of construction, collaterals, such as brothers or sisters, from whom the inheritance came, are regarded as immediate ancestors.22 That the decisions just cited are not those best calculated to keep property strictly in the line from which the inheritance comes, perhaps not very remotely, may be seen from an examination of the cases cited. A construction better calculated for that purpose would have been one which makes title by descent from the last owner descend to his collaterals of the blood of the last purchaser, donor, or devisor. Such a construction would not, it would seem, ill-accord with the obvious intent of the statute, and would make the descent in all cases follow more strictly the blood of such last purchaser, donor, or devisor. This would certainly be a bolder application of the original doctrine, "paterna paternis, materna maternis," which the revisers of the New York statutes had in mind. But the whole question is one of considerable nicety, and doubtless the construction of the adjudications cited is calculated to make the root of descent proximate, rather than remote, and this construction, therefore, tends to both simplicity and convenience. But before dismissing this subject let us consider very briefly the argument why such a construction would have been more in accord with the intention of the framers of the Revised Statutes. Collateral Inheritances. In all collateral inheritances of land, beyond the descendants of brothers and sisters of the whole blood, the Revised Statutes and its present re-enactment, the Decedent Estate Law, recognize to some extent the old principle, " paterna paternis, materna maternis," and that inheritances of land should still follow the blood of the last purchaser, provided such purchase is not too remote, and within reasonable limits.23 That is, the expressions "on the part of his mother" and "on the part of his 22 Wheeler v. Clutterbuck, 52 N. Y. 67, 72; Valentine v. Wetherill, 31 Barb. at p. 659; Righter v. Ludwig, 39 Misc. 416, 420; Ferry v. Dunham, 136 App. Div. at p. 63. Cf. Wells v. Seeley, 47 Hun, p. 116. 23 §§ 88, 90, Decedent Estate Law. Cf. Wilson's Modern English Law, 44, 206; Knowlton v. Atkins, 134 N. Y. at p. 321. father" seem to indicate an intention to continue to exclude from the inheritance those not of the blood of the donor, devisor, or purchaser from whom the estate is derived. It will be remembered that in England also, shortly after the Revised Statutes, the common law of descent was greatly changed. The common law maxim "seisina facit stipitem" was there so altered as to cause a title by descent to be deduced always from the last purchaser, instead of from the person last seised,25 In more modern times in England, title by descent is said to be deduced from the last owner, and no longer from the last purchaser.26 There can be little doubt from the professional discussions in the air about the time of the preparation and enactment of the Revised Statutes,27 that the revisers intended to prescribe the antecedent rule, "paterna paternis, materna maternis," by the adoption of the expressions in the statutes, "on the part of the mother," and "on the part of the father," for after all these expressions were mere translations of the common-law terms "ex parte paterna" and "ex parte materna." 28 As terms of the common law they had a precise and relative meaning in respect of collateral inheritances of estates in real property.29 The express retention of such terms in their appropriate situation, by such learned men as the revisers of the Revised Statutes, seems to indicate that they certainly contemplated that estates should descend as at common law collaterally to the blood of the grantor, donor, or devisor from whom the property came,30 and they probably contemplated that they should descend from the last owner to his collaterals of the blood of the last purchaser, for that would be the surest way to give effect to 24 §§ 84, 85, 87, 38, 90, Decedent Estate Law; Beebee v. Griffing, 14 N. Y. at pp. 243, 244. 25 3 & 4 Will. IV, chap. 106. 26 Wilson, Modern English Law, 206 (ed. of 1875). Cf. Challis, 185; Goodeve R. P. 144 (ed. of 1897). 27 See on Descent, 1st ed. of Humphreys on Real Property and (24) ed.), pp. 58, 59. The second edition omits much on this subject. See Preface to 2d edition. 28 Beebee v. Griffing, 14 N. Y. at p. 244. 29 Perkins v. Smith, 116 N. Y. 441; Fowler's Real Prop. Law (3d ed.), 94; supra, p. 371, under § 84, Decedent Estate Law. 30 See $$ 80, 84, 85, 87, 88, 90, Decedent Estate Law; Knowlton v. Atkins, 134 N. Y. 313, 321; Wheeler v. Clutterbuck, 52 id. 67; Beebee v. Griffing, 14 id. at p. 244. 