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F.llcci 1)1 rjt'jii(.iiii;ili CHAI'TI-li;, III. HoTCii-I'or. Advam'kmkm' '2!) (,'ii.\r'n',i{ IV. I'ltdviXfiAi, Laws. Ontiuio .'!! QiulxH! .•{.•{ New Mniiiswick 'M Priiico Eiiwanl isl;i;i.l .|1) Hritish Cdlimiliiii AO Muiiilolia .01 1 AHI.KS. IiilostJicy, JN'ixiiial I'lshilc . , ,'■(,'{ Itt'iil EsiiiU' [,{; Al'I'KVDl.X. DiHtriliiitiiiii of Kislatcs {]{) liiiw (if Dt'scont, Ontario fifi CASES CITE I). Conty do Quosnoy vs. Conty d'Aj^icour '■ " Cray A«. Willis 4(; Ea^los i\s. Ldirotoii 4fi Eliiisly ?w. Yoniii!; 43,44 ,4(» Eviiyn vs. Evelyn , 14,50 Gooil inan'f TiuhIh 4,23 Greenwood vs. CiirtiH 25,2(5 Halton vs. Foster 15,4(> Lee c t al vs. Tn)nj?htoM 37,39,40 Malioney w. Crane 37,39,40,42,44,46,48,49 Packard vs. RichardHon 45 Phillipe vs, Garth 46 ii Contents. RckM y rs. Fitz^rcrald 47 Ross' TniKtH 18,26 Sliiimioii M. ForJiino 38 Tiivlor rs. Tiivlur 28 Tiiy lor r.f. Sav iiiic Sf) Tli()m|is()n r.v. Alliinsliuw 38 Wt'tmore r.v. Woliiiorc: ;{7,:{!>,41,48 Witliy rs. Mangles 44,46 W.xjd r.s. De Forrest 38,40,42,43,47 StATI'THS HKKKllKKP TO. Conrc.l.Tiitioii y\cf 31 Vic;. <•. ".(4 4 DistiilMilion Sfiihitc of, 22 A' 23 Car Jl. c. 10, ex- plaiiK'.l by 20 Car 11. c. 3 7, 28 lii.|MTial Act 31 (i. 111. c. 31 (1701) 31 Im|..riMi Act 14 (1. Il[.«;. 83 (1774) .33 InI KSTACY. Ontario, Statute. 1 1& 15 Vic. c. f. 5(; Hfviscd Statute, c. 102 31, 56 Nova Scotia. Statute IC. (i. m <•. 11 .35 I?evisc,| Statute c. S2 ..f 1S73 42,53, 56 Ni:\v Bki'nswick. Statute 2i; fi. ni. e. II 3(1, 3S. 30 21 Vic. c. 26 II Consnli.lated Statute c. 78 :{6, 37. .^.3. 56 PkINCK KuWAHlt Isi.ANU. Staliilo .36 V ic. c. 2;! 40, 53, 56 BlllTISH COM'MBIA. Statute 35 Vic. c. 20 .50 Revised Statute, cliap. 88 53, 5(1 Man'itoha. Statute 34 Vic. c .6 51 Revised Statute chap. 46 53, 56 Kkkwatin. Statute of Canada 3S Vic. c. 40 .56 North-Wrst Tkhritouy. Statute of Canada, 43 Vic. c. 25 56 INDEX. Pauk. Advanckmknt. Law of 28 Mullifr ciiii utily iulvance in sonic canes 28 Law of F'loviiK'.cs 29 30 Ancestok !) Apckxdant. CuuM not inlierit under tin- coniinon law 10 Law of New Hninpwick 10 Blood and ITALK-Jii.oou. Suecession to Personal Estate 54 Succession to Real Estate 57, 5H COM.ATKKALS. Manner of reckoning de}i;rees 12 Rcjiresentat ion of 17 Claiming tlirougli nearest ancestor preferred in Nova Scotia ami Manitoba 17 CONSANOUINITY 1 1 Dkokkks, how rOUNTED. Right Line U Collaleral Line U By Canon Law 12 By Civil Law 12 DiSTRIIUiTlON. Statute of 7, 17, 18,32,47 Upper Canada Law Journal thereon 60 Estate, Rkak. Common Law 5 What is IG Succession to , 3, 23, 25 Provincial Laws 31 Table of Succession to 66 Law of Ontario 66 Estate, Personal. Division of 12 Succession to 3, 23 Provincial Laws ^ 31 Tftble of Succession to 63 d iv Index. Hkiii. Wlio is 11, If) At law III New IJiiinsrtiok .'Ki, :{S, :!!•, I(», \.\ HoTcii P(»T 28 [M,K(ilTIM.\Ti;. Ufirii ill ;inv otlicr i'ro.virice tliiiii (Jncbt'c is mil Iciriti- malcil liy siilpst'()iu'nt iiiiirriiigc, so iis to siiccfi'il (<> Real Ksiiii.. .'. t\\ Inhkiiitanck. Dctinitioii of Umik ir> Intkstatk. Wliodics t> lilUJITIMAf'Y. No l('i;itiiniiliitii liy siilist'(|iicnt inarrijii;!' ('xccpl Qiichcc. 2.'> None Inil aoliiM liorii in wedlock can siuu;<'f(l to i-eal projierly situated elsewhere than Quehec 2.!, 24 Next ok Kin. Siiiijilirifi'r not next oCkiii under Statute of Distriltii- tjon i;{, 'II, If., 4<1 SiTcussiox OK — see Tahles. PkOVIN'CIAI, liAWS 31 Rei'kkskntatjon. Detinilioii of 17 J jaw of the Provinces 17 Where extended in siK'(;essioiis to real estate, to th(> issue of hrothers and sisters of the intestate, and to the issue of the hrothers and sisters of the intestate's father and mother 17 Of >;rand-children and i>;reaf,-;!;ranersonalty as one of the intestates next of kin. It was held that the child so legitimated was entitled as one of intiistate's next of kin. (Re Goodman's Trust, 44 L. T. E. N. S. 527.) The Confederation Act, 31 Vic, chap?J, s. 94, enacts that the Parliament of Canada may make provision for the uniformity of all or any of the laws relative to property and civil rights in the Provinces of Ontario, Nova Scotia and New Brunswick, such law, however, not to take etfect in auy Province until its Legis- lature has adopteil it. There are, doubtless, a number of laws which could be made uniform throughout tbe Dominion. The section of the Act quoted, unfortunately as the author believes, further declares that when the Act providing for a uniform law is adopted by the different Provinces mentioned therein, the Parlia- ment of Canada shall have unrestricted powers to legislate thereon. The Provinces would possibly not object to-day to a law for the iiuiform disposition of intestate property, but they would object to granting the power of exclusive legislation hereafter to the Domi- nion Parliament on this question. A writer in an American Law ^lagazine, although of opinion that the enactment of a National Code would be attended vv-ith many advantages, admits that it would be strenuously opposed, "especially by those who are still " haunted by the ghost of the defunct doctrine of state rights ; " and believes that there are certain subjects, "in which the whole " nation is to some extent alike interested, and in regard to which " a uniformity in the laws of the different States would be of " benefit to every section of the country." After a revi",w of the laws affecting interest, dower, etc., the writer adds : " The '• same confusion is found in the laws governing the descent of " the real estate and the distribution of the personal property of " deceased persons." He suggests that the existing laws be amended and unified by the Legislatures of the respective States without ceding any additional power to the Federal Government or asking for its ii Tfereuce. Another writer in the Americcui Law Review oi DtLcmher, 1883, says, in the style peculiar to our neighbors : " The progress of American unification must go on. It can no more be stopped than the progress of German unification can INTRODUCTION. '0 be stopped. Tlie narrow jealousies of a hundred years ago wliicli made us a mere aggregation of tribes or petty communities dignified by the name of States, furnished a plan of government entirely uusuited to a great and homogeneous peo[)le * * ♦ Tiie trouble is that a great many things which were really local one hundred years ago, have, through increased means of intercom- munication, become general, and hence national." Tiie common law of England, as regards the descent of real estate in cases of intestacy, at the time of the conquest of Canada, and which was then law in the Maritime Provinces, and intro- duced into Ontario by the Act of 1791, may be summed up thus : Keal estate lineally descended to the eldest son; it never ascended, it rather escheated to the Lord. The male issue was preferred to the female. If there were no male issue the females inherited share and share alike. In case of the death of the heir his representative succeeded. If the eldest son died without issue his next eldest brother succeeded. If the suc- cession devolved upon females, the representatives of the deceased took her share. On failure of lineal descendants, the inheritance descended to his collateral relations of the blood of the first purchaser. The collateral heir was required to be the nearest collateral kinsman of the whole blood. The males were preferred to females, unless the lands had descended from a female. The relations on the father's side -^ere admitted ad infinitum before those on the mother's side, a (i i relations of the father's father before those of the father's mother. But when the lands des- cended to a male from his mother's aide the rule was totally reversed. Land could not be inherited of which the intestate was not in actual possession. In no Province has the common law been expressly repealed, althoug] jaore or less modified in each. In the Appendix will