The outlook now is that before actual embarrassment arises in application, the law regulating descent of real property in this State will have undergone a revision of principles which already "loom portentous" in the political horizon. That the laws of property, including descent, are undergoing gradual but profound changes any casual observer can detect. That no pictorial tree of collateral descents (arbor consanguinitatis) can aid the demonstrations of the rules prescribed by the present statute is apparent from the cases reported in this State. We shall, therefore, omit it, as the lines of descent are generally in practice short, and easily constructed within the rules which govern proximate, rather than remote, descents.72

When the descent is so remote as to involve the application of section 92 of this act, the arbor would have to be reconstructed. Up to section 92 of this article the existing rule of descent, and partible inheritances, demand an arbor consanguinitatis framed on the gradual principle, rather than on the parentelic. When section 92 is applicable, the "arbor" would have to be constructed on the old parentelic scheme to be of any service to the practitioner.

72 See Matter of Reeve, 38 Misc. p. 413; McCarthy v. Marsh, 5 N. Y. at p. 265. 25

§ 87. Brothers and sisters and their descendants. If all the brothers and sisters of the intestate be living, the inheritance shall descend to them; if any of them be living and any be dead, to the brothers and sisters living, and the descendants, in whatever degree, of those dead; so that each living brother or sister shall inherit such share as would have descended to him or her if all the brothers and sisters of the intestate who shall have died, leaving issue, had been living, and so that such descendants in whatever degree shall collectively inherit the share which their parent would have received if living; and the same rule shall prevail as to all direct lineal descendants of every brother and sister of the intestate whenever such descendants are of unequal degrees.

Formerly § 287, The Real Property Law (chap. 46, General Laws), chap. 547, Laws of 1896:

8287. Brothers and sisters and their descendants.- If all the brothers and sisters of the intestate be living, the inheritance shall descend to them; if any of them be living and any be dead, to the brothers and sisters living, and the descendants, in whatever degree, of those dead; so that each living brother or sister shall inherit such share as would have descended to him or her if all the brothers and sisters of the intestate who shall have died, leaving issue, had been living, and so that such descendants in whatever degree shall collectively inherit the share which their parent would have received if living; and the same rule shall prevail as to all direct lineal descendants of every brother and sister of the intestate whenever such descendants are of unequal degrees.73

8287 was formerly I Revised Statutes, 752, §§ 8, 9:

§ 8. If all the brothers and sisters of the intestate be living, the inheritance shall descend to such brothers and sisters; if any of them be living, and any be dead, then to the brothers and sisters, and every of them who are living, and to the descendants of such brothers and sisters as shall have died; so that each brother or sister who shall be living, shall inherit such share as would have descended to him or her, if all the brothers and sisters of the intestate, who shall have died leaving issue, had been living; and so that such descendants shall inherit the share, which their parent would have received, if living.

73 Repealed by § 130, Decedent Estate Law.

§ 9. The same law of inheritance, prescribed in the last section, shall prevail, as to the other direct lineal descendants of every brother and sister of the intestate, to the remotest degree, whenever such descendants are of unequal degrees.74

Rule IV of Descents. Section 87 of this act states somewhat more explicitly and in detail the rule specified under the preceding section of the statute.75 The word "collectively" in this section was inserted in the draft of the Commissioners of Statutory Revision in 1896 by the Legislature,76 in order to make it more clear, when the division of an inheritance was intended to be per stirpes and when per capita. It is now most clear that if intestate leaves brothers and sisters surviving, they inherit equal shares, and that to the remotest degree the descendants of deceased brothers and sisters take by representation collectively the share their stirps would have taken if living." But if there be no brothers and sisters surviving, but only their children, then such children take per capita; all standing in equal degree of collateral succession from the intestate.78 If there be some nephews and nieces surviving and some dead leaving children, then such children (being of the degree of great-nephews and great-nieces of intestate) will succeed only to the share of their deceased parent, as the succession in that case is to heirs in unequal degree of propinquity, and consequently per stirpes under the present Rule IV, now regulating collateral descent.79

Half-Blood. The rule is also explicit that where the intestate is the first purchaser of the inheritance for value (i. e., has acquired it for value, and not by gift or devise by, from or through some relative),80 then his collaterals of the half blood are entitled to

74 Repealed, chap. 547, Laws of 1896.

75 § 86, supra.

