This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
In case the intestate leaves no issue surviving, and the realty does not pass entirely to the surviving consort, or to one or botn of the parents, under the statutes referred to above, it descends among the collateral kindred of the intestate, that is, to persons not lineally related to him, but related by reason of the fact that they are descended from the same ancestor. Among such collateral kindred the brothers and sisters and their descendants hold the first place, and are sometimes, by the terms of the statute, preferred to the parents of deceased.29
.Generally, as between collateral kindred not partic-ularly specified in the statute of descent, those standing
25. 1 Stimson's Am. St. Law, Sec. 3105.
26. 1 Stimson's Am. St. Law, Sec. 3262; see ante, Sec. 236.
27. Litt. Sec. 3. Different explanations of the origin of this rule have been given. See 2 Blackst. Comm. 211 et seq.: 2 Pollock & Maitland, Hist. Eng.
Law, 287 et seq.; Holdsworth & Vickers, Law of Succession, 152.
28. 1 Stimson's Am. St. Law, Sec.Sec. 3107, 3111, 3117; 1 Woerner, Administration, Sec. 68.
29. 1 Stimson's Am. St. Law, Sec.Sec. 3107, 3111, 3113, 3121.
In an equal degree of relationship to the intestate share the inheritance to the exclusion of those in a more distant degree. In the majority of the states, the statute provides that the degrees of kinship shall be computed according to the rule of the civil law, though a few have adopted that of the canon law, sometimes referred to as that of the common law.30 The preference shown for the civil law is in aceord with the general tendency to follow the English statute of distributions, which was construed with reference to the civil law rule.31 The difference between the two rules is as follows. The canon law regarded the intestate and a particular claimant as in the degree of relationship to one another which corresponded to the number of degrees between their common ancestor and the one of his two descendants who was most distant from him, so that if the claimant and intestate were both grandchildren of the common ancestor, they were related to one another in the second degree, while, if one was a grandchild and the other a great-grandchild, they were related in the third degree. By the civil-law method of computing relationship, on the other hand, the degrees between the common ancestor and the intestate were added to those between the former and the claimant, in order to ascertain the degree of relationship; and so two grandchildren of a common ancestor were related in the fourth degree, and a grandchild and a great-grandchild in the fifth degree.32 The canon law rule was utilized by the ecclesiastical courts for the purpose of determining the validity of marriage between blood relatives, but does not appear ever to have been recognized in England by the common law courts.33 It has never in thai country been applied for the purpose of determining rights of inheritance, for the reason that these have always been ascertained, as between collateral kindred, upon the principle of representation, according to which the lineal descendants of any person deceased stand in the place in which such person would have stood if he had been living.34
30. 1 Stimson's Am. St. Law, Sec.Sec. 3121, 3139; 1 Woerner. Administration, Sec. 72.
31. Lloyd v. Tench, 2 Ves. Sr. 212; 1 Williams, Executors (9th
32. 2 Blackst. Comm. 206 et seq.
33. See Christian's note to 2
Blackst. Comm. 207.