III. OFFICERS OF

1551. May appoint acting attorney general. If the attorney general should fail at any term of the supreme court to attend to the business which by law is assigned to him, the court may appoint some counsel learned in the law to discharge his duties during the term.

Code, s. 969; R. C., c. 33, s. 22; 1846, c. 29.

1552. Reporter. The supreme court may employ a reporter of its decisions.

Code, s. 3363; 1893, c. 379, s. 4; 1897, c. 429. For compensation, see section 2771.

1553. Clerk. The clerk of the supreme court shall be appointed by the court, and shall hold his office for eight years.

Const., Art. IV, s. 15.

1554. Money in hands of clerk. The clerk of the supreme court shall, at the beginning of each fall term, produce to the court a statement on oath of all moneys remaining in his hands which have been paid into his office three years or more previous thereto, whether received directly from parties or from his predecessor in office, and is not detained in his hands by special order of the court, specifying therein the name of the person to whom the same is payable, and his address, if known; a copy of which report shall be transmitted to the state treasurer and to the auditor.

Code, s. 1864; R. C., c. 73; 1823, c. 1186; 1831, c. 3.

1555. Marshal. The supreme court may appoint an officer to be styled "marshal of the supreme court," removable at will, who shall attend upon the court during its sessions.

Code, s. 950; 1873-4, c. 34; 1881, c. 306.

1555a. Janitor and Assistant Librarian. A janitor of the supreme court shall be appointed by said court. He shall also act as assistant librarian of the supreme court.

1907, c. 732, s. 2.

CHAPTER 30.

DESCENTS.

1556. Rules of. When any person shall die seized of any inheritance, or of any right thereto, or entitled to any interest therein, not having devised the same, it shall descend under the following rules: Code, s. 1281; R. C., c. 38, s. 1. Upon death of an intestate, title to

estate descends and vests at once in his heirs: Harris v. Russell, 124-547. It can not stand in abeyance and vest in future, like an executory devise: Ibid.

For an interesting case discussing the cannons of descent generally, see Clement v. Cauble, 55-86.

In the descent of acquired estates, the only qualification necessary to a collateral heir is that he be the nearest relation of the person last last seized. In descended estates he must be of the blood of the first purchaser: Bell v. Dozier, 12-333.

RULE 1. Lineal descent.

Every inheritance shall lineally descend forever to the issue of the person who died last seized, entitled or having any interest therein, but shall not lineally ascend, except as hereinafter provided.

Code, s. 1281; R. C., c. 38, Rule 1. Where remainder or reversion, expectant upon freehold estate, comes by descent, and reversioner or remainderman dies during continuance of particular estate, person claiming estate by inheritance must make himself heir to original donor who erected estate: King v. Scoggins, 92-99. Where reversion or remainder comes by descent and is conveyed by deed or devise to stranger before determination of particular estate, donee takes by purchase, and estate will descend to his heirs: Ibid. Where remainder or reversion acquired by purchase, one claiming estate by descent must make himself heir to first purchaser of remainder or reversion at time when it comes into possession, Ibid. Where estate devised to person for life, remainder to another in fee, and remainderman died in lifetime of tenant; held, that estate descended to heirs of remainderman, although he was never actually seized, and not to the heirs of devisor: Ibid-for under the rule neither actual nor legal seizin necessary to make the stock in devolution of estates, Sears v. McBride, 70-152. Where remainderman dies before life tenant, upon death of life tenant remainder descends to heirs at law of original remainderman; Early v. Early, 134-258.

Rule merely referred to in Norton v. McDevit, 122-759.

RULE 2. Females inherit with males, younger with older children; advancements accounted for.