66 the maxim, "paterna paternis, materna maternis." We say that the revisers probably so intended," for this point is conjectural rather than demonstrative, although the reasons for such conjecture have been amply detailed in our commentary on this article. Undoubtedly it was the opinion of Mr. Justice Story in Gardner v. Collins which caused the courts of New York to incline the other way, and to construe the statute as they have done.32 The result has been in some cases to defeat the application of the oldest rule in any law of descents, "paterna paternis, materna maternis." By treating an ancestor, from whom an owner takes by immediate descent, as the purchaser, or root of descent, the late adjudications often do, in effect, what the old cases call "break the descent." 33 The consequence is that at the present day a gift may not pursue the line of devolution in the blood of the donor, which is the line the Revised Statutes probably intended.34 37 Distribution of Personalty. In 1898, an amendment to the Code of Civil Procedures made the Statute of Distributions of personal property follow the real property rule, relating to the inheritance by remote collaterals.30 In 1903 the rule was further changed. But in 1905 this was again altered, so as to provide that no representation should be admitted among collaterals after brothers' and sisters' descendants.38 But as this last change will be again noticed, under section 98 of this act, it need not be pursued at this point, as it is not longer relevant to the article on descents. 312 Peters, 53. 32 Beebee v. Griffith, 14 N. Y. at p. 243; Hyatt v. Pugsley, 33 Barb. at p. 376; Wheeler v. Cluttterbuck, 52 N. Y. at p. 70; Valentine v. Wetherill, 31 Barb. at pp. 659, 660. 33 Williams on Seisin, 62. 34 See for example Righter v. Ludwig, 39 Misc. 416, 420; Knowlton v. Atkins, 134 N. Y. 313, 317; Ferry v. Dunham, 136 App. Div. at p. 63. 352732, Code Civ. Pro. 36 Matter of Davenport, 36 Misc. 476 Matter of Davenport, 67 App. Div. 191, 172 N. Y. 454; Matter of Dunning, 48 Misc. 482; Matter of McMillan, 126 App. Div. 155, 163; Matter of Hardin, 97 id. 493; Matter of Devoe, 107 id. 245; Matter of Hoes, 119 id. 288; Matter of Nichols, 60 Misc. 299; Matter of Barry, 62 id. 456. 37 Chap. 367, Laws of 1903. Alien Uncles and Aunts. Alien uncles and aunts are excluded in intestate successions by collaterals,39 unless special acts permit such succession.40 Grandparents. The admission of grandparents into the statutory table of descents is entirely new and due to the recent act of the Legislature adding subdivision 5 to section 288 of The Real Property Law of 1896 as first enacted. The original scheme of the statute excluded grandparents, or ascendants beyond father and mother.12 41 If great-grandparents are now entitled to inherit, it must be in default of all heirs and other ascendants and in the rare instances tolerated at common law.43 39 Leary v. Leary, 50 How. Pr. 122; et supra, p. 363. 40 Fowler's Real Prop. Law (3d ed.), 106, 125, 126. 41 Chap. 106, Laws of 1904; see above, pp. 376, 389, 391. 424 Kent Comm. 407. 43 § 92, Decedent Estate Law; 2 P. Wms. 613. § 89. Illegitimate children. If an intestate who shall have been illegitimate die without lawful issue, or illegitimate issue entitled to take, under this section, the inheritance shall descend to his mother; if she be dead, to his relatives on her part, as if he had been legitimate. If a woman die without lawful issue, leaving an illegitimate child, the inheritance shall descend to him as if he were legitimate. In any other case illegitimate children or relatives shall not inherit. Formerly § 289, The Real Property Law (chap. 46, General Laws), chap. 547, Laws of 1896: § 289. Illegitimate children.- If an intestate who shall have been illegitimate die without lawful issue, or illegitimate issue entitled to take, under this section, the inheritance shall descend to his mother; if she be dead, to his relatives on her part, as if he had been legitimate, If a woman die without lawful issue, leaving an illegitimate child, the inheritance shall descend to him as if he were legitimate. In any other case illegitimate children or relatives shall not inherit.44 Section 289 was formerly 1 Revised Statutes, 753, § 14; 1 Revised Statutes, 754, § 19, and chapter 547, Laws of 1855, § 1. 14. In case of the death, without descendants, of an intestate who shall have been illegitimate, the inheritance shall descend to his mother; if she be dead, it shall descend to the relatives of the intestate on the part of the mother, as if the intestate had been legitimate.45 $ 19. Children and relatives who are illegitimate, shall not be entitled to inherit, under any of the provisions of this Chapter.46 § 1. Illegitimate children, in default of lawful issue, may inherit real and personal property from their mother as if legitimate; but nothing in this act shall affect any right or title in or to any real or personal property already vested in the lawful heirs of any person heretofore deceased.47 Comment on Section 89. By the common law a bastard or illegitimate child was one conceived or born out of lawful matrimony.48 By the common law, a subsequent marriage of the par 44 Repealed by $ 130, Decedent Estate Law. 45 Repealed, chap. 547, Laws of 1896. 46 Repealed, chap. 547, Laws of 47 Repealed, chap. 547, Laws of 1896. 48 I Black. Comm. 454; 2 Kent Comm. 211, 212. |