We may here, then, fitly introduce the inquiry, who are the next of kin, and in what order and manner consanguinity is reckoned by our law. Consanguinity defined. Consanguinity, or kindred, is defined by the writers on these subjects to be "vinculum personarum ab eodem stipite descendentium;" the connexion or relation of persons descended from the same stock or common ancestor. This consanguinity is either lineal, or collateral. Lineal consanguinity is that which subsists between persons, of whom one is descended in a direct line from the other, as between John Stiles (the propositus in the table of consanguinity) and his father, grandfather, great-grandfather, and so upwards in the direct ascending line; *or between John Stiles and his son, grandson, great-grandson, and so Lineal consanguinity. downwards in the direct descending line. Every generation, in this [* 645 ] lineal direct consanguinity, constitutes a different degree, reckoning either upwards or downwards: the father of John Stiles is related to him in the first degree, and so likewise is his son; his grandsire and grandson in the second; his great-grandsire and great-grandson in the third. This is the only natural way of reckoning the degrees in the direct line, and therefore universally obtains, as well in the civil (x), and canon (y), as in the common law (z). The doctrine of lineal consanguinity is sufficiently plain and obvious; but it is at the first view astonishing to consider the number of lineal ancestors Number of lineal which every man has, within no very great number of degrees; ancestors. and so many different bloods (a) is a man said to contain in his veins, as he has lineal ancestors. Of these he hath two in the first ascending degree, his own parents; he hath four in the second, the parents of his father and the parents of his mother; and so on. This lineal consanguinity, we may observe, falls strictly within the definition of vinculum personarum ab eodem stipite descendentium; since lineal relations are such as descend one from the other, and both of course from the same common ancestor. Collateral con Collateral kindred answers to the same description; collateral relations agreeing with the lineal in this, that they descend from the same stock or ancestor; but differing in this, that they do not descend one sanguinity. from the other. Collateral kinsmen are such then as lineally spring from one and the same ancestor, who is the stirps, or root, the stipes, trunk, or common stock, from whence these relations are branched out. As if John Stiles has two sons, who have each a numerous issue; both these issues are lineally descended from John Stiles as their common ancestor; [* 646] and they are collateral kinsmen to each other, because they are all descended from this common ancestor, and all have a portion of his blood in their veins, which denominates them consanguineos. * We must be careful to remember, that the very being of collateral consanguinity consists in this descent from one and the same common ancestor. Thus Titius and his brother are related: why? because both are derived from one father: Titius and his first cousin are related: why? because both descend from the same grandfather; and his second cousin's claim to consanguinity is this, that they both are derived from one and the same great-grandfather. In short, as many ancestors as a man has, so many common stocks he has, from which collateral kinsmen may be derived. (a) Dig. 38. 10. 10. (y) Decretal. 1. 4, tit. 14. (z) Co. Litt. 23. The method of computing these degrees by the civil law (which was adopted in determining the next of kin of a deceased person) was to count upwards Consanguinity by from either of the persons related to the common stock, and then the civil law. downwards again, reckoning a degree for each person both in ascending and descending. Thus, to give an illustrious instance from our English annals, king Henry VII., who slew Richard III. in the battle of Bosworth, was related to that prince in the ninth degree. Let the propositus, therefore, in the table of consanguinity represent king Richard III., and the class marked (ix, 5) king Henry VII. Now their common stock or ancestor was king Edward III., the abavus in the same table. From Richard III. to his father, Richard, Duke of York, we have one degree; then to Richard, Earl of Cambridge, a second; to Edmund, Duke of York, a third; and to Edward III. a fourth degree. Now the descending line from Edward III. gives to John of Gaunt the fifth degree; to John, Earl of Somerset, the sixth; to John, Duke of Somerset, the seventh; to Margaret, Countess of Richmond, the eighth; and thus to Henry VII. the ninth degree. [* 647 ] The canon law reckoned in a different manner: by * that law the degree is determined simply by the number of steps from the common ancestor to the one of them most remote from that ancestor (b). According to this