evidently settled the doubt by an exact re-enactment of the English Statute of Distributions. From its date it is hardly probable that this act of 1774 received the formal assent of the Crown. But the time was fast approaching when either the assent or the dissent of the Crown was quite immaterial to legislation in New York. During the long war for independence the act of 1774 was, no doubt, enforced "within the lines," and probably also in the southern tier of counties which remained British until the definitive treaty of peace; for there was nothing about the Statute of Distributions calculated to incur the hostility of the "loyalist" inhabitants in the British sphere. Indeed, as before stated, the principles of the English statute were probably acted on in New York by most ordinaries soon after the accession of James II.

It will be perceived that with the year 1774 the inquirer has at last reached terra firma, where he finds that the local Legislature of New York has successfully asserted its authority to be regarded as the real source of the Statute of Distributions. Soon after the peace, the new State government set about revising all the statute law adopted by the first Constitution of the State, and one of the first acts revised was the Statute of Distributions.1 It was then necessary to place the courts exercising the old ecclesiastical jurisdiction on a new foot, and this was accomplished by the same act. The new act of 1787 was almost a counterpart of the English Statute of Distributions, and it added the amendments thereto made in the reign of James II. From 1787 to the present time the course of legislation on this subject of distributions is clear. The Statute of Distributions of 1787 passed into the revision of 1801 made by Kent and Radcliffe and into that of 1813, made by Van Ness and Woodsworth. It was next revised, in that very comprehensive revision of 1830, known par excellence as the Revised Statutes." Thence the Statute of Distributions was taken in 1893, by an amendment of that year, into the second part of the Code of Civil Procedure, which had attempted to deal with

the whole subject of surrogates' jurisdictions and surrogates' laws.7 The latest revision of the statutes (The Consolidated Laws of 1909) has now transferred the Statute of Distributions to the section of the Decedent Estate Law now under consideration in these pages. Such is the local history of the Statute of Distributions.

The Revised Statutes. The revisers of 1830 found the English Statute of Distributions substantially re-enacted in this State by the course of legislation just indicated. They agreed with Lord Hardwicke, that it seemed to be "very incorrectly penned." The revisers, therefore, conformed the Revised Statutes to the later decisions on the act, but in other respects they professed to make no alterations in principle. They suggested that the Legislature amend the statute so as to provide, that if the deceased left a widow but no issue and no next of kin entitled to share in the personal property, it should all pass to the widow, and this amendment was enacted.1o They also proposed that posthumous children should take in all cases, and this proposal was also adopted.11 Otherwise, as the revisers stated, the Statute of Distributions of the reign of Charles II and James II was not altered in principle.12 That they have not succeeded in removing some defects which Lord Hardwicke noticed in the frame of the original Statute of Distributions, modern cases demonstrate.

The Statute of Charles II had provided that there should be no representation admitted among collaterals after brothers' and sisters' children,13 and this important provision the Revised Statutes continued.14

Taking by Representation. Persons taking by representation always take in reference to a prior class. If there are none of

7 §§ 2732, 2733, Code Civ. Pro., added by chap. 686, Laws of 1893.

8 See 898, supra.

9 See Revisers' Note No. 32, Appendix II, infra; 2 Kent Comm. 426, note.

10 I R. S. 96, § 75, subd. 3.

11 I R. S. 97, § 75, subd. 13. This was probably the law before.

12 Reviser's Note 32, Appendix II, infra; 2 Kent Comm. 426; Matter of Marsh, 5 Misc. 428.

13 See above p. 437.

14 2 R. S. 97, § 75, subd. II.

that class in existence their descendants do not take by representation, but per capita, and as next of kin according to degree.15

Legal Theories Concerning the Statute of Distributions. The legal theories upon which the Roman law administered a succession, ab intestato, by a juristic continuation of the persona of the ancestor, are in Anglo-American law worked out through legal theories relating to both the heir-at-law and the administrator.16 We find a faint reflection of these recondite theories at the threshold of the modern case law bearing on the present statute, for there can be no legal distribution of the estate of an intestate without the appointment of an administrator.17 To some extent, in modern legal theory, the persona of the intestate continues in the administrator, and the distributees take title, by relation, from the dead person himself. But by some jurists the administrator is regarded as the mere agent of the surrogate or ordinary to sequestrate and liquidate the goods and chattels of the deceased, and then to distribute the surplus according to law.1s These divergent conceptions of administration lead to different results: by the former the family rights are paramount; by the latter, the State is in supreme control and rights of successors emanate from it alone. But according to either theory administration must precede distribution, except where the husband is sole successor to his wife's personalty. Then no administration is necessary.19 It is obvious that where one person succeeds there can be no distribution even though there may be an administrator.20

In the course of observing the development of the office of administrator, we shall see that the rules of law in regard to his

15 Adams v. Smith, 20 Abb. N. C. 60, and note, p. 61; Matter of Southworth, 6 Dem. 216, 217; Fletcher v. Severs, 30 N. Y. St. Rep. 826; Hill v. Nye, 17 Hun, 457, 459. See below under this section pp. 451, 453.

