"Fifth. The provision hereinbefore made for the widow shall be in lieu of her dower and homestead right, unless, etc." Now the new fourth subdivision (or old sixth subdivision) gives the whole real estate to the widow, when the husband leaves no issue, parents, brothers, sisters, nephews or nieces. And the new fifth subdivision thus makes her waive this inheritance, if she concludes to take her dower and homestead. It results that if a man dies intestate leaving a widow and no kindred at all, and the widow either designedly or by mistake elects to take her dower or homestead, she gets nothing more and all the remainder of the real estate goes-where? Nowhere, so far as the statute law is concerned, for there is no kindred and even the statute regarding escheats (Sixth Subdivision Act 1909) only relates to cases where "the intestate shall leave no wife nor husband nor kindred, etc." It has been argued that the provision regarding election (fifth subdivision) has no relation to the fourth subdivision, despite its plain terms; because, where the widow gets the whole estate, it was not intended to make her elect to take only a part. But there are cogent reasons against this construction, which we will not now discuss beyond remarking that dower and homestead are superior to debts, whereas the whole estate if she takes it as her distributive share is subject to debts. We have therefore concluded to adopt the construction that the necessity and right of election by the widow applies even where her husband leaves no kindred, and that the remainder of the real estate if she takes her dower or homestead, escheats to the state; not by virtue of any statute, but because of the common law rule that unowned property belongs to the sovereign. The results of this construction appear in the text with appropriate comments. Descent and Distribution of Property of an Intestate A man who has never married Real Estate (1) If both parents be living: To both parents in equal shares. (2) If only one parent be living: To that parent alone, except in one case, viz.: Where the intestate inherited the real estate from the deceased parent and died under age (21 years) and there survive him either brothers or sisters or half brothers or sisters on the side of the deceased parent, or lineal descendants of such full or half brothers or sisters who are themselves deceased; then the real estate descends, not to the surviving parent of the intestate, but to the surviving brothers and sisters and half brothers and sisters aforesaid and the lineal descendants of such full and half brothers and sisters who are deceased-and all these take in equal shares when they are in the same degree of kindred to the intestate otherwise they take by right of representation: i.e., each set of children take the share, to be equally divided between them, which their deceased parent would take if living. (3) If both parents be dead and there are brothers or sisters living: In equal shares to the brothers and sisters. and the children collectively of each deceased brother and sister by right of representation; i.e., each set of children take the share, to be equally divided between them, which their deceased parent would take if living. But there is one exception to this rule, viz.: If the intestate died under age (21 years) and inherited the real estate from one of his deceased parents and there are half brothers or sisters or children of deceased half brothers or sisters who are not of the blood of such deceased parent, then such half broth A man who has never married Personal Estate tate. (1) If both parents be living: Same as Real Estate. (2) If only one parent be living: Same as Real Es (3) If both parents be dead and there are brothers or sisters living: Same as Real Estate. A man who has never married Real Estate ers or sisters or children of such deceased half brothers or sisters do not participate, and such real estate descends to the other children of such deceased parent and to the lineal descendants of each deceased child of such deceased parent -and all these take equally if in the same degree of kindred to the intestate, otherwise they take by right of representation; i.e., each set of children take the share, to be equally divided between them, which their deceased parent would take if living. (4) If both parents be dead and there are no brothers or sisters living: In equal shares to the nephews and nieces. But there is one exception to this rule, viz.: If the intestate died under age (21 years) and inherited the real estate from one of his deceased parents and there are nephews or nieces who are not of the blood of the deceased parent, such nephews or nieces do not participate, and such real estate descends to the nephews and nieces who are of the blood of such deceased parent and to the lineal descendants of such nephews and nieces who are themselves deceasedand all these take equally if in the same degree of kindred to the intestate, otherwise they take by right of representation; i.e., each set of children take the share, to be equally divided between them, which their deceased parent would take if living. (5) If both parents be dead and there are no brothers, sisters, nephews or nieces living: To the next of kin of the intestate in equal degree; excepting that when there are two or more collateral kindred in equal degree, but claiming through different ancestors, those who claim through the nearest ancestor are preferred. (6) If no kindred be living: The real estate of the intestate escheats or passes to the State of Michigan for the use of the primary school fund. |