mode of reckoning, Henry VII. would be said to be related to Richard III. in the fifth degree. Canon law. Statutes 22 & 23 Car. 2, c. 30. tions of residue of intestate's personal estate. Having premised these observations as to consanguinity, we may now inquire. how the law distributes the personal estates of intestates, subject, of course, to the paramount duty of paying their debts and funeral expenses. Formerly, as we have seen, controversies between the ecclesiastical administrators and the relations arose, and other disputes were frequent. But now these controversies are quite at an end: for, by the statute 22 & 23 Car. 2, c. 10, explained by 29 Car. 2, c. 3, it is enacted, that the surplusage of direct distribu- intestates' estates (except of femes-covert, which are left as at common law (c)), shall, after the expiration of one full year from the death of the intestate, be distributed in the following manner: One third shall go to the widow of the intestate, and the residue, in equal proportions, to his children, or, if dead, to their representatives; that is, their lineal descendants; if there are no children or legal representatives subsisting, then a moiety shall go to the widow, and a moiety to the next of kindred in equal degree and their representatives: if no widow, the whole shall go to the children: if neither widow nor children, the whole shall be distributed among the next of kin in equal degree and their representatives: but no representations are admitted, among collaterals, farther than the children of the intestate's brothers and sisters (d). The next of kindred, here referred to, are to be investigated by the rules of consanguinity, as reckoned according to the computation of the civil law. Therefore, on failure of children, [*648] the mother as well as the father succeeds to the effects of their children who die intestate and without wife or issue. As to the mother, however, a later act (1 Jac. 2, c. 17, s. 7) introduced a further modification, for by that act, if the father be dead, and any of the children die intestate without wife (b) Decretal. 4. 14, 309. It is said that our law copied the canon law (Co. Litt. 23); but in the only important case in which the question arises, that stated in the text, it did (c) Stat. 29 Car. 2, c. 3, s. 25. or children, in the lifetime of the mother, she and each of the remaining children, or their representatives, shall divide his effects in equal portions. With this exception, as to the mother (which in effect reduces her to the position of a sister of the deceased (e)), and subject to the right of representation above noticed, all those who are of the nearest of kin and of equal degree, whether of the half blood or of the whole blood, and including maternal as well as paternal relations, share the property equally. Thus, if the nearest of kin of the intestates are great uncles or aunts, first cousins, and great nephews or nieces, these being all related to the intestate in the fourth degree, will all be admitted to an equal distributive share of his estate. We may remark, however, that though a grandfather or grandmother are of equal degree to a brother or sister, yet the latter alone are entitled (ƒ). This arises, it would seem, by the rule of representation, for the brothers and sisters represent the father. It is obvious to observe, how near a resemblance this statute of distributions bears to our ancient English law, de rationabili parte bonorum; spoken of at the beginning of this chapter (g); and which Sir Edward Coke (7) himself, though he doubted the generality of its restraint on the power of devising by will, held to be universally binding (in point of conscience at least) upon the administrator or executor, in the case of either a total or partial intestacy. It also bears some resemblance to the Roman law* of succession ab intestato (i); which, and because the act was also penned by an emi- [*649] nent civilian (k), has occasioned a notion that the parliament of England copied it from the Roman prætor: though, indeed, it is little more than a restoration, with some refinements and regulations, of our old constitutional law; which prevailed as an established right and custom from the time of king Canute, downwards, many centuries before Justinian's laws were known or heard of in the western parts of Europe. So, likewise, there is another part of the statute of distributions, where directions are given that no child of the intestate (except his heir-at-law) on whom he settled in his lifetime any estate in lands, or pecuniary portion, equal to the distributive shares of the other children, shall have any part of the surplusage with their brothers and sisters; but, if the estates so given them, by way of advancement, are not quite equivalent to the other shares, the children so advanced shall now have so much as will make them equal. (419) This just and equi Hotchpot. ants in equal portions. 