representation is one of necessity and is only resorted to when the next of kin are of unequal degree, to prevent the exclusion of those in the remoter degree. Prior to Revised Laws 1905 the statute made the change from the per stirpes rule to the per capita rule at the point where there were no living brothers or sisters and the first in the line of descent were nephews and nieces or kin of a more remote degree. The Revised Laws 1905 made the change from the per stirpes rule to the per capita rule where there were no living brothers or sisters, no living issue of any deceased brother or sister, and the first in the line of descent were kin of a more remote degree than a brother or sister. The amendment of 1917 repealed this change and re-established the former rule.""

90. Degrees of kinship-How computed-Kindred of half blood— Statute-The degree of kindred shall be computed according to the rules of the civil law, and kindred of the half blood shall inherit equally with those of the whole blood in the same degree, unless the inheritance comes to the intestate by descent, devise, or gift from one of his ancestors, in which case all those who are not of the blood of such ancestors shall be excluded from such inheritance.8 80 The statute applies to all cases falling within its terms and is not limited to cases in which the intestate does not leave issue or a widow, father, mother, brother or sister.81 The method of computing degrees of consanguinity by the civil law is to begin at either of the persons claiming relationship and count up to the common ancestor and then down to the other person, in the lineal course, calling it a degree for each person, both ascending and descending, and the degrees they stand from each other is the degree in which they are related.82 The method of computing degrees of kindred. in the direct line is the same in the civil as in the common law. The difference arises only where the consanguinity is collateral.83 statute does not adopt the rules of the civil law for the determination of the kindred who are entitled to share in the estate of an intestate.$4 The statute abolishes the common-law distinction between kindred of the half blood and of the whole blood except as specified.85 Kindred of the half blood in any degree inherit equally with those of the whole blood in the same degree. The right of kindred of the half blood is not limited to those only of one degree distant from the intestate. The expression "kindred of the half blood" means the degree of relationship which exists between those who have only one parent in common. Two

79 Staubitz v. Lambert, 71 Minn. 11, 73 N. W. 511; Swenson v. Lewison, 135 Minn, 145, 160 N. W. 253. See §§ 110, 351; 18 C. J. 824.

80 G. S. 1913, § 7242. See 27 A. & E. Ency. of Law (2 ed.) 310, 312; 14 Cyc. 35; 18 C. J. $23; Woerner, Am. Law of Adm. (2 ed.) §§ 64-70.

81 Perkins v. Simonds, 28 Wis. 90.

86

This

82 Van Cleve v. Van Fossen, 73 Mich. 342; 27 A. & E. Ency. of Law (2 ed.) 310; 14 Cyc. 34; 18 C. J. $23; Woerner, Am. Law of Adm. (2 ed.) § 72.

83 Brown v. Baraboo, 90 Wis. 151, 62 N. W. 921.

84 Cooley v. Dewey, 4 Pick. (Mass.) 93.
85 McCracken v. Rogers, 6 Wis. 278.
86 Larrabee v. Tucker, 116 Mass. 562.

In

brothers or sisters who have the same father but different mothers are kindred of the half blood. If they have the same father and mother they are kindred of the whole blood.87 At common law collateral kindred of the half blood did not inherit from an intestate.88 The limitation as to kindred of the half blood is not a general limitation on the right to inherit, but only applies in the particular case of the inheritance coming to the intestate as therein specified.89 The exception in the statute does not establish a general rule of inheritance, but merely an exception to the right of kindred of the half blood. The person who is next of kin of the full blood of the intestate takes the inheritance, though not of the blood of the ancestor from whom it came to the intestate.00 The exception in the statute "unless, etc." does not apply to a case where a surviving husband and half-sisters of the intestate are sole heirs, though such half sisters are not of the blood of the ancestor from whom the property was inherited. If there is only one next of kin he will inherit the whole estate without reference to his relationship. to the ancestor from whom the inheritance to the intestate came. other words the half blood are excluded only where there are more than ́ one person in the same degree of kinship who are not all relatives of the blood of the ancestor from whom the inheritance came to the intestate. The half blood are excluded only where there are others in the same statutory class who are preferred by reason of being of the blood. of the ancestor from whom the inheritance came to the intestate.92 The word "ancestors" in the statute means merely the persons from whom the inheritance comes directly, and not a progenitor, as in popular acceptance. A husband may be his wife's ancestor within the meaning of the statute." 93 In determining whether property is ancestral or non-ancestral courts follow the legal rather than the equitable title. The exception in the statute possibly applies only to real estate.95 The rights of a surviving spouse as statutory heir under R. L. 1905, § 3648 (G. S. 92 Ryan v. Andrews, 21 Mich. 235; Rowley v. Stray, 32 Mich. 70: Lyon v. Crego, 187 Mich. 625, 154 N. W. 65; In re Smith's Estate, 131 Cal. 433, 63 Pac. 729.