be found a most interesting article on the distribution of tha personal estate of intestates, which appeuved in the London Law Magazine and Review of May, 1857, and which V 'i have printed in extenao. In republ'shing this article in the March Number of 1858 the editor of the Upper Canada Law Journal (now continued as the Canada Law Journal)^ 6 INTRODUCTION. accompanies it with certain remarks with which we, for the most part, agree. Having published a table of the disuibutiun of personal estates, according to the law of Upper Canada and the then law of Lower Canada, he asks the question " which of the two is the more equitable ? " and he answers by saying : " we cannot help thinking that our's is not. The student of the civil law finds in it trpces of the Theodosian code in its roughest state, unsoftened by the novels of Justinian, while in the Table of Lower Canada he finds an offspring of the corpus Justinianeicm." He objects to the patria potestas, the right, according to the law of England, of the father of an intestate to the personal property of the latter to the exclusion of the intestate's brothers and sisters, and, he adds, " the law of Lower Canada " is not open to the same objection, " and that " if it had "nothing more to recommend it than the absence of the '^ patria potestas, we should, upon this ground alone, " all other things being equal, conceive it entitled to rank before " ours." There are few who will dissent from the editor, who writing some years before Confederation, thirty years ago, said : '• From what we know of the laws of Lower Canada, there are " many good things which wi night adopt with advantage. " Those in Lower Canada who know anything of our laws will, " we believe, return the compliment. The truth is that neither " system is perfect, and that neither section of the Province will " adopt the whole law of the other to the entire exclusion of its " own. The first step towards assimilation is inquiry." A practising lawyer can scarcely be expected to devote his time to the study of the laws of the Dominion. It is evident that, with the exception of Sir George Cartier, no minister has attempted any thing like a systematic reform of any branch of law. Twenty-three years after the pubUcation '^f the article from the Eeview, and the accompanying comments on it, the Editor of the Journal expresses his surprise that some Legislator had not taken up various departments or branches of the law of Ontario, and sought to treat them on some scientific principles. We may also express a like regret, for a well digested act on any branch of the law of the Province of Ontario, will, as it ought to be, be re-enacted to a great extent in the other INTRODUCTION. 7 Provinces exc3pt Quebec. Where the law is the same the smaller Provinces will have the benefit of its interpre- tation by the learned judiciary of Ontario. We presume we may be allowed to say this without disparagement to other judges. Referring to the WiUs Act, the writer appositely remarks '• that " Mr. Meredith did good work for the profession when he pre- " pared the Wills Act — one of the best pieces of Legislature we " have on our Statute. We care not where he got the materials " which served as the foundation of the enactment. It deals " concisely and well with the subject. Why should we so nearly " assimilate the devolution of realty and personalty as we do in " this Province, and at the same time retain senseless and puz- " zling differences.'' No greater credit can be given to the framer of a law than that he has known to consolidate the different statutes of his country and to insert such parts of the laws of other countries as are admitted to be improvements upon his own. The Legislator ought to be acquainted with foreign laws and the circumstances under which those laws were enacted. We should not servilely copy any law, even if it be found in the English Statute Book, however strong a recommendation that may be. The writer in the Journal thus concludes his remarks : " We adopted the Statute of Distributions as our rule as to the descent of personalty (22 & 23 C. II), and in 1851 we passed our Real Property Statute. By this means the descent of realty and that of personalty are brought very near the one to the other, but there remain distinctions difficult to bear in mind and not easy of explanation. The seventh section of the Statute of Distributions provides that there shaU be no represen- tation admitted among collaterals after brothers' and sisters' children. If the next of kin of the intestate should be nephews and neices, a child of a deceased nephew or ueice will not be admitted to share in the distribution. If the deceased left realty the child of the deceased nephew would take his share. Then, again, in dealing with the bw of contracts, why should we have one rule as to what is needed to bind in the case of personalty and another in the case of realty ? No satisfactory reaso';. can be assigned for that distinction, whilst much may be said against it." These observations are partly applicable to the law of Quebec Mi 8 INTRODUCTION. as well as to the law under the Statute of Distribution. The law of Descent of Eeal Estate of Ontario, of British Columbia, the North West Territories and Keewatin is, upon the whole, more just than that of Quebec. A reference to the Table will we thmk, satisfy most persons that it is possible to enact a Law of Descent, to Real and Personal Property, based upon both systems. The author has met with more serious difficulties than he expected m making what he confesses can only be considered as a short summary of the Law of Intestacy in the Dominion. Ji'Ven the Paliamentary Library at Ottawa does not contain a full series of the Reports of the Maritime Provinces ( ( € I t C fc V tl LAWS OF INTESTACY IN THE DOMINION OF CANADA. CHAPTEE I. Intestacy. An intestate is one who dies without having made a will, although he had the capacity to do so ; or, having drawn up or signed a document intending to have it perfected so as to make a will has failed to do so; or who, having made a will, has revoked it without making a new one, or if it be revoked by law, neque ego negaverim non uno genere fieri intestatos aut is intestatusqui non scripsit teataTnentum aut qui id scripsit quod valere non posait. (Quinctilian) An intestate (Mackenzie, Eoman Law,) is one who dies without a will, or who leaves a will which is not valid. The law appoints the person or persons who are to succeed to his pro- perty, according to certain rules, which mainly depend upon their proximity in blood to the deceased. Not only do laws of succession differ in many of the Prov- inces but the legal terms have not the same meaning in Quebec |y that they have in the cLher parts of the Dominion ; the words are different, and the familiar expression of the common law is comparatively unknown there. It seems therefore necessary to explain certain terms. For instance ; Ancestor. — By the common law the person from whom real property descended was called the ancestor. The first rule was that inheritance could not ascend. No inheritance could be ^ claimed unless the ancestor was actually seized of the lands and | tenements. This is not law now in any part of the Dominion where the common law is in force except New Bunswick. Under the actual law of England, the son may be the " an- cestor " of his father ; in the United States it has been decided that the father is of the blood of his cuild, and that a younger brother was the " ancestor " of his elder brother. u- 10 LAWS OF INTESTACY IN THE ■V I Ascendants. — We cannot but smile, says Story, in the pre- ;il sent times, at some of the reasoning and some of the fictions which 1|| . spread themselves here and there in small veins in tlie common law i||i system. We are gravely told, for instance, by Bracton, in which I he is followed by Lord Coke, that the true reason why by the common law a father cannot inherit real estate by descent from his son, is, that inheritances are heavy, and descend, as it were, by the laws of gravitation and cannot reascend.