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 .
The common law doctrine was that the lineal descendants of a person deceased represent the latter, that is, stand in the place, for purposes of inheritance from another, in which the deceased person would have stood had he survived.38 In this country, since the statutes expressly give the right of inheritance to the direct descendants of the intestate, and declare whether they are to take per stirpes or per capita, the application of the doctrine of representation is not usually called for in their favor. As regards collateral kindred, there is in some states a general provision that the descendants of any person deceased shall inherit the estate which such person would have inherited had he survived the intestate, but more usually the right of representation is in terms restricted to descendants of a deceased brother or sister. Thus, if the intestate left surviving a brother and the children of a deceased sister, though such children could not otherwise assert any right to share the intestate's property with the surviving brother, since he stands in a closer degree of relationship to the intestate, they can do so by reason of their right of representation of the intestate.39 In either case, descendants of a deceased brother or sister of the intestate stand in the place of such brother or sister as regards the right to share with any surviving brothers and sisters of the intestate or descendants of other deceased brothers and sisters. In some states the right of representation is not conceded to all descendants of a deceased brother or sister, but is restricted to the children of such brother or sister, the result of which would be, in the case stated above, that the surviving brother would take all the intestate's property, to the exclusion of the grandchildren of the deceased sister, though the children of the deceased sister would have been entitled had they survived.39a A statute providing that no representation shall be allowed beyond the degree of brothers' and sisters' children precludes all persons not so closely related from taking by representation. Under such a statute, for instance, uncles and aunts take to the exclusion of the children of deceased uncles and aunts.40 But a statute thus limiting representation within certain degrees of kindred does not limit inheritance within those degrees, that is, persons beyond those degrees, if all in the same degree of kindred to the intestate, may take as heirs without reference to the doc-trine of representation.41
37. In re Lynch's Estate, 132 Cal. 214, 64 Pac. 284; Ector v. Grant, 112 Ga. 557, 53 L. R. A. 723, 37 S. E. 984; Aldridge v. Montgomery, 9 Ind. 302; Anderson v. Bell, 140 Ind. 375, 29 L. R. A. 541, 39 N. E. 735; Neely v. Wise, 44 Iowa, 544; Clay v. Cousins, 1 T. B. Mon. (Ky.) 75 Sheffield v. Lovering, 12 Mass. 489; Rowley v. Stray, 32 Mich. 70: Prescott v. Carr, 29 N. H.
453, 61 Am. Dec. 632; Beebee v. Griffing, 14 N. Y. 235; Stockton v. Frazier, 81 Ohio St. 227, 90 N. E. 168; Edwards v. Barks-dale, 2 Hill Eq. 416; Baker v. Chalfant, 5 Whart. 477; Lynch's Appeal, 132 Pa. St. 422, 19 Atl. 281; Marlow v. King, 17 Tex. 177.
38. 2 Blackst. Comm. 217.
39. 1 Stimson's Am. St. Law, Sec. 3138.
Ordinarily, if the statute expressly provides that certain classes of relatives shall take by representation, that doctrine cannot apply in favor of others.42 And a provision that the property shall, in a certain con39a. 1 Woerner, Administration, Sec. 71; 1 Dembitz, Land Titles, Sec. 35.
40. Porter v. Askew, 11 Gill. & J. 346; Clary v. Watkins, 64 Neb. 386, 89 N. W. 1042; Johnston v. Chesson, 6 Jones Eq. (59 N. C.) 146. And first cousins to the exclusion of children of first cousins. Adee v. Campbell, 79 N. Y. 52; In re Clendaniel's Estate, 12 Phila. 54.
41. Hoffman v. Watson, 109 Md. 532, 72 Atl. 479.
42. Curry's Estate, 39 Cal. 529; Quinby v. Higgins. 14 Me. 309; Bigelow v. Morong, 103 Mass. 287; In re Chapoton's Estate, 104 Mich. 11, 53 Am. St. Rep. 454, 61 N. W. 892; Douglas v. Cameron, 47 Neb. 358, 66 N. W. 430; Clayton v. Drake, 17 Ohio St. 367; Brenneman's Appeal, 40 Pa. St. 115; North v. Valk, Dud. Eq. (S. C.) 212; In re Robert's Estate, 84 Wash. 163, 146 Pac. 398.
Tingency, descend to the next of kin "in equal degree," has ordinarily been construed as excluding any right, in those who are not next of kin, to share, by way of representation, with those who are next of kin.43
The doctrine of representation, as applied when there are claimants in different degrees of relationship to the intestate serves, so far as it may be available under the statute, to prevent the exclusion of the claimants of the more remote degree from all share in the intestate's property. When all the claimants are in the same degree, they are all equally the intestate's next of kin, and consequently they may all share in the intestate's property without reference to the doctrine of representation. Whether, in such case, they take by way of representation or purely in their own right may however be important for the purpose of determining whether they take per stirpes or per capita.44 If, for instance, the nephews and nieces of the intestate are to be regarded as taking by way of representation, the children of each brother or sister take together their parents share, that is, they take per stirpes, while if they do not take as representing their parent, they take per capita. The statutes fixing the course of descent have more usually been construed as calling for the application of the doctrine of representation only when the claimants are of unequal degree, and not when they are all of the same degree, the result of such construction being that, in the latter case, they take per capita
43. In re Nigro's Estate, 172 Cal. 474, 156 Pac. 1019; Van Cleve v. Van Fossen, 73 Mich. 342, 41 N. W. 258; Conant v. Kent, 130 Mass. 178; Douglas v. Cameron, 47 Neb. 358, 60 N. \V. 430; Schenck v. Vail, 24 N. J. Eq. 538; In re Sullivan's Estate, 48 Wash. 631, 94 Pac. 483, 95 Pac. 71.
44. See Garrett v. Bean, 51
Ark. 52, 9 S. W. 435; Houston v. Davidson, 45 Ga. 574; Cox v. Cox, 44 Ind. 368; Doane v. Freeman, 15 Me. 113; Mccomas v. Amos, 29 Md. 132; Balch v. Stone, 149 Mass. 39, 20 N. E. 322; Erast v. Freeman's Estate, 129 Mich. 271, 88 N. W. Jones v. Barnett, 30 Tex. 637; 2 Blackst. Comm. 117.
2 R. P. - 45 and not per stirpes.45 A different construction has, however, occasionally been placed on a particular statute.46 In some states there is a specific provision that when all those entitled are of the same degree of kindred to the intestate, they shall take per capita.47