87 27 A. & E. Ency. of Law (2 ed.) 27; 14 Cyc. 35; 18 C. J. 825; Woerner, Am. Law of Adm. (2 ed.) § 70.

88 27 A. & E. Ency. of Law (2 ed.) 312; 14 Cyc. 45; 18 C. J. 825; Woerner, Am. Law of Adm. (2 ed.) § 70; 29 L. R. A. 541; 26 L. R. A. (N. S.) 603; L. R. A. 1916C, 902.

89 In re Lynch's Estate, 132 Cal. 214, 64 Pac. 284. See 61 Am. Dec. 656; 29 L. R. A. 541; 26 L. R. A. (N. S.) 603; L. R. A. 1916C, 902; 9 R. C. L. 33; 27 A. & E. Ency. Law (2 ed.) 314; 14 Cyc. 35; 18 C. J. 825.

90 In re Kirkendall's Estate, 43 Wis. 167.

91 In re Smith's Estate, 131 Cal. 433, 63 Pac. 729.

94

1913, § 7238), are not affected by this statute." Where a widow who had married twice left surviving her a child by each marriage property given to her by her last husband descended to the two children as she was of the full blood as to both children.o7

98

91. Contracts-Renunciation-Religious orders-The statutes of descent and distribution may be superseded by contract. Evidence held to justify a finding that a written instrument, purporting to be a relinquishment of a daughter's prospective right to inherit from her father's estate, was procured by the undue influence of the father, since deceased, and that another instrument of the same nature was not signed by the son of the deceased. A religious order may inherit by virtue of an agreement among its members to live in community and renounce for the benefit of the order individual rights of property, if liberty to withdraw from the order is retained and the community organization is authorized by statute.""

92. Inheritance by and from adopted children-Statute-Upon adop tion such child shall become the legal child of the persons adopting hita, and they shall become his legal parents, with all the rights and duties between them of natural parents and legitimate child. By virtue of such adoption, he shall inherit from his adopting parents or their relatives the same as though he were the legitimate child of such parents, and shall not owe his natural parents or their relatives any legal duty; and, in case of his death intestate, the adopting parents and their relatives shall inherit his estate, as if they had been his parents and relatives in fact. This statute applies to all adopted children whether adopted before or after its enactment. The adopted child inherits from the adopting parents or their relatives in the same manner as if he were a natural born child of such parents. The adopted child is "issue" of the adopting parents within the statutes of descent and distribution.* The word "relatives" in the statute undoubtedly includes collateral rel

96 Boeing v. Owsley, 122 Minn. 190, 142 N. W. 129.

97 In re McKenna's Estate, 168 Cal. 339, 143 Pac. 605.

98 Appleby v. Appleby, 100 Minn. 408, 419, 111 N. W. 305. See §§ 99, 105, 113. 01 Bruski v. Bruski, 148 Minn. 458, 182 N. W. 620.

99 Order of St. Benedict v. Steinhauser, 234 U. S. 640.

1 G. S. 1913, § 7156, Laws 1917, c. 222. See 27 A. & E. Ency. of Law (2 ed.) 333; 2 Ency. L. & P. 238; 1 Cyc. 931; 1 C. J. 1398; 1 R. C. L. 621; Woerner, Am. Law of Adm. (2 ed.) § 69; 9 Probate Reports Ann. 345; 32 Harv. L. Rev. 854.

