residue is to be equally distributed among the next of kin of equal degree. And if there be no widow, the whole will be distributed to the children in the first instance, or their personal representatives. And for want of any such to those nearest of kin, in equal degree, with the same limit in regard to representation already stated.11 9. If there be no wife or children of the intestate, then the father is first entitled to the whole personal estate. And if there be no father living, the mother and the brothers and sisters, and their representatives, will be entitled to the whole personal estate in equal shares. The mother will take the whole personal estate, next after the father, when there are no other next of kin, except those more remote than brothers and sisters and their representatives. 10. The grandfather or grandmother is in equal degree with the brothers and sisters, and, it would seem, should take concurrently with them; but this has been questioned both in England and among the civilians.12 11. As the statute only allows representation to the extent of brother's and sister's children, it has been decided in England, that the grandchildren of brothers or sisters of the intestate cannot take the share of such brother or sister by way of representation. Hence, if the intestate leave one brother living and two deceased, one leaving only grandchildren, and the other leaving children, the living brother and the children of the deceased brother will take the whole estate in equal moieties. 13 But representation in the descending and ascending line is without limit.14 "2 Kent, Comm. 422. 12 Evelyn v. Evelyn, 3 Atk. 762; s. c. Amb. 191; 4 Burn's Eccl. Law, 416; 2 Kent, Comm. 424, and cases cited. 13 Pett v. Pett, 1 Salk. 250; s. c. 1 P. Wms. 25. But in some of the states representation of brothers and sisters is allowed to the full extent. Gen. Stat. Vt. c. 56, § 1. 14 2 Kent, Comm. 425. 12. It seems to be settled that the distributees take per stirpes only when they stand in unequal degrees, but that they always take per capita, when they stand in equal degree, without reference to the number of the preceding generation which they represent. 15 13. This subject as it affects the different states in America is very extensively discussed by the learned author of the Commentaries,16 and by the careful and learned editor of the American edition of Williams' Executors.17 But it would not be compatible with our plan to pursue the subject to the same extent. The peculiar statutory provisions of the different states will best be learned by reference to those enactments. It seems to be admitted, on all hands, that the English statute of distributions forms the basis of the law equally of descents and distributions in most of the American states, except that in most of them the widow only takes a life interest in one third of the real estate, by way of dower. But in some of the states, where there are no children the widow takes the whole estate, real and personal, if it do not exceed one thousand dollars, and when it does exceed that sum one half the amount forever, and the whole, in fee, when there are no kindred capable of taking it.18 14. We have had occasion before to state, incidentally, that where the intestate was, at the time of his decease, permanently domiciled in a foreign country, that his personal estate, after the 15 Walsh v. Walsh, Prec. in Ch. 54; Davers v. Dewes, 3 P. Wms. 40, 50. Thus, if the deceased leave children living, and also the representatives of deceased children, the representatives will take the share of the deceased child which they represent, without reference to their own number. But if all the children are deceased before the intestate, leaving only grandchildren, such grandchildren will take per capita an equal share, although one of them may be the only representative of a deceased child, and others to the number of ten or more may represent another child. 2 Wms. Exrs. 1349. 16 2 Comm. 426-430. 17 Vol. 2, pp. 1335, et seq. 18 Vermont Gen. Stat. ch. 56, § 1. payment of debts, will be distributed according to the law of the domicil at the time of decease. This is a point, in regard to which there is, at the present time, no controversy.19 But as to real estate the rule is otherwise, the descent being governed by the law of the place where the same is, by the lex rei sitæ,20 as it is called. 15. We had occasion to discuss the recent cases bearing upon this topic in the late edition of Mr. Justice Story's Conflict of Laws, and we beg leave here to repeat what we there said. It has lately been decided in the English Court of Probate and Matrimonial Causes,21 that the right of succession to personal estate, and who is the person entitled, must be determined by the law of the place of domicil of the intestate; and that the decisions of the courts of that place are decisive upon these questions. Thus where one domiciled through life in Portugal, and who died without having ever been married, leaving one natural son, left personal estate in England, it was held that this son having instituted a suit in Portugal, and obtained a decree by the Supreme Court of Lisbon, by which he was declared entitled to the whole movable and immovable property of the deceased father, the English courts would regard that decision, being made upon full hearing of all the parties interested, as conclusive of the right of succession to such personal estate in England. 