<&fXixm\\ Slatu i>rl|nnl Slibraty |Pft 1 2 1904 Cornell University Library KFN5201.R38 1904 Intestate succession In the state of New 3 1924 022 812 493 Cornell University Library The original of tliis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022812493 INTESTATE SUCCESSION STATE OF NEW YORK. SHOWING THE RIGHTS OF THE LIVING TO THE PROPERTY OF DECEASED RELATIVES UNDISPOSED OF BY VALID WILL. By DANIEL S. EEMSEK OP THE NEW YORK BAR. FOURTH EDITION NEW YORK: BAKER, VOORHIS & COMPANY. 1904. mu Copyright, 1885, By Daniel S. Remsen. Copyright, 1890, Bt Daniel S. Remsen. Copyright, 1896, By Daniel S. Remsen. Copyright, 1904, By Daniel S. Remsen. «0] 10Q4 J. ». LYON COMPANY PRINTERS AND BINDERS ALBANY, N. Y. '^"'^^"'^y.^r it^ NOTE TO FOURTH EDITION. In the fourtli edition it is intended to present the law of Intestate Succession as it is found in tlie statutes and the judicial decisions of this State at the present time, and to this end such changes in, and ad- ditions to, the work have been made as were necessary. D. S. E. 69 Wall St., New York, Jan., 1904. PREFACE TO FIRST EDITIOX. The object of this volume is to present, in a form convenient for reference, a subject which it is imprac- ticable for lawyers to carry wholly in mind, and yet of sufficient importance to require frequent examina- tion, especially by those engaged to any extent with the estates of deceased persons. The material form- ing the basis of this work having been collected by the writer while engaged upon-the subject of intes- tate succession and kindred branches of the law, and having also been found useful by him in drawing or construing wills, the work has been thought worth the labor of arranging in its preserit shape for pub- lication. It will be noticed that the plan of naming particu- lar relatives, and then stating their rights to take or share in the property of deceased persons, under various family circumstances, has been pursued throughout. This arrangement will be found of prac- tical service in readily ascertaining the rights of claimants and inquirers, and in showing what be- comes of property not effectually disposed of by will. It is believed that the Chart of Consanguinity, Table of Descent, and Table of Relative Terms, will be found iiseful ,in determining the relationship of claimants and inquirers. For greater convenience, the Statutes of Descent and Distribution are appended. DA]!^IEL S. REMSEN. 09 Wall St., New York, Dec, 1885. [4] CONTENTS. *^^ 1 2 1904 CHAPTEE I. OF THE PERSONS ENTITLED TO TAKE. PAGE. § 1. What law governs, " . . . 9 2. Relatives generally, . . . . .10 3. The number of relatives, .... 11 4. Relative terms, . ... 13 5. Post-testamentary children, . 14 6. Posthumous relatives, . . 15 7. Relatives of the half-blood, . .16 8. Illegitimate children, . . 16 9. Relatives of illegitimate intestates, . 17 10. Adopted children, .18 11. Aliens, 18 CHAPTEE II. OF THE PROPERTY TO BE DIVIDED. § 1. Devisable property generally, . . 20 2. Did the deceased make a vrill? . 21 3. Has the will been revoked? 23 4. Does the will fail to take effect? 24 5. Advancements, . 25 0. " On the part of " father or mother, . 28 7. " From a deceased husband or wife," . 28 8. Succession tax, . . .29 CHAPTEE III. OF THE RIGHTS OF WIDOW AND HUSBAND. 1. Widow takes Real Estate, 30 2. Widow takes Personal Estate, . 32 3. Husband takes Real Estate, . . . . .35 4. Husband takes Personal Estate, . . 36 [5] 6 CONTENTS. CHAPTER IV. OF THE RIGHTS OF DESCENDANTS. PAGE. § 1. Children take Real Estate, 38 2. Children take Personal Estate, . . 39 3. Grandchildren take Real Estate, . . 39 4. Grandchildren take Personal Estate, . . .40 5. Great-grandchildren take Real Estate, . . 41 6. Great-grandchildren take Personal Estate, . . 43 7. Great-great-grandchildren take Real Estate, . . 45 8. Great-great-grandchildren take Personal Estate, . 47 CHAPTER V. OF THE RIGHTS OF ANCESTORS. 1. Father takes Real Estate, 2. Father takes Personal Estate, 3. Mother takes Real Estate, 4. Mother takes Personal Estate, 5. Grandparents take Personal Estate only, . 6. Great-grandparents take Personal Estate only. 51 52 52 53 54 55 7. Great-great-grandparents take Personal Estate only, 56 CHAPTER VI. OF THE RIGHTS OF BROTHERS AND SISTERS AND THEIR DESCENDANTS. • § 1. Brothers and sisters take Real Estate, . . 57 2. Brothers and sisters take Personal Estate, . . 58 3. Nephews and nieces take Real Estate, . . .60 4. Nephews and nieces take Personal Estate, . . 62 5. Grandnephews and nieces take Real Estate, . 66 6. Grandnephews and nieces take Personal Estate, . 68 7. Great-grandnephews and nieces take Real Estate, . 69 8. Great-grandnephews and nieces take Personal Estate, 72 COliTTENTS. CHAPTER VII. OF THE RIGHTS OF UNCLES AND AUNTS AND THEIR DESCENDANTS. PAGE. 74 76 77 81 82 88 1. Uncles and aunts take Real Estate, . 2. Uncles and aunts take Personal Estate, 3. Cousins take Real Estate, 4. Cousins take Personal Estate, 5. Children of eounsins take Real Estate, 6. Children of cousins take Personal Estate, 7. Grandchildren of cousins take Real Estate, 88 8. Grandchildren of cousins take Personal Estate, 95 CHAPTER VIII. OF THE RIGHTS OF GREAT-UNCLES AND AUNTS AND THEIR DESCENDANTS. § 1. Great-uncles and aunts take Real Estate, . |. .97 2. Great-uncles and aunts take Personal Estate, . . 99 3. Children of great-uncles and aunts take Real Estate, 100 4. Children of great-uncles and aunts take Personal Estate, 101 5. Second cousins take Real Estate, .... 102 6. Second cousins take Personal Estate, . . 103 7. Children of second cousins take Real Estate, . .105 8. Children of second cousins take Personal Estate, . 105 CHAPTER IX. OF THE RIGHTS OF GREAT-GREAT-UNCLES AND AUNTS AND THEIR DESCENDANTS. § 1. Great-great-uncles and aunts take Real Estate, . . 108 2. Great-great-uncles and aunts take Personal Estate, . 109 3. Children of great-great-uncles and aunts take Real Estate, 110 8 CONTENTS. PAGE. § 4. Children of great-great-uncles and aunts take Per- sonal Estate, 110 o. Grandchildren of great-great-uncles and aunts take Real Estate, . .112 6. Grandchildren of great-great-uncles and aunts take Personal Estate, . . 112 7. Third cousins take Real Estate, . .114 8. Third cousins take Personal Estate, . . .11.5 GHAPTEK X. OF TJIE POSSESSION AND ENJOYMENT OF THE PROP- ERTY TAKEN. § 1. Real Estate, . .118 2. Possession and inventory of Personal Estate, 118 3. Payment for support and education, . . 120 4. Payment after one year, 121 5. 'Payment after accounting, . . . 122 6. Recovery by action, . . . 123 APPEi^rDIX. A. statute of Descent, ..... 125 B. Statute of Distribution, .... 134 INTESTATE SUCCESSION IN NEW YORK. CHAPTER I. OF THE PERSONS ENTITLED TO TAKE. § 1. What law governs. 2. Relatives generally. 3. The number of relatives. 4. Relative terms. 5. Post-testamentary children. 6. Posthumous relatives. 7. Relatives of the half-blood. 8. Illegitimate children. 9. Relatives of illegitimate intestates. 10. Adopted children. 11. Aliens. § 1. What law governs. — Where a'deceased person leaves property to be disposed of by the law regulating intestate estates, the succession depends on the char- acter of the property, its location, and the domicile of the deceased. The intestate succession to real estate situated within this State is regulated by the laws of New York.'' In the case of personal estate the succes- 1 R. P. Law, §§ 280-296. Concerning the effect of the law of another State touching the status of a claimant as to le- [9] 10 INTESTATE SUCCESSION IN NEW YOEK. sion depends upon the law of the domicile of the de- ceased.^ Hence, the following pages are applicable to real estate situated in the State of l^ew York, and the personal estates of persons there domiciled. § 2. Relatives generally. — The right of living per- sons to take property of a person dying intestate de- pends on their relationship to the deceased. These re- lationships are of three kinds : first, those by affinity or marriage ; second, those by consanguinity or blood, and third, those by lawful adoption. The only rela- tives of the first class who are entitled to take under the law of intestate succession are husband and wife.* All other relatives must found their claims to prop- erty on relationship by blood, or on the statute relat- ing to the adoption of children.'