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Children Legitimated per Subsequens Matrimonium. By an act of 1895, the Legislature set at rest the long dispute between the Canonists and the common lawyers, relative to the effect of a subsequent marriage on the status of children born prior to the marriage.33 The work of the Barons at Merton, who in the year 1235 rejected it, was in New York in 1895 undone 34 But it was nobly undone, as it gave effect to principles which protected the innocent and unfortunate. Such children are now by statute legitimated by the subsequent marriage of their parents and entitled to share in a distribution of their intestate parent's personalty.35 Not only that, but their status for all purposes becomes that of legitimate children.36


Posthumous Children. Posthumous children were prior to the Revised Statutes clearly entitled to a distributive share of the father's estate, for in the eye of the law they were in esse.3 The revisers of the Revised Statutes, notwithstanding Lord Hardwicke's judgment in 1740, that a posthumous sister was entitled, 38 did not think it clear, how far the rule applied, and they consequently reported a new section to give effect to it in all cases. This provision is now re-enacted in the present section of this act.40 The burden of proof is on one claiming through a posthumous child to show it was born alive. 41

Half-Blood. The half-blood were admitted to administration after the statutes compelling the ordinaries to depute the adminis

33 Chap. 531, Laws of 1895, made $ 19, chap. 272, Laws of 1896, amended chap. 725, Laws of 1899; chap. 742, Laws of 1907, and all now consolidated in $ 24, Domestic Relations Law; Miller v. Miller, 91 N.

37 Ball v. Smith, 2 Freem. 230; 2 P. Wms. 466; Barnet v. Man, I Ves. Sr. 156.

38 Wallis Hodgson, cited 4 Burn's Ecc. Law, 561.

39 See Revisers' Note 32, Appendix II, infra; 2 R. S. 97, $ 75, subd.


Y. 315.


34 See under $ 89, Decedent Estate Law, pp. 399, 400.

35 $ 24, Domestic Relations Law.

36 See above pp. 399, 400, under $ 89, Decedent Estate Law. Cf. Matter of Barringer, 29 Misc. 457; Matter of Mericlo, 63 How. Pr. 62.

40 $ 98 (subd. 14), Decedent Estate Law.

41 Bender v. Terwilliger, 48 App. Div. 371; Matter of Smith, 136 id.



tration, for they were kindred of the intestate, and only excluded from the inheritance of land on feudal reasons. After the Statute of Distributions, they were always treated as entitled to share with the whole blood,44 as the old law of England differed in this particular, according as the succession regarded land or personal property." The Revised Statutes codified this construction of the old statute,and thence the provision passed into the existing act,"? and now the half-blood share with the whole-blood. 46

General Scheme of Statute of Distribution. Distributees standing in a class equally proximate in point of consanguinity to the intestate are entitled to share equally inter se.49 When such distributees are of unequal degrees in respect of consanguinity to intestate, and representation is allowed, those more remote take per stirpes, or by representation, the shares of those they represent.50 Where representation is allowed, the number of shares for division is always primarily determined by the surviving distributees, nearest to intestate in point of consanguinity. These form the first class, 51 which, however, includes those who have died leaving representatives. Persons so deceased are counted in the class, and their representatives take their respective shares. But representation is not always allowed by the Statute of Distributions, even as amended.52 If all distributees are equally near kin to intestate they share equally inter se, and per capita.53

General Classes of Distributees. Under the Statute as at present framed there may be said to be three principal kinds of distributees :

42 31 Edw. III, chap. 11; 21 Henry VIII, chap. 5, $ 3.

43 Williams on Executors, 278. 44 Williams on Executors, 1067.

45 Burn's Ecc. Law, 553; Walls v. Crook, 2 Vern. 124.

46 2 R. S. 97, subd. 12.

47 $ 98, Decedent Estate Law, subd. 13.

48 Matter of Southworth, 6 Dem. 216.

49 Subd. 10, § 98, Decedent Estate Law.

50 Subd. I1, $ 98, Decedent Estate Law.

51 Matter of Davenport, 36 Misc. at p. 476.

52 Chap. 367, Laws of 1903, now subd. 5, $ 98, Decedent Estate Law; Matter of Davenport, 67 App. Div. 191, 172 N. Y. 454.

53 Subd. 10, $ 98, Decedent Estate Law.

(1) Those who take solely, or in their own right, such as husband, wife, father, or mother.

(2) Those who take as a class, according to degrees of proximity of consanguinity to intestate, such as children, brothers and sisters, and uncles and aunts.

(3) Those who are entitled to take by representation, from deceased members of a class, entitled to share in the distribution.

We shall first consider the distributive shares of those who take in their own right.