* We are again told that when the title tj an estate is suspended upon future I : contingencies, the inheritance is in the meantime in abeyance, that is (as we are taught by the accompanying explanations) the inheritance is in gremio legis or in nubibus in the bosom of the law or in the clouds, which seems to mend the matter exceed- ingly in point of plainness. And again, when an estate is con- veyed to trustees to serve existing uses, and future contingent uses. also, .^e are told, that though a seisin is necessary to feed them and it be now exhausted ; yet, happily for us, there remains a possibility of seisin, a scintilla juris, which kindles at the very moment the new uses spring into being, and by its vital power executes at once the possession of the estate to those uses, by some sort of legal legerdemain. And Kent, the equally renowned author, has remarked that the very artificial nature and absurd results of the old English rule that real estate never ascends, are strikingly illustrated by the well-known case sta':ed by Littleton, that though che father could not be heir to his son, ' for the inheritance never could ascend, and the uncle, or father's brother, though in a remoter degree, had the preference ; yet, if the uncle died intestate without issue, the father, as heir to the uncle, might succeed to the inheritance of his son ; for, says Littleton, " he cometh to the land by collateral descent and not by lineal ascent. So it has been held that if either parent stood in relation of cousin to the son, they would inherit in that char- acter, though not as father or mother. '' (4 Kent Com. 396.) This is the actual law of New Brunswick, or rather was con- sidered such untn the decision in the case of Wood vs. De Forrest. (See New Brunswick). * Oescendit itaque jus, quasi ponderosum quid cadens deorsura re^.ta liaefi, vel. transversali et aunquam reascendit ei vi&, qu& descendit. Bractou, lib. 2, cb. 29, Co. Liu. U. '! I DOMINION OF CANADA. 11 Hoiiard, a French writer, wrote in 1766 to show that Littleton's Institutes are aim ost a reproduction of the old custom of Normandy ; to that end he gives Littleton in its original language and com- ments upon the different chapters. Littleton having laid down the broad maxim that if an intestate's only son dies without children» his collateral relations will succeed to his real estate, puts in the subsequent section (sec. 3, chap. 1) the case above cited : " Mais si soit pier et fits et le pier ad un fr^re qui est uncle a '' le fits, et le fits purchase terre en fee simple, et mort sans issue, " vivant son pier, I'uncle avera la terre comme heire al fits et ne- " my le pier, uncore le pier est pluis prochein de sanke, par ceo " qui que c'est un maxime en le ley que inheritance poet lineale- " ment discender, mes nemy ascender. Uncore si le fits en tiel " case mort sans issue, et son uncle entra en la terre comme heire a " le fils (si come il devoit par la ley) et apres I'uncle devia sans " issue, vivant le pier, donques le pier avera la terre comme heire " al uncle et nemy comme heire a son fits ; pur ceo qu'il veigue al ' ' terre per collateral discent et nemy par lindal ascention." Houard, after showing how this disposition of the law of England was contrary to the Salique law. "Si quis mortuis furit et filios non habuerit, si pater ant mater superfuerint ipsi in haereditatem succedant, t. 62, No. 1 de Alod," says, that the change in England was made by the Feudal Lords, in view of military service, as they wished to exclude fathers who would not be able to perform the military duties required of them ; and that there was a diversity of opinion in Normandy until Beaumanoir established that the father succeeded to the son in preference to collaterals. He acknowledged the maxim that real estate did not ascend but, he says, that it is to be understood when there is no issue. Che que I'en dit que hiritage ne remonte point, che est a entendre. Si je ai pere et ai enfans et je muirs, mes hiritages descendent k mes enfans et non au pere : mes se il y a nul hoir oissu de moi, nul qui m'appartiegne de cost6 n'emporte le mien, avant de mon pere ou de ma m^re. Consanguinity. — Under the common and civil law kindred are distinguished into those in the right line and those in the collateral. The right line is that of parents and children, com- puting by ascendants and descendants; the collateral line is I ;i. I 12 LAWS OF INTESTACY IN THE between brothers and sisters, and the rest of the kindred among themselves. Th tse of the right line are reckoned npwards, as parents, or downwards, as children ; those of the collateral line are reckoned ex transversa, or sideways, as brotliers and sisters, uncles and aunts, and such as are born fiom them. In the ascend- ing and descending lines the degrees are the same by both laws, but in the collateral line they differ, and for the distribution of personal estate the degrees of kindred are reckoned ac- cording to the computation of the civil law, and not of the canon law, which the law of England adopts in the descent of real estates. In the descending line the son is in the first degree, the grandson in the second, and the great-grandson in the third. In the ascending line, the fath*^" is in the first degree, the grandfather in the second, and the great- grandfather in the third. In the collateral line, as reckoned according to the computation of the civil law, we ascend first to the father, which is one degree ; from him to the com- mon ancestor, the grandfather, which is the second degree ; from the grandfather we descend to the uncle, which is the third degree; and from the ancle to the cousin-german or uncle's child, which is the fourth degree. So, again, we ascend to the father, which is one degree ; from the father we descend to the brother, which is the second degree ; from the brother to the nephew, which is the third decree ; and from the nephew to the son of the nephew, which is the fourth degree. The rule of the canon law, in the computation of degrees as to realty, is followed throughout the Dominion, except in Quebec and Nova Scotia. In Ontario, British Columbia, Keewatin and the North-West Territories upon the failure of heirs under their respective statutes, real property is distri- buted as if it were personal. Quebec and Nova Scotia are the only Provinces with one uniform law on this point; degrees, whether relating to realty or personalty, are computed according to the civil law. In the division of personal estate the computation according to the civil law is followed throughout the Dominion. Under the common law, on failure of lineal descendants, the realty descended to the collateral relations of the whole blood ; but DOMINION OF CANA.DA. 13 now in England, since 1834, the half hlood succeeds after any relation in the same degiee as the whole blood. There is no distinctif^n as to half blood or w'.ole blood in intestate personal successions throughout the Dominion, exc( pt in Quebec, when a succession coming to brother ai)d sister, nephews and nieces, issue of different marriages, is equally divided between the two lines, paternal and maternal, of the intes- tate, those of the whole blood sharing in each line, and those of the half blood sharing each in his own line only ; and where, if there be brothers and sisters, nephews and nieces on one side only, they inherit the whole of the succession, to the exclusion of all the relations of the other line. In Ontario, British Columbia, Keewanin, North-West Territo- ries, relatives of the half blood and their descendants inherit equally with those of the whole blood in the same degree, unless the inheritance (real estate) came to the intestate by descent, devise or gift from some one of his ancestors, in vi^hich case all those