* Lest there should be any confusion of terms, all relationships will be viewed from the position of the deceased, and not from the standpoint of the claimant or inquirer. Thus we will speak of a child, nephew, parent, or other relative of the deceased. By re- gitimacy, see Miller ir^^ rli .s|*o ^^ ,^ / / V r^ / / / / t 1^ - ifr \o 'i) ^ ^?3<^ <& I OF THE PERSONS ENTITLED TO TAKE. 11 ferring to the Chart of Consanguinity here given it may be seen that persons in the same generation with the deceased bear to the deceased the same relation- ship that the deceased bears to them — as, for ex- ample, brother or sister to brother or sister, cousin to cousin, and the like. In other generations relation- ships are not reciprocal, and different terms are neces- sarily employed, as parent and child, uncle and nephew, and the like. The accompanying chart affords a comprehensive view of all possible relationships within the eighth degree" of consanguinity. The horizontal lines show the generations. The numerals and perpendicular lines indicate the degree of consanguinity to the de- ceased. The relatives mentioned on the left of the heavy broken line are lineals. Those mentioned on the right of the same line are collaterals. The diagonal columns descending to the right indicate the collateral relatives, who are descendants of the ancestor named at the head of each column re- spectively. § 3. The number of relatives — As will be seen by the following Table of' Descent, the number of an- cestors or relatives within any given degree in the ascending line, who must have existed, cannot exceed 3 According to the rules of the civil law, 4 Burns' Eccl. Law, 30.1. 12 INTESTATE SUCCESSION IN NEW YOKK. a fixed number, easily ascertained by geometrical progression: of parents, two; grandparents, four; great-grandparents, eight ; great-great-grandparents, sixteen, etc. The number of ancestors, however, may have been lessened by intermarriage, whereby certain ancestors may have becomie common to both the paternal and maternal lines. For example, if the parents of the deceased were cousins, the deceased could have only six instead of eight great-grand- parents, twelve instead of sixteen great-great-grand- parents, etc. It should be remembered that each ancestor is a source from which collateral relations may have de- scended. In cases of succession, where collaterals are admitted, the tracing of collateral descendants from these sources becomes very important, and no source can be neglected without rendering the list of relatives obtained subject to error. The task of tracing out collateral relationships may be increased by a second or other marriage of an ancestor with a person whose blood does not flow in the veins of the deceased, and thus a set of collateral relatives of the half-blood may be found. The number of descendants or collateral kindred of any particular degree or designation is necessarily indefinite, and ascertainable only by inquiry. The necessity of a rigid inquiry in such cases, lest any should be omitted, cannot be over-estimated. Ta^l^ (pf. Pa^rnaZ^J^m^ /- ^ ff.ff. grand SU/lB e-ff- fnma '/rand. 0^9 vtoiher e-f- nwAo Ruiile.caiUuUi'aJ' 3nuwi IhsjiZlA collxier-aZj of7uU/6looeL iZTj i&V/ 'malA 1 \I^esoc^^^t>. .ACat^pyiizl'Zz^^z^. s/- 7\ fmnd ff-0- vtpmMf 9.0- faiBitr (?., kSSxKU I I' SmUuoUalemli] "^siSie ceUaieraZs vha 'vxZfiiooA t6l/lti erWhaUilaocL. 1^ ■m* toUattraZt OF THE PERSONS ENTITLED TO TAKE. § 4. Relative tenns. — The table of relative terms hereafter given is designed to aid in ascertaining the exact relationship of claimants or inquirers to a de- ceased kinsman where it is not already known. It will be noticed that the expression of each of the terms given implies the one written opposite. Where the relationship of the deceased to the claimant or inquirer is known, let such relationship be found in one column, and the relationship of the claimant or inquirer to the deceased will be found directly oppo- site. In like manner relationships may be traced from known ancestorial relationships. Thus this table will be found of service in connection with the preceding diagrams. Table of Relative Teems. Matrimonial. Husband. Wife or widow. Lineal. Parent. Grandparent. Great-grandparent. Great-great-grandparent. Etc. Child. .Grandchild. Great-grandchild. Great-great-grandchild. Brother or sister. Uncle or aunt. Collateral. Brother or sister. Nephew or niece. 14 INTESTATE SUCCESSION IN NEW YORK. Great-uncle or aunt [a brother or sister of a grandparent]. Great-great-uncle or aunt [a \ brother or sister of a great- ] grandparent]. ) Etc. Cousin. Child of a great-uncle or aunt [a cousin of a parent]. Child of a great-great-uncle or aunt [a cousin of a grandparent]. Etc. Second cousin. Grandchild of a great- great-uncle or aunt [a second cousin of a parent]. Third cousin. Etc. Etc. } 1 Grandnephew or niece. i Great-grand- ( nephew or I niece. Cousin. Child of a cousin [a cousin once removed] . Grandchild of a cousin [a cousin twice removed]. Second cousin. Child of a second cousin [a sec- ond cousin once removed]. Third cousin. § 5. Post-testamentary children — Where a child of a testator has been bom after the making of a will,* either before or after the testator's death, and 6 As to the effect of adopting a child, see Adopted Children, p. 18. OF THE PEKSONS ENTITLED TO -TAKE. 15 survives the testator, such child, if unprovided for by any settlement, and neither provided for nor in any way mentioned in such will, succeeds to the same portion of such parent's real and personal estate as he would have taken if such parent had died intes- tate.^ And the devisees and legatees under the will are obliged to contribute ratably to that end.* § 6. Posthumous relatives. — Relatives of an intes- tate, begotten before his death, but born thereafter, take real and personal estate in the same cases and TR. S. 65, i 49, as am'd by L. 1869, ch. 22; Smith v. Robertson, 24 Hun, 210, aff'd in 89 N. Y. 555. Prior to the amendment of 1869 this provision did not relate to a will of a married woman. Cotheal v. Cotheal, 40 N. Y. 405, overruling Plummer v. Murray, 51 Barb. 201. As to illegitimate child taking from mother in such case mentioned, but not decided in Matter of Bunce, 6 Dem. 278. For the rules for ascertain- ing the share of a post-testamentary child and assessing con- tributions from devisees and legatees to make up such share, see Mitchell v. Blaine, 5 Paige, 588; Sanford v. Sanford, 61 Barb. 296; McCormaek v. MeCormack, 50 How. Pr. 196; San- ford V. Sanford, 4 Hun, 753. It seems that gifts causa mortis should contribute. Bloomer v. Bloomer, 2 Bradf. 339; House V. Grant, 4 Lans. 296. Assessment of contributions to pay debts should bear equally on devisees and legatees as on the post-testamentary child's share. Rockwell v. Geery, 4 Hun, 606; s. c, 6 Supm. Ct. (T. & C.) 687. 8 2 R. S. 65, § 49, as am'd by L. 1869, ch. 22. Se cases above cited. 16 INTESTATE SUCCESSION IN NEW YOEK. in the same manner as if they had been born in the lifetime of the intestate and had survived him.* § 7. Relatives of the half-blood. — Kelatives of the half-blood take real and personal estate equally with those of the whole-blood in the same degree,^" except where real estate came to the intestate by descent, devise or gift immediately and not mediately from some one of the intestate's ancestors.^^ In that event all those who are not of the blood of such ancestor are excluded from the inheritance.^^ § 8. Illegitimate children — In default of lawful issue illegitimate children take real and personal property from their mother as if legitimate.^^ 9R. p. Law, § 292; Code, § 2732, subd. 14; Mason v. Jones, 2 Barb. 229, 251; Drischler v. Van Den Henden, 49 Super. Ct. (J. & S.) 508. 10 E. P. Law, § 290; Code, § 2732, subd. 13; Champlin i: Baldwin, 1 Paige, 562; Hallett v. Hare, 5 Paige, 316; Bro'wn V. Burlingham, 5 Sandf. 418; Beebe v. Griffing, 14 N. Y. 235; Conkling v. Brown, 8 Abb. Pr. N. S. 345 ; S. c, 57 Barb. 265 ; Valentine v. Wetherill, 31 Barb. 655; and Adams V. Smith, 20 Abb. N. C. 60. H The word " ancestor/' as used in the statute, refers only to the immediate ancestor in estate, and not in blood. Wheeler t'. Clutterbuck, 52 N. Y. 67 ; Valentine v. Wetherill, 31 Barb. 055: Emanuel r. Ennis, 48 Super. Ct. (J. & S.) 430; Dargin V. Wells, N. Y. Daily Eeg., Aug. 9, 1883 ; Adams v. Smith, 20 Abb. N. C. 60. 12 R. P. Law, § 290. 13 R. P. Law, § 289; Code Civ. Pro., § 2732, as am'd L. 1897, eh. 37; Ferrie v. Public Administrator, 3 Bradf. 249. OF THE PERSONS ENTITLED TO TAKE. l7 § 9. Eelatives of illegitimate intestates. — In case of the intestacy of an illegitimate, the widow and descendants have as many rights as where the intes- tate is legitimate.^* In the absence of descendants the mother takes all the real estate if s.he be living, and if she be dead it descends to the relatives of the intestate on the part of the mother, as if the intestate had been legitimate,^' but subject to dower if the widow be living.