1911 Encyclopædia Britannica/Intestacy

INTESTACY (Lat. intestatus, one who has not made a will, from testari, to bear witness), the condition of the property of a person who dies without making a will. Here the law of England distinguishes sharply between his real and his personal property. The devolution of the former is regulated by the rules of inheritance (q.v.). The destination of the latter is marked out by the Statute of Distributions. The proper conditions of a testamentary disposition of property will be found under the heading Will.

The distribution of an intestate’s personal property is carried out under the authority of administrators, whose duties are generally the same as those of executors under a will. Administration was until 1857 a matter cognizable by the ecclesiastical courts, and the ordinary was in fact the administrator until the passing of an act of Edward III. for administration upon intestacy (1357). An earlier statute (Westminster 2, 1275), directed against the abuses of the system, required the ordinary, instead of applying the residue of the estate to “pious uses,” to pay the debts of the intestate. The act of Edward III. went further in providing that “in case where a man dieth intestate, the ordinaries shall depute of the next and most lawful friends of the dead person intestate to administer his goods,” with power to sue for debts due to the deceased, and under obligation to pay debts due by him, and to answer to the ordinary like executors in the case of testament. Administrators remained on this footing of deputies appointed by the ordinary until the Probate Act 1857 transferred the jurisdiction in administration of the ecclesiastical courts to the new court of probate.

The courts of law having held that by the grant of administration the authority of the ecclesiastical courts was exhausted, the administrator became entitled to the privilege, similar to that formerly enjoyed by the ordinary, of dealing as he pleased with residue of the property. The next of kin of the same degree of relationship to the deceased were thus aggrieved by the preference of the administrator, and it was to remedy this grievance that the Statute of Distributions 1670/1 was passed. It empowered the ordinary to take a bond from the administrator binding him to make a fair and complete distribution of the property among the next of kin. Such distribution is to be in the following manner: one-third to the wife of the intestate, and all the residue by equal portions to and amongst the children, and their representatives if any of such children be dead, exclusive of children who shall have any estate by the settlement of the intestate, or shall be advanced by the intestate in his lifetime by portions equal to the shares allotted to the other children under the distribution. If such advancement should be less than the share of the other children in distribution, then it shall be made equal thereto. But the “heir-at-law, notwithstanding any land that he shall have by descent or otherwise from the intestate, is to have an equal part in distribution with the rest of the children” (§ 5). By § 6, if there be no children nor any legal representatives of children, one moiety of the property is to be allotted to the wife of the intestate, the residue “to be distributed equally to any of the next of kindred of the intestate who are equal in degree and those who legally represent them.” By § 7 there shall “be no representation admitted among collaterals after brothers’ and sisters’ children; and in case there be no wife, then all the said estate to be distributed equally to and among the children; and in case there be no child, then to the next of kindred in equal degree of or unto the intestate and their legal representatives as aforesaid, and in no other manner whatsoever.” For the protection of creditors it is enacted that there shall be no distribution till a full year after the intestate’s death, and if any debts should be discovered after distribution, the persons sharing the estate shall refund the amount of the same ratably. With reference to the above rules the following points may be observed: (1) The husband’s absolute right to administer his wife’s estate is not affected by the act. This was made clear by a later act of the same reign. (The Statute of Frauds 1677). Administration is now granted to the representatives of the husband where he has died without taking out administration to his wife, unless it can be shown that the wife’s next of kin are beneficially interested. (2) The widow, in the event of there being no children or next of kin, takes only her half. The other half goes to the crown. The widow’s rights, however, have been enlarged by the Intestate Estates Act 1890. By this act where a man dies wholly intestate and without issue, his property, both real and personal, shall, if it does not exceed £500 in net value, belong to his widow absolutely. If the estate exceeds £500 net, the widow is entitled to £500 out of the estate and has a charge for that amount upon the real and personal property of the deceased. (3) The child or children take equally, two-thirds if the widow be alive, and the whole if she be dead. If some of the children be alive and some dead having issue, then such issue will take their parents’ share equally among themselves. There has been some difference of opinion as to whether if all the children have predeceased their parent but have left issue, such grandchildren take as between themselves per stirpes as representatives of their parent or per capita as next of kin. Thus if A and B predecease their father but A leaves three children and B one, should the property be divided into fourths, or first into moieties and then one moiety subdivided into thirds among A’s children and the other moiety be given undivided to B’s child? It is now settled that the latter method of distribution is the correct one, and it is thought that this will also apply when only great-grandchildren are alive. (4) The next of kin must be ascertained according to the rules of consanguinity, which are the same in English as in the civil law. Degree is calculated from the intestate, through the common ancestor if any, to the kindred. Thus from son to father is one degree, to grandfather two degrees, to brother two degrees, to uncle three degrees, and so on. The statute ordains distribution to be made “to the next of kindred in equal degrees pro suo cuique jure, according to the laws in such cases and the rules and limitations hereafter set down.” Equality in degree is therefore not in all cases accompanied by equality in rights of succession. Neglecting the cases of wife and children already noticed, the father excludes all other next of kin. So would a mother, in default of a father surviving, but an act of 1685 enacted that in such a case the brothers and sisters, and children of brothers and sisters, of the intestate should share equally with the mother. In the absence of brothers or sisters and their representatives, the mother in the case supposed would take the whole. Mothers-in-law and stepmothers are not within the rules of consanguinity. As between a brother and a grandfather who are both in the second degree, preference is given to the brother; but a grandfather, being in the second degree, will exclude an uncle, who is in the third. An uncle and a nephew, both being in the third degree, take together. Brothers or sisters of the half blood take equally with brothers and sisters of the whole blood. The rule which prohibits representation after brothers’ and sisters’ children would, in a case where the next of kin were uncles or nephews, wholly exclude the children of a deceased uncle or nephew. Also, as between the son of a brother and the grandson of a brother, the latter would not be admitted by representation. Where a brother and the children of a deceased brother are the next of kin, they will take per stirpes, i.e. the brother will take one half, and the children of the other brother will take the other half between them. When the next of kin are all children of the deceased brothers or sisters, they will take equally per capita. Subject to these modifications, the personal property will be divided equally among the next of kin of equal degree, e.g. great-grandfathers would share with uncles or aunts, as being in the third degree. Failing next of kin, under these rules, the estate goes to the crown as ultimus haeres, a result which is more likely to happen in the case of illegitimate persons than in any other.

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

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

In the United States the English Statute of Distribution has been taken as the basis of the law for the distribution of personal property in intestacy, and its principles have been applied to real property also. “In a majority of the states the descent of real and personal property is to the same persons and in the same proportions, and the regulation is the same in substance as the English Statute of Distribution. In Georgia the real and personal property of the intestate is considered as altogether of the same nature and upon the same footing.” There are many states, however, in which the distribution differs materially from the English statute. In Illinois the distribution is the same as descent of real property. In Alabama the whole goes to the widow if there are no children (Phillips v. Lawing, 1907, 43 Southern Rep. 494). In many states the husband’s share is in all cases like the widow’s, as in Texas, New York and Washington. In Pennsylvania he takes an equal share with the children.

The statutes of each state of the American union must be consulted, as no general rules can be laid down. As to the right to the intestate’s interest in community property in the states where the law of “community”—of “acquets and gains”—prevails, see Inheritance.