Chap. XX. to him by descent or otherwise from the intestate, must bring "Kindred." "Lineal." "Collateral." Intestate who leaves no child; no child or father, but mother. Intestate who leaves wife. advances of personalty into hotchpot.1 By "kindred" is meant the connection between persons who are descended from a common ancestor. The kindred that exists between persons, one of whom is descended from the other, is called "lineal." Each generation constitutes a degree, reckoning either upwards or downwards. Thus, there is one degree between father and son; there are two degrees between grandfather and grandson. The kindred that exists between persons, one of whom is not descended from the other, is called "collateral." The degrees are computed by reckoning from one of the parties up to the common ancestor and then down to the other, each generation constituting a degree, whether the reckoning is upwards or downwards. Thus there are two degrees between brother and sister, three between uncle and nephew. Persons of different relationship to a given person may be related to him in the same degree; thus, a great great-grandchild, a grandchild of a brother, and the daughter of an uncle are all in the same degree, viz., the fourth. If the nearest of kin to an intestate be brothers and sisters and a grandfather or grandmother, all of whom are of the second degree, it might be thought that they would share equally; but it has been decided that the grandparent takes nothing.2 If an intestate leaves no children or representatives of children, his father, if living, takes the whole, or if there be a widow, onehalf; and formerly, if the intestate left no wife or child or child's representative, or father, his mother, being his sole next of kin in the first degree, was entitled to all his personal estate; but it was provided by the statute 1 Jac. 2, c. 17,3 that in such a case “every brother and sister and the representatives of them shall have an equal share with the mother." It has been decided on the construction of this statute 1 Jac. 2 that, if the intestate leaves a wife, the Act applies to the part not taken by her; that it applies to the case where all the brothers and sisters are dead, some of them leaving children; and that the proviso in the Statute of Distributions restricting representation 1 Pratt v. Pratt, Fitzgib. 284. 2 Winchelsea v. Norcliff, Freem. Chanc. 95; Evelyn v. Evelyn, Atk. 762. 31 Jac. 2, c. 17, s. 7. 4 Keylway v. Keylway, 2 P. Wms. 344; Gilb. Eq. Ca. 189. 5 22 & 23 Car. 2, c. 10, s. 7; ante, p. 382. of brothers and sisters to their children applies to this Act.1 It Chap. XX. will be noticed that, if the intestate leaves no wife, child, father, brother, sister, nephew or niece, this Act does not apply, and the mother takes the whole.2 No preference is given to next of kin of the whole blood over Half-blood. those of the half-blood, as in the case of descent of real estate. 3 tion The result of the statutory provisions is that personal estate, as Recapitulato which a man, or a woman not under coverture, dies intestate, is (subject to payment of debts and funeral and expenses of letters of administration and of administration) distributed as follows: : (1.) The widow (if any) of the intestate takes one-third, if the intestate left any children or descendants of children; in every other case she takes one-half. Subject to the rights of the widow: (2.) If the intestate leave any children or other lineal descendants, they take the whole per stirpes as above pointed out. Thus, (a) If there are children only and no descendants of any deceased child, the children take in equal shares ; (b) If there are children and also descendants of deceased children, the estate is divisible into as many shares as there are children and deceased children of the intestate, and the share of any deceased child goes to his or her children or remoter issue, the children of any deceased person taking the share which that person would have taken if living; (c) If all the children are dead, the estate is divisible into as many shares as there were children of whom there are any living descendants, and each share is subdivided among such descendants per stirpes. Suppose, for instance, the intestate had two children, A. and B., both dead; A. left one child, C., who is living; B. left two children, D. and E., of whom D. is dead, leaving four children. Then C. takes one-half; E. takes one-half of the one-half which B. would have taken; the other 1 Stanley v. Stanley, 1 Atk. 455. 2 Jackson v. Prudhom, 11 Vin. Ab. 196, tit. Exors. Z. 12. 3 As we have pointed out (ante, G.P.P. p. 374) the husband of a married woman 25 Chap. XX. "Next of kin" and half of B.'s share goes equally between the four children of D. (3.) If the intestate leaves no children or descendants of any child, his father, if living, takes the whole. (4.) If the father is dead, the mother, brothers, and sisters of the intestate take in equal shares; or, if any brother or sister be dead leaving children living, such children take the share which their deceased parent would have taken. (5.) If the mother be living, but no brother or sister, or child of any deceased brother or sister, the mother takes the whole. (6.) If the mother be dead, the brothers and sisters, or children of deceased brothers and sisters, take the whole per stirpes. (7.) If the mother and all the brothers and sisters be dead, the children of the brothers and sisters take per capita as next of kin together with uncles and aunts, if any.1 (8.) If there be no children, or remoter issue, and no father or mother, or brothers or sisters, nephews or nieces, the estate is divisible equally among such persons as are in the nearest degree of kindred to the intestate. The phrases" next of kin" and "next of kin according to the statutes for the distribution of the estates of intestates" often occur in deeds and wills. By "next of kin" simpliciter, are meant the nearest of kin in "next of kin the strict meaning of the word; while "next of kin according to according to the statutes," &c., include those persons who, not being themthe statutes distinguished. selves next of kin, take as representing deceased next of kin ; and a reference to intestacy has the same effect as a reference to the statute; e.g., a gift to "my next of kin as if I had died intestate."3 Probate duty. A gift to "next of kin," either simpliciter, or by reference to the statute or to intestacy, does not include a wife or husband.