1902 Encyclopedia > Intestacy

Intestacy




INTESTACY. In dealing with the property of a person who dies without making a will, the law of England dis-tinguishes sharply between his real and his personal estate. The devolution of the former is regulated by the rules of INHERITANCE (q.v.). The destination of the latter is marked out by the Statute of Distributions. The proper conditions of a testamentary disposition of property will be found under the heading WILL.

The distribution of an intestate's personal estate is carried out under the authority of administrators, whose duties are generally the same as those of executors under a will. Administration was until quite recently a matter cognizable by the ecclesiastical courts, and the ordinary was in fact the administrator until the passing of the 31 Edw. III. st. i. c. 11. An earlier statute (Westminster 2) directed against the abuses of the system required the ordinary, instead of applying the residue of the estate to " pious uses," to pay the debts of the intestate. The Act of Edward III. went further in providing that " in case where a man dieth intestate, the ordinaries shall depute of the next and most lawful friends of the dead person intestate to administer his goods," with power to sue for debts due to the deceased, and under obligation to pay debts due by him, and to answer to the ordinary like executors in the case of testament. Administrators remained on this foot-ing of deputies appointed by the ordinary until the Probate Act transferred the jurisdiction in administration of the ecclesiastical courts to the new court of probate.

The courts of law having held that by the grant of administration the authority of the ecclesiastical courts was exhausted, the administrator became entitled to the privilege, similar to that formerly enjoyed by the ordinary, of dealing as he pleased with residue of the estate. The next of kin of the same degree of relationship with the deceased were thus aggrieved by the preference of the administrator, and it was to remedy this grievance that the Statute of Distributions (22 and 23 Charles II. c. 10) was passed. It empowered the ordinary to take a bond from the administrator binding him to make a fair and complete distribution of the estates among the next of kin. Such distribution is to be in the following manner : —one-third to the wife of the intestate, and all the residue by equal portions to and amongst the children, and their representatives if any of such children be dead, exclusive of children who shall have any estate by the settlement of the intestate, or shall be advanced by the intestate in his lifetime by portions equal to the shares allotted to the other children under the distribution. If such advancement should be less than the share or the other children in distribution, then it shall be made equal thereto. But the " heir-at-law, notwithstanding any land that he shall have by descent or otherwise from the intestate, is to have an equal part in distribution with the rest of the children" (§ 5). By § 6, if there be no children nor any legal representatives of children, one moiety of the estate is to be allotted to the wife of the intestate, the residue "to be distributed equally to any of the next of kindred of the intestate who are equal in degree and those who legally represent them." By § 7 there shall "be no representation admitted among collaterals after brothers' and sisters' chil-dren; and in case there be no wife, then all the said estate to be distributed equally to and among the children; and in case there be no child, then to the next of kindred in equal degree of or unto the intestate and their legal representatives as aforesaid, and in no other manner whatsoever." For the protection of creditors it is enacted that there shall be no distribution till a full year after the intestate's death, and if any debts should be discovered after distribution, the persons sharing the estate shall refund the amount of the same ratably. Finally, by § 4 it is provided that nothing in the Act shall prejudice the customs of London, York, and other places having customable rules of succes-sion ; but these have been since abolished.