^* If the illegitimate intestate leaves no widow or descendant the mother takes all personal estate.^'' But the division of the personal estate in case the widow and mother of an illegitimate intestate both survive, does not appear to have been contem- plated in framing the statute.^* If the mother be For the status of legitimacy as affected by the laws of the claimant's domicile, see Miller v. Miller, 91 N. Y. 315, rev'g 18 Hun, 507, and overruling BoUerman v. Blake, 24 Hun, 187.. An illegitimate grandchild cannot inherit from a maternal grandfather, the mother of the illegitimate being dead. Mat- ter of Mericlo, 63 How. Pr. 62. The marriage of parents ren- ders legitimate all children bom out of wedlock. Domestic Kel. L. § 18. WR. P. Law, § 281; Code, § 2732. 15 R. P. Law, § 289. But if the mother be living and ex- cluded by reason of alienage a brother of the deceased born in wedlock of the same parents cannot inherit. St. John v. Northrup, 23 Barb. 32. 16 E. P. Law, § 280. " Code, S 2732, subd. 9. 18 1b. 18 INTESTATE SUCCESSION IN NEW YOEK. dead the relatives of the deceased on the part of the mother take^^ personal estate as if the intestate had been legitimate, and to the exclusion of relatives on the part of the father. § 10. Adopted children. — By the statute regulating the adoption of children^* it is provided that a " child takes the name of the foster parent. His rights of in- heritance and succession from his natural parents re- main unaffected by such adoption. The foster parent or parents and the minor sustain toward each other the legal relation of parent and child, and have all the rights, and are subject to all the duties of that relation, including the right of inheritance from each other, except as the same is affected by the provisions in this section in relation to adoption by a stepfather or stepmother, and such right of inheritance extends to the heirs and next of kin of the minor, and such heirs and next of kin shall be the same as if he were the legitimate child of the person adopting, but as 19 Code, § 2732, subd. 9. Public Administrator v. Hughes, I Bradf. 125. See also Peters v. Public Administrator, Id. 200. 20 Domestic Eelations Law, § 64, as am'd L. 1897, ch. 408. The original act relating to adoption was L. 1873, ch. 830, § 10. The feature of inheritance was inserted by an amendment, L. 1887, ch. 703, which took efleet June 25, 1887. Adoption under the statute prior to the amendment gives right to intes- tate succession. Simons v. Burrell, 8 Misc. 404; Dodin i-. Dodin, 16 App. Div. 42. See note on adoption under statute, 29 Abb. N. C. 49. OF THE PEESOKS ENTITLED TO TAKE. I'J respects the passing and limitation over of real or personal property dependent under the provisions of any instrument on the foster parent dying without heirs, the minor is not deemed the child of the foster parent so as to defeat the rights of remaindermen." § 11. Aliens — At common law aliens cannot ac- quire real estate by descent.*' The statutes of this State have, however, largely removed this common- law disability.*^ 21 2 Kent Comm. 53, and cases cited. 22 R. p. Law, §§ 4-7. CHAPTER II. OF THE PROPERTY TO BE DIVIDED. § 1. Devisable property generally. 2. Did the deceased make a will! 3. Has the will been revoked? 4. Does the will fail to take effect? 5. Advancements. 6. " On the part of " father or mother. 7. From a deceased husband or wife. 8. Succession tax. § 1. Devisable property generally. — Under the laws of the State of New York, all the property of a de- ceased person remaining after the payment of debts, funeral expenses, and the expenses of administration, which is not disposed of by a valid will, descends or is distributable to the relatives of the deceased in the proportions mentioned in the following chapters. Where the deceased leaves a will or supposed will, the property to be divided may be ascertained with some difficulty. A lost or fraudulently destroyed will, if properly established, has full effect. If a will appears to exist an investigation of the validity and effect of the supposed will is necessary to deter- mine what, if any, property passes by intestate suc- cession. Thus, although no treatise, on the subject of [20] OF THE PROPERTY TO BE DIVIDED. 21 wills can be here undertaken, the following necessary inquiries will be indicated: (1) Did the deceased make a will? (2) Has that will been revoked in whole or in part ? (3) Does the will, being properly made and not being revoked, fail to take effect wholly or in part ? As affecting the property to pass by intestate suc- cession, another important inquiry necessarily arises in case the deceased leaves no valid will, or dies in- testate as to personal estate only. It is : Did the deceased make advancements during his lifetime that should be brought into hotchpot? The subject of ad- vancements will be reserved for one of the last sec- tions of this chapter. The last section will be devoted to cases where real estate is said to have come to the deceased on the part of his father or mother. § 2. Did the deceased make a will? To determine what, if any, property passes by the laws of intestate succession, by reason of total or partial intestacy, it is necessary, among other things, to inquire: Did the deceased make a will? After a diligent search has been made, and what appears to be a last will and testamerft of the deceased is found, it must be deter- mined, on behalf of the claimant or inquirer, whether or not the apparent will was properly made. As an aid in the pursuit of such inquiry, the following list of suggestions may be found useful : May not the supposed will be a forgery ? 22 INTESTATE SUCCESSION IN NEW YOEK. Was it executed by the deceased while of unsound mind? Was it the result of undue influence practiced on the deceased? Was it the result of fraud ? Was it subscribed by the testator at the end thereof ? Was it subscribed by two witnesses at the end thereof ? Did the testator request each witness to subscribe as such ? Did the testator subscribe, or acknowledge his sub- scription, in the presence of each witness ? Did the testator declare to each witness, at the time of subscribing or acknowledging the sub- scription, that the instrument was his last will and testament ? If the will is a will of real estate was it made by a person twenty-one years of age or over ? If the will is a will of personal estate, and made by a male, was he of the age of eighteen years or upwards? If the will is a will of personal estate, and made by a female, was she of the age of sixteen years or upwards? If the will is nuncupative or unwritten, is it a will of personal property, and was it made by a OF THE PEOPEETY TO BE DIVIDED. 23 soldier while in actual military service, or a mariner while at sea ? § 3. Has the will been revoked? — To determine what, if any, property passes by the laws of intestate succession by reason of total or partial intestacy, it is necessary, among other things, to inquire: Has the will of the deceased been revoked wholly or in part? To aid in this inquiry the following sug- gestions may be found useful : (1) As to the revocation of a will as a whole. Was the will revoked — By a subsequent will or writing executed with the same formalities as a will ? By the testator, in person, burning, tearing, can- celling, obliterating or destroying the will, with the intent and for the purpose of revoking the same? By another person, in the testator's presence, by his direction and consent, doing like things with the like purpose of the testator, and can the di- rection and consent of the testator and the fact of such injury or destruction be proved by two witnesses ? By the subsequent marriage of a woman ? By the subsequent marriage of a man and the birth of issue before or after the testator's death, where the wife or issue survive, and the will disposes of the whole of the testator's estate, without pro- 24 INTESTATE SUCCESSION IN NEW YORK. vision being made for the issue by some settle- ment or in the will, and without mentioning the issue in the will in such a way as to show an intent not to make such provision ? (2) As to the revocation of parts of wills. Was the devise or bequest revoked — By the testator divesting hims:elf of the thing de- vised or bequeathed ? By the testator executing an instrument altering but not wholly divesting himself of his estate or interest in the property previously devised or bequeathed by him, wherein he declares that it shall operate as a revocation ? By the testator executing an instrument altering but not wholly divesting himself of his estate or interest in property previously devised or bequeathed by him, the provisions of which in- strument are wholly inconsistent with the terms and nature of such previous devise or bequest, fwhere such provisions in the instrument do not depend on a condition unperformed, or con- tingency which has not happened ? § 4. Does the will fail to take effect ? — To deter- mine what, if any, property passes by the laws of intestate succession, by reason of total or partial in- testacy, it is necessary, among other things, to in- quire: Does the will, being properly made and not OF THE PEOPEETY TO BE DIVIDED. 