Widow of an Intestate. If the intestate leave a widow and children, the widow takes one-third of the surplus remaining after the payment of debts.54 This right of the widow to receive a onethird of the entire surplus of personalty of an intestate, in case there are children of intestate, is ancient and anterior even to Magna Charta. It is founded on the old customary law of England.55 This custom concerning the widow's distributive share was perpetuated in New York by the Duke's Laws of 1665, which antedates by some years the English Statute of Distributions.56 The Statute of Distributions gave final effect to the ancient custom,57 and the present revision is in this respect only a re-enactments of a similar provision contained in the original Statute of Distributions.59

The Real Property Law gives the widow dower in her husband's real property, but her right to share in the distribution of the personalty of her intestate husband is due to the Statute of Distributions, and is quite a distinct right from her right of dower. The right to a distributive share is additional to dower, in the absence of any contrary agreement, by way of jointure or marriage settlement.61

54 Subd. I, $ 98, Decedent Estate Law; Matter of Lally, 136 App. Div. 781, 783

55 Supra, p. 443.
56 Supra, p. 32.
57 Supra, p. 441.
58 $ 98, Decedent Estate Law.

59 Supra, pp. 436, 437.
60 Art. 6, chap. 50, Consol. Laws.

61 $ 98, Decedent Estate Law; Edsall v. Waterbury, 2 Redf. 48; Hatch v. Bassett, 52 N. Y. 359; Lefevre v. Lefevre, 59 id. 434.

If there be no children, nor any legal representatives of them, then the widow takes one-half of the whole surplus.62 By legal representatives is meant those who take from deceased persons by representation.63 Representation only comes in to take the place of deceased members of a class of equal degree when one or more of that class are living and entitled to take. If all of that class are dead, the law looks to the next degree, not for representatives, but for another class.64 If the intestate leave a widow and no descendant, parent, brother or sister, nephew or niece, the widow takes the whole surplus. But if there be any such relation to intestate, then the widow takes the whole if it does not exceed $2,000, and if it does exceed $2,000, she takes one-half and $2,000 in addition.65

By provision of statute, a widow, living with and providing for minor children, is entitled to certain household effects under certain prescribed conditions unnecessary for us to notice in detail in this treatise.

An absolute divorce for any cause, at the suit of either husband or wife, terminates the status of husband and wife and also the quondam wife's right to any distributive share under this statute.67

Children and Their Representatives. If the intestate leave a widow, or a husband, and also a child or children, the child or children take two-thirds of the surplus, after payment of debts.68 If there be no widow or husband, then the child or children of intestate take all the surplus. The descendants of deceased children will represent them in the division and distribution."


62 Subd. 2, $ 98, Decedent Estate Law.

63 Doughty v. Stillwell, 1 Bradf. 300, 302.

64 Adams v. Smith, 20 Abb. N. C. 60, 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.

65 Subd. 3, § 98, Decedent Estate Law; Doughty v. Stillwell, i Bradf. 300; Camfield v. Crandall, 4 Dem. III, 120; Parker v. Linden, 44 Hun,

515; Matter of Hardin, 97 App. Div. 493.

66 § 2713, Code Civ. Pro.; Crawford v. Nassoy, 173 N. Y. 163; Remsen, Intestate Succession (4th ed.), 33, 34.

67 Matter of Ensign, 103 N. Y. 281.

68 Subd. 1, $ 98, Decedent Estate Law; $ 100, Decedent Estate Law.

69 Subd. 4, § 98, Decedent Estate Law; $ 100, Decedent Estate Law.

70 Ibid, supra.

Minor orphans are also entitled to the benefit of certain household effects on a distribution, unnecessary for us to consider at large.71

If intestate leave only grandchildren, all his children having predeceased him, the grandchildren do not take by representation, but per capita, all being of equal degree. Such also would be the case with respect to the great-grandchildren of intestate, if all of his children and grandchildren had predeceased him.73

Husband. The rights of a surviving husband to a distributive share of the intestate wife's personalty are provided for in a subsequent section of this act.74

Father. If an intestate leave a father and a husband, or a wife, surviving, but no descendant, the father takes one-half of the surplus after payment of debts. If the intestate have a father, but no husband or wife and no descendants, the father takes all.75

Mother. Under the ancient law of intestate succession, prior to the Statute of Distributions, the mother was accounted one of the next of kin to her child, although for a time it was held that she was not next of kin for the purpose of taking out letters of administration.76 But this decision was corrected." Under the original Statute of Distributions if the intestate died without father, wife, or descendant, the mother of intestate had all, and the brothers and sisters of intestate took nothing. This was soon corrected by an amendment, making the mother share equally with her surviving children. This amendment expressly became the law of New York in 1774, and probably before.80

Under the Revised Statutes of this State and the present act, if the intestate leaves a mother and a widow, or a husband, but no

71 $ 2713, Code Civ. Pro.

72 Subd. 1o, § 98. Decedent Estate Law.

73 Subds. I, 10, II, $ 98, Decedent Estate Law; Toller, 374.

74 § 100, Decedent Estate Law.

75 Subd. 7, $ 98, Decedent Estate Law; $ 100, Decedent Estate Law.

76 Case of Duke of Suffolk, Swinb.

297, 300. Cf. Ratcliffe's Case (A. D. 1592), 3 Co. Rep. 39b, 40.

77 Swinb. 300, cited 3 Holdsworth, Hist. Eng. Law, 44.

78 22 and 23 Car. II, chap. 10; 4 Burn's Ecc. Law, 558.

79 i James II, chap. 17, supra, p. 437.

80 Supra, pp. 443, 444.

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