With reference to the above rules the following points may be observed:—(1) The husband's absolute right to administer his wife's estate is not affected by the Act. This was made clear by a later Act of the same reign (29 Charles II. c. 3). Administration is now granted to the representatives of the husband, where he has died without taking out administration to his wife, unless it can be shown that the wife's next of kin are beneficially interested. (2) The widow, in the event of there being no children or next of kin, takes only her half. The other half goes to the crown. (3) The child or chil-dren take equally two-thirds if the widow be alive, and the whole if she be dead. If the children of the intestate be all dead, the grandchildren will take equally amongst themselves as next of kin; if there be neither child nor grandchild alive the great-grandchildren would likewise take equally as a class (per capita). But if some of the children be alive, some dead leaving issue, the children of a deceased child take their father's share (per stirpes). Thus, for example, the ten children of a deceased son would only take between them their father's share if any brother or sister of their father were alive ; if not, they would share equally with the other grandchildren. (4) The next of kin must be ascertained according to the rules of consanguinity, which are the same in English as in the civil law. Degree is calculated from the intestate, through the common ancestor if any, to the kindred. Thus from son to father is one degree, to grandfather two degrees, to brother two degrees, to uncle three degrees, and so on. The statute ordains distribution to be made " to the next of kindred in equal degrees pro suo cuique jure, according to the laws in such cases and the rules and limitations hereafter set down." Equality in degree is therefore not in all cases accompanied by equality in rights of succession. Neglecting the cases of wife and children already noticed, the father excludes all other next of kin. So would a mother, in default of a father surviving, but the Act 1 James II. c. 17 enacted that in such a case the brothers and sisters of the intestate should share equally with the mother. The language both of this and of the principal statute is very inapt, and has given rise to complicated questions of interpretation. In the absence of brothers or sisters and their representatives, the mother in the case supposed would take the whole. Mothers-in-law and stepmothers are not within the rules of consanguinity. As between a brother and a grandfather who are both in the second degree, preference is given to the brother; but a grandfather, being in the second degree, will exclude an uncle, who is in the third. An uncle and a nephew, both being in the third degree, take together. Brothers or sisters of the half blood take equally with brothers and sisters of the whole blood. The rule which prohibits representations after brothers' and sisters' children would, in a case where the next of kin were uncles or nephews, wholly exclude the children of a deceased uncle or nephew. Also, as between the son of a brother and the grandson of a brother, the latter would not be admitted by representa-tion. Where a brother and the children of a deceased brother are the next of kin, they will take per stirpes, i.e., the brother will take one half, and the children of the other brother will take the other half between them. When the next of kin are all children of the deceased brothers or sisters, they will take equally per capita. Subject to these modifications, the personal estate will be divided equally among the next of kin of equal degree, e.g., great-grand-fathers would share with uncles or aunts, as being in the third degree. Failing next of kin, under these rules, the estate goes to the crown as ultimus heeres, a result which is more likely to happen in the case of illegitimate persons than in any other.

Personal or movable property takes its legal character from the domicile of the owner, and the distribution of an intestate's goods is therefore regulated by the law of the country in which the intestate was domiciled. A domiciled Scotchman, for example, dies intestate in England, leaving personal property in England; the administrator appointed by the court of probate will be bound to distribute the estate according to the Scotch rules of succession.

In the law of Scotland the free movable estate of the intestate is divided amongst the nearest of kin, the full blood excluding the half blood, and neither mother nor maternal relations being originally admitted. The heir of the heritable property if one of the next of kin must collate with the next of kin if he wishes to share in the movables. Proximity of kin is reckoned in the same order as in the case of inheritance. The Intestate Movable Succession Act, 1855, among other changes, allows the issue of a predeceasing next of kin to come in the place of their parent in succession to an intestate, gives the father of an intestate dying without issue one-half of the movable estate in preference to brothers and sisters, and to the mother if the father be dead a similar preference to the extent of one-third, and admits brothers and sisters uterine in the absence of brothers and sisters german or consanguinean.

In the United States the English Statute of Distribution has been taken as the basis of the law for the distribution of personal property in intestacy, and its principles have been applied to real property also. " In a majority of the States the descent of real and personal property is to the same persons and in the same proportions, and the regulation is the same in substance as the English Statute of Distribution. In Georgia the real and personal estate of the intestate is considered as altogether of the same nature and upon the same footing. . . . The English Statute of Distribution, being founded on justice and on the wisdom of ages, was well selected as the most suitable and judicious basis on which to establish our American law of descent and distribution." See INHERITANCE. (E. E.)







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