76 Note of commissioners of statutory revision, Appendix III, infra.

77 Hannan v. Osborn, 4 Paige, 336, 340, 341; Matter of Healey, 27 Misc. Rep. 353; Matter of Davenport, 67 App. Div. 191, 172 N. Y. 454; § 87, Decedent Estate Law.

78 Hyatt v. Pugsley, 33 Barb. 373, 377; Pond v. Bergh, 10 Paige, 140, 148; Kelly v. Kelly, 5 Lans. 443, 446.

79 Pond v. Bergh, 10 Paige, 140, 148; Matter of Clark, 62 Hun, 275, 283; 4 Kent Comm. 400.

80 Infra, 890, Decedent Estate Law.

provided, of

share with those of the whole blood of intestate; course, he leaves no descendants or parents. The exclusion of the half blood in inheritances, according to the common law of England, although defended by that great jurist, Blackstone,82 came to be much reprobated by all the law reformers in England.83 The revisers of the Revised Statutes, who were very much in sympathy with Mr. Humphrey's strictures on the feudal parts of the common law, abolished the common-law rule excluding the half blood, but with their usual wisdom they abolished it provisionally.84

Alien Ancestor. The descent between brothers and sisters is immediate, and even before 1830, it made no difference in their right of succession inter se that their common father was an alien.85 But if some brothers and sisters are citizens and some aliens, the citizens take to the exclusion of the aliens.86

The courts of New York follow the general rule of the common law to the effect, that the descent between brothers is immediate,87 although in the great case of Collingwood v. Pace, Sir Orlando Bridgeman was of another opinion.88

81 § 90, Decedent Estate Law; Brown v. Burlingham, 5 Sandf. 418; Valentine V. Wetherill, 31 Barb. 655, 659; Schult v. Moll, 132 N. Y. 122, 125.

82 2 Black. Comm. 228; 2 P. & M. 300; 3 Holdsworth, Hist. Eng. Law,

151.

83 Humphrey's Real Prop. (2d ed.), 58, 59.

84 1 R. S. 753, § 15; § 90, Decedent Estate Law.

85 See Fowler's Real Prop. Law (3d ed), 127 and 8 95, Decedent Estate Law.

86 Leary v. Leary, 50 How. Pr.

122; Luhrs v. Eimer, 80 N. Y. 171, and see Fowler's Real Prop. Law (3d ed.), 127.

87

I Vent. 423; 2 Black. Comm. 212, 226; Hale's Com. Law, 258, 270; Litt., 88 2, 3; Co. Litt. 10 a & b, and 11a; Wright's Tenures, 180, 186, chap. 3; Watkins on Descents, 95. This rule has been since changed in England - Challis, 186- and brothers there now trace through their parents, which is regarded as anomalous. See note (4th ed.), Watkins on Descents, 96.

88 See Bannister's Edition of Bridgman's Judgments, p. 410.

§ 88. Brothers and sisters of father and mother and their descendants and grandparents. If there be no heir entitled to take, under either of the preceding sections, the inheritance, if it shall have come to the intestate on the part of the father, shall descend:

I. To the brothers and sisters of the father of the intestate in equal shares, if all be living.

2. If any be living, and any shall have died, leaving issue, to such brothers and sisters as shall be living and to the descendants of such as shall have died.

3. If all such brothers and sisters shall have died, to their descendants.

4. If there be no such brothers or sisters of such father, nor any descendants of such brothers or sisters, to the brothers and sisters of the mother of the intestate, and to the descendants of such as shall have died, or if all have died, to their descendants. But, if the inheritance shall have come to the intestate on the part of his mother, it shall descend to her brothers and sisters and their descendants; and if there be none, to the brothers and sisters of the father and their descendants, in the manner aforesaid. If the inheritance has not come to the intestate on the part of either father or mother, it shall descend to the brothers and sisters both of the father and mother of the intestate, and their descendants in the same manner. In all cases mentioned in this section the inheritance shall descend to the brothers and sisters of the intestate's father or mother, as the case may be, or to their descendants in like manner as if they had been the brothers and sisters of the intestate.

5. If there be no such brothers or sisters of such father or mother, nor any descendants of such brothers or sisters, the inheritance, if it shall have come to the intestate on the part of his father, shall descend to his father's parents, then living, in equal parts, and if they be dead, then to his mother's parents, then living, in equal parts; but if the in