cial and peculiar, and minute even beyond the rule of the common law. In Maryland, judgments and decrees have preference, and all other debts are equal; and in Missouri, expenses of the last sickness, debts due to the state, and judgments, have preference, and all other debts are placed on an equality. In Pennsylvania, the order of administration is to pay, 1. Physic, funeral expenses, and servant's wages; 2. Rents, not exceeding one year; 3. Judgments; 4. Recognisances; 5. Bonds and specialties; 6. All other debts equally, except debts due to the state, which are to be last paid.. When the debts are paid, the administrator is bound, after the expiration of a year from the granting of administration, to distribute the surplus property among the next of kin. The statutec declares, that after the debts, funeral charges and just expenses are deducted, a just and equal distribution of what remaineth clear of the goods and personal estate of the intestate, shall be made amongst the wife and children, or children's children, if any such there be, or otherwise to the next of kin to the intestate, in equal degree, or legally representing their stocks, that is to say, one third part of the surplusage to the wife of the intestate, and all of the residue by equal portions to and amongst the children of the intestate, and their representatives, if any of the children be dead, other than such child or children who shall have any estate by settlement, or shall be advanced by the intestate in his lifetime, by portion equal to the share which shall by such distribution be allotted to the other children to whom such distribution is to be made. And if the portion of any child who hath had such settlement or portion, be not equal to the share due to the other children by the distribution, the child so advanced is to be made equal with the rest. If a Griffith's Law Register, h. t. b Frazer v. Tunis, 1 Binney, 254. there be no children, or their representatives, one moiety of the personal estate of the intestate goes to the widow, and the residue is to be distributed equally among the next of kin, who are in equal degree, and those who represent them; but no representation is admitted among collaterals after brothers' and sisters' children; and in case there be no wife, then the estate is to be distributed equally amongst the children; and if no child, then to the next of kin in equal degree, and their lawful representatives, in the manner already mentioned. It is further provided, that if any child shall die intestate after the death of the father, and without wife or children, and in the lifetime of the mother, every brother and sister, and their representatives, shall have an equal share with her. This is the substance of our act of distributions, which may assert a parentage of very distant antiquity, for it is copied literally from the English statute of 22d and 23d Charles II. ch. 10. and that statute was borrowed from the 118th novel of Justinian, and, except in some few instances mentioned in the statute, it is governed and construed by the rules of the civil law.a The next of kin, within the meaning of the statute, are those who are so determined by the civil law, by which the intestate himself is the terminus a quo the several degrees are numbered. Under that rule, the father stands in the first degree, the grandfather and the grandson in the second, and in the collateral line, the computation is from the intes tate up to the common ancestor of the intestate, and the person whose relationship is sought after, and then down to that person. According to that rule, the intestate and his brother are related in the second degree, the intestate and his uncle in the third degree. The half blood are admit a See vol. i. 503. note, and also Carter v Crawley, T. Raym. 496. Palmer v. Allicock, 3 Mod. 58. Edward v. Freeman, 2 P. Wms. 436. A Sir John Strange, in Lloyd v. Tench, 2 Vesey, 213. ted equally with the whole blood, for they are equally as near of kin; and the father succeeds to the whole personal estate of a child who dies intestate, and without wife or is sue, in exclusion of the brothers and sisters; and the mother would have equally so succeeded as against the col laterals, had it not been for a saving clause in the act, which excludes her from all but a rateable share. She is excluded, lest, by re-marrying, she would carry all the personal estate to another husband, in entire exclusion, for ever, of the brothers and sisters, The K. B. declared, in Blackborough v. Davis,a that the father and mother had always the preference before the brothers and sisters, in the inheritance of the personal estate, as being esteemed nearer of kin; and for the same reason, the grandmother is preferred to the aunt. The grandmother is preferred,. not because she is simply in the