Females shall inherit equally with males, and younger with older children: Provided, that whenever a parent shall die intestate, having in his or her lifetime settled upon or advanced to any of his or her children, any real or personal estate, such child so advanced in real estate shall be utterly excluded from any share in the real estate descended from such parent, except so much thereof as will, when added to the real estate advanced, make the share of him who is advanced equal to the share of those who may not have been advanced, or not equally advanced. And any child so advanced in personal estate shall be utterly excluded from any share in the per

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sonal estate of which the parent died possessed, except so much thereof as will, when added to the personal estate advanced, make the share of him who is advanced equal to the share of those who may not have been advanced or not equally advanced. And in case any one of the children shall have been advanced in real estate of greater value than an equal share thereof which may come to the other children, he or his legal representatives shall be charged in the distribution of the personal estate of such deceased parent with the excess in value of such real estate so advanced as aforesaid, over and above an equal share as aforesaid. And in case any of the children shall have been advanced in personal estate of greater value than an equal share thereof which shall come to the other children, he or his legal representatives shall be charged in the division of the real estate, if there be any, with the excess in value, which he may have received as aforesaid, over and above an equal distributive share of the personal estate.

Code, s. 1281; R. C., c. 38, s. 1, Rule 2; 1784, c. 204, s. 2; 1808, c. 739; 1844, c. 51, ss. 1, 2. For annotations on the subject of "advancements,'' see under section 133.

Value of advancements to be estimated as of time same is made. Ward v. Riddick, 57-22; Lamb v. Carroll, 28-4; Stallings v. Stallings, 16298.

Rule abolishes priority of male over female line and places them on perfect equality both as to collateral and lineal descent: Bell v. Dozier, 12-334.

RULE 3. Lineal descendant represents ancestor.

The lineal descendants of any person deceased shall represent their ancestor, and stand in the same place as the person himself would have done had he been living.

Code, s. 1281; R. C., c. 38, Rule 3; 1808, c. 739. Right of representation under rule is indefinite as well among collateral as lineal kindred: Johnston v. Chesson, 59-147-and heirs of deceased collateral relatives represent their ancestors, and take what they, if living, would have taken, Draper v. Bradley, 126-72.

Under rule grandchildren represent their ancestors and take estate per stirpes and not per capita: Crump v. Faucett, 70-345-and next collateral relations of person last seized, who are equal degree, take per stirpes, and not per capita, Cromartie v. Kemp, 66-382; Clement v. Cauble, 55-82; Haynes v. Johnson, 58-124. Heirs of a naked trustee, who joined in a mortgage, take no interest, legal or equitable: Fleming v. Barden, 126-455.

RULE 4. Collateral descent when estate derived from ancestor.

On failure of lineal descendants, and where the inheritance has been transmitted by descent from an ancestor, or has been derived by gift, devise or settlement from an ancestor, to whom the person

thus advanced would in the event of such ancestor's death, have. been the heir or one of the heirs, the inheritance shall descend to the next collateral relations, capable of inheriting, of the person last seized, who were of the blood of such ancestor subject to the two preceding rules.

Code, s. 1281; R. C., c. 38, Rule 4; 1808, c. 739. The effect of this section is that purchased estates descend to the nearest relations whether of the paternal or maternal line; and that descended estates and certain purchased estates (which the section puts on same footing with those descended) descend to nearest relations of the blood of ancestor or person from whom estate moved: Burgwyn v. Devereux, 23-586. Person dying intestate, without lineal descendants, real estate inherited from father descends to brother, who was next collateral relation capable of inheriting, of blood of father: Jones v. Hoggard, 108-181.

Where nearest relations of intestate who derived estate through father were paternal aunt, maternal aunts, paternal grandfather, and maternal grandmother, paternal aunt entitled to estate as being of blood of ances tor: Gillespie v. Foy, 40-280.

Where estate vests in surviving father or mother under rule 6, immaterial whether such parent be of blood of purchasing ancestor, McMichal v. Moore, 56-471.

Half brothers and sisters not of blood of purchasing ancestor can not take estate: Little v. Buie, 58-10-and where person last seized died leaving as nearest relation a half sister not of blood of first purchaser, and remote collaterals of such blood, inheritance will descend to such collaterals, Dozier v. Grandy, 66-484-for in descended estates collateral must be of blood of first purchaser, Bell v. Dozier, 12-333.