16. So where one deceased in Connecticut, domiciled there, leaving a will duly executed according to the law of that state, and where his principal property was; also left personal estate in New York which rendered it necessary to take administration there; after the funds within the latter state had been collected, some of the legatees who had come to reside in that state after the testator's death claimed that such funds should be there dis 19 Story, Confil. Laws, §§ 481 – 482 a, 491 a, 514, 514 b. tributed, there being a difference of opinion between the surrogate there and the courts in Connecticut, as to the construction of the will; it was held by the Court of Appeals in New York, that the surrogate should have remitted the fund in that state to the courts of Connecticut for distribution.22 17. And in another case in the same court,23 it was held, that whether a deceased person died intestate or not, must be determined by the law of the place where he was domiciled at the time of his death. That is the law which prescribes the requisites to the valid execution of a will of personal estate. Accordingly where a citizen of South Carolina executed his will in such a manner as to create a valid bequest of personal estate, by the law of that state, but not according to the law of New York, into which state he subsequently removed and died, having his domicil in that state at the time, it was held that he died intestate as to personal estate within that jurisdiction. 18. The language of an English will is held so completely subject to the construction of the English law, as before stated, that a bequest contained in such a will to the child of A, who resided and was domiciled in France, and had there a natural child, which was, by the law of that country, rendered legitimate by the subsequent marriage of the parents, cannot be claimed by such child, who is, according to the English law, still illegitimate and filius nullius.24 So also a bequest to the children of one who cohabited with a woman in England, and had children by her in England, and subsequently removed to Holland, where they continued to cohabit, and had children both before and after their marriage, which took place while they were domiciled in Holland, by which all the children became legitimate by the law of that country, will not carry anything to the chil 2 Parsons v. Lyman, 20 N. Y. Court of App. 103. 23 Moultrie v. Hunt, 23 N. Y. Court of App. 394. "Boyes v. Bedale, 12 Weekly Rep. 232, before Vice-Chancellor Wood. dren born in England, whose illegitimacy is irretrievably fixed by the law of the place of birth.25 19. If the father,26 during his lifetime, on the occasion of the marriage or settlement in life or otherwise, have made any advancement to any of his children, towards their distributive share in his estate, this must be reckoned in making the distribution. It seems requisite, according to the practice in America, that the advancement, in order to be reckoned toward the distributive share of the child, must have been so intended by the father, and so understood by the child, or at the least the former must clearly appear. And such an advancement will affect the representatives of such child who come in after his decease and take his share.27 20. An annuity provided by the father to take effect at the time of his death, is regarded as an advancement.28 So also if the provision be contingent, it shall be reckoned an advancement after it becomes absolute; 28 and it is here said, that while the provision is contingent it may either be estimated at its probable value, or some limitation, in the distribution made, with a view to equalize the shares of the children when it shall become absolute. 21. Where the father advanced £ 10,000 to his son, to enable him to form a partnership, and took his promissory note for it payable on demand, and on his death-bed burned the note, and died intestate, it was held that although the burning of the note 25 Goodman v. Goodman, 3 Giff. 643. This case, to be strictly consistent with the preceding one, should have excluded all the children born before marriage. But it admitted all the children born in Holland. This rule applies only to the father, and not to the mother who died a widow, having made advancements to some of her children. Holt v. Frederick, 2 P. Wms. 356. 27 Proud v. Turner, 2 P. Wms. 560. Edwards v. Freeman, 2 P. Wms. 435, 440, 445, where the subject of advancements is considerably discussed. |