INTESTACY, in English law, applies to the case of a person who dies leaving property but no will or one which fails to operate. It is also applied under the Administration of Estates Act, 1925, to cases where a person dies leaving a will which does not dispose of all of his property; such a person is intestate so far as his undisposed property is concerned and the rules as to intestacy apply to this property.
Formerly the devolution of property where its owner died intes tate depended upon whether such property was realty or per sonalty. At common law the realty vested immediately on the owner's death in his common law or customary heir while his personalty vested in the ordinary before the Probate Act of 1857 and after that act in the judge of the court of probate. This rule was modified by the Conveyancing Act of 1881, but the Trans fer of Land Act, 1897, which enacted that fees simple should be administered by the personal representatives of the deceased owner did not affect this rule until the probate court appointed administrators of the real property of an intestate if vested in his heirs. Now, by the Administration Act of 1925, all that is changed; and on the death of a person absolutely intestate all his property, real and personal, vests in the judge of the court of probate until that judge appoints an administrator. It is to be remembered in this connection that a hereditary title of honour is, in law, realty but that modern legislation has no application to it and that it descends according to the old law of inheritance, i.e., to the heir even notwithstanding any will of the deceased owner or any claim of creditors.
Until Jan. 1, 1926, on the death, intestate, of an owner of heritable estates in land, i.e., estates in fee simple and estates in fee tail, his fee simple estates vested in his heir and his fee tail in the heir of his body. On the other hand his personalty vested, as before mentioned, in trust, after payment of his debts, for his next of kin according to the Statute of Distribution, 1670 71. The Administration of Estates Act, 1925, has, so far as Eng land is concerned, abolished the whole law of inheritance. Hence forth an heir will take only as a person mentioned in the grant of an estate in land. The heir of the body of a deceased tenant in tail will take under this head, and when property is limited to a person and on his death to his heir, it will vest in his heir, not withstanding his will, as the rule in Shelley's case has been abro gated. Subject to these limitations, on the death of an owner of real and personal property intestate all his estate vests in his administrators on their appointment by the court. They hold his real estate on a trust for sale; this and the personalty form a joint fund for the payment of his debts and subject thereto such fund is to be distributed among the persons entitled under that Act. If there are no such persons the fund goes to the Crown as bona vacantia.
By the Administration of Estates Act, 1925, not merely the law of inheritance but the ancient preference of the male over the .female line is abolished. On the death of a spouse intestate if the other spouse survives he or she will be entitled absolutely to all the deceased's personal chattels, a first charge of I i,000 on the estate whether the deceased died childless or not and a life interest in half of the rest of the estate : if the deceased died childless the life interest is in the whole of the residue. Subject to this the whole estate is divided equally between the descendants of the deceased, grandchildren of deceased children taking equally their parent's share, no share of an infant to vest absolutely until the infant comes of age or marries. Meanwhile the infant's share is to be held in trust for him by the adminis trators who have power to apply the income for the infant's maintenance and half of his prospective share for his advance ment. If there are no descendants then the estate is to go to the deceased's parents equally or, if one is dead, to the survivor. If both are dead the estate goes to the brothers and sisters of the whole blood equally, descendants of a deceased brother or sister to any degree taking per stirpes, i.e., by family, the interest which their deceased ancestor would, if he were alive, have taken per capita, i.e., as an individual member of the inheriting class.
If there are no brothers or sisters of the whole blood those of any of the half blood succeed in the same way and if there are none of them then the grandparents, or such as may he surviving, succeed. If there are no grandparents surviving the property both real and personal goes to the Crown as bona vacantia.
It will be well to notice that the Administration of Estates Act makes three great changes as to the devolution of property on death. First, the whole law of inheritance is abolished and all an intestate's property devolves beneficially on his statutory next of kin; secondly, representation of a deceased ancestor is inherited in the collateral line, and thirdly no relative beyond the grandparents and their descendants is entitled to claim as next of kin. (J. A. ST.) Scotland.—In the law of Scotland heritage descends to the heirs-at-law while the free movable estate of the intestate is divided amongst the heirs in mobilibus who are the next of kin and those entitled to share in the succession under the Intestate Movable Succession Acts, 1855 to 1919. The heir of the heritable (i.e., real) property, if one of the next of kin, must collate with the next of kin if he wishes to share in the movables. Proximity of kin is reckoned in the same order as in the case of in heritance. The Intestate Movable Succession Acts, among other changes, allow the issue of a predeceasing next of kin, not more remote than brothers and sisters, to come in the place of their parent in succession to an intestate; give the father of an intestate dying without issue one-half of the movable property in prefer ence to brothers or sisters; and if the father be dead, a similar preference entitles the mother to succeed to the whole, failing the father and brothers and sisters; they admit brothers and sisters uterine in the absence of brothers and sisters german or con sanguinean, also father and mother.
There are now rights of succession in both heritage and mov ables between a mother and her illegitimate issue under the Legi timacy Act. 1926, s. 9 (4). ( J. WA.) United States.—The devolution of both real and personal property is governed in all States by statute. The American legis lation at an early period disregarded the common law rules of in heritance that gave preference to the eldest male and to males over females, and was modelled upon the civil law rules of inheri tance as set forth in the i18th Novell of Justinian and followed by the English statute of distributions governing the devolution of personal property. The distinction between real and personal property remains important inasmuch as in most States realty vests immediately upon the death of the intestate in his heirs, whereas the title to personalty vests in the administrator for bene fit of the next of kin. Between the time of the intestate's death and the appointment of an administrator, title to the personalty remains in abeyance but relates back to the intestate's death upon the grant of letters of administration. Furthermore, the devolution of realty is governed by the law of the State where it is situated, hut personalty descends according to the law of the deceased's domicile.
The different State statutes of distribution have infinite varia tions. The rights of the surviving spouse are uniformly favoured. Curtesy (q.v.) is generally abolished, though dower (q.v.) is widely retained, the widow generally being required to elect between dower and the right to such distributive share as she would be entitled to under the statutes. The right of representa tion is generally limited to lineal descendants or close collaterals, and except where representation is permitted, kindred of the degree nearest to the intestate succeed to the exclusion of those of more distant degree, degree of kindred being reckoned accord ing to the civil law principles. When all the heirs are of an equal degree of consanguinity, they commonly take per capita, but where they stand in different degrees the more remote take only per stirpes. Such States as California, Louisiana, New Mexico and Texas, where the civil law of Spain was once in force, have retained many features of intestate succession peculiar to the civil law. (J. M. LA.)