25 being revoked, fail to take effect wholly or in part ? To aid in this inquiry the following suggestions may be found useful : Does the will fail wholly or in part by reason of — Being void for uncertainty? Illegally suspending the power of alienation ? Directing illegal accumulation of income? Gifts being made to a subscribing witness whose testimony is necessary to prove the will ? Too large a portion of the estate being given to charitable, literary, etc., associations, where the testator leaves a husband, wife, child or parent ? Gifts being made to literary, etc., associations in a will not executed two months before the testa- tor's death? •. The death of a legatee or devisee before the death of the testator ? The gift being conditional and the condition hav- ing failed ? The legatee or devisee being a corporation which has not been expressly authorized by law to take under a will, or which has exceeded the limit allowed by law ? The subsequent birth of a child ? § 5. Advancements. — Where a deceased^ has given real or personal estate, or both, to a child, with a view 1 Whether a man or woman. Kintz v. Friday, 4 Dem. 540. 26 INTESTATE SUCCESSION IN NEW YOEK. to a portion or settlement in life, such a gift is deemed an advancement,^ and in the cases hereafter men- tioned must be taken into consideration on the divi- sion of estates.* If the deceased left no valid vyill, or if the deceased left a will which disposed of all his real estate, leaving only personal estate to pass by intestate succession, then, under the Revised Stat- utes, all advancements were required to be brought 2 Maintaining, educating, or money given without such in- tent is not an advancement. Code, § 2733. As to valueless property given, see Marsh v. Gilbert, 2 Redf. 465. An ad- vancement is presumed from paying consideration and taking title in name of child. Piper v. Barse, 2 Redf. 19; Sanford V. Sanford, 61 Barb. 299; Proseus v. Melntyre, 5 Barb. 424, 432; Partridge v. Havens, 10 Paige, 618, 626; also from con- veyance of land to child without consideration, although a con- sideration be recited. Sanford v. Sanford, 61 Barb. 299; also from gift of a, considerable sum of money to start or be used in business. lb.; M'Rae v. M'Rae, 3 Bradf. 199, 206. As to necessary evidence, see Hicks v. Gildersleeve, 4 Abb. Pr. 1 ; Bell V. Chaplain, 64 Barb. 396 ; De Caumont v. Bogert, 36 Hun, 382; aff'd suh nom. Matter of Morgan, 104 N. Y. 74; Alex- ander V. Alexander, 1 N. Y. St. R. 508. As to the history of advancements, see Terry v. Dayton, 31 Barb. 519. As to ef- fect of a subsequent will, Clark v. Kingsley, 37 Hun, 246; Arnold v. Harann, 43 Hun, 278. By conveyance to wife of child. Palmer v. Culbertson, 143 N. Y. 213. 3 If all is disposed of by a valid will there can be no question as to advancements. Hays v. Hibbard, 3 Redf. 28. As to the rights of post-testamentary children, see Sanford v. Sanford, 61 Barb. 298. OF THE PKOPEETY TO BE DIVIDED. 27 into hotchpot on the di\asion of the estate.* But that was not the case if the deceased left a valid will which failed to dispose of all his real estate.^ The present statutes have been somewhat modified in form." Where an advancement is brought into hotchpot, if it is equal to or greater than the amount or share which the child, who has been advanced, would be entitled to receive, considering the value of the prop- erty advanced as part of the devisable estate, then such child and its descendants are excluded from any share therein.® If the advancement be less, he or his descendants are entitled to receive only so much real and personal estate as shall be sufiicient to make all 4 1 R. S. 754, § 23, etc.; 2 Id. 97, § 76, etc. The first-men- tioned law applies to advancements only in cases of total Intes- tacy where the deceased leaves real estate to descend to his heirs. Thompson v. Carmiohael, 3 Sandf. Ch. 120, 127; Hicks V. Gildersleeve, 4 Abb. Pr. 1; Kent v. Hopkins, 86 Hun, 611; Messman v. Egenberger, 46 App. Div. 46. The last-mentioned sections of the statutes apply alike to cases of total or partial intestacy where there is no real estate to descend to the heirs of the deceased. Thompson v. Carmichael, 3 Sandf. Ch. 120, 127; Hays v. Hibbard, 3 Redf. 28; Hicks v. Gildersleeve, 4 Abb. Pr. I. 5 Thompson v. Carmichael, 3 Sandf. Ch. 120, 127. It seems that lands without the State are not to be considered. M'Eae V. M'Eae, 3 Bradf. 199, 206. 6E. P. Law, § 295; Code, § 2733. 28 INTESTATE SUCCESSION IN NEW YOKK. the shares of the children'' as near equal as can be estimated.* § 6. " On the part of " father or mother — Succes- sion to real estate is mad© to depend in certain cases upon the fact of the inheritance having come to the deceased on the part of the father or on the part of the mother.* By the statute real estate is said to have come to the deceased, on the part of father or mother, as the case may be, •where the inheritance came to the deceased by devise, gift or descent from the parent referred to, or from any relative of the blood of such parent.^" § 7. " From a deceased husband or wife." — ^ In cer- tain unusual cases, where real or personal property 7 Grandchildren representing children. Beebe v. Estabrook, 19 N. Y. 246, aff'g 11 Hun, 523. 8E. P.' Law, § 295; Code, § 2733. See also Sanford v. Sanford, 61 Barb. 298; Terry v. Dayton, 31 Barb. 519; San- ford V. Sanfordj 4 Hun, 753. 9R. P. Law, §§ 284, 288. 10 E. P. Law, § 280 ; Conkling v. Brown, 8 Abb. Pr. N. S. 345; s. c, 57 Barb. 265; Leary v. Leary, 50 How. Pr. 122; Wells V. Seeley, 47 Hun^ 109. Not including purchases for value. Morris t'. Ward, 36 N. Y. 587. The devise, gift or descent must be immediate. Hyatt v. Pugsley, 33 Barb. 373 ; s. p., s. c, 23 Id. 300; Valentine v. Wetherill, 31 Barb. 665: Adams v. Anderson, 23 Misc. 705; Eighter v. Ludwig, 39 Misc. 416. See also Vanderheyden v. Crandall, 2 Denio, 9; Torrey V. Shaw, 3 Edw. Ch. 356. OF PEOPEETY TO BE DIVIDED. 29 comes to an intestate from a deceased husband or wife the heirs or next of kin of such husband or wife are entitled to take.^^ Real estate thus descends only where the intestate leaves no heirs nearer than great- uncles and great-aunts. Personal property is thus taken only when the intestate leaves no husband, wife, descendant, or next of kin. § 8. Succession tax — A tax of 5 per cent, is im- posed on real and personal property of the value of $500, or over, passing to all relatives except descend- ants, father, mother, husband, wife, brother or sister. They pay 1 per cent, if the property passing equals or exceeds $10,000.^^ 11 See Appendix A. and B. E. P. Law, § 290a; Code Civ. Pro. § 2732, subd. 16. 12 The Tax Law, §§ 220, 221. CHAPTER III. OF THE RIGHTS OF WIDOW AND HUSBAND. § 1. Widow takes Eeal Estate. 2. Widow takes Personal Estate. 3. Husband takes Real Estate. 4. Husband takes Personal Estate. § 1. Widow takes Real Estate. — The widow^ is en- titled to dower in the real estate of which her husband was seized of an estate of inheritance, at any time during the continuance of the marriage relation,^ un- less she has voluntarily released her right or it has been otherwise destroyed.* This right may be lost in several ways, such as: by joining in a deed of con- 1 Foreign divorce for cruelty of husband does not bar dower. Starbuck v. Starbuck, 62 App. Div. 437. 2R. P. Law, § 170; Leacb v. Leach, 21 Hun, 381; Durando V. Durando, 23 N. Y. 331. As to partnership property, see Dawson v. Parsons, 10 Misc. 428; Riddell v. Eiddell, 85 Hun, 482. 3 A woman, who has been divorced from her husband for his infidelity, does not lose her right to dower or to a distributive share of his personalty by remarriage in his lifetime. Van Voorhis v. Brintnall, 23 Hun, 260; rev'd on other grounds in 86 N. Y. 18. Dower may be released after divorce. L. 1892, ch. 616. Power of attorney may be given to release dower. L. 1893, eh. 599. No dower in estates in remainder. Clark v. Clark, 84 Hun^ 362, [30] OF THE EIGHTS OF WIDOW AND HUSBAND. 