2. On failure of these, (419) An advancement is a gift made during his lifetime by a person who afterward dies intestate, to his heir or distributee, of something by anticipation of what the donee would by law receive upon the death of the donor. An advancement is a gift by a parent to his child, by anticipation, in whole or in part, of what it is supposed the child will be entitled to on the death of the parent. Cawthon v. Coppedge, 1 Swan. (Tenn.) 487; Miller's Appeal, VOL. I.-106 table provision (which, however, only applies when there is no will, and not where there is a failure of disposition by the will (7)) has been also said to be derived from the collatio bonorum of the imperial law (m): which it certainly resembles in some points, though it differs widely in others. (7) 14 Ves. 324. The representatives of a deceased child, who has been advanced, must bring the amount into distribution. 2. P. Wms. 560. The clause extends only to intes tate fathers, (2 P. Wms. 357), and does not 31 Penn. St. 337; Chase v. Ewing, 51 Barb. 597; Dillman v. Cox, 23 Ind. 440, 442; Grattan v. Grattan, 18 Ill. 167. A conveyance of property, made to take effect on the death of the grantor, operates as an advancement. Hook v. Hook, 13 B. Monr. (Ky.) 526. But the right to charge such a conveyance of property by a father to his son must exist at the time of the conveyance. Sherwood v. Smith, 23 Conn. 516. A gift to a grandchild will be deemed to be a gift absolute, rather than an advancement. Thomas v. Capps, 5 Bush (Ky.), 273; Shiver v. Brock, 2 Jones' Eq. (N. C.) 137. Gifts of things of trifling value, or those given to furnish the donee with the means of pleasure, will not be regarded as advancements. A gift of a horse and gig by a wealthy man to his son-in-law will not be regarded as an advancement. McCaw v. Blewit, 2 McCord's Ch. (S. C.) 90, 102, 103; Ison v. 1son, 5 Rich. Eq. 15, 19 Gifts of trifling articles, or of small sums, or by way of furnishing an education, will not usually be regarded as advancements, Mitchell v. Mitchell, 8 Ala. 414, 420; Miller's Appeal, 40 Penn. St. 57. Advancements by way of absolute gifts once made are not revocable; and the donor cannot subsequently change the nature of the transaction so as to transform it into an indebtedness or a trust. Dudley v. Bosworth, 10 Humph. (Tenn.) 9; Sherwood v. Smith, 23 Conn. 516, 520; Lawson's Appeal, 23 Penn. St. 85. Advancements may be made by the conveyance of real property or the delivery of per sonal property, and the amount of the advancement will be determined by the value of the property advanced. In relation to real estate advancements, see Hatch v. Straight, 3 Conn. 31; Woolery v Woolery, 29 Ind. 249; Parks v. Parks, 19 Md. 323; Dutch's Appeal, 57 Penn. St. 461; Bay v. Cooke, 31 Ill. 336; Brown v. Burke, 22 Ga. 574; Hodgson v. Macy, 8 Ind. 121; Temper v. Barton, 18 Ohio, 418. As to personal property, see Ison v. Ison, 5 Rich. Eq. 15; McCaw v. Blewit, 2 McCord's Ch. 90, 102, 103; Thomas v. Capps, 5 Bush (Ky.), 273; Shiver v. Brock, 2 Jones' Eq. (N. C.) 137 ; Autrey v. Autrey, 37 Ala. 614. Whether property was delivered or transferred as an absolute gift, or by way of advancement, depends upon the intent of the donor and of the donee at the time of delivering the property. Where a father purchases land with his own money, but takes the deed therefor in the name of his son, this will be regarded as an advancement, rather than a resulting trust in favor of the father. Page v. Page, 8 N. H. 187; Bay v. Cook, 31 Ill. 336; Hayden v. Burch, 9 Gill. (Md.) 79; Stanley v. Brannon, 6 Blackf. (Ind.) 193; Sampson v. Sampson, 4 Serg. & R. 329, 333; Fleming v. Donahoe, 5 Ohio, 255, 256; Dudley v. Bosworth, 10 Humph. (Tenn.) 9; Murphy v. Mathews, 46 Penn. St. 508. So of a purchase of stocks. Butler v. Merchants' Ins. Co., 14 Ala. 777. The declarations of the grantor at the time of making the conveyance, or of the grantee at the same time, or afterward, are evidence from which it is to be determined whether the conveyance is a gift or an advancement. Christy's Appeal, 1 Grant's Cas. (Pa.) 369. The same rule applies to personal property. Merrill v. Rhodes, 37 Ala. 449; Johnson v. Balden, 20 Conn. 322; Lawson's Appeal, 23 Penn. St. 85; Sanford v. Sanford, 61 Barb. 293; 5 Lans. 486. ment. In settling the rights of parties interested in an estate the advancements are to be esti mated at their value at the time when they were given, or when the donee entered upon the enjoyment of them, and not at the time of the testator's death, or at that of the settleGrattan v. Grattan, 18 Ill. 167, 170; Clark v. Wilson, 27 Md. 693; Warfield v. Warfield, 5 Harr. & Johns. (Md.) 459; Jackson v. Jackson, 28 Miss. 674; Lamb v. Carroll, 6 Ired. Law (N. C.), 4; Oyster v. Oyster, 1 Serg. & R. 422; Burton v. Dickinson, 3 Yerg. (Tenn.) 112; Hook v. Hook, 13 B. Monr. (Ky.) 526; Kean v. Welch, 1 Gratt. 413. |