ion eight of this section, the same shall be paid into the state treasury for the support of common schools. Person: 1887 R. S. Sec. 5702. WHAT ARE DEBTS: Where money was appropriated by the decedent, a claim therefor on his estate in hands of his heirs must be first satisthe fied out of his personal estate.-Whitesett v. Kershow, 4 Colo. 419. in possession of land, claiming as hei:s at law, are not personally liable for rents and profits received by their ancestor, in the absence of evidence that the same came into their possession.Noble v. Douglass (Kan.), 42 Pac. 328, and heirs at law damages for use and occupancy durnot liable for ing the life of their ancestor.-Hillyer v. Douglass (Kan.), 42 Pac. 329; but when after all the assets of a rantor dying intestate have been converted into money and distributed to the heirs, a breach of the warranty occurs, the heirs may be compelled to refund so much of what they received as shall satisfy the damage.-Rohrbaugin v. Hamblin (Kan.), 46 Pac. 705. are war Subdiv. 1. Where a woman had repeatedly declared herself married to a second husband and they had lived and cohabited together and held themselves out to the public as man and wife prior to the death of the first husband, she was debarred from claiming as the widow of her first husband. -Israel v. Arthur (Colo.), 32 Pac. 68. Under this subdivision, the word "issue" is used in the same sense "child," and the section of the Code relating to the status of adopted children when construed with this section, will entitle an adopted child to succeed to the estate of the adopting parent.--In re Newman's Estate (Cal.), 16 Pac. 887. Subdiv. 2. This subdivision enacting as that the children of a deceased brother or sister of the intestate shall take their parents' share, applies only to cases in which there is a surviving brother or sister.-Ingram's Estate. Clough (Cal.), 21 Pac. 435. Subdiv. 5. A surviving husband of an intestate wife who left no issue, nor any of the relations mentioned in the subdivision, is her sole distrubutee, though the children and grandchildren of a deceased sister of the intestate survive her. Sublivision 2 section, enacting that of this brother or sister of the intestate shall the deceased take their parents' share, applies only to cases in which there is a surviving brother or sister.-Ingram's Estate v. Clough (Cal.), 21 Pac. 435. similar section taken in conjunction Under a with a statute providing that "Degrees of kindred shall be computed according to the rules of the civil law" (See Sec. 2542, this Code), the real estate of such an intestate was held to descend to his grandfather, in preference to an uncle. Smallman v. Powell (Or.), 23 Pac. 249. Under the same section, the estate of such an intestate was held to descend to his grandmother on his father's side and to his grandfather and grandmother on his mother's side, in equal shares.-Shadden v. Hembree (Or.), 18 Pac. 572. Subdiv. 6. Under this subdivision and Section 1394 (2542, this Code), where a decedent inherited his estate from his father, the sisters and brothers of his deceased mother shared equally with those of his father.-In re Pearsons' Estate, 110 Cal. 524, 42 Pac. 960. Section 2540. Illegitimate Child, when to Inherit: Every illegitimate child is an heir of the person who, in writing. signed in the presence of a competent witness, acknowledges himself to be the father of such child; and in all cases is an heir of his mother; and inherits his or her estate, in whole or in part as the case may be, in the same manner as if he had been born in lawful wedlock, but he does not represent his father or mother by inheriting any part of the estate of his or her kindred, either lineal or collateral, unless before his death, his parents shall have intermarried, and his father, after such marriage, acknowledges him as his child or adopts him into his family; in which case, such child and all the legitimate children are considered brothers and sisters, and on the death of either of them, intestate and without issue, the others inherit his estate and are heirs as hereinbefore provided, in like manner as if all the children had been legitimate; saving to the father and mother respectively, their rights in the estates of all the children in like 132 manner as if all had been legitimate. The issue of all marriages null in law, or dissolved by divorce, are legitimate. 1887 R. S. Sec. 5703. WHAT WRITING NECESSARY: Where a putative father wrote to his child and signed letters in the presence of a competent witness, addressing her as "My darling child" and signing him. self "From your loving father," and also wrote her grandfather with reference to having her baptized and christened with his name, and relative to such acts her religious instruction, amount to a complete acknowledgment under this section and it was not necessary that the witness should have subscribed the letters.-Blythe v. Ayres, 96 Cal. 532, 31 Pac. 915. which establish. support, maintain, or COMITY: Under a Pennsylvania statute a child born out of wedlock is rendered legitimate by the subsequent inarriage and cohabitation of its parents and being legitimate there, is legitimate in New Jersey and may inherit land there.