31 veyance ;* accepting a pecimiary provision in lieu of dower f the lands of her husband being taken by the right of eminent domain f the foreclosure of a mort- gage executed by the widow'^ as well as her husband, or given by the husband before marriage,® or to secure 4Elmendorf v. Lockwood, 57 N. Y. 322; aflf'g 4 Lans. 393. As to a quit-claim to a stranger to the title, see Merchants' Bank v. Thompson, 55 N. Y. 7; Hammond v. Pennock, 61 N. Y. 145. See also Ford v. Knapp, 31 Hun, 522; Armstrong v. Armstrong, 1 N. Y. St. R. 529. Dower revived if deed defeated by sale under a fair judgment against husband. KinchlifFe i;. Shea, 103 N. Y. 153. 5 R. P. Law, § 288 ; Sanford v. Jackson, 10 Paige Ch. 266 : Jones V. Fleming, 104 N. Y. 418. An election to accept pro- vision in lieu of dower may be set aside if widow at time of election was ignorant of the extent of her dower right. Hind- ley V. Hindley, 29 Hun, 318. Effort to obtain information shoijld be shown. Akin v. Kellogg, 48 Hun, 459. Such pro- vision must be to take effect in possession or profit on the death of the husband. Grain v. Cavana, 36 Barb. 410. An agreement in articles of separation will not release dower unless the widow ratifies the agreement after her husband's death. Guidet v. Brown, 3 Abb. N. C. 295. As to effect of marriage settlements on rights of wife, see Pierce v. Pierce, 9 Hun, 50; aff'd in 71 N. Y. 154; Graham v. Graham, 67 Hun, 329. See as to ante-nuptial contract to take legacy, etc.. Young V. Hicks, 92 N. Y. 235 ; aff'g Matter of Young, 27 Hun, 54. e Code Civ. Pro. § 2348. T Moore v. Mayor, etc., of N. Y., 8 N. Y. 110. 8 Bank of Ogdensburgh v. Arnold, 5 Paige Ch. 38. As to what is a sufficient foreclosure, see Ooumpaugh v. Wing, 12 Week. Dig. 566. 32 INTESTATE SUCCESSION IN NEW YOEK. purchase money;* and divorce for her own infidel- ity/" or by legal proceedings where the wife is an infant or incompetent to manage her affairs by reason of lunacy, idiocy or habitual drunkenness.-'* A widow may tarry in the chief house*^ of her hus- band, forty days after his death, without being liable to any rent for the same, and in the meantime she shall have her reasonable sustenance out of the estate of her husband.** § 2. Widow takes Personal Estate If the deceased leaves any descendant the widow takes** one-third.*® 9 Van Duyne v. Thayre, 14 Wend. 233; 19 Id. 162. 10 E. P. Law, S 284. 11 As to divorces granted in New York. Code Civ. Pro. § 1760. As to valid foreign divorces. Van Cleaf v. Burns, 118 N. Y. 549; 133 Id. 540. As to effect of annulling second marriage. Price v. Price, 124 N. Y. 589. As to what are not valid foreign divorces for this purpose. Rundle v. In- wegan, 9 Civ. Pro. R. (Browne) 328. 12 The house must be owned by her husband. Voleckner v. Hudson, 1 Sandf. 215. 13 R. P. Law, § 184. Between June 7, 1889, and April 23, 1890, in certain cases, widows might be entitled to an addi- tional interest in lands. L. 1889, ch. 406; repealed law 1890, ch. 173. I'' A widow by accepting a provision in lieu of dower is not thereby precluded from taking her distributive share of per- sonal estate undisposed of by will. Edsall v. Waterbury, 2 Redf. 48; Hatch v. Bassett, 52 N. Y. 359; Lefevre v. Lefevre, 59 Id. 434. 15 Code Civ. Pro. § 2732, subd. 1. OF THE EIGHTS OF WIDOW AND HUSBAND. 33 If the deceased leaves no descendant, but leaves a parent, the widow takes one-half.^® If the deceased leaves no descendant or parent, but leaves a brother, sister, nephew, or niece, the widow takes, besides the one-half above referred to, all of the other half to the amount of, but not to exceed, two thousand dollars.-'^ If the deceased leaves no descendant, parent, brother, sister, nephew, or niece, the widow takes all.^* A woman divorced in 'New York, for her own or her husband's infidelity, is not entitled to a dis- tributive share as widow. ^^ Where foreign divorces are valid and dissolve the marriage tie they seem to have the same effect.^** Where a man having a family shall die leaving a widow or a minor child or children, the widow, if there be any, during the time she shall live with and provide for such child or children, shall remain in possession of the following named property, if owned by her husband at the time of his death^' : all spinning ifild., subds. 2, 6/7. 17 Id., subd. 3; Doughty v. Stilwell, 1 Bradf. 300; Can- field V. Crandall, 4 Deln. Ill, 120. See Parker v. Linden, 44 Hun, 515. 18 Code Civ. Pro. § 2732, subd. 3. 19 Code Civ. Pro. § 1760; Matter of Ensign, 103 N. Y. 284. 20 2 Bishop on Marriage and Divorce, §§ 705-714. 21 This provision for the family cannot be defeated by a tes- tator. Vedder v. Saxton, 46 Barb. 188. As to effect of mar- riage settlement, see Young v. Hicks, 92 N. Y. 235; Code, 3 34 INTESTATE SUCCESSION IN NEW YOEK. wheels, weaving looms, one knitting machine, one sewing machine, stoves put up or kept for use by the family, the family Bible, family pictures, school books used by or in the family, other books not ex- ceeding in value fifty dollars which were kept and used as part of the family library ; all sheep to the number of ten, vnth their fleeces, and the yarn and cloth manufactured from the same, one cow, two swine, and the pork of such swine, necessary food for such swine, sheep or cow for sixty days ; all necessary provisions and fuel for the widow, child or children for sixty days ; all necessary wearing apparel, beds, bedsteads and bedding; necessary cooking utensils; the clothing of the family, the clothes of the widow and her ornaments proper for her station ; one table, six chairs, twelve knives and forks, twelve plates, twelve teacups and saucers, one sugar dish, one milt pot, one tea pot, twelve spoons, and also other house- hold furniture which shall not exceed one hundred and fifty dollars in value^^ or that sum of money in lieu thereof. ^^ She shall also remain in possession of other necessary household furniture, provisions, or other personal property in the discretion of the ap- praisers, to the value of not more than one hundred § 2713. An allowance made in lieu of articles. Matter of Williams, 31 App. Div. 617. 22 Code Civ. Pro. § 2713; Lydecker v. Eisemann, 3 Dem. 72. 23 Kelly V. Moore, 18 Abb. N. C. 468. OF THE EIGHTS OF WIDOW AND HUSBAND. 35 and fifty dollars.^* An additional allowance in money may be made to the widow in the absence of other enumerated articles.^^ If she' ceases so to do she may retain, as her own, her wearing apparel, her or- naments, one bed, bedstead and bedding for the same and the other property last above specified, and the other articles above mentioned shall then belong to such minor child or children. If she lives with and provides for such minor child or children until it or they become of full age all the articles and property above mentioned shall belong to the widow. If there be no minor child all the said articles and property shall belong to the widow.*® § 3. Husband takes Eeal Estate. — The husband is entitled to curtesy in the real estate of which his wife died seized, and which is undisposed of by will, if issue of the marriage has been bom alive,^^ and the 2* Sheldon v. Bliss, 8 N. Y. 31; Lydecker v. Eisemann, 3 Dem. 72. 25 Matter of Wdlliams, 31 App. Div. 617; Matter of Hem- bury, 37 Misc. 454; Matter of Hulse, 41 Misc. 307. 26 Code Civ. Pro. § 2713. See p. 37, n. 33. See Bingham v. Brush, 33 Barb. 596. 27 Leach t*. Leach, 21 Hun, 381; Zimmerman v. Schoenfeldt, 3 Hun, 692; s. c, 6 Supm. Ct. (T. & C.) 141; Arrowsmith v. Arrowsmith, 8 Hun, 606; Graham v. Luddington, 19 Id. 246; Coit V. Grey, 25 Id. 444; Kirk v. Richardson, 32 Id. 434; Mat- ter of Winne, 2 Lans. 21; Burke v. Valentine, 52 Barb. 412; S. c, 5 Abb. Pr. N. S. 164; aff'd Ct. of App. 1872, 6 Alb. L. J. 36 INTESTATE SUCCESSION IN NEW YOKE. curtesy be not barred, as by a divorce for the infidel- ity of the husband.^^ § 4. Husband takes Personal Estate. — If the de- ceased leaves any descendant, the husband takes one- third.^ If the deceased leaves no descendant, the husband takes all.*" 167; Hatfield v. Sneden, 54 N. Y. 280; rev'g 42 Barb. 615. See contra, Billings v. Baker, 28 Barb. 343. As to seizin, see Gibbs V. Esty, 22 Hun, 266; Baker v. Oakwood, 49 Hun, 416; Bevins v. Riley, 24 Week. Dig. 35. As to the birth of the child, see Jackson v. Johnson, 5 Cow. 74, 95, 102; Marcellis v. Thal- himer, 2 Paige, 35. 28Renwick v. Eenwick, 10 Paige Ch. 420; Code Civ. Pro. 1759. Valid foreign or domestic divorces, dissolving the mar- riage tie because of the misconduct of either husband or vfife, would seem to have the same effect. 2 Bishop on Marriage and Divorce, § 712; Matter of Ensign, 103 N. Y. 284; Van Cleaf V. Burns, 133 N. Y. 540. As to what are valid foreign divorces. Bundle v. Inwigan, 9 Civ. Pro. R. 328. 