Kin, NEXT OF. When a person dies intestate his real property devolves, according to English law, on his Heir (q.v.), and his personal property is distributed among his next of kin. The degrees of kindred are divided into lineal and collateral. The lineal consists of the ascending, such as father, mother, grandfather, grandmother, paternal and maternal, and so on ad infinitum; and the descending, such as son, daughter, grandson, granddaughter, and so on ad infinitum. The collateral kindred consists of brothers, sisters, uncles, aunts, &c., and the children of such ad infinitum. The mode by which the civil law computed the proinquity of degree was this: it allowed one degree for each person in the line of descent exclusive of him from whom the computation begins, and in the direct line counted the degrees from the deceased to his relative; but as regards collaterals it counted the sum of the degrees from the deceased to the common ancestor, and from the common ancestor to the relatives. Thus, a brother was in the second degree, counting one to the father, and one from the father to the brother; a nephew, and also an uncle, a great-grandfather and a great-grandson, were all in the third degree; a son and a father were in the first degree; and so on. This mode of computing the degrees of kindred has been adopted in the law of England and Ireland.
When a person dies intestate, leaving personal property, there are two classes of rights to which the next of kin are entitled: one is the right to administer the estate, or to take out letters of administration; the other is the right to a share of the property itself. As regards the right of administration, the court has discretion to appoint a fit person, but a preference is to be given to the widow or widower, and to the next of kin. Among the next of kin those are to be preferred who are nearest in degree according to the above computation: thus, a son or father is preferred to a brother, grandfather, or grandson; and these to a nephew, uncle, great-grandson, or great-grandfather; and so on. In distributing the personality the widow takes one-third if there be children or other descendants, one-half if there be none. Subject to this claim of the widow, the next of kin take according to the Statute of Distributions, which slightly differs from the order of the civil law as to the degrees of priority; thus, the children exclusively take the whole if children survive; if some of the children are dead, leaving issue, then the issue collectively of each dead child take an equal share with the living children, by what is called the principle of representation. If there are none nearer than grandchildren, each family of grandchildren take the share of the child whom they represent, and the issue of a deceased grandchild also take the share of their parent. If there are no descendants, the father, if alive, is entitled to the whole. If he also is dead, then the mother and the living brothers and sisters (together with the issue of deceased brothers and sisters collectively) take each one share. After these are dead, then grandfathers and grandmothers, paternal and maternal, and nephews and nieces, if alive, take each a share. The right of representation—i.e. the right of the children of a deceased person being one of a class (and who, if alive, would have been one of the next of kin) to represent him, and take his share—applies as far as the children of brothers and sisters, but no further. The heir-at-law is one of the next of kin, and takes his share of the personality, though he also gets all the real estate. The half-blood counts among the next of kin equally with the whole blood; males are not preferred to females; and the rule of primogeniture has no application.
In Scotland the rules of priority among the next of kin vary considerably from the above order, which prevails in England and Ireland. The children, being entitled to an absolute legal share called Legitim (q.v.), take the father's property in two characters—one part as legitim, the other as being next of kin—and the result is often different from what obtains in England. Moreover, in Scotland, though the heir-at-law may be one of the next of kin, still he is not entitled to take such share unless he collate the heritable estate (resign it to the executors). The degrees of kindred are not counted in exactly the same way. The father never can take more than one-half, nor the mother more than one-third, while any of the brothers and sisters, or their issue, are alive. The half-blood does not share equally with, but in an inferior degree to the full blood. See the tabular statement in Paterson's Compendium of English and Scotch Law.