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CHAPTER 367.

AN ACT to amend the code of civil procedure, relative to the distribution of the estates of intestates.

Became a law, May 6, 1903, with the approval of the Governor. Passed, three-fifths being present.

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

Section 1. Subdivision five of section twenty-seven hundred and thirty-two of the code of civil procedure, is hereby amended to read as follows:

5. If there be no widow, and no children, and no representatives of a child, the whole surplus shall be distributed to the next of kin, in equal degree to the deceased, and their legal representatives; and if all the brothers and sisters of the intestate be living, the whole surplus shall be distributed to them; if any of them be living and any dead, to the brothers and sisters living, and the descendants in whatever degree of those dead; so that to each living brother or sister shall be distributed such share as would have been distributed to him or her if all the bothers and sisters of the intestate who shall have died leaving issue had been living, and so that there shall be distribution to such descendants in whatever degree, collectively, 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.

§ 2. three.44

This act shall take effect September first, nineteen hundred and

CHAPTER 539.

AN ACT to amend the code of civil procedure, relative to the succession to personal property.

Became a law, May 18, 1905, with the approval of the Governor. Passed, three-fifths being present.

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

Section 1. Subdivision twelve of section twenty-seven hundred thirtytwo of the code of civil procedure is hereby amended to read as follows: Subdivision 12. No representation shall be admitted among collaterals after brothers and sisters descendants.

§ 2. This act shall not apply to an estate of a decedent who shall have died prior to the time this act shall take effect. 83. This act shall take effect immediately.45

44 Repealed, § 130, Decedent Estate Law; 91, General Construction Law.

45 Repealed, § 130, Decedent Estate Law. See 91, General Construction Law.

CHAPTER 240.

AN ACT to amend the consolidated laws, and the amendments to the code of civil procedure and to the code of criminal procedure, as reported by the board of statutory consolidation and as passed at the legislative session of nineteen hundred and nine, for the purpose of correcting various errors, inaccuracies and inconsistencies therein, and of supplying various omissions therefrom.

Became a law, April 22, 1909, with the approval of the Governor. Passed, three-fifths being present.

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

*

Section 14. Subdivision twelve of section ninety-eight of said Decedent Estate Law is hereby amended to read as follows:

12. No representation shall be admitted among collaterals after brothers and sisters descendants. This subdivision shall not apply to the estate of a decedent who shall have died prior to May eighteenth, nineteen hundred and five.

ORIGINAL STATUTES OF DISTRIBUTION.

(22 & 23 Car. 2, c. 10.)46

Section 5. All ordinaries and every other person who by this act is enabled to make distribution of the surplusage of the estate of any person dying intestate, shall distribute the whole surplusage of such estate or estates in manner and form following, that is to say, one third part of the said surplusage to the wife of the intestate, and all the residue by equal portions to and amongst the children of such persons dying intestate, and such persons as legally represent such children, in case any of such children be then dead, other than such child or children (not being heir at law) who shall have any estate by the settlement of the intestate or shall be advanced by the intestate in his lifetime, by portion or portions equal to the share which shall by such distribution be allotted to the other children to whom such distribution is to be made; and in case any child, other than the heir at law, shall have any estate by settlement from the said intestate, or shall be advanced by the said intestate in his lifetime by portion not equal to the share which will be due to the other children by such distribution as aforesaid; then so much of the surplusage of the estate of such intestate to be distributed to such child or children as shall have any land by settlement from the intestate or where advanced in the lifetime of the intestate as shall make the estate of all the said children to be equal as near as can be esti

46 The English statute is the original of the New York acts after 1774, see below p. 444, this section.

mated; but the heir at law, notwithstanding any land that he shall have by descent or otherwise from the intestate, is to have an equal part in the distribution with the rest of the children, without any consideration of the value of the land which he hath by descent or otherwise from the intestate. § 6. And in case there shall be no children, nor any legal representatives of them, then one moiety of the said estate to be allotted to the widow of the intestate, the residue of the said estate to be distributed equally to every of the next of kindred of the intestate who are in equal degree, and those who legally represent them.

§ 7. Provided that there be no representations admitted among collaterals after brothers' and sisters' children; and in case there be no wife, then all the said estate to be distributed equally to and amongst the children; and in case there be no child, then to the next of kindred in equal degree of or unto the intestate and their legal representatives as aforesaid and in no other manner whatsoever.

(1 Jac. 2, Cap. 17.)

87. Provided also and it is further enacted that if after the death of a father any of his children shall die intestate without wife or children, in the lifetime of the mother, every brother and sister and the represe.itatives of them shall have an equal share with her, anything in the last mentioned acts to the contrary notwithstanding.