29 Code Civ. Pro. § 2734. 30 Matter of Harvey, 3 Redf. 214 (said to have been aff'd by Genl. T. Supm. Ct.) ; Robins v. McClure, 100 N. Y. 328. That administration by the husband is necessary. Matter of O'Neil, 2 Redf. 544. See also Barns v. Underwood, 47 N. Y. 351; Ransom v. Nichols, 22 N. Y. 110; McCosker v. Golden, 1 Bradf. 64. The married woman's acts do not destroy a hus- band's common-law right to succeed to his wife's personal es- tate on her decease. They simply give the wife power to dis- pose of her estate which must be actually exercised to cut off the husband's right. Barnes v. Underwood, 47 N. Y. 351 ; Ran- som V. Nichols, 22 N. Y. 110; Vallance v. Busch, 8 Abb. Pr. 368; s. c, 28 Barb. 633; 17 How. Pr. 213; Lush v. Alburti'?, OF THE EIGHTS OF WIDOW AND HUSBAND. 37 A valid foreign or domestic divorce, dissolving the marriage tie for the misconduct of the husband or wife, seems to take away the right of the husband as such to any personal estate.^^ A husband is also entitled to have certain personal property, heretofore mentioned,^^ set apart for the use and benefit of himself or the minor children.^^ 1 Bradf. 456; McCosker r. Golden, 1 Bradf. 64; Shumway r. Cooper, 16 Barb. 556. See also Robins v. McClure, 33 Hun, 368. 31 Code Civ. Pro. § 1759 ; Renwiek v. Renwick, 10 Paige Ch. 420; 2 Bishop on Marriage and Divorce, §§ 705-714; Mat- ter of Ensign, 103 N. Y. 284. 32 See Widow — Personal Estate, p. 32. 33 Code Civ. Pro. § 2713. The same articles and personal property as are set apart for the wife, ante, p. 33. CHAPTER IV. OF THE RIGHTS OF DESCENDANTS. § 1. Children take Real Estate. 2. Children take Personal Estate. 3. Grandchildren take Real Estate. 4. Grandchildren take Personal Estate. 5. Great-grandchildren take Real Estate. 6. Great-grandchildren take Personal Estate. 7. Great-great-grandchildren take Real Estate. 8. Great-great-grandchildren take Personal Estate. § 1. Children^ take Real Estate.— If |he deceased leaves a widow, the children inherit real estate subject to her rights.^ If the deceased leaves a husband, to whom a child has been bom alive, the real estate is taken subject to his right of curtesy.* Subject to the rights of the husband or widow above mentioned, the children inherit all the real estate in equal portions,* deceased children, who have descendants living, being counted for the purpose of division as themselves living.^ 1 If there is any adopted child see Adopted Children, p. 18. 2 The rights of a widow to real estate may be barred or they may exceed dower. See Widow, p. 30, § 1. 3 See Husband, p. 35. ■4 As tenants in common. R. P. Law, § 293; Cole v. Irvine, 6 Hill, 634, 638. BR. P. Law, §§ 281-283. [38] OF THE EIGHTS OF DESCENDANTS, 39 § 2. Children" take Personal Estate If the de- ceased leaves a widow'^ or husband* the children take two-thirds in equal portions; otherwise all, in the same manner ; deceased children, who have descend- ants living, being counted for the purpose of division as themselves living.® Minor children are also entitled, with or without the widow or husband, to have certain personal prop- erty, heretofore mentianed,^" set apart for their use and benefit. ■ § 3. Grandchildren take Real Estate. — Grandchil- dren inherit no portion of the real estate of a de- ceased if their parent (being g, child of the deceased) be living.-'^ If the deceased leaves a widow the real estate is taken subject to her rights. ■'^ If the deceased leaves a husband, to whom a child was bom alive, the real estate is taken subject to his right of curtesy.^* Subject to the rights of the husband or widow 6 If there is any adopted child see Adopted Children, p. 18. 7 Code Civ. Pro. § 2732. 8 Code Civ. Pro. § 2734. 9 Code Civ. Pro. § 2732, subds. 1, 4; § 2734. 10 For a practical enumeration of the articles and the rights of the minors, see Widow — Personal Estate, p. 32. See also Husband — Personal Estate, p. 37, n. 33; Code Civ. Pro. § 2713. 11 R. P. Law, §§ 281-283. 12 The rights of a widow to real estate may be barred or they may exceed dower. See Widow, p. 30, § 1. 13 See Husband, p. 35. 40 I^•TESTATE SUCCESSION IN NEW YOEK. above mentioned, grandchildren inherit real estate as follows :^* (1.) If the deceased leaves no surviving child, grandchildren inherit all the real estate in equal portions, deceased grandchildren, who have descendants living, being counted for the purpose of division as themselves living. (2.) If the deceased leaves one or more surviving children, grandchildren, who are children of a deceased child, take in equal portions the share their parent (a child of the deceased) would have taken if living; which would be such por- tion as would come to their parent (a child of the deceased) upon the equal division of the same among the children, deceased children, who have descendants living, being counted for the purpose of division as themselves living. § 4. Grandchildren take Personal Estate. — Grand- children take no portion of the personal estate of a deceased if their parent (being a child of the de- ceased) be living.^® Where grandchildren are not thus excluded they take or share an two-thirds of the personal estate, 14 R. P. Law, §§ 281-283. 15 Code Civ. Pro. § 2732, subd. 1, 4, 10, 11 ; § 2734. OF THE EIGHTS OF DESCENDANTS. 41 if the deceased leaves a widow or husband; other- wise they take or share in all, as follows :'® (1.) If the deceased leaves no child, grandchil- dren take in equal portions, deceased grandchil- dren, who have descendants living, being counted for the purpose of division as themselves living. (2.) If the deceased leaves one or more children, the grandchildren, who are children of a de- ceased child, take in equal portions^^ the share their parent (a child of the deceased) would have taken if living ; which would be such por- tion as would have come to their parent upon the equal division of all or two- thirds, as the case may be, among the children of the de- ceased, deceased children, who have descendants living, being counted for the purpose of division as themselves living.-'* § 5. Great-grandchildren take Real Estate. — Great- grandchildren inherit no portion of the real estate of a deceased if their parent (being a grandchild of the deceased) or grandparent (being a child of the de- 16 Code, § 2732. See also Widow, p. 32, and Husband, p. 36. 17 Deceased grandchildren, who have descendants living, be- ing counted for the purpose of division as themselves living. 18 See also § 2 of this chapter. 42 IISTTESTATE SUCCESSION IN NEW YOEK. ceased) be living.^* If the deceased leaves a widow the real estate is taken subject to her rights.^ If the deceased leaves a husband to whom a child was born alive, the real estate is taken subject to his right of curtesy.^' Subject to the rights of the husband or widow, above mentioned, great-grandchildren inherit real es- tate as follows :^ (1.) If the deceased leaves no surviving child or grandchild, great-grandchildren inherit in equal portions, deceased great-grandchildren who have descendants living being counted for the purpose of division as themselves living. (2.) If the deceased leaves no child, but leaves one or more surviving grandchildren, the great- grandchildren, who are children of a deceased grandchild, take in equal portions^* the share their parent (being a grandchild of the de- ceased) would have taken if living ; which would 19 R. P. Law, §§ 281-283. 20 The rights of a widow to real estate may be barred or they may exceed dower. See Widow, p. 30, | 1. 21 See Husband, p. 35. 22 R. p. Law, §§ 281-283. 23 Deceased great-grandchildren, who have descendants liv- ing, being counted for the purpose of division as themselves living. OF THE EIGHTS OF DESCENDANTS. 43 be such portion of the real estate as would come to their parent upon the equal division of the same among the grandchildren of the deceased, deceased grandchildren, who have descendants living, being counted for the purpose of division as themselves living. (3.) If the deceased leaves one or more surviving children, the great-grandchildren, who are not excluded by living ancestors as above, take or share in, by representation, only that portion of the real estate which their grandparent (be- ing a child of the deceased) would have taken if living; which would be such portion of the real estate as would come to their grandparent upon the equal division of the same among the children of the deceased, deceased children, who have descendants living, being counted for the purpose of division as themselves living. § 6. Great-grandchildren take Personal Estate — Great-grandchildren take no portion of the personal estate of a deceased if their parent (being a grand- child of the deceased) or grandparent (being a child of the deceased) be living.