No. 1. In re Ross's Trusts, 41 L. J. Ch. 132.

Comp. Real Property, 8th edit., 433, note, et sequentia; and Watkins on Descents, edit. 1837, 259.

The petitioners are therefore entitled to their moiety, and each of them to one-third of it, the infant petitioner as representing her father.

Mr. Bedwell, for the respondents, William Henry Ross, Francis Ross, great-grandchildren, and James Selby and Emma Margaret, his wife, and Thomas Ross, grandchildren, claiming under William Francis Ross, the son. The case is a mixed one, where persons are entitled both per stirpes and per capita. If there had been only grandchildren, or only great-grandchildren, the division of the fund must have been per capita. The statute, s. 5, does not contemplate lineal descendants beyond grandchildren, and therefore the fund ought now to be divided into sevenths, because there were seven grandchildren entitled to take, per capita, as next-of-kin. The great-grandchildren will thus take their parents' shares, jure representationis, — i. e., per stirpes. There is no case reported which is exactly like this one.

Mr. Everitt was for the respondents, the four children of Edward and Grace Selby, also great-grandchildren of the testator, claiming through William Francis Ross.

Mr. Methold was for the trustees.

Mr. Greene, in reply. The Statute of Distributions never mentions next-of-kin, as taking per capita, until it has exhausted all the lineal descendants of the intestate, which proves that so long as such descendants exist, children of children and grandchildren of children are, in such a case as this, only intended to take per stirpes. The fund must, therefore, be distributed as the petitioners insist.

WICKENS, V. C. The question reserved for judgment in this case is one as to the operation of the Statute of Distributions where a testator, in the position of an intestate, left grandchildren and great-grandchildren, but no children.

Alexander Ross, by his will dated the 17th of November, 1819, gave one-fifth of his residuary estate to his daughter, Margaret Ross, for life, with remainder to her children, and in default, in trust for the person or persons who, under the statutes made for the distribution of the estates of intestates, would then be entitled thereto, in case I were then to die possessed thereof, and intestate, and to be divided between and among such persons, if

more than one, in the proportions in which the same would be divisible by virtue of the same statutes.

"

Margaret Ross died on the 8th of June, 1871, unmarried. The testator died in November, 1819, leaving five children, of whom Margaret was the youngest.

Of these the second and fourth died before 1871, without issue. Alexander, the eldest son, had three children, of whom two survived him in June, 1871, and one died before June, 1871, leaving a daughter still living. William Francis, the third son of the testator, and the only one besides Alexander who left descendants living in 1871, had four children, viz., William, who died in December, 1870, leaving two children, now living; Emma Margaret, and Thomas, who are both still living; and Grace, who died in January, 1870, leaving four children, now living.

Therefore, in June, 1871, there were two subsisting lines of the testator's descendants, the one springing from Alexander Ross the younger, and represented by two grandchildren of the testator, and one great-grandchild, the only child of a deceased grandchild; the other springing from William Francis Ross and represented by two grandchildren of the testator; two great-grandchildren, springing from his dead grandchild, William; and four greatgrandchildren, springing from his dead grandchild, Grace. The question on the petition is as to the shares in which Alexander Ross's estate is to be distributed among those persons. [*133] *It is singular that a question of this sort should be

uncovered by judicial authority, but no case bearing on it was cited at the bar, and I have been able to find none.

The Statute of Distributions deals separately with the case of descendants, and that of next-of-kin, not descendants. The case of children is provided for by the 5th section (which is referred to in the 3rd), and the case of next-of-kin not being descendants by the 6th and 7th sections. The general effect of the provisions is that (supposing there to be no wife) the estate, in case there are descendants, shall go between the children and their representatives; and in case there are no descendants, shall go amongst the next-of-kin or their representatives; and that the division is, per capita, where all the takers claim in their own right; and per stirpes, where they or some of them claim as representatives of another person.

It has been long settled that the word " representatives" in this Act includes only descendants.

No. 1. In re Ross's Trusts, 41 L. J. Ch. 133.

It has been further settled that where all the persons entitled to claim are collaterals, equally near of kin for instance, second cousins twice removed - they take per capita, because they all take in their own right; but that where there are no ancestors or descendants, and the nearest of kin are brothers and sisters, but there are also children of dead brothers and sisters, the latter, though not of the next-of-kin, may claim as representatives of the brother or sister from whom they spring; and may stand in the place of that brother or sister for the purpose of distribution, so that the distribution is per stirpes. This privilege is expressly limited by the statute, and does not extend to any more remote descendants of brothers and sisters than their children, and does not apply at all to any case where the next-of-kin are all more remote than brothers and sisters.

There are, therefore, two cases provided for by the statute, namely, first, where there are children, or the representatives, that is to say, the descendants of children; second, where there are no descendants.

It is the former case alone that has to be dealt with here. Considering the question as one solely on the construction of the statute, it is difficult, I think, to resist the conclusion that if there are descendants, but no children living to share the estate, it is to be divided into as many shares as there were children who have left living descendants, and that the descendants of each such child are to take as representing the child, and of course only the child's share.