who are not of the blood of such ancestors are excluded from the inheritance. In Nova Scotia, New Brunswick and Manitoba there is no distinction. Children of half blood in- herit equally with those of full blood in Prince Edward Island ; but when a brother of the whole blood and the brother of the half blood are next of kin the former excludes the latter in suc- cessions to realty. The Statute does not make any distinction in matters of personalty. The rule is the same in realty as in personally in Quebec. Kent in his Commentaries (4, p. 407) makes the following remarks, which, from such a source, are deserving of serious attention : " The law of all countries, and our own in particular, are so different from each other on the subject that they seem to have been the result of accident or caprice, rather than the dictate of principle * * If the rule of inheritance had required no examin- ation beyond the title of the inieatate, and the proximity of blood to him, there would have been more certainty and simplicity introduced into our law of descents. In this practical age the person who would submit a Bill to Parliament for the more equitable distribution of property' would be better engaged than in discussing what the very . MlftM 14 LAWS OF INTESTACY IN THE m- !li ifi i , re.spectal)le Voet'3 opinion was of the true meaning of the 118 Novel of Justinian. He thought that urder it the father and mother could succeed along with the brother of the intestate, and consequent!}' that the brother excluded the grandfather. Tli'iij vievv of the case was held by the English Courts previous to the case of Evelyn vs. Evelyn where it was also maintained by Lord Hardwicke. Yet Domat and other eminent civilians, as Mackenzie observes, have rejected the opinion of Voet. They say he has given an erroneous version of a passage in the Novel by the words " si aut pater aut mate7' faerint,'^ while the clause should be translated as it is by Warnkoenig, " etsi pater aut mater sint ? " The true meaning of the law being that brothers and sisters are called to the succession along with ascendants even although these ascendants should be a father and mother. By the 127 Novel the nephews were only expressly called when brothers also came to the succession with ascendants, from which Cujas concluded that they could not come in their own right. Pothier was of that opinion. Dr. Irving in his Introduction to the Study of the Civil Law, page 100, contends that the reas- oning of Voet and the decision of Lord Hardwicke are wrong. Art 632 of the Quebec Code has followed the English decision excluding the grandfather. If the grandfather has suffered from Voet's opinion, he has also been injured by the legislators who have excluded him from any share in the real estate of his descendants. With Kent 4, p. 108, we may be allowed to say : " the i.nalogies of the law would " have been preserved, and perhaps the justice of the case better " promoted, if in the Statutes remodelling the law of descents, " the claim of kindred on the part of the grandparent had not *' been rejected." Heir was applied under the common law to one who was en- titled to receive land by descent. A person could not strictly be said to be the heir to a personal estate. This technical learn- ing has been obliged to give way. The Courts have interpreted the word " heir " in accordance with the popular acceptation of the term. Laws, one may be allowed to believe, sshould be made *' to be understanded by the people," and when their legal inter- pretation is different from that given universally by laymen. DOMINION OF CANADA. 16 the Lo^'islatiir-j has bat one duty to perform, to make legal the populiir interpretation, if the Courts will not. In Quebec, as in Scotland, the term heir is ap])lied to the one who is to succeed to the personal as veil as to the real estate. In Ontario the word " heir " in a will is construed to mean the person to whom the real estate would d'^scend in case of intestacy. The old English maxiia was that " none can be the heir of a living person," and that God alone, after the ancestor's death, makes the heir, not man. Solus deus heredenc facere potest, non homo. Inhekitance. — The term " inheritance " in common parlance means all the estate of whatever kind, personal and real, of an in- testate, and which devolves upon his heir or next of kin. Under the common law it is restricted to real ^state and is defined as " a perpetual or continuing right to an estate invested in a person or his heirs," According to Littleton it includes not only land and tenements which have been acquired by descent, but also every fee-simple which a person has acquired by purchase may be said to be an inheritance, because the purchaser's heirs may inherit it. Kent writes " of the inheritance of personal estate." Inheritance, in the civil law, means the succession to property real or personal. Next of Kin. — The term " next of kin, " technically speak- ing, does not include children or grandchildren, although they are nearest in blood, and so next of kin. '' Next of kin " and " near- est of kin " do not convey the same meaning. It is well settled that a limitation to next of ki>'^ siTnpliciter, in a will or settle- ment, is a limitation to the person nearest in blood to the pro- positus or person from whom it is proposed (per Wood, L. J., Halton V. Foster, L. E., 3 ch. 505) but the Probate Court in dealing with the goods of an intestate applies the term to those who are the nearest in blood under the Statute of Distributions. Husband and wife, not being related, cannot be next of kin. Primogeniture is the right of the eldest son to inherit the whole of the realty. It does not exist in any part of the Dominion. The date of its abolition is mentioned under the heading of the different Provinces. It never existed in Quebec, 16 LA.WS OF INTESTACY IN THE where, however, the eldest son had certain superior privik^gea as heir to seij,'niorial ju'operty. These have also been abulislied. Real and Personal Estate. — In Quebec the terms real and personal are used in the sense used by civilians as they are wherever the civil law prevails. The broad generic description is into " moveable " and "inn loveable." The law makes some distinc- tions, for instance the pro})ev*y, real and personal, of an incor- porated company is regarded as moveable with regard to each company as long as it is in existence. (Art. 387.) On the other hand all moveable property of which the law ordains or authorises the realization, becomes immoveable by determination of law. As the succession to property of each kind is the same in Quebec ar ^ in Manitoba, it is not of any special interest to the heir or next of kin if the law of either of these Provinces calls a thing moveable and immoveable. Neither is it of much con- sequence to the heir or next of kin in Nova Scotia ; the only differ- ence is that in Nova Scotia the widow gets her one-third of the real epiate as tenant in dower if there be no issue, if there be, she gets one-half in her own right, while she gets one-third of the personal estate under any circumstances. In New Bruns- wick the widow gets one-third of the real estate as tenant in dower, and one-third of the personalty if there be children, and one-half, if there be none, in her own right. Under the law of England, even at the present, day, in order to distinguish " realty " from " personalty, " says Amos, two wholly independent tests are applied ; the one turning on the physical nature of the thing in question, the other on the acci- dental quality and extent of the rights which a person or per- sons may have a chance in it. In other words, a thing may be a realty either because it is land or firmly annexed to land that ia immovable ; or it may be realty because the rights of a certain person in it are such that, at his death, it descends to his heir and not his executor or personal representative. Mr. Justice Stephen, in his commentaries on Blackstone, says that when chattel interests are counted " in reference to the distinction between real and personal estate they are held to fall under the latter denom- ination," and thus the next of kin under the common law DOMINION OP CANADA. 