16 See Holmes, Com. Law, Lecture X; Terry, Leading Principles of Anglo-Amer. Law, pp. 22, 32, 38; Amos, Science of Law, 183, 184; Holland, Jurisprudence, 136.

17 In re Lane's Estate, 20 N. Y.

Supp. 78; Ferrie v. Public Administrator, 3 Bradf. 249, 262.

18 § 2719, Code Civ. Pro.; Lowman v. Elmira, C. & N. R. R. Co., 85 Hun, 188.

19 See below under § 100, Decedent Estate Law, and 29 Car. II, chap. 3, $25; 2 R. L. 314, § 17; 2 R. S. 75, § 29.

203 P. Wms. 50; 4 Burn's Ecc. Law, 530.

powers and liabilities tend to be assimilated to the like rules governing executors.21 Both tend to become mere officers of the court, such as was the former "ordinary." To assert that the right of the immediate family to share in the personalty of an intestate is due wholly to statute is in effect to give a life estate to the dead. While this theory is popular at present and at the root of all death and succession taxes, it has little place in the past economic history of the civilized world.

Law of Last Domicile of Intestate Governs Distribution. Under former sections of this act "domicile has been defined with reference to the authorities.22 It was a postulate of the common law, that movable, or personal, property has no situs or visible locality, but is subject to the law which governs the person of the owner, with respect to the transmission of title to it by succession.23 This postulate of the common law became the law of this State by its express constitutional adoption. Consequently the law of the intestate's last domicile now governs the distribution of his personal property.24

Time for Fixing Distribution. The heirs at law and next of kin of an intestate are determined as of the date of his death for purposes of partition and distribution.25

Law Governing Distribution. The statute governing distributions is the law actually in force at the time of the intestate's death, and not that in force when distribution takes place.26

21 See 3 Holdsworth, Hist. Eng. Law, 440, and particularly Tomlins' Law Dict., tit. Executors, iv.

22 See above under §§ 23, 24, 44, 47, Decedent Estate Law.

23 § 380, Story, Conf. of Laws; Sill v. Worswick, 1 H. Black. 690.

24 § 47, Decedent Estate Law; 2 Kent Comm. 428; Holmes v. Remsen, 4 Johns. Ch. 460; 20 Johns. 229, 254; Shultz v. Pulver, 3 Paige, 182, affd., II Wend. 361; In re Wither's Estate, 15 N. Y. Supp. 133; Vroom v. Van Horne, 10 Paige, 549; Suarez v.

Mayor, etc. of New York, 2 Sandf. Ch. 173; Burr V. Sherwood, 3 Bradf. 85; The Public Administrator v. Hughes, I id. 125; Matter of Ruppauer, 15 Misc. 654, affd., 9 App. Div. 422; Moultrie v. Hunt, 23 N. Y. 394, 403; Dammert v. Osborn, 140 id. at p. 46.

25 Clark v. Cammann, 160 N. Y. 315; Grinnell v. Howland, 51 Misc. 132, and cases there cited.

26 Matter of McMillan, 126 App. Div. 155.

Statute of Distributions Applies only to Surplus after Debts Paid. The Statute of Distributions, now contained in the present section, relates only to the surplus of personal property remaining after the payment of debts.27 The administrator must first pay the debts of intestate, in an order prescribed by law,28 before he distributes the surplus under this section of the Decedent Estate Law.

Intestates. The Statute of Distributions controls, not only the property of those who die intestate, but also undisposed of property of those who die partly testate and partly intestate.29 It now relates to estates of women, as well as to estates of men.3

30

Who Entitled to Share in the Distribution. The lists of those originally entitled to share in the distribution of the personalty of intestates has been, by recent statutes of this State, artificially augmented by the inclusion of both adopted children and children born out of wedlock. These new classes of distribution have accordingly to be reckoned with in any scheme of distribution.

Adopted Children. Children by adoption are now by statute entitled to a distributive share of the personalty of their parents by adoption.31

Illegitimates. Illegitimate children are treated by statute as of the blood of the mother only, except in the instance referred to in the succeeding paragraph. They take her personal property as if legitimate.32

27 § 98, Decedent Estate Law. 28 8 2719, Code Civ. Pro.

29 Lefevre v. Lefevre, 59 N. Y. 431, 447; Sheldon v. Button, 5 Hun, 110; Canfield v. Crandall, 4 Dem. III; Matter of Devoe, 107 App. Div. 245; Matter of Coolidge, 85 id. 295; Doane v. Mercantile Trust Co. 160 N. Y. 494; Clark v. Cammann, 160 id. 709; Brown v. Richter, 25 App. Div. 239; Matter of Ebbets, 43 Misc. 575.

30 Kintz v. Friday, 4 Dem. 540, 545.

31 114, Domestic Relations Law, See above pp. 359, 360, under § 81, Decedent Estate Law. Cf. Smith v. Allen, 161 N. Y. 478, and a valuable note, 29 Abb. N. C. 49.

32 Chap. 37, Laws of 1897, now subd. 15, 98, Decedent Estate Law.