CHAPTER 56 DESCENT AND DISTRIBUTION (CHAPTER 49, MANSFIELD'S DIGEST OF THE STATUTES OF ARKANSAS OF 1884, PUT IN FORCE IN THE INDIAN TERRITORY $799. 800. BY ACT OF MAY 2, 1890, 26 STAT. 81) General law of descent. Posthumous children-How to inherit. 801. Illegitimate children to inherit and transmit on part of mother. 802. How legitimized by subsequent marriage. 803. Issue of invalid marriages. 804. No bar that ancestor was alien. 805. No kindred to inherit, whole to go to wife or husband-Estate to escheat. 806. Some children dead and some living to take per stirpes. 807. This rule to apply in every case where those entitled to inherit in equal degrees of consanguinity to intestate. 808. If there are no descendants, rules of descent: (1) Where estate comes by father; (2) by mother; and (3) where a new acquisition. 809. Estate, how to go, where no father or mother. 810. Those of half-blood-How to inherit. 811. In cases not herein provided for, descent to be according to common law. 812. All who inherit, to do so as tenants in common. 813. By settlement or portion to child, how reckoned, and effect of. 814. When not equal to share of estate. 815. Value of such advancement, how ascertained. 816. Maintenance, education, etc., not to be taken as advancement. 817. Of term "real estate." 818. Of term "inheritance." 819. Where person described as "living.' 820. Of expression "come on part of father" or "on part of mother." 821. Heir at law may be made by declaration in writing. 822. Declaration must be recorded before of effect. $799. General law of descent.-[2522]. When any person shall die, having title to any real estate of inheritance, or personal estate, not disposed of, nor otherwise limited by marriage settlement, and shall be intestate as to such estate, it shall descend and be distributed, in parcenary, to his kin dred, male and female, subject to the payment of his debts and the widow's dower, in the following manner: First. To children, or their descendants, in equal parts. Second. If there be no children, then to the father, then to the mother; if no mother, then to the brothers and sisters, or their descendants, in equal parts. Third. If there be no children, nor their descendants, father, mother, brothers or sisters, nor their descendants, then to the grandfather, grandmother, uncles and aunts and their descendants, in equal parts, and so on in other cases, without end, passing to the nearest lineal ancestor, and their children and their descendants, in equal parts.1 § 800. Posthumous children-How to inherit.—[2523]. Posthumous children of the intestate shall inherit in like manner as if born in the lifetime of the intestate, but no right of inheritance shall accrue to any person other than the children of the intestate, unless they be born at the time of the intestate's death. § 801. Illegitimate children to inherit and transmit on part of mother.-[2524]. Illegitimate children shall be capable of inheriting and transmitting an inheritance, on the part of their mother, in like manner as if they had been legitimate of their mother.2 1 Kelley's Heirs v. McGuire, 15 Ark. 555; Scull v. Vaugine, 15 Ark. 695; Byrd v. Lipscomb, 20 Ark. 19; Galloway v. Robinson, 19 Ark. 396; Campbell v. Ware, 27 Ark. 65; Beard v. Mosely, 30 Ark. 517; Oliver v. Vance, 34 Ark. 564; Kountz v. Davis, 34 Ark, 590; Loftis v. Glass, 15 Ark. 680; Gibson v. Dowell, 42 Ark. 164; Garrett v. Bean, 51 Ark. 52, 9 S. W. 435; Coolidge v. Burke, 69 Ark. 237, 62 S. W. 583; McFarlane v. Grober, 70 Ark. 371, 69 S. W. 56, 91 Am. St. Rep. 84; Johnson v. Knight of Honor, 53 Ark. 255, 13 S. W. 794, 8 L. R. A. 732; Davison v. Gibson, 56 Fed. 443, 5 C. C. A. 543; Nivens v. Nivens, 1 Ind. T. 30, 64 S. W. 606; Engleman v. Cable, 4 Ind. T. 336, 69 S. W. 895; De Graffenreid v. Iowa Land & Trust Co., 20 Okl. 687, 95 Pac. 624; In re Brown's Estate, 22 Okl. 216, 97 Pac. 613; Irving v. Diamond, 23 Okl. 325, 100 Pac. 557; Shulthis v. McDougal (C. C.) 162 Fed. 331-333; Shulthis v. McDougal, 170 Fed. 529, 95 C. C. A. 615; Pigeon v. Buck (Okl.) 131 Pac. 1083. 2 Gregley v. Jackson, 38 Ark. 487; Brann v. Bell (C. C.) 192 Fed. 427. § 802. How legitimized by subsequent marriage.— [2525]. If a man have by a woman a child or children, and afterward shall intermarry with her, and shall recognize such children to be his, they shall be deemed and considered as legitimate.3 § 803. Issue of invalid marriages. [2526]. The issue of all marriages deemed null in law, or dissolved by divorce, shall be deemed and considered as legitimate. § 804. No bar that ancestor was alien.-[2527]. In making title by descent, it shall be no bar to a demandant that any ancestor through whom he derives his descent from the intestate is or has been, an alien. § 805. No kindred to inherit, whole to go to wife or husband-Estate to escheat.