It is more or less corroborative of this view that the Statute of Distributions was drawn by a civilian - Sir Walter Walker (see 1 Ld. Raym. 574)—and seems to have been intended to introduce the rules of the Roman civil law into this branch of English law. It is, therefore, perhaps not irrelevant to remark that the view of the construction of the statute which is taken above, makes it conformable to the Roman law. It will be sufficient for this purpose to refer to the 118th Novell; and as Commentaries, to the Elements of Heineccius (part vi., appendix, § lxxv, edition 1778), and Mühlenbruch's Doctrina Pandectarum, Placitum 632. Citations to the same effect might, I think, be multiplied to any extent.

The principal difficulty in the case is this: in Toller on Executors which may almost be called the received text-book on the subject — a different opinion is expressed. In the 7th edition by

No. 1. In re Ross's Trusts, 41 L. J. Ch. 133, 134. — Notes.

Whitmarsh (1838) the passage is at page 374- various authorities are cited for this, but none of them apply to the case of descendants. The dictum is transferred into Williams on Executors, where, in the 6th edition (1867), it occurs in page 1385. But it appears to stand there on the authority of Toller only, since the only cases cited are those cited by Toller and irrelevant.

On the other hand, there is a remarkable passage in Hargrave's Jurisconsult Exercitations, 270-272, in which (speaking of Dr. Harris's Justinian) he tries to assert what would seem to be the true construction of the statute. A similar view is to be found in Burton's Compendium, Placitum 1403, which was, I believe, published about 1830, and has gone through numerous editions.

And the true principle is stated in Blackstone and many [*134] other * text-books, though the special distinction between descendants who can take only as children, or represen tatives of children, and next-of-kin who take in their own right, however remote, is not pointed out.

The text-books are not, strictly speaking, authorities on such a point, but had there been an absolute consent among them, on a point likely to be of such frequent occurrence, one would have hesitated to pronounce an opinion in opposition to what might seem to be an established course of distribution. It is, however, impossible to say, in the face of the passage from Hargrave, which has been often referred to, and of the statement in all the editions of a popular elementary work like Burton, that there has been such a consent.

Feeling, therefore, free to follow my own clear opinion on the construction of the statute, I hold that in this case the sum in question is divisible into moieties, of which one is divisible among the descendants of Alexander Ross, the younger, and the other divisible among the descendants of William Francis Ross, the division among each class being in each case per stirpes.

ENGLISH NOTES.

The first branch of the rule is confirmed by the judgment of Mr. Jus tice NORTH in Re Natt, Walker v. Gammage (1888) 37 Ch. D. 517, 57 L. J. Ch. 797, 58 L. T. 722, 36 W. R. 548, which lays down the rule that the division of personal estate among descendants of an intestate, whether in the same or in different degrees, is always to be per stirpes ; and cites the principal case as an authority. In this case of In re Natt,

Walker v. Gammage, a share of the residuary estate of a testatrix, which she had purported to give by her will, lapsed. She had two children, a son and a daughter, both of whom died before her. Three children of the son and one child of the daughter survived the testatrix. It was held that the four grandchildren took the lapsed share, so far as it consisted of personal estate, per stirpes.

A testator directed that the residue of his property should, at the death of his wife, or at the expiration of ten years from his death, whichever should last happen, be held by his trustees on trust, in default of previous gifts and in the events which happened, as to one moiety for his relations by blood then living other than and except his son W. who would then be his next of kin according to the Statute of Distributions if his son W. were then dead, such persons if more than one to take as tenants in common in the shares prescribed by the said statutes; and, as to the other moiety, for his relations by blood then living other than and except his son G. who would then be his next of kin according to the statutes of distribution if his son G. were then dead, such persons, if more than one, to take as tenants in common in the shares prescribed by the said statutes. The testator had two sons, W. and G. Both died within the

period of ten years. W. left a widow and three children. G. left a widow and one child. The four grandchildren were alive at the expiration of the period of ten years. It was held that the persons to take the property in default of the prior gifts were to be ascertained at the expiration of the ten years from the death of the testator, and that it was divisible between the grandchildren per stirpes. Valentine v. Fitzsimons (M. R. for Ireland, 14 Feb. 1893), 1894, 1 Ir. Ch. 93.

AMERICAN NOTES.

This subject is so generally regulated by statute in the United States that it would not be useful to do more than point out their common trend. The usual provision of the statutes is that where the nearest of kin are brothers and sisters, the estate shall go to them and to the "children or "issue" of deceased brothers and sisters. In most of the States the right of representation is denied to descendants of collateral relatives generally. In some it is expressly denied to collaterals after brothers' and sisters' children. Where it is limited to grandchildren of deceased brothers and sisters, a surviving brother takes to the exclusion of the great-grandchildren of a deceased sister. Stetson v. Eastman, 84 Maine, 366. Where the provision is that in default of issue, parent, or brother, or sister, the next of kin in equal degree shall take, this gives the estate to children of deceased brothers or sisters to the exclusion of children of deceased nephews or nieces. Conant v. Kent, 130 Massachusetts, 178.

Some statutes expressly provide for the manner of taking, whether per