17 succeeds. Lease-hold estates and estates extinguished by the death of the testator are not considered as real estate. Representation is a disposition of the law by which the representatives of a deceased ])erson take among tlieniselves the shares which he would take were he alive. Repre- sentation exists ad infinitum in the descending line. Wiien, however, the grandchildren inherit in their own right, that is, when all the children of the deceased are dead, they inlierit by heads or per capita in matters personal. When children and grandchildren inherit they come in per stirpes or by roots. The I nii)erial Statute of Distribution (of personal projterty,) T" & 23 Car. chap. 10, sec. 4, enacts : "there be no representation ad- mitted among collateraVs after brothers' and sisters* child ren." In New Brunswick before the 1st April, 1858, no representation was allowed beyond brothers' and sisters' children. The Re- vised Statute does not re-enact this provision of the law as regards real estate left by intestates after that date, although it does with respect to personal property. Prince Edward Island provides for this non-representation in matters of real estate, sec. 2, and in matters of personal estate, sec. 11 ; and so does Manitoba, s. 8. In no Province has the Statute of Distribution been repealed. In Quebec no representation is allowed in the collateral line, in any case, beyond brothers' and sisters' children. Nova Scotia and Manitoba, permit the representation of the issue of a brother and sister ad infinitum in the succession of an intestate child dying under age and unmarried, for the part which came to the intestate from their common parent. This is a great innovation, affecting both realty and personalty. This representation of collaterals ad infinitum is, however, applied only to this special case in those Provinces. Ontario, British Columbia, Keewatin, and the North-West Teiritories provide for repre- sentation, in the case of real estate, of the issue of the brothers and sisters of the intestate to the remotest degree, and of the brothers and sisters of the father or mother of the intestate. In Nova Scotia and Manitoba, when two or more collaterals are in equal degree, the claimant through the nearest ancestor is preferred. A was the father of the intestate B. The latter left B ;{ ft I 18 LAWS OF INTESTACY IN THE C, his nephew, and D, his uncle, both in the same degree. C claims the estate as a descendant of A, while D claims as a descendant of A's father : thus C, the nephew, excludes D, the uncle, "Ke-Ross* Trusts," decided in England, 1871, by Vice-Chan- cellor Wickens, gave rise to a great deal of comment. It is referred to at length by writers on the subject. It must be considered extraordinary that a judicial interpretation of the law of Charles II. should only have been given in 1871. Tlie decision was : that if an intestate leaves no children, but grandcliildren and great-grandchildren only, they take 2^f'r stirpes and not ^jer capita. It was contended by the unsuccessful party that the property must be divided among the grandchildren, and, as there were seven of these, the property should be divided in seven parts, the seven grandchilcb-en taking each one-seventh. It was argued that the true construction of the Statute did not contemplate representation beyond "the children of an " intestate, and such persons as legally represent such children in " case any of the said children be dead ; " and as the statutory " limit of representation was had, and only seven gi'andchildren of •' the testator were alive (his children had been some time dead) " each one was entitled, as equally next of kin, to take^^er capita. " That the great-grandchildren would succeed to their respective " parents one-seventh as representing them." Flood quotes Williams on Executors as if it were in con- tradictvm to the judgment — which it is not. But, says Flood, "in the last editioi:; of Williams on Executors it is stated ■" that, if an intestate's children and grandchildren have all pre- " deceased him, and he leaves great-grandchildren, these will take *^per capita, and not by representation." This is in conformity with the judgment. Flood goes on to say " that, in Ee-Eoss, " there were grandchildren and great-grandchildren who claimed •" by two lines of descent from their common ancestor, and that ** probably we may regard the dictum of the very learned Judge ■•' as being appropriate to the particular circumstances before " him, but not as applicable generally, unless the recognized " view of the doctrine of distribution per capita among " descendants is to be admitted as erroneous." DOMINION OF CANADA. 19 The Vice-Chancellor admitted that there was a difference of opinion on " repres6>' stirpes when the ch/s- cendants were of nneiiual degree, and to nsc his own words : " It *• is hard to resist the conclusion that if there are descendants, but "no children to share the estate, it is to be divided into as many " shares as there are children who have left living descendants, " and that the descendants of each such child are to take as rej)re- "sentingthe child, and of course only the chiM's share; but when f • are of the same degree, in matters i>ersonal, they take equally "y>ftj capita.'* The judgment was that the money should ])e divided in nioities of which one was divisible among the des- cendants of Alex. Ross and the other among the descendants of William Francis Iloss : the division in each class being per stirpas. If we bear in mind that by the common law in England ])ro- perty was always divided per stirpes, except in cases of primog(;ni- ture, and that the division per capita is that of the civil law, we shall not be surprised the decision of the Vice-Chancellor gave rise to some discussion, while civilians assume that no other could possibly be given. The Statute of Distributions was drawn by a civilian, the degrees of kinship are according to the civil law. A question of representation could therefore only be decided according to the rules laid down by that law. The Code, Art. 625, gives the law as it has always existed in Quebec. It is in conformity with the Statute Law of Ontario, - British Columbia, the North West Territories and Keewatin as regards the realty. In matters personal the decision in the Ross Trusts would doubtless be followed throug^^out the Domin- ion. The Vice-Chancellor, in giving judgment, remarked that "the Statute of Distribution was drawn by a civilian.'' 8ir Walter Walker seems to have intended to introduce the rules of Roman civil law into this branch of English law. It is there- fore not irrelevant to remark that the view of the construc- tion of the Statute which is taken above makes it conformable to the Roman law and not to the English common law. Williams does not approve of this view of the case. He says : " It (the Statute) also bears some resemblance to the Roman law of succession ah intestato, which, and because the \l 20 LAWS OF INTESTACY IN THE Act was penned by an eminent civilian, has .. Joned a notion that the Parliament copied it from the Roman praetor, tht»ugh it is little more than a restoration, with some refinements and regulations, of an old constitutional law which prevailed as established right and custom from the time of King Canute downwards, many centuries before Justinian's laws were known or heard of in the western parts of Europe." (Williams on Executors, 8th ed., p. 1493.) The law which gives all the personal estate of an intestate to the grandfather, and which at the same time prevents his getting the slightest share in the real estate, ought surely to be changed. How can we defend the law of a Province which gives the grand-nephews of the intestate all his real property, and at the same time gives his uncle all the personal property ? Should a brother's children deprive another brother's grandchildren of any share of the personal or real estate ? Should the death of the father be a reason for the punishment of his children ? We can illustrate the effects of Representation in this way : A dies, leaving one son and two grandchildren, children of a daughter deceased. Grandchild of A and great- grandchild of B. Grandchildren only, or great- grandchildren only. Property equally divided ; one half property to the son ; the other half equally to the grandchildren as representing their deceased mother. Equally divided ; each repre- , Young. " It is by no means true, as a general proposition that the term next of kin is taken to signify those who are entitled under the Statute of Distributions," and Lord Com- missioner Bosanquet saidthat there was no difiiculty that the term ** next of kin "before the Statute, meant " next of blood," and then asked, " How, then, did they acquire a different DOMINION OF CANADA. 