^* Where great-grandchildren are not excluded, as above, they take or share in two-thirds of the per- 24 Code Civ. Pro. § 2732, subds. 1, 4, 10, 11; § 2734. 44: INTESTATE SUCCESSION IN NEW YOEK. sonal estate, if the deceased leaves a widow or hus- Ijand ; otherwise they take or share in all, as follows •?•' (1.) If the deceased leaves no child or grandchild, great-grandchildren take in equal portions, de- ceased great-grandchildren, who have descend- ants living, being counted for the purpose of di- vision as themselves living. (2.) If the deceased leaves no child, but leaves one or more grandchildren, the great-grandchil- dren, who are children of a deceased grandchild, take in equal portions^^ the share their parent (a grandchild of the deceased) would have taken if living; which would be such portion of the personal estate as would have come to their parent upon the equal division of all or two- thirds, as the case may be, among the grandchil- dren of the deceased, deceased grandchildren, who have descendants living, being counted for the purpose of division as themselves living.^^ (3.) If the deceased leaves one or more children, great-grandchildren, who are not excluded by a 2B Id. See also Widow, p. 32, and Husband, p. 36. 26 Deceased great-grandchildren, who have descendants liv- ing, being counted for the purpose of division as themselves living. 27 See also p. 40, § 4, subd. 1. OF THE EIGHTS OF DESCENDANTS. 45 living ancestor as above, take or share in by representation that portion whicb their grand- parent (a child of the deceased) would have taken if living ; whicb would be such portion of the personal estate as would have come to tbeir grandparent upon tbe equal division of all or two-thirds, as the case may be, among the chil- dren of the deceased, deceased children, who have descendants living, being counted for the purpose of division as themselves living.^* § 7. Great-great-grandchildren take Real Estate Great-great-grandchildren inherit no portion of the real estate of a deceased if their parent (being a great- grandchild of the deceased), grandparent (being a grandchild of the deceased), or great'-grandparent (being a child of the deceased) be living.^ If the deceased leaves a Avidow the real estate is taken subject to her rights.^" If the deceased leaves a husband to whom a child was bom alive the real estate is taken subject to his right of curtesy.^^ Subject to the rights of the husband or widow above mentioned, great-great-grandchildren inherit real es- tate, as follows:*^ 28 See also p. 39, § 2. 29 R. P. Law, §§ 281-283. 30 See Widow, p. 30, § 1. 31 See Husband, p. 35, § 3. 32 E. p. Law, §§ 281-283. 46 INTESTATE SUCCESSION IN NEW YOKK. (1.) If the deceased leaves no surviving child, grandchild or great-grandchild, the great-great- grandchildren inherit in equal portions, de- ceased great-great-grandchildren, who have de- scendants living, being counted for the purpose of division as themselves living. (2.) If the deceased leaves no surviving child or grandchild, but leaves one or more great-grand- children, the great-great-grandchildren, who are children of a deceased greatl-grandchild, take in equal portions ^* the share their parent (being a great-grandchild of the deceased) would have taken if living; which would be such a portion of the real estate as would come to their parent upon the equal division of the same among the great-grandchildren of the deceased, great-grand- children, who have descendants living, being counted for the purpose of division as them- selves living.** (3.) If the deceased leaves no surviving child, but leaves one or more grandchildren, the great- great-grandchildren, who are not excluded by a living ancestor as above, take or share in, by 33 Deceased great-great-grandchildren, who have descend- ants living, being counted for the purpose of division as them- selves living. 34 See also p. 41, § 5. OF THE EIGHTS OF DESCENDANTS. 47 representation, only that portion of the real estate which their grandparent (a grandchild of the deceased) would have taken if living; which would be such portion as would come to their grandparent upon the equal division of the same among the grandchildren of the de- ceased, deceased grandchildren, who have de- scendants living, being counted for the purpose of division as themselves living. ^^ (4.) If the deceased leaves one or more surviving children, the great-great-grandchildren, who are not excluded by a living ancestor as above, take or share in, by representation, only that portion of the real estate which their great-grandparent (a child of the deceased) would have taken if living; which would be such portion of the real estate as would come to their great-grandparent upon the equal division of the same among the •children of the deceased, deceased children, who have descendants living, being counted for the purpose of division as themselves living.^® § 8. Great-great-grandchildren take Personal Es- tate. — Great-great-grandchildren take no portion of the personal estate of a deceased if their parent (be- ing a great-grandchild of the deceased) , grandparent 35 See also p. 39, § 3. 30 See also p. 38, § 1. 48 INTESTATE SUCCESSIOST IN NEW YOEK. (being a grandchild of the deceased), or great-grand- parent (being a child of the deceased) be living. ^^ Where great-great-grandchildren are not excluded, as above, they take or share in two-thirds of the per- sonal estate, if the deceased leaves a widow or hus- band, otherwise they take or share in all, as follows -^ (1.) If the deceased leaves no child, grandchild, or great-grandchild, the great-great-grandchil- dren take in equal portions, deceased great-great- grandchildren, who have descendants living, being counted for the purpose of division as themselves living. (2.) If the deceased leaves no child or grandchild, but leaves one or more great-grandchildren, great-great-grandchildren, who are children of a deceased great-grandchild, take in equal por- tions** the share their parent (a great-grand- child of the deceased) would have taken if liv- ing ; which would be such portion of' the per- sonal estate as would have come to their parent upon the equal division of all or two-thirds, as the case may be, among the great-grandchildren STCode Civ. Pro. § 2732, subds. 1, 4, 10, 11; § 2734. 38 Id. See Widow, p. 32, § 2, and Husband, p. 36, § 4. 39 Deceased great-great-grandchildren, who have descendants living, being counted for the purpose of division as them- selves living. OF THE EIGHTS OF DESCENDANTS. 49 of the deceased, deceased great-grandchildren, who have descendants living, being counted for the purpose of division as themselves living.*" (3.) If the deceased leaves no child, but leaves one or more grandchildren, the great-great- grandchildren, who are not excluded by a liv- ing ancestor as above indicated, take or share in, by representation, that portion which their grandparent (a grandchild of the deceased) would have taken if living; which would be such portion of the personal estate as would have come to their grandparent upon the equal division of all or two-thirds, as the case may be, among the grandchildren of the deceased, de- ceased grandchildren, who have descendants liv- ing, being counted for the purpose of division as themselves living.*^ (4.) If the deceased leaves one or more children, the great>great-grandchildren, who are not ex- cluded by a living ancestor as above indicated, take or share in, by representation, that por- tion which their great-grandparent (a child of the deceased) would have taken if living ; which would be such portion of the personal estate *o See also p. 43, § 6, subd. 1. 41 See also p. 40, § 4, subd. 1. 4 60 INTESTATE SUCCESSION IN NEW TOEK. as would have come to their great-grandparent upon the equal division of all or two-thirds, as the case may be, among the children of the de- ceased, deceased children, who have descend- ants living, being counted for the purpose of division as themselves living.** 42 See also p. 39, § 2. CHAPTER V. OF THE RIGHTS OF ANCESTORS. S 1. Father takes Real Estate. 2. Father takes Personal Estate. 3. Mother takes Real Estate. 4. Mother takes Personal Estate. 5. Grandparents take Personal Estate only. 6. Great-grandparents take Personal Estate only. 7. Great-great-grandparents take Personal Estate only. § 1. Father takes Real Estate. — If the deceased leaves a widow, the real estate is taken subject to her rights.