-Dayton v. Adkinson (N. J.), 4 L. R. A. 488, 17 Atl. 964. INHERITANCE FROM: The next of kin of the father of an illigitimate Held. POLYGAMOUS CHILDREN: that a similar provision permitting illegitimate children to inherit from the father is not in conflict with the Act of Cong. of July 1, 1862, annulling all acts passed by the Utah legislature Mother is Successor to Illegitimate Section 2541. If an illegitimate child who has not been Child without Issue: acknowledged or adopted by his father, dies intestate without lawful issue, his estate goes to his mother, or in case of her decease, to her heirs at law. 1887 R. S. Sec. 5704. A statute providing that "bastards shall be capable of inheriting and transmitting on the part of or to the mother" does not provide for the trans the estate through mission of the to her collateral kindred.mother Croan v. Phelps (Ky.), 23 L. R. A. 753, 21 S. W. 874. Section 2542. Degrees of Kindred, how Computed: The degrees of kindred are computed according to the rules of the civil law. Kindred of the half blood inherit equally with those of the whole blood in the same degree, unless the inheritance come to the intestate by descent, devise or gift of some one of his ancestors, in which case all those who are not of the blood of such ancestors must be excluded from such inheritance. 1887 R. S. Sec. 5705. father or mother would have inherite‹i if living (c. f. Sec. 255, this Code), does not apply.-Carlton v. Burleigh (Kan.), Under this section and 34 Pac. 1050. subdivision 6 of Section 1386 (Subdiv. 6, Section 2539, this Code), where a deceased inherited his estate from his father, the sisters and brothers of his deceased mother shared equally with re Pearson's those of his father.-In Estate, 110 Cal. 524, 42 Pac. 960. Under a similar section, it was held that children of a deceased's husband by former wife cannot inherit from deceased an estate acquired by descent.-which their Amy v. Amy (Utah), 42 Pac. 1121. Advancements Constitute Part of DisAny estate, real or personal, given by the decedent in his lifetime, as an advancement to any child or other lineal Section 2543. tributive Share: descendant, is a part of the estate of the decedent for the purpose of division and distribution thereof among his issue, and must be taken by such child, or other lineal descendant, toward his share of the estate of the decedent. 1887 R. S. Sec. 5706. Section 2544. See notes under two following sections. Advancements, Right of Heir Receiving the Same: If the amount of such advancement exceeds the share of the heir receiving the same, he must be excluded from any further portion in the division and distribution of the estate, but he must not be required to refund any part of such advancement; and if the amount so received is less than his share, he is entitled to so much more as will give him his full share of the estate of the decedent. 1887 R. S. Sec. 5707. RISE IN VALUE: A purchase of land by a parent in the name of a child may be an advancement, but only to the extent to the price actually paid by the father, without regard to any subsequent rise in the value of the land. Phillips v. Gregg, 36 Am. Dec. 158. RESIDUUM: An advancement to a son in full of all claims against the estate of his father, will not, after his death, prevent the son from taking as heir, a residuum not disposed of by will.-Needles v. Needles, 70 Am. Dec. 85. Section 2545. Advancements, what are: All gifts and grants are made as advancements, if expressed in the gift or grant to be so made, or if charged in writing by the decedent as an advancement, or acknowledged in writing as such by the child or other successor or heir. 1887 R. S. Sec. 5708. Where J., an executor and legatee who received moneys of the estate, died and W., surviving executor, presented no claims against his estate for the same, the court cannot, on the death of W., after the time for presenting claims against the estate of J. had expired, deduct upon distrubution, the amount collected by J. out of the share due his estate. For the sums were not an advancement to J.-In re Smith's Estate, 108 Cal. 115, 40 Pac. 1037; but where the administrator advances a sum of money to the widow of his intestate out of the funds of the estate, he may be reimbursed for such amount, on the settlement of his accounts, from the distrubutive share due such widow, whether it consists of money or real estate. In re Moore's Estate, 96 Cal. 522, 31 Pac. 384. The declaration of a parent of intention to treat an existing debt due from a child thereof as an advancement, will not produce this effect when not agreed to by the child, nor accompanied by an act obliterating the obligation as el dept.-Yundt's Appeal (Pa.), 53 Am. Dec. 496. Section 2546. Ascertaining Value of Advancement: If the value of the estate so advanced is expressed in the conveyance. or in the charge thereof made by the decedent, or in the acknowledgment of the party receiving it, it must be held as of that value in the division and distribution of the estate; otherwise it must be estimated according to its value when given, as nearly as the same can be ascertained. 