45 " meaning, and how can that meaning be applied to an instru- " ment which does not profess to relate to the Statute of Distri- " butions. * ♦ * In the interpretation of ' next of kin ' in thig " case, the Statute of Distributions is rejected altogether, and «' reference must be made to the rules of law 'prior to and '' dehors the Statute." The judgment of the Master of the Rolls was maintained : " next of kin " meant next of blood at the time of death of Emily Mangles. The Lord Chancellor, pronouncing the judgment of the Court said : " The appellant can only suc- " ceed by showing that the term * next of kin ' had, by a " technical and conventional construction, obtained the meaning " of those who would be entitled in case of intestacy under the " Statute of Distributions. That is a question of fact, and, had " it been so used, all the judges whose opinions have been ♦' referred to as objecting to the doctrine of Mr. Justice Buller " in Phillips fs. Garth since the year 1790, have been ignorant " of the fact, and have held that the words had notobtaiued any " such construction. * * I think that the appellant has wholly *' failed in proving that the term used simpliciter has, by a tech- " nical or conventional construction obtained the meaning of " those who would be entitled to iu case of intestacy under the " Statute of Distributions." " Contemporanea expositio est optima et fortiasima in lege," contemporaneous exposition of the law is the best and strong- est. Sedgwick (Stat, and Const. Law) says that in constru- ing a Statute great regard should be paid to the opinion in respect to it entertained by persons learned in the law. " A contemporaneous is generally the best construction of a Statute, it gives the sense of a community of the terms made use of by a Legislature. If there is ambiguity in the language, the under- standing and appl' nation of it when the Statute first came into operation, sanctions I by long acquiescence on the part of the Legislature and judicial tribunals, is the strongest evidence that it has been rightly explained in practice — a construction under such circumstances becomes established law." Packard v. Richardson, 17 Mass, 143. Thes equotations show that prece- dents followed for years are not lightly disturbed in the United States, much less are they in England, by the Court which pro- nounced the judgment. Dwarris is equally strong. To try " the i i I 46 LAWS OF INTESTACY IN THE '■:ll;i right amendment of a Law." Lord Coke's usual course is first to consider the true import of the words tliemselves, and then to refer to the old books and authors that wrote soon after the j>as8- ing of the law, and this, lie says, is henedicta exposition a good and sound construction. Mr. Justice Palmer thinks that the words *' next of kindred " mu3t have the meaning given to them in the English Statute of Distributions. The Court in Mahoney vs. Crane held that they did not. Sir John Leach, in the case of Elmsly V. Young (2 My. and K. 82) was of the opinion, that they did, but, on appeal, his decision was reversed. Chief Justice Chipman was doubtless well acquainted with Cray V8. Willis — •' We have," says Flood, p. 686, " in the foregoing remarks used the expression, residuary legatee, but it is competent to a testator to appoint more than one such legatee, in which case the persons named would be called joint residuary legatees, and their respec- tive shares would of course be equal. Being in the position of joint tenants, the share of each one dying in the life-time of others survives to them, until the last sur'/ivor takes the whole." The rule of the civil law is against survivorship in the matter of legacies, and it was once doubtful whether this incident of joint tenancy at common law could be ajjplied to legacies. Sir Joseph Jekyll, M. K., however, in 1729, established the common law rule, in this respect, in his judgment in Cray v. Willis, 2 P. Wms. 528), wherein he says : " I do not see that a Court of «' Equity should, even in a case of legacy, judge according to the " civ^l law, but ought radier to pursue the common law, *' " i the gene'ial law of the land; for all legacies are i^eers,* and ought to stand or fall by the rules of the com- mon law " Haltou vs. Foster, 37 L. J. ch. 547, was decided in 1868. A bequest was made, in a certain event, wh'3h happened, to " A's next of kin in blood, as if A had died unmarried." A having died, her sister B, and her nephews and nieces, issue of brothers and sisters, claimed the amount. It was held by Lord Justice Wood, in accordance with Withy vs Mangles, that there being no express reference to the Statute of Distributions, B, the sister, was alone entitled ; and, again, in Eagles v. Le Breton, * A volunt€er in law is one who takes a gift or benefit under a will or deed without giving consideration. ::l 'i! 1 DOMINION OF CANADA. 47 42 L. J. ch. 367, there being no expreser capita. Q., 634. O. stands for Ontario; Q. for Quebec ; N.S. for Nova Scotia; N. B. for New Brunswick ; P.E.I, for Prince Edward's Island ; M. for Manitoba; B.C. for British Columbia; N.W.T. for North West Territories; K. for Keewatin. The numbers signify the Section of the Satutes quoted from, viz : Revised Statutes, Ontario, C.105; Nova Scotia, C. 82 ; New Brunswick, C. 78; Prince Edward Island, 36 Vic, C. 23; North West Territory, Statute of Canada, 43 Vic, C. 25 ; Keewatin, Statute of Canada, 38 Vic, C. 4a ; Manitoba, C. 46; U.S., British Columbia, C. 88 li.S. 60 LAWS OF INTEST^.CY IN TUE 3h APPENDIX. From the London Laiv Magazine and Revleiv, May, 1857. THE DISTRIBUTION OF INTESTATES. It is siiii^nilar that in this di.scur.sive age ouv statutory scheme of distributinn; intestates' personal estates has never been impugned, or even considered. It has been accepted at all hands as a piece of unimprovable wisdom, adapted to all conditions of life and all stations of society ; and so thorough has been this acceptation that its origin has excited no one's curios- ity, and its discrepancies from the Novells of Justinian and the continental system have neither occasioned surprise nor received explanation. The rude idea, however, of the English mind has been, that this scheme of distribution is either a direct adoption, or an indirect reflection from the civil law, though what may be meant by that ascription is never clearly stated by those who assert it. They leave us in obscurity greater than doubt as to what is the body of Roman law which our countrymen have borrowed their principles from, and at what epoch and under what circumstances they may have done so. They do not tell us whether it is the original system under which the stern repub- lic brought up her hardy children, the system which Gains and Ulpian elaborated at the close of the second century of our era, under the influences of the Stoic philosophy ; or the system which expanded into truer ec^uity under the open and acknowledged forces of Christianity. And, if it be imputable to the latter, they do not trouble themselves to tell us whether it is the European system of Theodosius the Second or the final perfection of the civil law, which the Novells of Justinian founded in the east and for the east. Yet it is plain, whatever partial assimilation our system may exhibit to all of these, it can only be the legiti- mate child of one of them which it resembles in essentials. Such is the common idea upon this subject ; but it is remark- able that Mr. Justice Blackstone, whose historical acumen is DOMINION OF CANADA. 