CHAPTER III.

THE DISTRIBUTION OF THE PROPERTY OF AN INTESTATE.

If a person dies without a will, and possessed of real property, his heirs take it, under the laws of the several States which provide for this matter, and they are called statutes of descent or of inheritance. The great difference between the law of this country on this subject and the law of England, being what is termed the right of primogeniture, which prevails there and not here. By this right the eldest son takes all the land of an intestate. In this country the land is equally divided among all the heirs, and it is the business of the statutes above mentioned to determine who they are, and what proportions they take. These statutes differ somewhat in the different States, but are substantially alike, and may be said to provide, generally, in the following manner:

First. If the deceased leaves children, his real property goes to them, and to the issue of any deceased child by right of representation, in equal shares. The meaning of taking by representation is this: the issue of a deceased child take his or her parent's share only; thus, if a man dies leaving three children living, and had a fourth child who is dead, and who left four children who are living, the property will be divided into four equal parts, one of which each child takes, and the four children of the deceased child divide among them the remaining part, each one of them getting a sixteenth of the whole. By "issue" is meant all lawful lineal descendants.

Second. If the intestate leaves no living child, then the property goes to all his other issue or lineal descendants. If all these descendants are of the same degree of kindred to the intestate, - that is, all grandchildren or great-grandchildren, they share the property among them equally; but if they are in different degrees of kindred,-as, if some were grandchildren and others great-grandchildren, or still further off, they take by the right of representation; that is, the estate is divided into as many shares as there are grandchildren and deceased children leaving issue, and the great-grandchildren take the share which would have come to their deceased parent.

Third. If the intestate leaves no issue, then the real property goes to his father.

Fourth. If he leaves neither issue nor father, then it goes in equal shares to his mother, brothers and sisters, and to the children of any deceased brother or sister by a right of represen

tation.

Fifth. If he leaves no issue, no father, no brother nor sister, living at his death, and no issue of a deceased brother or sister, then it all goes to his mother. In some States it all goes to his mother, if there be no issue, nor father, nor brother, nor sister of the intestate, and the issue of a deceased brother or sister takes nothing.

Sixth. If he leaves no issue, and no father, mother, brother, nor sister, then the estate goes to the next of kin who stand in an equal degree of nearness to him.

Seventh. The statutes of descent usually contain various minute provisions for possible circumstances; but of these we do not think it necessary to speak. If the intestate leaves a widow and no kindred, in some States his whole estate goes to his widow; and if the intestate be a married woman and leaves no kindred, her estate goes to her husband.

Eighth. If the intestate be a woman, whether married or unmarried, her real estate goes as above stated, excepting that the husband, if a child had been born to them who might have inherited the estate, takes the use, rents, and profits of real estate for his life. He is said in law to hold the estate as a "tenant by the curtesy."

Ninth. If the intestate leaves no widow or husband, and no kindred, his or her estate shall escheat (or go) to the Commonwealth.

THE DISTRIBUTION OF PERSONAL ESTATE.

This is regulated in the several States by what are called the statutes of administration. Generally the real property of an intestate goes at once to those who are heirs by law. The personal property all goes to an administrator upon the estate, and by him is distributed as the law directs. This distribution of personal estate was once a very different thing from the distribution of the real estate; but now it is distributed in much the same way, and is governed by the same rules, as above stated, for the inheritance of real property. The principal differences are these: A widow is entitled to her dower of the real property; that is to say, she has for her life one-third part thereof, and the use, income, or rents thereof. But of the personal estate there is no dower: instead thereof the widow takes in full property one-third part of the personal estate; and if there be no issue, the widow takes generally one-half, and in some States the whole.

If the intestate was a married woman leaving issue, in many of the States her personal property goes to them; in others of the States it goes to her husband, the issue not taking.

If the husband dies leaving a widow and no issue, she takes generally one-half of the personal estate. Of late years the property relations of husband and wife have been much changed in different States; and we refer to our former chapter on the subject of Husband and Wife for a succinct account of them.

CHAPTER IV.

OF THE DISPOSAL OF PROPERTY BY

WILL.

SECTION I.

OF WILLS.

Few persons are aware how difficult it is to make an unobjectionable will. There is nothing one can do, in reference to which it is more certain that he needs legal advice, and that of a trustworthy kind. Eminent lawyers, not practised in this peculiar branch of the law, have often failed in making their own wills, both in England and in this country; and there are seldom blank forms for wills printed and sold, as there are for deeds and leases. Nevertheless, it may happen that one is called upon to make his own will, or a will for his neighbor, under circumstances which do not admit of delay; or he may have some interest in the will of a deceased person, and questions may have arisen, which some knowledge of legal principles will answer. We shall try to state here what may be of use in such cases; and shall append forms for a will.