Where descended estate inherited by person, through a series of descents and settlements, who dies without issue, land results back to those of collateral relations who would be heirs of ancestor from whom it originally descended: Wilkerson v. Bracken, 24-315; Felton v. Billups, 19-308.

In descent of real estate under rule, next collateral relations of person last seized, who are of equal degree, take per stirpes, and not per capita: Cromartie v. Kemp, 66-382; Haynes v. Johnson, 58-124; Clement v. Cauble, 55-82.

Where devisee could not be heir, or one of heirs of devisor, estate passes to collateral relations upon side of mother as well as those upon side of father: Osborne v. Widenhouse, 56-238; Burgwyn v. Devereux, 23-586. For general discussion of rule, see Burgwyn v. Devereux, 23-583.

Cases under old act of 1784, which is now superseded by this rule: Seville v. Whedbee, 12-160; Ham v. Martin, 8-423; Doe v. Sheppard, 7-334. Rule merely referred to in Weeks v. Quinn, 135-425; Early v. Early, 134-260; Sawyer v. Sawyer, 28-408.

RULE 5. Collateral descent when estate not derived from ancestor. On failure of lineal descendants, and where the inheritance has not been transmitted by descent or derived as aforesaid from an

ancestor, or where, if so transmitted or derived, the blood of such ancestor is extinct, the inheritance shall descend to the next collateral relation, capable of inheriting, of the person last seized, whether of the paternal or maternal line, subject to the second and third rules.

Code, s. 1281; R. C., c. 38, Rule 5; 1808, c. 739. Where estate had been transmitted by descent, and blood of acquiring ancestor is extinct, upon death of person last seized intestate and without issue, estate descended to his nearest collateral relations: University v. Brown, 23-387.

In descent of acquired estates the only qualification necessary for collateral heir is that he be nearest relation of person last seized: Bell v. Dozier, 12-333.

For cases under old act of 1784, superseded by this rule, see Ross v. Toms, 9-9; Pritchard v. Turner, 9-435.

RULE 6. Half blood inherits with whole; parent from child.

Collateral relations of the half blood shall inherit equally with those of the whole blood, and the degrees of relationship shall be computed according to the rules which prevail in descents at common law: Provided, that in all cases where the person last seized shall have left no issue capable of inheriting, nor brother, nor sister, nor issue of such, the inheritance shall vest in the father if living, and if not, then in the mother if living.

Code, s. 1281; R. C., c. 38, Rule 6; 1808, c. 739. Where person last seized survived by child and widow, and child inherits estate from him and dies before widow, heirs of widow and not those of husband inherit estate: Weeks v. Quinn, 135-425-and where child died leaving no issue capable of inheriting, nor brother, nor sister, nor issue of such, but leaving father surviving, inheritance vests in him, Jarvis v. Davis, 99-42; Kincaid v. Beatty, 98-340; McMichal v. Moore, 56-473-though in such case, where father dead, estate vests in mother, Early v. Early, 134266. Where person died seized of lands descended through mother from her father, and left no issue, nor brother nor sister, except half sister not of mother's blood, the father surviving took inheritance: Little v. Buie, 58-10-and where person dies without issue or sisters or brothers or issue of same, the father or mother will take inheritance regardless of whether he or she is of blood of purchasing ancestor, McMichal v. Moore, 56-471-and proviso in rule applies to cases where surviving brother or sister can not inherit, as well as to cases where none survive descendents, Bell v. Dozier, 12-333. For cases under old act of 1784, superseded by this rule, see Ross v. Toms, 9-9; Pritchard v. Turner, 9-435; Doe v. Sheppard, 7-334.

For decision prior to amendment of rule 1, and passage of rule 12, which changed law, see Lawrence v. Pitt, 46-344, as explained in Sears v. McBride, 70-152.

As bearing upon rule, see Dozier v. Grandy, 66-484; M'Kay v. Hendon, 7-209.