Sec.10. Taking property by descent, is the receiving of it from an ancestor or other relative dying intestate. If a person dies without making a will, his property falls, or descends to his lawful heirs. The order or rule of descent is not uniform in this country, being determined, to a great extent, by the laws of the states. In general, however, the real estate of an intestate descends, first to his lineal descendants, that is, persons descending in a direct line, as from parents to children, and from children to grand-children. The lineal descendants most nearly related to the intestate, however distant the relation may be, takes the estate.
Sec.11. If any children of an intestate are dead, and any are living, the inheritance descends to the children living, and to the descendants of the children dead, so that each child living shall receive such share as he would receive if all were living, and the children of those who are dead such share as the parents would receive if living. Thus, suppose an intestate had three sons, one of whom is dead, but has left children. In this case, each of the sons living would share one-third of the property, and the children of the deceased son the remaining third.
Sec.12. But if the children are all dead, and there are grand-children living, the grand-children share equally, though not an equal number are children of each parent. If, for example, an intestate dies leaving no children, but having had two sons, one of whom had left three children, and the other two, the five share equally in the estate. The laws of Rhode Island, New Jersey, North Carolina, South Carolina, Tennessee, Louisiana, and Alabama, unless recently altered, are exceptions to this rule. In these states, and perhaps in a few others, though the children of the intestate are all dead, the grand-children do not share equally, but those of each stock, or family, take the portion which their parent would have taken if living.
Sec.13. The order of descent is so different in the states, especially when there are no lineal descendants of an intestate, that it can be ascertained only by reference to the laws of each state. As a general rule, real estate passes, (1.) to the lineal descendants; (2.) to the father; (3.) to the mother; (4.) to the collateral or side relatives, as brothers, sisters, nephews, nieces, &c. But even to this general rule there are exceptions in the laws of some states.
Sec.14. The rule of descent given in the preceding sections, it will be seen, relates to real, and not to personal estate. The rule in regard to real estate, and that relating to personal estate, are generally somewhat different in the same state.
Deeds and Mortgages.