61 not in excos.s, has, in his notion upon it, stumbled much nearer the truth. He says, (Hook 11. cliiip. 32.) " It (i.e., the Act for the Distribution of Intestates' estates) is little more than a restoration with some refinements and regulations of our old constitutional law, which prevailed as an established riglit and custom, from the time of King Canute downwards, many centuries before Justinian's laws were known or heard of in the western parts of Europe. '' This is not very scientifically ])ut, but it would show that he was acijuainted with the great and grave discrepancies between our system and tlie constitutions of Justi- nian, and he felt, therefore, that it was imjwssiljle to identify the one with the other ; and as, in the then state of learning on the suliject, he could not bring his mind to the conception of any Konum jurisprudence otlier than Ccjrpus Justinianeum, he could do nothing else than Anglo-Saxonize our law of distribution. He did not know that the common law of Europe was for many centuries a prre- Justinian Roman law, and that, as it was only exchanged for the other at a late period in Europe, and under circumstances of the freest election, our own law of distril)ution might more plausibly be ascribed to the former than to a supposed custom. In this state of the question we think that any inquiry into the true origin of this section of our law may not be a mere matter of curious historical research, but will tend to show in a clearer light certain imperfections appertaining to it which, though long and unaccountably ac(iuiesced in, are not the less unreasonable and indefensible defects. The Eoman law having been, as we p'^ know, established in Britain, underwent with the rest of the empire all those changes in its principles which were elaborated at head-quarters. The great collection of laws, embodying these improvements, which bound all Europe, was the Code of Theodosius II. This Code, which was promulgated A. D. 438, was the common law of Europe for many centuries after the great work of Justinian had become law for the East, and it is to this Code that we must ascribe the origin of the law of distribution. For in it, and in it alone, we find certain specific conditions of legislation which denote the order system rejected by Justinian. We have evidence of a law of distribution in this country in Anglo-Saxon times. Cnut distinctly declares I, 62 LAWS OF INTESTACY IN THE It ■ 1:^ that an intestate's inheritance shall be divided equally between the wife and children, or amongst the nearest of kin according to their degree of relationship. It is impossible to state in general ternia a law of distribution more intelligibly than this is stated. A law to the same effect is recognised by the conqueror and his successor up to the time of Magna Charta, when the jurisdiction over intestates' estates was solemnly consigned to the ordinary. That the law of Cnut (or the Anglo-Saxon common law) and the law ratified by the Norman sovereigns of England, and handed over by them to the Ecclesiastical Court, were identical, can be incontestably proved. The Norman authorities did not intro- duce the French law on this point ; for, far from making this or any other innovation on the plan of distributing Englishmen's effect, they would not willingly allow any distribution at all for many generations after the conquest. The common law of distribution has descended to us in the present day ; for we have it contained and confirmed in the 22 & 23 Gar. II. c 10. This celebrated Statute at its passing made legislatively no new law, but merely enacted the old law, and that old law was not Justinianean ; for the five civilians whose opinion is appended to the judgment of Chief Justice North upon fhat Act, in Lord Raymond's Eeports, use this remarkable expression "our civil law, and the practice of the Ecclesiastical court." We also know historically that the Norman kings resolutely prohibited the pro- paganda of the Justinianean body of laws in this country, after the rest of Europe had established professorships for teacliiug it, and had generally embraced its principles. It is certain that we owe our law to another authorship than that of Justinian, and the question remains— is it of Anglo- Saxon creation ? is it an adoption from the European system of Eoman law which the Theodosian Code contains? We think there can be no doubt of the latter, for it is preposterous to suppose that the German invaders of our country founded a new private law for their subjects, and that their subjects suddenly forgot their own native private law. Both suppositions are incre- dible and must be dismissed. But the private law of the Romanized Briton was the civil law of the Theodosian Code, which France herself did not discard for the Corpus Justinianeum, *' until," says De Fresquet (Traits DOMINION OF CANADA. 63 ire- ivil sard ait6 \ Elementaire du Droit Romain, Vol I., p. 20.), "an unknown ei)och, but which may be placed from the 9th to the lltli Cen- tury." Now, onr law of distribution, as shown by the Statute, is just about the state and degree of the law as laid down by Theodo- sius — neither better nor worse. In proof of this assertion, we will select one great and salient point of our own law — the right of paternal succession. In this point we are at the stage which Theodosius reached in advance of Pagan law, which Justinian ouistrip])ed, and which the French Code has finally put upon a just and satisfactory footing. Under the second system of Eoman law, before mentioned by us, the Eomau father had the right to the peculium of his son, to the exclusion of that son's children, if he had any. Ulpian says, **Si filius faniilias miles decesserit, si(iuidem intestatus, bona ejus non quasi ha^reditas sed quasi peculium patri deferuntur." This harsh [)rinciple, though softened by the first Christian em- peror, remained substantially the same until Justinian, by his 118th Novell, made the father no more than a joint heir with the intestate's mother, brothers and sisters. In these two con- trasted laws we have modes of succession, not merely discrepant but diametrically opposed in their principles. In the one, the father is all; in the other, he is one amongst many. In the one, we have traces of a hard and artificial social system ; in the other, we have nature and equity. But, strangely enough, it is in the early and cramped system that we find the prototype of our own existing rule of paternal succession. And this, while it is a proof amoni^st others of the source of our law of distribution is the greatest and most coudemnable instance of its insulHciency and want of adaptation to modern times. While other nations have voluntarily brought themselves within the principles of the Novells, we have, with rigid obstinacy, kept outside, hugging ourselves the while upon a peculiarity of law whicli the rest of Europe has been ashamed of for nearly eight hundred years — the old lioman patria potestas. Under that power, the lioman father bad a right to his son's purse, because he had a right to his son's person ; but the British father, who claims no right to the one, enjoys the other with a total disregard to logic in au unmodified