§ II. On Legal Hereditary Succession, or on Those Dispositions of Law Which Are Proper to LEGAL Heirs

904. • Who are called to the inheritance FROM INTESTACY, and what part of the inheritance individual heirs obtain. "In the United States... each State has established a law of descent for itself.... There is no entire, though there is an essential, uniformity on this subject.... It will be sufficient to state those leading principles... which are of the most general application."¹

The debts of the intestate having been paid, and the dowry of the wife (see n. 605), if she survives, subtracted, the rest of the inheritance passes to the heirs according to the following rules.

905. • I. Rule. The inheritance "shall descend to" the "lawful descendants in the direct line of lineal descent; and if there be but one person, then to him or her alone, and if more than one person, and all of equal degree of consanguinity to the ancestor, then the inheritance shall descend to the several persons as tenants in equal parts, however remote from the intestate the common degree of consanguinity may be."²

II. Rule. "If a person... leaves lawful issue of different degrees of consanguinity, the inheritance shall descend to the children and grandchildren of the ancestor, if any be living, and to the issue of such children or grandchildren as shall be dead, and so on to the remotest degree as tenants in common. But such grandchildren and their descendants shall inherit only such share as their parents respectively would have inherited if living."³

III. Rule. "If the owner of lands dies without lawful descendants, leaving parents, the inheritance shall ascend to them, either first to the father and next to the mother, or jointly, under certain qualifications" for which you may consult Kent.⁴

IV. Rule. "If the intestate dies without issue or parents, the estate goes to his brothers and sisters, and their representatives. If there be several such relatives, and all of equal degree of consanguinity to the intestate, the inheritance descends to them in equal parts, however remote from the intestate the common degree of consanguinity may be. If they all be brothers and sisters, or nephews and nieces, they inherit equally; but, if some be dead leaving issue, and others living, then those who are living take the share they would have taken if all had been living, and the descendants of those who are dead inherit only the share which their parents would have received if living. The rule applies to other direct lineal descendants of brothers and sisters, and the taking per capita when they stand in equal degree, and taking per stirpes when they stand in different degrees of consanguinity to the common ancestor, prevails as to collaterals, to the remotest degree, equally as in the descent to lineal heirs."¹

V. Rule. "In default of lineal descendants and parents, and brothers and sisters, and their descendants, the inheritance ascends to the grandparents of the intestate, or to the survivor of them."²

VI. Rule. "In default of lineal descendants, and parents, and brothers and sisters, and their descendants, and grandparents, the inheritance goes to the brothers and sisters equally, of both the parents of the intestate, and their descendants. If all stand in equal degree of consanguinity to the intestate, they take per capita; and if in unequal degrees, they take per stirpes.... The rule is controlled in... some... States by the following rule."³

VII. Rule. "If the inheritance came to the intestate on the part of his father, then the brothers and sisters of the father, and their descendants, shall have preference, and, in default of them, the estate shall descend to the brothers and sisters of the mother, and their descendants. But if the inheritance came to the intestate on the part of his mother, then her brothers and sisters, and their descendants, have the preference; and, in default of them, the brothers and sisters on the father's side, and their descendants, take."⁴

VIII. Rule. "On failure of heirs, under the preceding rules, the inheritance descends to the remaining next of kin to the intestate."⁵

IX. Rule. "If there be no remaining next of kin, or if none lay claim to it within the time required in every State for the prescription of inheritances, the State is heir."

X. Rule. "The next of kin is" generally "determined by the rule of the Civil," and not of the Canon "law."¹ See Treatise on Marriage, concerning the impediment of consanguinity, n. 1582.

XI. Rule. "In a majority of the States the descent of real and personal property is to the same persons and in the same proportions."²

906. • Who are excluded from the inheritance FROM INTESTACY.

1° He who, at the time when the intestate lays down life, has not yet been conceived; or (which nevertheless is not valid in all States), although he was conceived at that time, afterward is not born alive.

2° Aliens as to immovables are altogether excluded in certain States; in others, as citizens, they can be heirs; finally, in others, they obtain the rights of heirs if by oath they have proved an intention of always remaining in the Federated States, or inhabit them at that moment at which the intestate dies.

3° Illegitimates on the part of the father, but not on the part of the mother, nor toward one another.

But who are to be held among us as illegitimate is generally to be defined not from Common Law, but from the laws of individual States. See Kent.³

907. Questions. - Query 1° Are parents bound in conscience to recognize, or, on the occasion of nuptials, to legitimate their illegitimate offspring, so that thus they procure for the same the favors conceded by civil law?

Resp. Although parents can remove the injury caused to their illegitimate offspring by extra-matrimonial procreation only by recognition and legitimation of the same, and therefore, if a grave impediment does not stand in the way, they are to be carefully induced to this recognition and legitimation; nevertheless they do not seem able to be obligated to this under grave sin, provided they otherwise satisfy their natural office, by which they owe their offspring at least the necessities for the sustenance of life, for Christian education, and for a decent state.

Query 2° Do those about to marry act UNJUSTLY who on the occasion of marriage (as not rarely happens) falsely recognize and legitimate illegitimate offspring, which is not the offspring of both, but only of one or the other?

Resp. With the warning premised that here the doubt is moved solely concerning strictly so-called injustice, at least inchoative, toward future heirs, it must be said: concerning strict justice toward future heirs, in the proposed case, at least in those States where children are not necessary heirs, it is not certainly established; and therefore such persons about to marry are not to be compelled to restitution.

908. • Occupation of inheritance. "Power to administer the property" of an intestate is "granted" by the Court¹ "in the following order: 1st, to the widow; should there be none, then, 2d, to the children; should there be none, then, 3d, to the father; 4th, to the brothers; 5th, to the sisters; 6th, to the grandchildren; 7th, to any other of the next of kin. If any of the persons so entitled are minors, then to their guardians; if the relatives or guardians will not accept, then to the creditors of the deceased, the creditor first applying, if otherwise competent, to have the preference."²