statutes changed, so as to make it conform to the corresponding rule applicable to lineal descendants of the same degree.38 The act of 1786 did not provide for collateral succession, beyond brothers' and sisters' children. The Revised Statutes extended the succession to the remotest descendants of such brothers and sisters.40

37

39

Changes made by the Revised Statutes. The modifications in the act of 1786, introduced by the Revised Statutes, not only permitted collaterals beyond brothers' and sisters' children to take, but provided that they should take per capita and not per stirpes, whenever there was no surviving collateral kinsman of nearer degree to intestate." Thus, by the Revised Statutes, when intestate left surviving him only two sons of a deceased brother and one son of a deceased sister, and no other heirs, the three nephews took equal shares of the inheritance, as all stood in equal degree from intestate. This rule prevailed to the remotest degree of collaterals, and this act makes no change in this canon. By the amendment to the act of 1786, mentioned above, brothers and sisters of the half blood share, unless the inheritance came to intestate from an ancestor not of their blood.43

32 2 P. & M. 297.

33 Chap. 2, Laws of 1782, supra, p. 350.

34 Chap. 12, Laws of 1786, supra,

P. 351.

35 Pond v. Bergh, 10 Paige, 140, 148.

36 Jackson ex dem., etc. v. Thurman, 6 Johns. 322.

42

871 R. S. 752, §§ 7, 8 and 9. 38 § 82, Decedent Estate Law. 39 Hannan v. Osborn, 4 Paige, 336; Pond v. Bergh, 10 id. 140, 148.

40 Id., supra.

41 See note of revisers to chap. II, R. S., Appendix No. II, infra.

42 Supra, p. 355.

43 § 90, Decedent Estate Law.

Rule IV of Descents. Rule IV, then, concerns the succession of certain collateral kindred. In its entirety it is only partly expressed in this secton of this act the other and more important branch of it being reserved for the next two sections of the Decedent Estate Law." Rule IV of Descents as combined in these sections is, that where collaterals all stand in equal degree, however remote from intestate, they shall share the inheritance equally and not jure repræsentationis.45 But when such collaterals stand in unequal degree of consanguinity to intestate, the succession among them is then jure repræsentationis or per stirpes. Collateral descent, under the Revised Statutes, it is said, presents a very great similarity to succession under the Roman law as remodeled by Justinian.*7

49

Collateral Succession. The extent of collateral succession18 is now a matter of State regulation, juris positivi; the common law being displaced here, in practice, to a great extent. The collaterals who are entitled to take by intestate succession, under the law of New York, are (1) brothers and sisters and their descendants,50 (2) uncles and aunts and their descendants, to the remotest degree. In all such cases, "Rule IV of Descents "52 applies to the succession to the inheritance and they take as tenants in common.53 Beyond uncles and aunts and their descendants, the common-law rules still prevail.54

51

When Collaterals are "Descendants." While collaterals are not "descendants" within the meaning of our Statute of Wills,55

44 §§ 87, 88, 93, Decedent Estate Law.

45 Hyatt v. Pugsley, 33 Barb. 373, 377; S. C., 23 id. 285, 301; Kelly v. Kelly, 5 Lans. 443, 446; § 93, Decedent Estate Law.

464 Kent Comm. 400; $ 87, Decedent Estate Law; Pond v. Bergh, 10 Paige, 140, 148; Matter of Davenport, 172 N. Y. 454, 459.

47 Nov. 118, 127; 4 Kent Comm. 391, sed cf. p. 346, supra.

they certainly are within the meaning of many phrases of this article of this act.56

Section Incomplete. The rules respecting inheritances by collaterals is only partly expressed in this section, and it is necessary to have reference to other sections of this act to make it intelligible.57

60

Collateral Consanguinity. The various methods of ascertaining collateral consanguinity at common law have been more clearly explained by Blackstone than by any other familiar writer;58 so clearly that Watkins, in his Treatise on Descents, confined to that single topic, refuses to go over the ground.59 In reference to real property the common law of England is said to follow the gradual system of the canon law, rather than that of the civil law, in computing the degrees of collateral consanguinity. The Civilians took the sum of the degrees in both lines to the common ancestor; the Canonists took only the number of degrees in the longest line.61 Hence, for example, when the canon law prohibited all marriages between persons related to each other in the seventh degree it would restrain all marriages within the 14th degree of the civil law.62 The common-law rules of descent do not, however, as Mr. Christian noted, seem to depend on the gradual scheme, but, as Professor Maitland pointed out, on the parentelic.63 It is otherwise with the Statute of Distributions, where the method of the Civilians seems to be preferred to that of the Canonists.65

56 Cf. Conkling v. Brown, 8 Abb. Pr. (N. S.) 350, note; §§ 87, 88, 90, Decedent Estate Law; McCarthy v. Marsh, 5 N. Y. 263; Wheeler v. Clutterbuck, 52 id. 67. By chap. 106, Laws of 1904, grandparents are treated as "descendants," for the estate "descends" to them; see § 88, Decedent Estate Law, subd. 5. 57 §§ 81, 87, 88, 90, 93. 58 2 Black. Comm. 208, note. 59 Watkins on Descents, 90.

60 2 Black. Comm. 206, and Mr.

64

67

The "Arbores Consanguinitatis" which usually figure in the treatises of common-law writers on Descent will be found only perplexing in this State, since the Revised Statutes absolutely reversed most of the canons or rules on which they professed to be constructed. There can be little doubt, that collateral descents were reckoned at common law by the parentelic, and not by the gradual, scheme. A person's parentela was the sum of all those who traced descent from him. At common law the various parentela were successively called to the inheritance, in the order of their proximity to the dead man. If the inheritance was er parte paterna the parentcle on the father's side were first exhausted. If, on the other hand, the inheritance came from the side of the mother her parentclæ, subject to the canons in force, were first exhausted. But at common law the scheme in fact might be more complicated if the inheritance was to be treated as neither ex parte paterna nor ex parte materna, for then all the relatives on both sides were to be reckoned with. But even then, there were rules of the common law excluding the half blood and giving preference to males over females, or to the "worthiest of blood," as it was called, which much simplified their problem.

"969

Up to the present time, no very involved case of descents of real property to remote collaterals seems to have arisen in this State, and within reasonable distances of proximity of blood the problems, presented to the lawyer even under the existing statute of partible inheritances, are not very complicated. The real trouble will arise in the distant future, when it becomes necessary to resort to the residuary or ultimate canon of descents, now provided for in the 92d section of this act. Under that rule inheritances unprovided for in the statute descend according to the course of the common law, as it stood in 1777, or at the time of the adoption of the first Constitution of this State.70 Chancellor Kent, with his usual acumen, thought this rule a mistake and that the civil law should then control, though conceding that in such remote degrees of collateral inheritance almost any rule would serve."1

66 4 Kent Comm. 374.

67 See 2 P. & M. 294, seq.; 3 Holdsworth, Hist. Eng. Law, 145.

68 2 P. & M. 294.

69 Hale's Hist. Com. Law, 313,

70 See 92, Decedent Estate Law; Hunt v. Kingston, 3 Misc. 309.

714 Kent Comm. 411.