plenitude. Though this is the real and historical 64 LAWS OF INTESTACY IN THE i1 ': Ir- Pi- ll: origin of tlie right, no one could be hardy enough to defend it on such merely conservative grounds in an age like ours, which has begun to demand a rationale for most institutions. Accordiugly, we find that attempts are made to support this institution by means of reasoning, and this, reasoning we will now state and confute. In the first place, tlie vindicators say that the father, having alimented and advanced his son, has a right to his sole succes- sion, on the ground of that maintenance and advancement. But if the riij;lit to a sole succession be founded on such a ground only, it should not be confined, as it now is, to the fatlier alone, for cases continually occur where a widowed mother oi' an elder brother does precisely the same thiug. But no one has ever thought (jf allowing them the exclusive right of succession. Again, it cannot be said, because the father aliments and ad- vances the son, that he is therefore entitled to be rennbursed his charges and expenses. For in this view the father does not give as nature would prompt, but he lends, merely to be repaid, per- haps with a usurious interest for his risk. And in all this there is no attempt to distinguish between the son's property, derived from his own young-hearted labor and success, and that which is purely ex repatris. In these arrangements the true theory of the right to succes- sion ah intestato is entirely lost sight of. This right is a logical consequence from the moral right which the successors had, to be alimented by the predecessor ( to use the terms of our late comprehensive hscal statute) during his lifetime, For example, a man su[)ports his wife and children whilst he lives, and upon his death they take his property to themselves in the place of the previous alimentation, and this is equally applicable to parents or to brothers and sisters. In regard to mediate and more dis- tant relatives, the same principle of old applied with equal force and stringency. But it was in that case the connection of the tribe or larger family. All who have studied lioman law in its original institutions, will readily understand this. We have here a test to apply to this part of our scheme of distribution, and. tried by it, we shall find the princii)le of sole paternal succession not only to be wrong, but to be precisely the reverse of what is right. The succession to property, as we have tli' DOMINION OP CANADA. 06 shown, is due to those who would have been alimented by the deceased if they iuid needed such aid, and not to those who, in like circumstances of necessity, would have alimented the deceased himself. The ])ei's()n whom the deceased would have alimented would not be the father alone, but the mother and tlie brothers and sisters. The love is equal, :ind the natural })roximity is tlie same. lUit the father's claim to the whole of his son's estati! is otherwise a clear fallacy. When the son had no legal rigiit to property, the father might logically take all that tlu; son ]»os- sessed, as the English husbaiul does in case of his wife, ami as the American slave-owner does in case of his slave, liut, it being granted that the son can have a sepa^'iilc estate, the father's claim to it is no better than those of the mother and the brothers and sisters. For, as it is no longer supported by the patvia pofcstuf^, it can only have such fonje as reasun can give to it, and the just and well-understood |)olicy of the law is to distribute, anil not to favor or compel accumulatit»n in the hands of any single person. But, assuming that the lather is nearer (artificially speaking) than a brother or sister, that prox- imity is not of itself conclusive to entitle him to the son's entire succession ; for, in other points, our law has unhesitatingly disre- garded mere conventional synnuetry, where e([uity ami natural considerations have not applied also. The mother, being nearest of kin, does not oust the brothers and sisters, though they are a degree more renu)te than herself. Tlui brothers and sisters do oust the grandfather, though their calculated kindred is sup- posed to be eipial. In both cases the admission and the exclu- sion are founded on jtrinciples of nature and e(]uity, not of mere artificial and conventional symmetry. We have said enough, we think, to show the shortcoming of our scheme of distril)ution on on« ])oint, anil that it needs such an illustration as shall bring us within the European family in respect of jnivatt^ law. But there is another and a graver ]»oint upon which we have even less hesitation in avowing our dis- taste of English law. It is one in which England stands alone in Europe, we mean the law which allows every testator, under all circumstances, without regard to nature or justice, to 66 LAWS or INTESTACY IN THE alienate the whole of his person.al estate to the disherison of his wife and children. By the virtue of that conflict of prittciples which dogs English law everywhere, a man must support these persons so long as he lives ; but at his death, though possessed of ample means, he may leave them penniless, and a burden upon the stranger or the parish. Caprice or cruelty may impel him to do so, and the law requires no better justification of an Act which it affects to consider to be a legitimate consequence of constitutional liberty. In this, as in many other points, the law is not in equilibrio with the intellect and feelings of the community. Our state of society demands a better law than the unnatural formula, " dicat tedator et erit lex." It requires that the children at least should derive such a benefit from their father's estate by law at his death as shall relieve the public from being a burden upon it, however light. The poor law does much, but here it is of course inoperative. The restoration, however, of the old common law of England, the partes ratio7iabilea, would effect this justice, and remove the painful inconsistency which we have referred to. LAW OF DESCENT. Ontario. Under the last clause of the 26th sect., if the estate came on the part of the mother, and she and the brothers and sisters of John, the intestate, and the descendants of such brothers and sisters were dead, then the estate would go to the father, Geof- frey. * * The ^Gth section varies from the Statute of Distri bution in this; that failing lineal descendants, personalty L'oes one-half to the widow and the other half to the father : whereas under this statute, the father takes all absolutely, sub- ject to the widow's right to one-third for life, as doweress. If there be no widow, the father, as being in the first degree, takes all personal estate absolutely, without regard to how the intestate acquired it ; such regard is had, however, in the case of realty, for if it came to the intestate on the maternal side, the father only takes a life estate. Section 27 is somewhat explained by what has been said in reference to section 20. It provides for DOMINION or CANADA. 67 the case of the father being dead, who otherwise would be en- titled to take the inheritance ; and also for the case of hi.s being alive, and yet not entitled to take under section 26 by reason of the estate coming expurte mater na, and the lUdtlier or collateral relatives being alive. Thus, assume that on John's death hi.s father Geoffrey was either dead or not entitled to take as above-men- tioned, and the mother of John and his brotliers and sisters, Francis, Oliver, Bridget and Alice were alive : the mother would take for life, and the brothers and sisters per capita and descen- dants of deceased brothers and sisters would take as provided for in the 29th section (by representation). If the Inothers and sisters and their descendants were dead, then the estate would go to the mother. It should be mentioned that all the brothers and sisters of the half-blood would take ef(ually with tho>i