ascending line, for, under the statute of distributions, a nearer collateral will be preferred to a more remote lineal, but because she is nearer of kin, according to the computation of the civilians, by one degree. And in Moor v. Barham, decided by Sir Joseph Jekyll, the grandfather on the father's side, and the grandmother on the mother's side, take in equal moieties by the statute of distribution, as being the next of kin in equal degree, and the half blood take equally with the whole blood. A brother and a grandfather of the intes tate are equally near of kin, and each related in the second degree, and, therefore, it would seem, from the directions in our act, that they would take equally; but it has been decided in England, and it is also the better construction of the novel of Justinan, that the brother of the intestate will exclude the grandfather of the intestate. This was so decided in Pool v. Wilshaw, in 1708; and Lord Hardwicke, in Evelyn v. Evelyn, followed that determination as a 1 P. Wms. 41. 2 Vesey, 215. b Cited in 1 P. Wms. 53. c 3 Atk. 762. Amb. 191. Burns' Eccl. Law, vol. iv. 416. being correct, though it may be considered an exception to the general rule. He said it would be a very great public inconvenience, to carry the portions of children to a grandfather, and contrary to the very nature of provisions among children, as every child may properly be said to have a spes accrescendi. This question was very much debated among the civilians in their construction of the 118th novel of Justinian, and the generality of them, of whom Ferriere and Domat are of the number, were of opinion, that the grandfather and the brother took equally; but Voet was of a different opinion, and his opinion, though. without any strong foundation in reason, is the one prevailing in the English courts." The question whether the half blood took equally with the whole blood, under the statute of distributions, was debated in the case of Watts v. Crooke, and it was determined in chancery, that they were of equal kin, and took equally with the whole blood, and the lecree was affirmed upon appeal to the House of Lords. So, posthumous children, whether of the whole or haif blood, take equally as other children under the statute.c As the statute of distributions says, that no representation shall be admitted among collaterals after brother's and sister's children, it has been held, in Pett v. Pett," that a brother's grandchildren cannot share with another brother's children. And, therefore, if the intestate's brother A. be dead, leaving only grandchildren, and his brother B. be dead, leaving children, and his brother C. be living, the grandchildren of A. will have no share, and cannot take. One half of the personal estate will go to the children of B., and the other half to C. But if all the brothers and a Voet, Com. ad Pan!. lib. 38. tit. 17. ch. 13. b Shower's Cases in Pari ment, 108. c Burnet v. Mann, 1 Vesey, 156. 1 Salk. 250. Pett's case, 1 P. Wms. 25. sisters and their children be dead, leaving children, those children cannot take by representation, for it does not extend so far, but they are all next of kin, and in that character they would take per capita. Representation in the descending lineal line proceeds on ad infinitum, restrained by no limits. It has also been decided, that if the intestate leaves no wife or child, brother or sister, but his next of kin are an uncle by his mother's side, and a son of a deceased aunt, the uncle takes the whole, and the representation is not carried down to the representatives of the aunt.a க் It is the doctrine under the statute of distributions, that the claimants take per stirpes only when they stand in unequal degrees, or claim by representation, and then the doctrine of representation is necessary. But when they aff stand in equal degree, as three brothers, three grandchildren, three nephews, &c. they take per capita, or each an equal share, because, in this case, representation, or taking per stirpes, is not necessary to prevent the exclusion of those in a remoter degree, and it would be contrary to the spirit and policy of the statute, which aimed at a just and equal distribution. Aunts and nephews stand in the same third degree, and take equally per capita. If a person dies without children, leaving a widow, and mother, brother and sister, and two nieces by a deceased brother, then, according to the established doctrine, the widow would take a moiety, and the mother, brother, and sister, would each take one fourth, and the two nieces the other one fourth of the remaining moiety. This point was ruled in Keylway v. al P. Wms. 593. Bowers v. Littlewood. 2 N. Hamp. Rep. 460. Parker v. Nims. Walsh v. Walsh, Prec. in Ch. 54. Davers v. Dewes, 3 P. Wms. 50. © Durant v. Prestwood, 8 Atk. 454. Lloyd v. Tench, 2 Vesey, 213. |