-[2528]. If there be no children, or their descendants, father, mother, nor their descendants, or any paternal or maternal kindred capable of inheriting, the whole shall go to the wife or husband of the intestate. If there be no such wife or husband, then the estate shall go to the state." § 806. Some children dead and some living to take per stirpes.-[2529]. If any of the children of an intestate be living, and some be dead, the inheritance shall descend to the children who are living, and to the descendants of such children as shall have died, so that each child who shall be living shall inherit such share as would have descended to him if all the children of the intestate who shall have died leaving issue had been living, so that the descendants of each child who shall be dead shall inherit the same their parent would have received if living. § 807. This rule to apply in every case where those entitled to inherit in equal degrees of consanguinity to intestate.-[2530]. The rule of descent prescribed in the last preceding section shall apply in every case where the de 8 Walker v. Roberson, 21 Okl. 894, 97 Pac. 609. Nivens v. Nivens, 4 Ind. T. 30, 64 S. W. 606. scendants of the intestate, entitled to share in the inheritance, shall be in equal degree of consanguinity to the intestate, so that those who are in the nearest degree of consanguinity shall take the shares which would have descended to them had all the descendants in the same degree who shall have died leaving issue been living, so that the issue of the descendants who shall have died shall respectively take the shares which their parents, if living, would have received. § 808. If there are no descendants, rules of descent: (1) Where estate comes by father; (2) by mother; and (3) where a new acquisition.-[2531]. In cases where the intestate shall die without descendants, if the estate come by the father, then it shall ascend to the father and his heirs; if by the mother, the estate, or so much thereof as came by the mother, shall ascend to the mother and her heirs; but if the estate be a new acquisition it shall ascend to the father for his lifetime, and then descend, in remainder, to the collateral kindred of the intestate in the manner provided in this act; and, in default of a father, then to the mother, for her lifetime; then to descend to the collateral heirs as before provided." § 809. Estate, how to go, where no father or mother.[2532]. The estate of an intestate, in default of a father and mother, shall go, first to the brothers and sisters, and their descendants, of the father; next, to the brothers and sisters, and their descendants, of the mother. This provision applies only where there are no kindred, either lineal or collateral, who stand in a nearer relation. § 810. Those of half-blood-How to inherit.—[2533]. Relations of the half-blood shall inherit equally with those of the whole blood in the same degree; and the descendants of such relatives shall inherit in the same manner as the descendants of the whole blood, unless the inheritance come 5 Galloway v. Robinson, 19 Ark. 396; Magness v. Arnold, 31 Ark. 103; Hogan v. Finley, 52 Ark. 55, 11 S. W. 1035. to the intestate by descent, devise, or gift, of some one of his ancestors, in which case all those who are not of the blood of such ancestor shall be excluded from such inherit ance. § 811. In cases not herein provided for, descent to be according to common law.-[2534]. In all cases not provided for by this act, the inheritance shall descend according to the course of the common law. § 812. All who inherit, to do so as tenants in common.— [2535]. Whenever an inheritance, or a share of an inheritance, shall descend to several persons, under the provisions of this act, they shall inherit as tenants in common, in proportion to their respective shares or rights. ADVANCEMENT § 813. By settlement or portion to child, how reckoned, and effect of.-[2536]. If any child of an intestate shall have been advanced by him in his lifetime, by settlement or portion of real or personal estate, or both of them, the value thereof shall be reckoned, for the purpose of this section, only as part of the real and personal estate of such intestate descendible to his heirs, and to be distributed to his next of kin, according to law; and, if such advancement be equal or superior to the amount of the share which such child would be entitled to receive of the real and personal estate of the deceased, as herein reckoned, then such child and his descendants shall be excluded from any share of the real and personal estate of the intestate. § 814. When not equal to share of estate.-[2537]. In cases where such advancement is not equal to the share that such child or relative, and his descendants, shall be entitled to receive, they shall be entitled to receive so much of the real and personal estate as shall be sufficient to make all the shares of the heirs in such real and personal estate and advancement to be as nearly equal as possible. |