issue, the lands will descend to the eldest brother: but Lord Coke has said that by some customs the youngest brother shall, in the above case, inherit.

The above and other customary descents cannot be altered by act of the party; as where A. seised of lands in boroughEnglish, enfeoffed B. and the heirs male of his body according to the course of the common law, the latter words were held void.*

3. With regard to lands held by copy of court roll, the descent is governed by the custom of the manor; but in general it is the same as that of lands held in socage. The heir of the copyholder, however, is not complete tenant to the lord. until admittance; but where the customary descent differs from the common law, the custom is construed strictly.§

With regard to copyhold, as to other customary lands, the statute of 3 & 4 Will. 4. does not alter the custom by which the descent of the lands is governed, except so far as its enactments are applicable to them in common with land of freehold tenure.

IV. The descent of estates tail is not affected by the late statute; but it is regulated by the statute de donis conditionalibus, and therefore it is called descent by statute.

The descent of an estate tail must be traced to the first purchaser or donee, and through that description of heirs which is specified in the original gift: so that in tracing the descent to an estate tail the maxim seisina facit stipitem does not apply: so, consequently, there is no exclusion of the half

**

blood in the descent of an estate tail; for the issue in tail are always of the whole blood of the donee.* Neither is the descent of an estate tail interrupted by attainder, for the issue in tail claim per forman doni, and such issue are as much within the intention of the gift, and as personally described in it, as the ancestor.+]

Widow and children.

Widow.

Children.

OF DISTRIBUTION ACCORDING TO THE STATUTE 22 & 23 CAR. II. C. 10., OF THE PERSONAL EFFECTS OF A PERSON DYING INTESTATE.

It should be observed in the first place, that the above statute does not extend to the estate of a married woman; so that the husband takes the whole of her personal effects, he being entitled by the common law to administer to his deceased wife.‡

If the intestate leaves a widow and children, the widow takes one-third; and the children take the remaining twothirds equally.§

If he leaves a widow and no children, she takes a moiety,|| and the next of kin, the other moiety, as after mentioned. If he leaves no widow, the entirety is distributable among

Cro. Car. 106. 29 Car. 2. c. 3. s. 25. 2 Bl. Com. 515. Squib v. Wyn, 1 P. Wms. 379. Elliot v. Collier, 3 Atk. 526. Palmer v. Garrard, Prec. Cha. 21.

§ Sec. 5 of the stat.

Sec. 6 of the stat.

his children equally ;* and if he leaves but one child, it devolves upon such only child.

If some of the children of the intestate die in his lifetime, leaving children, such children or their lineal representatives in infinitum take per stirpes equally.†

Children and the representatives of chil

dren.

children.

If all the children of the intestate die in his lifetime, leaving Grandchildren, such children, or, if all of such children die in the lifetime of the intestate, leaving children, then all such grandchildren take equally per capita, claiming in their own right and not by representation.‡

If all the children of the intestate die, after his decease, but before distribution is made, their shares vest at the decease of the intestate; and their lineal representatives in infinitum take per stirpes equally. "

Vesting of

distributive

shares.

Where distribution is made among the children of the in- Hotchpot. testate, such children (excepting the heir at law)|| must bring

into hotchpot any advancement made by the intestate in his lifetime.*

**

The lineal descendants of the intestate in infinitum are pre- Lineal desferred to all ascendants or collaterals.††

If the intestate leaves neither widow, child, nor descendant of child, the next of kin are entitled ; that is, the father if

cendants.

Neither wife, child, nor descendant of child.

*S. 7 of the stat.

Watts v. Crooke, Show. P. C. 108.
D'Avers v. D'Ewes,

Burnet v. Mann, 1 Ves. sen. 156.

3 P. Wms. 49.

S. 5 of the stat.

Stanley, 1 Atk. 457.

Pett's case, 1 P. Wms. 27. Stanley v.

Walsh v. Walsh, Prec. Chan. 54. Bowers v. Littlewood,

1 P. Wms. 593. D'Avers v. D'Ewes, 3 P. Wms. 50.

Representation among collaterals.

Mother.

Brothers and sisters, and descendants

living, takes the whole; but if dead, the mother, brothers and sisters of the intestate, take equally: the children of deceased brothers and sisters standing in loco parentis.*

But this right of representation, being among collaterals, extends no farther than to the children of the brothers or sisters of the intestate:† Thus a sister's son excludes a brother's grandson; and an uncle the son of a deceased aunt.§

If there be neither brother nor sister, nor the child of a brother or sister, the mother takes the whole.||

But a mother-in-law takes nothing.** If there be no mother, the brothers and sisters take equally; and the children of brothers and of a deceased brother or sister stand in loco parentis.

sisters.

Kindred next after brother's and sister's representatives.

Paternal and

If there be neither mother, brother, sister, nor children representing a brother or sister, distribution is made, without preference, among those who are then next in degree of kindred to the intestate, according to the civil law.††

Paternal and maternal relations in equal degree take maternal rela- together.‡‡

tions.

Grandfather,

&c.

Great grandfather, &c.

If there be neither mother, brother, sister, nor children representing a brother or sister, the grandfather, or, if he is dead, the grandmother§§ takes; they being preferred before the children of a deceased brother or sister claiming in their own right, and not as representatives.

Next the grandfather, the great-grandfather (or if he is

* 1 Jac. 2. c. 17. s. 17. Keylway v. Keylway, 2 P. Wms.

344.

+ Pett's case, 1 P. Wms. 27.

+ Pett's case.

& Bowers v. Littlewood, 1 P. Wms. 594.

|| 1 Jac. 2. c. 17. s. 7.

** Duke v. Duchess of Rutland, 2 P. Wms. 216.
tt Mentney v. Petty, Prec. Cha. 593. 2 Atk. 117.

Moor v. Barham, 1 P. Wms. 53.

$$ Blackborough v. Davis, 1 P. Wms. 41.

dead, the great-grandmother) uncles, aunts, nephews and nieces claiming in their own right, take together, as being in equal degree.

If there be none entitled in this degree, then the great-great- Great greatgrandfather, grandfather (or if he is dead the great-great-grandmother) &c. great-uncle, first-cousin (or uncle's son) and great-nephew

(or brother's grandson) take together, being equal in degree.

Distribution is not to be made until twelvemonths after the Distribution. decease of the intestate.*

*S. 8 of the statute.