Interest from the sale of real estate, and also interest in personal property to be converted into real estate, are to be deemed successions; and the duty thereupon is to be paid by the trustee, executor, or other person having control of the funds.

In estimating the value of successions no allowance shall be made for contingent encumbrances thereon, nor for any contingency, upon the happening of which the succession may pass to some other person, except that where such encumbrances are an actual burden upon the successor's interest, and also where from any contingency the real estate passes to some other person, a proportionate part of the duty paid shall be returned.

If the successor's estate shall be defeated, wholly or partially, by its application to the payment of the debts of the predecessor, or by any person claiming title under the predecessor, the executor, administrator, or trustee so applying it, or the person claiming title, shall be chargeable with the duty refunded.

If the duty becomes due before the whole of the succession has been received, only that portion received is chargeable. Duties paid by mistake, or on real estate, which the successor has been unable to recover, to be refunded by the Secretary of the Treasury.

The commissioner has authority at his own discretion to compound the duties payable on successions of doubtful value; also to enlarge the time of payment; also to commute the duty presumptively payable for an immediate payment. Duties are to be a first charge on successions. The commissioner may, at the request of any successor, cause separate assessments to be made for interests in separate tracts.

Persons liable to duty are to give notice to the assessor or assistant assessor, of their liability, and to furnish them with a description of the succession, and a statement of its value, and of the deductions claimed, together with the names and relationships of the successor and predecessor, and all particulars necessary to a correct ascertainment of the duties. If such account is not furnished, or be unsatisfactory, the assessors are

to assess the duties according to the best information attainable, subject to appeal. And if no appeal be taken, the expenses of such an assessment may be added at the discretion of the assessors, from which appeal may be made to the commissioner. For neglect in furnishing the required list, or to pay duty for ten days after notification of its being due, ten per cent shall be added to the tax. Appeal is to be made from the assistant assessor to the assessor within thirty days after date of the assessment, and from the decision of the assessor to the commissioner within twenty days after such decision.

CHAPTER XXI.

DISTRIBUTION OF PERSONAL ESTATE.

1. The final account will determine the estate to be distributed.

2. Duty of the personal representative to see that distribution is made. 3. Statute of distribution, and its construction, governed by Civil Law.

4. The mode of reckoning degrees of kindred governed by that law.

5. The order of distribution. First, children and widow, and representatives of children.

6. A distributee or legatee, dying after testator or intestate, his share goes to his next of kin.

7. Half blood take equally with others. How representation allowed.

8. If no children the widow takes half, and if no widow children the whole.

9. The father takes the whole next after children. Next, the mother and brothers and sisters equally.

10. It has been questioned whether grandparents take equally with brothers and sisters.

11. The extent of representation among collaterals and lineals.

12. Parties take per stirpes only when standing in unequal degrees; otherwise per capita.

13. The law of the American states, both as to descent and distribution, based on this statute.

14. Personalty distributed according to law of domicil, realty by lex rei sitæ.

15. The decisions of the courts of last resort, in place of domicil, fix succession to personalty.

16. And it cannot be distributed according to the law of the state where the property is, and where the distributees reside.

17. Whether one dies intestate, as to personalty, determined by law of place of domicil.

18. Questions of the legitimacy of distributees determined by same law.

19. All advancements made by the father to his children, reckoned against the share

of such child.

20. An annuity or contingent interest may be an advancement.

21. An advancement to enable a son to form a partnership, sufficient.

22. Ordinary expenses not advancements; but premium for apprenticeship is.

23. The law as to advancements does not apply, where there is a will.

24. Digest of some late English cases.

25. In Massachusetts advancements must have been so intended, &c. 26. Abstract of some of the cases in this state upon the point.

27. In Connecticut, whether advancement or no, depends upon intent of the father.

§ 77. 1. AFTER the debts are paid, in the case of intestate estates, (and the same is true of personal estate undisposed of by will,) the remaining personalty must be distributed to those entitled under the statute. The amount of property for distribution will be determined by the final account of the personal representative before the probate court.2

2. It has been held that the personal representative is not bound to distribute, without a previous order, and that it is the duty of the probate court to make such order. This is the language of the English statute, but, in fact, it is equally the duty of the personal representative, and of the court, to see that the order is made in the due course of administration.4

3. The English statute of distributions, as we have before said, is borrowed mainly from the Civil Law,5 and the construction and practice under it have been governed more by the rules of the Civil Law than of the common law.

4. For instance, the degrees of kindred are reckoned according to the rule of the Civil Law, in regard to lineal kinship, by counting the degrees between the intestate and the claimant; and as to collaterals, by beginning at the claimant and counting the degrees to a common ancestor, and then downwards to the intestate.6

5. Under the statute those in equal degree are not equally

1 22 & 23 Ch. 2, c. 10. This statute is the basis of mast of the statutes of distribution of personalty in the American states, and equally of that governing the descent of real estate.

* Ante, § 75.

3

Archbishop of Canterbury v. Tappen, 8 B. & C. 151.

42 Kent, Comm. 420, 421.

118 Novel of Justinian, 2 Kent, Comm. 422; Carter v. Crawley, T. Ray. 496, where there is a very learned reading upon the statute. Ante, § 7, pl. 8. • Ante, § 7, pl. 8, et seq.

entitled always. Thus, the children, who are in equal degree with the father and mother, are first entitled to all of the estate remaining after the payment of debts, and the assignment of one third to the widow if there be one. And if any child have deceased before the intestate, leaving representatives, they will take the share of such deceased child.

6. And as we have before shown, if any one entitled to a distributive share in an estate, or to a legacy, shall decease, after the decease of the testator or intestate, and before the actual distribution of the estate, or the payment of the legacy, the same having vested in such distributee or legatee, will be disposed of the same as if it had been actually paid to such distributee or legatee, in his or her lifetime.

7. The half-blood are equally entitled with the full-blood of equal degree. Representation, by the express terms of the statute, is not allowed beyond the degree of brother's and sister's children of the deceased intestate. Beyond that degree, all take per capita, and not per stirpes. And, consequently, the children of any deceased member of the generation, which is the next of kin to the intestate, are excluded from all participation in the distribution, until every member of that generation shall also have deceased. Consequently, if the intestate have no nearer of kin than uncles, which are in the third degree, they will take the whole estate, to the exclusion of the children of a deceased uncle or aunt, who are in the fourth degree. And nephews, who are in the third degree, will take the whole estate, to the exclusion of the children of a deceased nephew, who are also in the fourth degree.10

8. If there be no children or their representatives, one moiety of the personal estate of the intestate goes to the widow, and the

72 Kent, Comm. 421.

* Ante, pt. 1, § 30 b, pl. 3, 4.

Ante, § 7, pl. 8, et seq.

10 Bowers v. Littlewood, 1 P. Wms. 593.