Any person of sound mind and proper age may make a will. A married woman cannot, unless in relation to trust property, whereof the trust or marriage settlement reserves to her this power, unless the statute law of her State gives it, which is the case now in many States.

One must be of full age in order to devise real estate. But in most of our States minors may bequeath personal property; and a frequent limitation of the age for such bequest is eighteen years for males, and sixteen years for females.

The testator should say distinctly, in the beginning of the instrument, that it is his last will. If he has made other wills, it is

usual and well to say, "hereby revoking all former wills," but the law gives effect to a last will always.

It should close with the words of attestation: "In witness whereof, I have hereunto signed and sealed this instrument, and published and declared the same as and for my last will, at

on this day of ." Then should follow the signature and seal; for this latter, although not always required by law, is usually and properly affixed.

The witnessing part is very material. The requirements in the different States are not precisely alike; but they are all intended to secure such attestation as will leave the fact of the execution of the will, and its publication as such, beyond doubt. In a very few States, it is enough if the signature be proved by credible witnesses, although there be no witnesses who subscribe their names to the will. In many, two subscribing witnesses are enough. But in some it is necessary, and in all I recommend, that the testator should ask three disinterested persons to witness his will; and should then, in their presence, sign and seal it, and declare it to be his will; and they should then, each in the presence of the testator and of the other witnesses, sign his name as witness.

Each should see the execution which he says he witnesses; and the signing by the witnesses should all be seen by the testator; but the law is satisfied if the thing is done near the testator, and where he can see if he chooses to look. If the testator is too feeble to write his name, let him make his mark; and for this purpose any mark is enough, although a cross is commonly made; or he may sign the will by an attorney or agent whom he duly authorizes to do this. If a witness cannot write his name, he may make his mark; but this should be avoided, if possible.

Over the witnesses' names should be written their attestation; and any alteration in the will should be noticed. If the attestation be in the following words, it will be safe in any part of this country:

"At

on this

day of

the abovenamed signed and sealed this instrument, and published and declared the same as and for his last will; and we, in his presence and at his request, and in the presence of each other, have hereunto subscribed our names as witnesses."

Witnesses should be selected with care, where that is possible; for if any question arises about the testator's sanity, or any thing of the kind, their evidence is first to be taken, and is very important. But any persons competent to do ordinary acts of business may be witnesses. Nor do the usual disqualifications for business apply.

Thus, married women and minors may be witnesses of wills. But no person should be called upon to witness a will who is a legatee, or an executor, or otherwise interested in the will. If such a person were a witness, it might not avoid the will; but a legatee would lose or be obliged to renounce his legacy; and, generally, it might lead to unintended results. What is said in the next chapter in relation to deeds, of witnesses remembering, &c., or proof of handwriting in case of their death or absence, is true also of wills.

As to the body of the will, the testator must express his wishes as clearly and accurately as possible; and, unless he has good legal advice, he should make the disposition of his property as simple as possible.

The word "bequeath" applies properly to personal estate only; the word "devise" to real estate only. It is safe enough to begin, "I give, bequeath, and devise my estate and property, as follows: that is to say,". and then go on and tell what shall be done with this and that piece of property or sum of money.

Words of inheritance should be added to any devise of land (if not intended for the life of the devisee only), as was said in reference to deeds; although they are not required in wills so peremptorily as in deeds. The words of inheritance are, "and his heirs." These words should follow the name of the devisee, or person to whom the land is devised.

If it is intended, as usually is the case, that the will should apply to all the real estate possessed by the testator at the time of his death, although purchased after the will is made, there should be a clause expressing this intention.

If children are not provided for in a will, the law presumes in some States that they were forgotten, and gives to any such child the same share as if there were no will, unless the omission is explained in the will or by evidence, in such wise as to show that it was intentional. The same rule applies quite generally to the issue of a deceased child. If the child were provided for in the lifetime of the father, the law, generally, might not presume that he was forgotten; it is best, however, to guard against any question of the kind, by naming the children, and giving them a small sum, or saying that the omission to give them any thing is intentional.

A testator should always name his executors; but the will is perfectly good without any executor being named, for the Court of Probate will appoint an "administrator with the will annexed."

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