2 Sorenson v. Rasmussen, 114 Minn. 324, 131 N. W. 325.

3 Odenbreit v. Utheim, 131 Minn. 56, 154 N. W. 741; In re Reichel, 148 Minn. 433, 182 N. W. 517; Sewall v. Roberts. 115 Mass. 262; Buckley v. Frasier, 153 Mass. 525, 27 N. E. 768; In re Williams, 102 Cal. 70, 36 Pac. 407; 27 A. & E. Ency. of Law (2 ed.) 333; 1 Cyc. 931; 1 C. J. 1398: Woerner, Am. Law of Adm. (2 ed.) § 69.

4 Buckley v. Frasier, 153 Mass. 525, 27 N. E. 768; In re Newman's Estate, 75 Cal. 213, 16 Pac. 887; Riley v. Day, 88 Kan. 503, 129 Pac. 524. See Ann. Cas. 1912A, 326; In re Book's Will, 89 N. J. Eq. 509, 105 Atl. 878.

atives so that an adopted child may inherit from the brothers and sisters of the adopting parents. An adopted child under our statute undoubtedly inherits from the ancestors of the adopting parents. An adopted child inherits from the natural children of the adopting parents." The natural parents and their relatives cannot inherit from the adopted child. The presumptive heirs of the adopting parents have no vested rights of inheritance of which they may not be deprived by the act of their parents in adopting a child who will have a right to inherit from them and their descendants. It is an open question in this state whether an adopted child may inherit from or through his natural parents. Our statute seems to transfer the child absolutely from one family to another for the purposes of inheritance. Under narrower statutes it

is generally held that an adopted child may inherit from both natural and adopting parents.10 Where a child is adopted a second time he does not inherit from those who first adopted him. The first adoption is completely superseded by the second.11 The statute provides that in case of the death of an adopted child intestate, the adopting parents and their relatives shall inherit his estate as if they had been his parents and relatives in fact.12

93. Same-Conflict of laws-For purposes of inheritance a foreign adoption will be recognized if not contrary to the public policy of the forum. An adoption legal where made will entitle the adopted child to inherit lands in another state as an "adopted child," though the adoption proceedings were not in accordance with the adoption laws of the latter state, provided they were not contrary to the public policy of such state or the inheritance is not forbidden by the local statute. The legality of the adoption is governed by the law of the place where it occurred. The status of the child as an "adopted child" is fixed by that law. What the adopted child shall inherit is determined by the law of the last domicil of the decedent in the case of personalty and by the lex loci rei sitæ in the case of realty.13 A state may, in its statutes of

5 Anderson v. French, 77 N. H. 509, 93 Atl. 1042. See Wallace v. Noland, 246 Ill. 535, 92 N. E. 956.

6 Shick v. Howe, 137 Iowa, 249, 114 N. W. 916.

In re Reichel, 148 Minn. 433, 182 N. W. 517; Stearns v. Allen, 183 Mass. 404, 67 N. E. 349: In re Masterson's Estate, 108 Wash. 307, 183 Pac. 93.

In re Jobson's Estate, 164 Cal. 312,
128 Pac. 938: 26 Harv. L. Rev. 546.
In re Reichel, 148 Minn. 433, 182 N.
W. 517.

10 See Boosey v. Darling, 173 Cal. 221, 159 Pac. 606; Klapp v. Pulsipfer, 197 Mich. 615, 164 N. W. 381; 27 A. & E.

Ency. of Law (2 ed.) 335; 2 Ency. L. &
P. 241; 1 Cyc. 933, 1 C. J. 1400; 2 Minn.
L. Rev. 301.

11 Klapp v. Pulsipher, 197 Mich. 615, 164 N. W. 381. See 2 Minn. L. Rev. 301.

12 See Calhoun v. Bryant, 28 S. D. 266, 133 N. W. 266; 27 A. & E. Ency. of Law (2 ed.) 334; 1 Cyc. 934; 1 C. J. 1401; 43 L. R. A. (N. S.) 1056; Ann. Cas. 1916C, 757: Woerner, Am. Law of Adm. (2 ed.) § 69.

