kin except uncles who were brothers of her mother and a paternal grandmother. The grandmother was the next of kin, but it was contended that she did not inherit, because she was not of the blood of the intestate's mother, and that the estate should go to the uncles who were of that blood. But it was held otherwise in the lower court, and the decree was affirmed in the appellate court. The clause of the statute there invoked The whole section (section 4) was as

was exactly like ours. follows: "The degrees of kindred shall be computed according to the rules of the civil law; and kindred of the half blood shall inherit equally with those of the whole blood in the same degree, unless the inheritance came 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 inheritance." The discussion of the subject by Lyon, J., who delivered the main opinion, and by Ryan, C. J., who delivered a concurring opinion, is very full and interesting; but we have space to give only a few sentences of their opinions. Lyon J., said: "Mary Jane Kirkendall and not her mother, is the person from whom the succession to the estate in controversy is to be traced." Having stated that it was not the principle of the statute "to confine the descent of an ancestral estate to those who are of the blood of the ancestor from whom the estate descended," he proceeds to discuss the clause in question, as follows: "The first clause of the section, which contains the rule for computing the degrees of kindred, does not aid the construction of the balance of the section. For that purpose it might as well have constituted a section by itself. The remainder of the section treats only of kindred of the half blood. Their rights, and theirs alone, are therein defined and limited; and we find nothing in the language of the section which authorizes us to say that any other class of kindred is within its purview. We think the plain grammatical construction of the clauses under consideration is that the kindred of the intestate of the half blood shall inherit equally with those of the whole blood, except that, if the estate is ancestral, only such kindred of the half blood as are of the blood of the ancestor from whom the estate came shall inherit." We find here no limitation of the rule of subdivision 6, § 1, that, "if the intestate shall leave

no issue, nor widow, and no father, mother, brother, or sister, his estate shall descend to his next of kin in equal degree." From the able opinion of Ryan, C. J., we will quote only the following: "I think that, by all rules of construction, this clause is confined to the provision which it limits and cannot otherwise affect the general rule of inheritance. It can have no application except in cases of next of kin of the half blood and the whole blood in equal degree, when it operates to exclude in the particular case, the general right extended to the half blood. 'Unless' is equivalent to 'except,' and is here used to introduce an exception to the right of the half blood. All that follows it in the section is dependent on it, and qual ified by it, and goes to define the exception which it declares. In the particular case all persons' are not excluded, but all those; the relative pronoun relating back, and clearly signifying all those of the half blood." See also, Rowley v. Stray, 32 Mich. 70;. Ryan v. Andrews, 21 Mich. 229; Robertson v. Burrell, 40 Ind. 328. Speer v. Miller, 37 N. J. Eq. 492, cited by respondents, was under a statute which expressly provides that ancestral estates shall go only to those who are of the blood of the ancestor from whom the estate came.

It is said incidently in the brief of appellants that, perhaps the administrator of Mrs. Valentine should not share in that part of the estate which came from the decedent's mother; but we do not understand that the record presents that point.

The parts of the order of distribution appealed from are reversed, and the cause is remanded, with directions to the probate court to make distribution of all the estate of said Hiram Pearsons, deceased, now ready for distribution, in equal shares to the said seven aunts and uncles of said deceased. We concur: Henshaw, J.; Temple, J.

Note. Section 2749 of the Comp. Laws of Utah is identically the same as § 1394 of Cal. Civ. Code construed in this case, and applying it it is held that children of a decedent's husband by a former wife cannot inherit from the decedent an estate acquired by descent. Amy v. Amy. Utah (42 Pac. Rep. 1121). Applying Ala. Code, 1919 (See 2 Ballards' Law Real Prop., § 152) a half blood relative of the intestate, though not of the blood of the ancestor through whom the property came, who is a nearer relative of the intestate than the descendants of those of the blood of such ancestor, will inherit in preference to them. Coleman v. Foster, 112 Ala. 506 (20 So. Rep. 509). See. Cox v. Clark, 93 Ala. 400 (2

Ballards' Law Real Prop. §§ 151-154; 9 So. Rep. 457). For an extensive compilation of the statutory provisions and decisions of the several states upon the right of half bloods to inherit ancestral estates, see 29 L. R. A. 553-560.

EPITOME OF CASES.

Sec. 184. Descent of Indian lands. The descent of lands patented to a Shawnee Indian under the treaty of May 10, 1854, is to be determined by the laws and rules established by the tribe. Where a Shawnee Indian, owning lands patented to him under the treaty of 1854, died in 1862, unmarried and without issue, leaving as his nearest relative a half-brother and the widow and child of a deceased half-brother, it is held that a deed executed in 1862 by a surviving half-brother, accompanied by certificates of the two chiefs showing that he was the only surviving heir of the patentee, and upon such certificates, approved by the secretary of the interior, under which the defendants received and held possession of the land for more than 25 years, passed a full title under the Shawnee law in force at that time, as disclosed by the evidence in this case; and that a deed executed by the daughter and heirs of the widow of the deceased half-brother in 1887, though approved by the secretary of the interior conveyed no title. Hannon v. Taylor, 57 Kan. 1 (45 Pac. Rep. 51).