* Formerly an ad valorem stamp duty assessed on the gross value of the personal estate (including terms of years) of the deceased was imposed on Probates and Letters of Administration.5 No 1 Durant v. Prestwood, 1 Atk. 454; Elph. N. & C. Interp. 304 et seq.; 3 Hawkins on Wills, 99; Akers v. 415., and see Elmsley v. Young, 2 My. & K. 780; see 39 R. R. 353. 555 Geo. 3, c. 184, superseding 48 Geo. 3, c. 149, and 44 Geo. 3, c. 98, and amended by 5 & 6 Vict. c. 79, s. 23, by 22 & 23 Vict. c. 36, s. 1, and by the Customs and Inland Revenue Act, 1880 (43 Vict. c. 14), which gives the rates of Probate duty. allowance was made for his debts in the first instance, but after Chap. XX. they had been paid a return of a proportional part of the duty could be obtained. But by the Customs and Inland Revenue Act, 1881,1 the stamp is to be affixed to the affidavit which is required to be made by the person applying for probate or letters of administration, and which must state the value of the estate and effects, and may also state the amounts of debts due from the deceased to persons resident in the United Kingdom and the funeral expenses, and the stamp is to be paid on the balance. The debts due do not include certain voluntary debts, or debts in respect of which any real estate is primarily liable, or in respect of which reimbursement may be claimed from any real estate of the deceased or from any other estate or person. The effect of these provisions is to prevent mortgage debts charged on realty, and debts incurred by the deceased as a surety only, from being deducted. 3 Only those assets of the deceased situated within the United Kingdom are liable to duty. In other words, at the present day duty is to be paid only on the effects of the deceased in England. But, by statute, probate or letters of administration obtained in England, Ireland, or Scotland can be made to take effect by producing them to the proper Court in any other of those countries in which they are intended to take effect and having them duly sealed or certified. If it is intended that the effect of the grant in England should be extended to Ireland or Scotland, duty is payable on the affidavit made to obtain probate or administration în England in respect of all the property of the deceased in the United Kingdom. Duty is payable in respect of property passing under a general power exercised by will." 3 Att.-Gen. v. Hope, 2 Cl. & F. 84; 37 R. R. 29; Att.-Gen. v. Bouwens, 4 M. & W. 171; 51 R. R. 517; Re Commercial Bank of India, 5 Ch. 314. * Called "confirmations "in Scotland. 20 & 21 Vict. c. 79, ss. 94, 95; 21 & 22 Vict. c. 56, ss. 12-15; 22 &23 Viet. c. 31, s. 25; 39 & 40 Vict. c. 70, ss. 41, 44. Special provisions have been made as to ships at sea by 623 Vict. c. 15, s. 4. It was formerly Chap. XX. Estate duty. Legacy duty. Now, by the Finance Act, 1894,1 "estate duty "2 is payable upon the whole of the property passing upon the death of any person at graduated rates. For the purpose of determining the rate of duty, the whole property is aggregated so as to form one estate, and the executor or administrator has to pay the duty at that rate upon the personal property of the deceased. The graduated rate of duty varies from one per cent. to eight per cent. according to the aggregate value of the estate." 3 On the payment of a legacy the legatee must give a receipt which is chargeable with an ad valorem duty on the amount of the legacy. The rule is the same whether the legacy is payable out of the testator's own property or out of property over which he had a general power of appointment. Legacy duty is imposed also on the residue, or a share of the residue of the personal estate of both testators and intestates; and "legacy" formerly included moneys to arise from the sale, mortgage, or disposition of real estate directed by any will to be so dealt with, but this is no longer the case.10 9 The amount of duty is regulated by several Acts,11 the effect of which is that brothers and sisters and their descendants pay duty at the rate of 31. per cent., uncles and aunts and their descendants duty at the rate of 51. per cent., great uncles and aunts and their descendants duty at the rate of 10l. per cent., all more remote relations and strangers in blood duty at 10l. per cent. Legatees under the will of a testator, if married to a person more nearly related to him than themselves, pay duty at the rate at which their husbands or wives would pay.12 The husband or wife of the deceased and the royal family are exempt from duty. The duty of 11. per cent. formerly payable on legacies to lineal descendants or lineal ancestors is not now in force.13 Formerly, legacies under 201. were free from duty.11 157 & 58 Vict. c. 30. 2 Ib. s. 1. Ib. s. 4. Except in estates of less than 1,0007., s. 16. 4 57 & 58 Vict. c. 30, s. 6. 5 Ib. s. 17, as amended by s. 17 of the Finance Act, 1896 (59 & 60 Vict. c. 28). 6 36 Geo. 3, c. 52, s. 27. 78 & 9 Vict. c. 76, s. 4; Att.-Gen. v. 8 55 Geo. 3, c. 184, Sched., Pt. 3. 10 16 & 17 Vict. c. 51, s. 19; 51 & 52 Viet. c. 8, s. 21 (2). 11 55 Geo. 3, c. 184. The Succession Duty Act, 1853 (16 & 17 Vict. c. 51), s. 11; the Customs and Inland Revenue Act, 1881 (44 Vict. c. 12), ss. 36, 41—43; and 51 & 52 Vict. c. 8, s. 21. 116 & 17 Vict. c. 51, s. 11. 13 Customs and Inland Revenue Act, 1881 (44 Vict. c. 12), s. 41. 14 This exemption was removed by 44 Vict. c. 12, s. 42. |