13 Calhoun v. Bryant, 28 S. D. 266, 133 N. W. 266; Anderson v. French, 77 N. H. 509, 93 Atl. 1042; Finley v. Brown, 122 Tenn. 316, 123 S. W. 359; 22 A. & E. Ency. of Law (2 ed.) 1362; 14 Cyc. 21,

descent and distribution, exclude children adopted by proceedings in other states.1 A husband and wife living in Ohio and being childless adopted a child by an agreement which was valid in that state. They subsequently moved to this state bringing the child with them. The husband died leaving a will in which he made provision for the child. Thereafter the child died leaving an only child. After the death of the adopted child the wife died intestate. Held, that the child of the adopted child was entitled to share in the estate of the adopting wife as if the adopted child had been a daughter by blood; that, the estate having been reduced to personalty, the probate court had power to adjudge to whom the same should be apportioned, and, as an incident thereto, to determine the rights of the child of the adopted child under the contract, and, further, by its final decree, to award to appellant the share of the estate to which she was entitled under the contract whereby her parent was adopted; that the remedies for the enforcement of the contract were governed by the laws of this state. 15

94. Inheritance by illegitimate children-Legitimation-Statute-An illegitimate child shall inherit from his mother the same as if born in lawful wedlock, and also from the person who, in writing and before a competent attesting witness, shall have declared himself to be his father; but such child shall not inherit from the kindred of either parent by right of representation, unless during his lifetime his parents intermarry, in which case he shall no longer be deemed illegitimate.16 The statute applies to children legitimated in the manner required by the statute before its enactment." The right of an illegitimate child to inherit as provided by the statute is not limited to cases where he is the only child, but he may share equally with legitimate children.18 An illegitimate child cannot inherit from his mother's ancestors or collateral kindred.19 He cannot inherit through his sister any part of

1 C. J. 1402; 1 R. C. L. 615; Woerner, Am. Law of Adm. (2 ed.) § 69; 21 L. R. A. (N. S.) 679; 25 Id. 1285; L. R. A. 1916A, 666; 16 Ann. Cas. 778; Ann. Cas. 1916B, 94; 118 Am. St. Rep. 672; 9 Probate Reports Ann. 351. See Brewer v. Browning, 115 Miss. 358, 76 So. 267.

14 Hood v. McGehee, 237 U. S. 611. 15 Fiske v. Lawton, 124 Minn. 85, 144 N. W. 455. See 21 L. R. A. (N. S.) 679; 25 Id. 1285; Ann. Cas. 1916B, 94; 30 Harv. L. Rev. 642; 32 Id. 854; Malaney v. Cameron, 99 Kan. 70, 161 Pac. 1180 (rights of child under an unexecuted contract of adoption).

16 G. S. 1913, § 7240. See 27 A. & E. Ency. of Law (2 ed.) 327; 5 Cyc. 641; 7

C. J. 960; 3 R. C. L. 775; Woerner, Am.
Law of Adm. (2 ed.) $ 75; Ann. Cas.
1917C, 826; Ann. Cas. 1914D, 577; 13
Prob. Rep. Ann. 375.

17 Alston v. Alston, 114 Iowa, 29, 86 N. W. 55; Moen v. Moen, 16 S. D. 210, 92 N. W. 13. See Sorenson v. Rasmussen, 114 Minn. 324, 131 N. W. 325.

18 Alexander v. Alexander, 31 Ala. 241; Earle v. Dawes, 3 Md. Cl. 230; Opdyke's Appeal, 49 Pa. St. 373; 27 A. & E. Ency. of Law (2 ed.) 328; 7 C. J. 961; Ann. Cas. 1917C, 828.

19 Pratt v. Atwood, 108 Mass. 40. See Woerner, Am. Law of Adm. (2 ed.) § 75; 7 C. J. 961; 13 Prob. Rep. Ann. 377; Ann. Cas. 1914D, 579; 23 L. R. A. 753.