* If the deceased leaves a husband to whom a child was bom alive, the real estate is taken subject to his right of curtesy.^ If a son dies without a lawful descendant, the father inherits all the real estate except that which may have come to the deceased on the part of his mother.* If a daughter dies leaving neither a law- ful descendant nor an illegitimate child, the father inherits in like manner.* Where real estate came to the deceased on the part 1 For the rights of a widow see Widow, p. 30, § 1. 2 See Husband, p. 35, § 3. 3 R. P. Law, § 284. As to what property is said to have come to the deceased on the part of the mother, see ante, p. 28. 4 R. P. Law, § 284. [51] 52 INTESTATE SUCCESSION IN NEW YOEK. of a deceased mother,* the father takes all for life if the deceased leaves any brother or sister, or descend- ant of either f otherwise he takes all in fee J § 2. Father takes Personal Estate. — A father takes no portion of the personal estate of a deceased child if such deceased leaves any descendant or husband.* Where the father is not thus excluded, he takes one- half if there be a widow ; otherwise all.^ § 3. Mother takes Eeal Estate. — If the deceased leaves a widow, the real estate is taken subject to her rights.^" If the deceased leaves a husband, to whom a child was bom alive, the real estate is taken sub- ject to his right of curtesy.-'' A mother inherits no portion of the real estate of a deceased son where such deceased leaves any law- ful descendants.-'^ She likewise inherits no portion of the real estate of a deceased daughter where such deceased leaves any lavrful descendant or illegiti- mate child.** 5 As to -when property is said to have come to a deceased on the part of father or mother, see p. 28. Morris v. Ward, 36 N. Y. 587. 7 R. P. Law, § 284. 8 See authorities cited under Husband, p. 35. 9 Code, § 2732, subd. 7 ; Haring v. Coles, 2 Bradf . 349. 10 For the rights of a widow, see Widow, p. 30, § 1. 11 See Husband, p. 35. 12 E. P. Law, § 285. 13 R. P. Law, § 285. or THE EIGHTS OF ANCESTORS. 06 If the father is living, the mother inherits no por- tion of the real estate, unless the inheritance came to the deceased on the part of the mother,^* or the father is incapable of inheriting, as by reason of alien- age or the like.^^ If the inheritance came to the deceased on the part of the mother, or if the father be dead, or if living is incapable of inheriting, the mother takes a life estate if the deceased leaves a brother or sister, or descendant of either ; otherwise she takes all in fee.-'® § 4. Mother takes Personal Estate A mother takes no portion of the personal estate of a deceased child where such deceased leaves any descendant, ^^ hus- band,** or father. -"^ Where the mother is not ex- 14 As to what property is said to have come to the deceased on the part of the mother, see p. 28. 15 R. P. Law. §§ 284, 285. 16 R. P. Law, § 285 ; Miller v. Macomb, 26 Wend. 230 ; Tilton t'. Vail, 17 Civ. Pro. R. 194. The same is true where the de- ceased leaves brothers and sisters of the half-blood, not of the blood of the ancestor from whom the inheritance came to the deceased. Conkling v. Brown, 8 Abb. Pr. N. S. 345; s. c, 57 Barb. 265. 17 Code Civ. Pro. § 2732, subds. 7, 8. 18 Id.; Vallance v. Bausch, 8 Abb. Pr. 368; s. c, 28 Barb. 63.3; 17 How. Pr. 243. Approved in Ransom v. Nichols, 22 N". Y. 113, and see Husband, p. 36. 19 Code Civ. Pro. § 2732, subds. 7, 8. 54 INTESTATE SUCCESSION IN NEW YOEK. eluded as above, she takes or shares in the personal estate of the deceased as follows:^" (1.) If the deceased leaves a widow, one-half of the personal estate is distributable in equal shares to the mother, and brothers and sisters,* the representatives ^' of deceased brothers or sisters taking the share their parent would have taken if living. (2.) If the deceased leaves no widow, the whole is distributable in the same manner. (3.) If the deceased leaves no brother, sister, or descendant of a brother or sister,^ the mother takes one-half if the deceased leaves a widow; otherwise all. (4.) If the deceased was an illegitimate and leaves no widow, the mother takes all.^' § 5. Grandparents take Personal Estate only — Grandparents are incapable of inheriting real estate.^* Grandparents take no portion of the personal es- tate of a deceased, if such deceased leaves any de- 20 Code Civ. Pro. § 2732, subds. 6, 8. * Matter of Cruger, 68 N. Y. St. R. 241; 34 N. Y. Supp. 191. 21 Code, § 2732, subd. 5 ; Doughty v. Stilwell, 1 Bradf. 300. 22 Id., subd. 5. 23 Code Civ. Pro. § 2732, subd. 9. See also ante, p. 17. 24 2 Bl. Com. 208; E. P. Law, § 291. OF THE EIGHTS OF ANCESTORS. 55 scendant,^' husband,^ widow,^'^ parent,^* brother, sister,^ or descendant of a brother or sister.^" Where the grandparents are not excluded as above, they take all in equal portions.*^ § 6. Great-grandparents take Personal Estate only. — Great-grandparents are incapable of inheriting real estate. ^^ Great-grandparents take no portion of the personal estate of a deceased, if such deceased leaves any de- scendant, husband, widow, parent, grandparent, brother, sister,^* or descendant of brother or sister.'* Where grealrgrandparents are not excluded, as above, they take or share all the personal estate of the deceased, in equal portions per capita, with such uncles and aunts as may be living,'^ deceased uncles 25 Code Civ. Fro. § 2732, subds. 1-5. 26 See authorities in notes under Husband takes Personal Estate, p. 36. 27 Code Civ. Pro. § 2732, subd. 3. 28 Code Civ. Pro. § 2732, subds. 7, 8. 29 It has been decided that brothers and sisters take to the exclusion of grandparents. Matter of Marsh, 5 Misc. 428. 30 Code Civ. Pro. § 2732, subd. 5. 31 Bogert V. Furman, 10 Paige Ch. 496 ; Sweezey v. Willis, 1 Bradf. 495; Hurtin v. Proal, 3 Bradf. 414; Hill i'. Nye, 17 Hun, 457. 32 2 Bl. Com. 208; R. P. Law, § 291. 33 See notes under head of the various relatives named. 34 Code Civ. Pro. § 2732, subds. 5, 10, 12. 35 Code Civ. Fro. § 2732, subds. 5, 10, 12. 56 INTESTATE SUCCESSION IN NEW YOEK. and aunts who have descendants living, being counted for the purpose of division as themselves living.*® § 7. Great-great-grandparents take Personal Estate only — Great-great-grandparents are incapable of in- heriting real estate.'^ Great-great-grandparents take no portion of the personal estate of a deceased, if such deceased leaves any descendant, husband, widow, parent, grandpar- ent, great-grandparent, brother, sister, descendant of a brother or sister, uncle, aunt,*® or descendant of uncle or aunt.*" Where great-great-grandparents are not excluded as above, they take or share all the personal estate of the deceased, in equal portions per capita, with such great uncles, great aunts of the deceased as may be liv- ing, deceased great uncles and great aunts who have descendants living being counted for the purpose of division as themselves living.*" 36 Id. 37 2 Bl. Com. 208; R. P. Law, § 291. 38 See notes under the head of the varioous relatives named. 39 Code Civ. Pro. § 2732, subds. 5, 10, 12. 40 Id. CHAPTER VI. OF THE EIGHTS OF BROTHERS AND SISTERS AND THEIR DESCENDANTS. § 1. Brothers and sisters take Real Estate. 2. Brothers and sisters take Personal Estate. 3. Nephews and nieces take Real Estate. 4. Nephews and nieces take Personal Estate. 5. Grandnephews and nieces take Real Estate. 6. Grandnephews and nieces take Personal Estate. 7. Great-grandnephews and nieces take Real Estate. 8. Great-grandnephews and nieces take Personal Estate. § 1. Brothers and Sisters take Real Estate. — Broth- ers and sisters^ inherit no portion of the real estate of the deceased, where such deceased leaves any de- scendant.^ Neither can they inherit where the de- ceased leaves a father: except (1st) where the inheri- tance came to the deceased on the part of his mother, or (2d) when the father is incapable of inheriting, as from alienage or the like.' In the first case, if the mother he dead, the brothers and sisters inherit sub- ject to the life estate of the father.* In either case, if the mother be living, they inherit subject to her life estate.^ In all cases, if the father be dead and the 1 In case of half-blood, see ante, p. 16. 2R. P. Law, SS 281-284. 3R. P. Law, §§ 284, 285. uncles and aunts, who have de- scendants living, being counted for the purpose of division as themselves living. (2.) If the deceased leaves a child of a great-great- uncle or aunt, but no great-great-uncle or auiit, the grandchildren of great-great-uncles or aunts, who are children of a deceased child of a great- 22 See notes under head of various relatives named. 23 Code, § 2732, subds. 5, 12. See note 38, p. 63. 2