Sec. 185. Descent of lands acquired by gift-Statute construed. In construing Ind. Rev. Stat. 1894, § 2628, providing that "an estate which shall have come to the intestate by gift or by conveyance in consideration of love and affection, shall, if the intestate die without children or their descendants revert to the donor, if living, at the intestate's death, saving to the widow or widower, however, his or her rights therein," it is held that the statute applies to lands purchased and paid for by the donor and conveyed by his vendor directly to the donee; and that this section determines the descent of such lands irrespective of their value or the provisions of §§ 2650, 2651, regulating descent between husband and wife. Thomas v. Thomas, 18 Ind. 9, overruled. Dolin v. Leonard, 144 Ind. 410 (43 N. E. Rep. 568).

my

Sec. 186. Per capita or per stirpes. Where a testator devised property to his son and provided " and in case of his death without living heirs of his own, the whole shall then revert to my heirs; but should he have heirs of his own body at his decease, they shall share equally with the rest of heirs," it was held that upon the death of such son the property descended to the heirs of the testator per stirpes. Thomas v. Miller, 161 Ill. 60 (43 N. E. Rep. 848). Where an intestate left surviving him neither issue, nor father, mother, brother or sister, but four children of a deceased brother, eight children of a deceased sister, and three children of a deceased daughter of such sister, the descent of his property was held to be governed by Neb. Comp. Stat., ch. 23, § 30, subd. 3, which provides that "if the intestate shall leave no issue, nor widow, and no father, mother, brother, nor sister, his estate shall descend to his next of kin, 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 shall be preferred to those claiming through an ancestor more remote," and applying this statute it is held that the twelve surviving nephews and nieces took each one-twelfth part of the intestate's land, per capita, and that the grand nephews and grand nieces took nothing; that the rule of inheritance per stirpes does not obtain in Nebraska, except where affirmatively provided; that it is the object of the statute to cut off inheritance per stirpes among collaterals, where, at any point beyond the children of brothers and sisters, the surviving kindred are of unequal degrees; and in such case those nearest in degree take the estate, to the exclusion of those more remote. Douglas v. Cameron, 47 Neb. 358 (66 N. W. Rep. 430). The Missouri law of descent, § 4469, provides, "When several lineal descendants, all of equal degree of consanguinity to the intestate, or his father, mother, brothers and sisters, or his grandfather, grandmother, uncles and aunts, or any ancestors living, and their children, come into partition, they shall take per capita: that is, by persons; where a part of them are dead, and part living, and the issue of those dead have a right to partition, such issue shall take per stirpes: that is, the share of the deceased parent." Under this section it is held that

when several lineal descendants all of equal consanguinity to the intestate come into partition with others of a more remote degree, the former take per capita and the latter per stirpes. Aull v. Day, 133 Mo. 337 (34 S. W. Rep. 578).

Sec. 187. Adopted children. Where there is a statute regulating the adoption of children, the provisions thereof must be substantially followed, in order to clothe the adopted child with the right of inheritance. Renz v. Drury, 57 Kan. 84 (45 Pac. Rep. 71). A second adoption of a child after the death of the first adopting party, does not destroy the relation created by the first adoption, and the legal capacity to inherit thereby created. Patterson v. Browning, 146 Ind. 160 (44 N. E. Rep. 993). Where an adopted child is given the same right of inheritance as other children of the adopting parent, the heirs of an adopted daughter will inherit through her a share of the estate of the adopting parent, just as if she were a daughter of such parent by blood. Gray v. Holmes, 57 Kan. 217 (45 Pac. Rep. 596; 33 L. R. A. 207). Citing, Vidal v. Commagere, 13 La. Ann. 516; Power v. Hafley, 85 Ky. 671 (4 S. W. Rep. 683). A duly adopted child is a child "capable of inheriting " within the meaning of Mo. Rev. Stat. 1889, §§ 4518, 4520, giving the widow certain. interests in her husband's estate if he shall die without any child "capable of inheriting." Moran v. Stewart, 132 Mo. 73 (33 S. W. Rep. 443). Under Ind. Rev. Stat. 1894, § 837, providing that "from and after the adoption of such child it shall take the name in which it is adopted and be entitled to and receive all the rights and interests in the estate of such adopting father or mother, by descent or otherwise that such child would if the natural heir of such adopting father or mother," it is held that where a widower with children by his former marriage remarries and subsequently adopts one as his daughter, she is entitled to inherit the lands passing to his second wife upon his death, with his natural children, under Ind. Rev. Stat. 1881, § 2487, providing that "if a man marry a second or subsequent wife, and has by her no children, but has children alive by a previous wife, the land which, at his death, descends to such wife, shall at her death descend to his children." Jordan, J., dissenting. Patterson v. Browning,