1887 R. S. Sec. 5709. See note under Sec. 2544. Section 2547. Where Heir Advanced to Dies Before Decedent: If any child or other lineal descendant receiving advancement dies before the decedent, leaving issue, the advancement 184 DISTRIBUTION OF COMMUNITY PROPERTY must be taken into consideration in the division and distribution of the estate, and the amount thereof must be allowed accordingly by the representatives of the heirs receiving the advancement, in like manner as if the advancement had been made directly to them. 1887 R. S. Sec. 5710. Inheritance of Husband and wife Section 2548. The provisions of the preceding sections of from each Other: this chapter, as to the inheritance of the husband and wife from each other, apply only to the separate property of the decedents. 1887 R. S. Sec. 5711. RIGHTS OF SURVIVING HUSThe fact that there was no administration of the wife's estate un BAND: til after her husband's death does not Section 2549. Distribution of Community Property Upon the death of the wife, the entire on Death of Wife: community property, without administration, belongs to the surviving husband, except such portion thereof as may have been set apart to her, by judicial decree, for her support and maintenance, which portion is subjct to her testamentary disposition, and in the absence of such disposition, goes to her descendants, or heirs, exclusive of her husband. 1887 R. S. Sec. 5712; 1879 10th Ses. p. 50, Sec. 1, 1st part. Section 2550. Distribution of Community Property Upon the death of the husband, oneon Death of Husband: half of the community property goes to the surviving wife, and the other half is subject to the testamentary disposition of the husband, and in the absence of such disposition, goes to his descendants, equally, if such descendants are in the same degree of kindred to the decedent; otherwise, according to the right of representation; and in the absence of both such disposition and such descendants, is subject to distribution in the same manner as the separate property of the husband. In case of the dissolution of the community by the death of the husband, the entire community property is equally subject to his debts, the family allowance, and the charges and expenses of administration. 1887 R. S. Sec. 5713; 1879 10th Ses. p. 50, Sec. 1, 2d part. Inheritance by Right of Representa- 1887 R. S. Sec. 5714. REPRESENTATION: No part ing through cf the assets of a deceased person will Section 2552. child, a pre-deceased where by law, such parent was the V. Holmes child's sole heir.-Gray (Kan.), 33 L. R. A. 307, 45 Pac. 59€. Aliens may Inherit, when and how: Resident aliens may take in all cases, by succession as citizens; and no person capable of succeeding under the provisions of this chapter is precluded from such succession by reason of the alienage of any r-lative; but no non-resident foreigner, can take, by succession, unless he appears and claims such succession within five years after the death of the decedent to whom he claims succession. 1887 R. S. Sec. 5715. EFFECT OF THE STATUTE: When a state makes aliens capable of taking lands by descent, within its own territory, it by no means makes them citizens of the United States, nor does it give them any capacity to take by descent, or in any other capacity whatever in any other state, each state having the undoubted right to regulate the law of descents within its own limits. -Montgomery v. Dorion, 7 N. H. 435. ESCHEAT: A non-resident foreigner cannot take real estate by succession under the provisions of this section unless he appears and claims succession within five years after the death of the decendent, and if succession is not claimed within that period, the real estate owned by the deceased escheats to the state to be disposed of as provided in the following section.State v. Stevenson (Idaho). 55 Pac. 886. Section 2553. Proceedings when Succession is not Claimed: When succession is not claimed as provided in the preceding section, the district court, on information, must direct the attorney general to reduce the property to his or the possession of the state, or to cause the same to be sold, and the same, or the proceeds thereof, to be deposited in the state treasury for the benefit of such non-resident foreigner, or his legal representative, to be paid to him whenever, within five years after such deposit, proof to the satisfaction of the state auditor and state treasurer is produced that he is entitled to succeed thereto. 1887 R. S. Sec. 5716. ESCHEAT: Title by escheat passes to the state by operation of law.State v. Stevenson (Idaho), 55 Pac. 886. When Section 2554. Record of Property Claimed. Estate Goes to School Fund: When so claimed, the evidence and the joint order of the auditor and treasurer, must be filed by the treasurer as his voucher, and the property delivered or the proceeds paid to the claimant on filing his receipt therefor. If no one succeeds to the estate or the proceeds, as herein provided, the property of the decedent is placed by the state treasurer to the credit of the school fund. |