DESCENT AND DISTRIBUTION OF THE PROPERTY OF INTESTATES

Unless the rule as given be specified as applying to realty, or personalty, only, it applies to both. The interest of the widow or surviving husband is first considered. Dower and curtesy are used as at common law, unless otherwise specified, except that birth of issue is not a requisite for tenancy by curtesy. When the decedent leaves neither children nor issue of deceased children, the provisions are various. In many jurisdictions, the widow or the surviving husband takes one-half the real and personal estate; in some he or she takes all. On the failure of issue and certain kin, the widow or the surviving husband usually takes the whole estate, after the payment of debts and other charges. In all jurdisdictions, the real and personal property of an intestate, subject to the provisions as to the rights of the widow or surviving husband, if any, descends to and is distributed among the legitimate children of the decedent living at his or her death, and the issue of deceased children per stirpes, that is, by right of representation of their parent or ancestor, in equal shares. Illegitimate children may inherit from the mother, and in several jurisdictions it is provided that illegitimate children may inherit from an intestate father, by whom they have been recognized. In all the states, posthumous children of the intestate inherit as if in being at his death. In many states, if a child die under age, being unmarried or without issue, all the estate descending by gift, devise, or descent from either parent to such child, goes to the other children of the same parent and the issue of such as are dead per stirpes, unless all be in the same degree, then per capita (by the head), share and share alike, as in Arizona, California, Idaho, Maine, Michigan, Minnesota, Montana, Nebraska, New Hampshire, North Dakota, Oregon, South Dakota, Utah, Washington, and Wisconsin. In Connecticut, Florida, Kentucky, Louisiana, and Virginia, the estate in such a case goes to the parent or the kindred of such parent, if any, otherwise to the kindred of the other parent. When all the children are dead, the grandchildren and the issue of deceased grandchildren take, in all jurisdictions. In the following states they take per stirbes in all cases to the remotest degree: Alabama, Arkansas, Colorado, Connecticut, Delaware, Georgia, Illinois, Iowa, Kansas, Kentucky, Maryland, Minnesota, Mississippi, New Hampshire, New Jersey, North Carolina, Rhode Island, South Carolina, Tennessee, Vermont, and Wyoming. But in the following, when all such grandchildren or other lineal descendants

are in the same degree, they take in equal parts per capita, otherwise per stirpes: Arizona, California, Florida, Idaho, Indiana, Louisiana, Maine, Massachusetts, Michigan, Missouri, Montana, Nebraska, Nevada, New Mexico, New York, North Dakota, Ohio, Oregon, Pennsylvania, South Dakota, Texas, Utah, Virginia, Washington, West Virginia, and Wisconsin.

If there be no descendants living, the estate both real and personal generally passes to the father, or to the father and mother equally. The provisions are extremely varied, and are given hereinafter for each jurisdiction. On failure of lineal descendants of the intestate, if there be neither widow, surviving husband, father, nor mother, the property descends in equal shares to the brothers and sisters of the intestate, and the children of those deceased per stirpes. In many jurisdictions, however, the brothers and sisters are preferred to the father and mother in the course of descent of realty; and in others, if there be no father, the brothers, sisters, and mother share equally.

On failure of the above classes, the property descends to the next of kin of the intestate, in equal degree, equally, except that when there are two or more in the same degree, those claiming through the nearest ancestor are to be preferred. Generally, the degree of kindred is reckoned according to the rules of the civil law. Among collaterals, a distinction is frequently made between those of the whole blood and those of the half blood, so that the half blood inherit only half as much as the whole blood; but where all the collaterals are of the half blood, the ascending kindred, if any, have double portions, as in Colorado, Florida, Kentucky, Louisiana, Missouri, Texas, Virginia, West Virginia, and Wyoming. There is frequently a provision by which real estate, which came to the intestate by descent, devise, or gift from a parent or other kindred, will descend only to the next of kin of the intestate of the blood of the person from whom such estate came. In default of all the above classes, the estate, both real and personal, escheats to the state, or, in England and Canada, to the crown.

Alabama.-The widow has a life estate in one-third of all the lands of which the husband was seized in fee during marriage. The husband has a life estate in the realty of the wife, unless he have been divested of all control over it by the chancery court. If there be one child surviving, the widow is entitled to one-half the personalty; if more than one child, and not more than four, to a child's part; if more than four children, to one-fifth part. If there be neither children nor their issue, and the estate be solvent, the widow has a life estate in one-half the realty; if the estate be insolvent, she has an estate in onethird only. If there be no lineal descendants, the widow takes all the personalty. On failure of children, grandchildren, father and mother, and brothers and sisters, the whole estate goes to the widow or husband. Subject to these rights of husband or wife, and subject also to

the payment of debts and charges against the estate, the real estate descends to the children of the decedent or their descendants in equal parts, descendants taking by right of representation. On failure of lineal descendants, if both father and mother be living, the estate goes to them in equal parts. If there be but one surviving parent, then one-half to such surviving parent, and the other half to brothers and sisters of the intestate, or their descendants, in equal parts. If there be neither brothers nor sisters nor their descendants, and if there be but one surviving parent, then the whole to such surviving parent. If there be neither children nor their descendants, nor father nor mother, neither brothers nor sisters, nor there descendants, and neither husband nor wife, the estate goes to the next of kin to the intestate in equal degree in equal parts. If there be none of the above classes capable of inheriting, the estate escheats to the state.