Historical Review. Before entering on the consideration of the Statute of Distributions, it may be well to review briefly the mode in which personal property devolved by the common law on the death of its owner. Historical perspectives, if not too long or too confused, serve very well to bring out the proportions of statutes even when they are modern. Indeed, the historical method of enquiry is now conceded to be that best adapted to most problems in the jural sciences.

Precisely when, in the rudimentary laws of England, the personal ownership of goods and chattels, or movable property now called "personal property," was so protected by the law of the land as to amount to what we now call "property," is a much more complicated historical problem than it is sometimes thought to be. It will be very obvious to any reader, that mere abstract or incorporeal rights, "choses in action," will probably denote a still more developed jurisprudence than even the recognized legal

47 This refers to the prior act 22 and 23 Car. II, chap. 10, and the statute of Frauds, 29 Car. II, chap. 3,

8 25. See Fowler's Pers. Prop. Law (2d ed.), Appendix IV, "Statute of Frauds."

ownership of movables. The very distinguished historians of the mediæval law of England indicate that these and like problems were far from settled as late as the thirteenth century.48 Certain is it, that the English conception of the transmission of a legal title to personal property on the death of its last possessor will be found to be later than the mere conception of the legal rights of the living to enjoy it during life. These are very elementary statements, but they will serve to indicate the historical lines on which the growth of legal doctrines concerning the title and the devolution of the ownership of personal property probably pursues in English law. That such problems possess great interest to historical jurists is shown by the numerous theories and essays on such subjects as "seisin" and "possession," which are important elements in the development of the modern law of property.49 All such problems are, however, too obscure for the purposes of mere illustration, and we pass them by.

Precisely when the legal conception of ownership of movables was so fully developed in England as to connote the right to pass the title on at death to others by a last will or testament, and in default thereof by a settled scheme of succession, recognized in the tribunals administering justice, are also larger historical problems than we need consider.50 Authentic history, comparatively more modern, shows us that both the power to pass on the title to movables or chattels by last will, and the right of succession thereto. in default of such will, were far from being settled during the two centuries following the Norman Conquest. If we consider that the earliest legal use of the term owner dates from the year 1340 and of the term "ownership" from the year 1583, we shall better realize that the "law of property," as now administered, is of comparatively recent date. The term "owner" is now correlative

48 2 P. & M. 148, 151.

49 Maitland's Mystery of Seisin, 2 Law Quar. Rev. 286, 481; Seisin of Chattels, 1 Law Quar. Rev. 324; The Beatitude of Seisin, 4 id. 24, 286; Possession in the Roman Law, 3 Law Quar. Rev. 32; Holmes, Com. Law, Lecture VI; 2 P. & M. chap. IV; 2

51

Holdsworth, 69, 78; Ames, The Disseisin of Chattels, 3 Select Essays, Anglo-American Law, 541.

50 See note 2, P. & M. 151, 152; 2 Holdsworth, Hist. Eng Law, 69. 512 Holdsworth, Hist. Eng. Law, 78, 81, 83.

with an absolute dominion, and "ownership ownership" now indicates in some way a dominion which transcends the span of a life. But a power to dispose of property without limitation as to amount, and an absolute legal right to succeed to the whole on the death of an intestate, are comparatively modern. As late as the reign of Henry II (A. D. 1154-1189) a man could dispose, anywhere in England, of only a third part of his goods by his last will: such restriction was probably then due in part to some arbitrary assertion of a superior jurisdiction, and in part due to a remnant of family law, perhaps a counterpart of the Roman legitim, which prescribed the right of children and dependants to succeed.52 Whatever the origin of the restriction may be, the restriction itself is always admitted by English lawyers.53 If we remember the contemporary influence of the Mediaeval Church, the right of a testator to dispose of even a third was so much limited by considerations pro salute anime as to be far from free. With these brief indications of the conditions prevailing in England prior to Magna Charta of 1215, we are now prepared to enter on the recognized changes which terminate in the existing law.

54

56

Magna Charta of 1215 provided that, "If any freeman dies intestate his chattels shall be distributed by the hands of his next kins folk and friends under the supervision of the Church, saving to every one of the debts owed to him by the dead." 55 Thenceforth the Church asserted in some way the right to supervise the distribution of the personalty of intestates.5 The Statute of Westminster charged the payment of debts on the third which the ordinary had destined to pious uses, instead of on the parts of the wife and children.58 A statute of 1357, originated the office of administrator,59 and it commanded the ordinaries to appoint the nearest relatives or friends of the intestate to administer his goods and recover debts. Administrators were to be accountable to the

52 These restrictions lasted until recently in the Province of York and in London, England. 1 Williams on Executors, 3.

531 Williams on Executors, 2. 54 See Introduction, pp. 19, 23.

55 Cap. 27.

56 2 P. & M. 324.

57 A. D. 1285.

58 Scrutton, Rom. Law and Law of England, 168.

593 Edw. III, chap. 11; White's Outlines of Legal Hist. 166.

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