Alaska.-The real property of an intestate descends as follows: 1. In equal shares to his or her children and to the issue of any deceased child by right of representation; and if there be no child of intestate living at the time of his or her death, to all his or her other lineal descendants; and if all such descendants are in the same degree of kindred to the intestate, they take equally; otherwise, by representation. 2. If intestate leave no lineal descendants, to his wife; or if intestate be a married woman, to her husband; and if intestate leave no wife nor husband, to his or her father. 3. If intestate leave no lineal descendants, neither husband nor wife, nor father, such real property descends in equal shares to his brothers and sisters, and to the issue of any deceased brother or sister by right of representation; but if intestate leave a mother, she takes equal share with such brothers and sisters. 4. If intestate leave no lineal descendants, neither husband nor wife, nor father, brother, nor sister, such real property descends to his mother, to the exclusion of the issue of deceased brothers and sisters. 5. If intestate leave no lineal descendants, neither husband nor wife, nor father, mother, brother, nor sister, such real property descends to his next of kin in equal degree, excepting that when there are two or more collateral kindred in equal degree, but claiming through different ancestors, those who claim through the nearest ancestor are preferred. 6. If intestate leave one or more children, and the issue of one or more deceased children, and any of such surviving children die under age without having been married, all such real property that came to such deceased child by inheritance from such intestate descends in equal shares to the other children of such intestate and to the issue of any other children who have died, by right of representation. But if all the other children of intestate be dead, and any of them have left issue, such real property so inherited by such deceased child descends to all the issue of such other children of the intestate in equal shares,

if they are in the same degree of kindred to such deceased child; otherwise, they take by right of representation. 7. If intestate leave no lineal descendants or kindred, such real property escheats to the United States.

Arizona.-The widow or husband has a life estate in one-third the realty, and takes one-third the personalty absolutely, if there be children; and of the community property one-half goes to the survivor. If there be neither children nor their descendants, the widow or husband takes all the realty for life, and all the personalty, as well as community property, absolutely. On failure of kindred, the widow or husband takes all the realty in fee. If there be neither husband nor wife, the property shall descend in coparcenary to male or female, the first to the descendant's children or their descendants; if there be none of these, to the father and the mother equally, if both survive; if only one survive, then in two equal portions, one to the survivor, and one to the brothers and sisters of the deceased, and to their descendants; but if neither brother nor sister survive, then the whole to the surviving father and mother. If none of the above survive, then the estate is divided into two moieties, one to the paternal, and the other to the maternal, kindred, as follows: To the grandfather and the grandmother equally; if only one survive, then in two parts, one to the survivor and one to the descendants of the other; if there be no other such descendants, then the whole to the surviving grandparent; if no grandparent survive, then the whole to their descendants, passing to lineal ancestors and their descendants. Among collateral kindred, the half blood inherit half as much as the whole blood.

Arkansas.—If there be children of the decedent, the widow takes one-third of the realty for life, and one-third of the personalty absolutely. If there be neither children nor their descendants, the widow takes one-half of the realty, and one-half of the personalty absolutely, if the estate be solvent, otherwise one-third of each, but she takes ancestral estates for life only. If there be no kindred capable of inheriting, the widow or husband takes all the estate. Subject to the payment of debts and the rights of the widow, the property descends to the children or their descendants equally. Children, but no other kin, born after the death of the decedent, shall inherit equally with other children. Bastards inherit from the mother, and may transmit in her line collaterally. Marriage of parents, or recognition of bastards as their children by parents, renders them legitimate. If there be neither children nor their descendants, then the estate goes to the father, then to the mother, as to personal property absolutely, as to real estate for life with remainder to collateral kindred. If there be no parents, the estate goes to the brothers and sisters and their descendants in equal parts, and in default of the above, to the grandfather, grandmother, uncles and aunts and their descendants, and so on in

other cases without end, passing to the nearest lineal ancestor and their children and their descendants in equal parts. If kindred in the ascending or descending line be of kin in unequal degrees, they take per stirpes. Kindred of the half blood inherit equally with the full blood. As to real estate, if it comes by the father or mother, the kindred of the line who would inherit by the foregoing rules take to the exclusion of the kindred by the other parent from whom the estate did not come. An estate, in default of a father and a mother, and any nearer kindred, goes o the brothers and the sisters of the father to the exclusion of the like kindred of the mother. If there be no such kindred of the father, then to the like kindred of the mother. In default of all the above classes, the estate escheats.

California.-The widow succeeds to one-half of the community property, that is, all property acquired by husband or wife during the marriage, which does not include property acquired by either husband or wife by gift, bequest, devise, or descent, which is separate property. Dower interest does not exist. The separate estate is distributed as follows: If the decedent leave only one child or the lawful issue of one child, in equal shares to the husband or widow and the child, or issue of such child; if more than one child, or one child living and the lawful issue of one or more deceased children, one-third to the husband or widow, and the remainder in equal shares to the children, and to the lawful issue of any deceased child, per stirpes. If lineal descendants be in the same degree of relationship to the decedent, they share equally, otherwise per stirpes. If there be no issue, the separate estate passes, one-half to the husband or widow, and the other half to the father and the mother in equal shares, or, if one be dead, to the survivor; if there be neither father nor mother, then that one-half goes in equal shares to the brothers and the sisters, or to their representatives. If their be neither issue, father, mother, brothers, nor sisters capable of inheriting, the whole estate passes to the widow or husband. If there be neither issue, nor husband nor wife, the estate goes to the father and the mother, or the survivor of them; or if both be dead, then in equal shares to the brothers or sisters, and to the children of any deceased brother or sister per stirpes. On failure of all of the herein before stated classes, the estate passes to the next of kin in equal degree; or if none, it escheats.

Colorado.-If there survive children or their descendants, the widow or surviving husband takes one-half the estate, and the children or their descendants take the other half. If there be neither children nor their descendants, the widow or husband takes all the estate, subject, however, to the payment of debts. If there be neither widow nor surviving husband, the children or their descendants take, such descendants taking per stirpes to the remotest degree. If there be none of the aforesaid, the estate passes to the father; next to the mother;