Chapter 42. DESCENT AND DISTRIBUTION.
Article 1. Descent.
§1. Course of Descent Generally.—When any person having title to any real estate of inheritance shall die intestate as to such estate, it shall descend and pass in parcenary to his kindred, male and female, in the following course:
(a) To his children and their descendants;
(b) If there be no child, nor descendant of any child, then one moiety each to his father and mother;
(c) If there be no child, nor descendant of any child, nor mother, then one moiety to the father; or if there be no child, nor descendant of any child, nor father, then one moiety to the mother; and in either case the other moiety, or if there be no child, nor descendant of any child, nor father, nor mother, the whole, shall go to the wife or husband of the intestate and to the intestate’s brothers and sisters and the descendants of brothers and sisters;
(d) If there be no child, nor descendant of any child, nor mother, nor wife or husband, nor brother, nor sister, nor descendant of any brother or sister, then the whole to the father; or, if there be no child, nor descendant of any child, nor father, nor wife or husband, nor brother, nor sister, nor descendant of any brother or sister, then the whole to the mother;
(e) And if there be no child, nor descendant of any child, nor father, nor mother, nor wife or husband, nor brother, nor sister, nor descendant of any brother or sister, then one moiety shall go to the paternal and the other to the maternal kindred in the following course:
(f) First to the grandfather and grandmother one-half of the moiety each;
(g) If no grandmother one-half of the moiety to the grandfather, or if no grandfather one-half of the moiety to the grandmother; and in either case the other one-half of the moiety, or if there be neither grandfather nor grandmother the whole of the moiety, shall go to the uncles and aunts on the same side, and their descendants;
(h) If there be no grandmother, nor such uncle, nor such aunt, nor descendant of any such uncle or aunt, then the whole of the moiety to the grandfather; or if there be no grandfather, nor such uncle, nor such aunt, nor descendant of any such uncle or aunt, then the whole of the moiety to the grandmother;
(i) If there be no grandfather, nor grandmother, nor such uncle, nor such aunt, nor descendant of any such uncle or aunt, then to the great-grandfathers and great-grandmothers one-fourth of the moiety each;
(j) If any great-grandfather or great-grandmother be dead then his or her share, or the whole of the moiety in case all the great-grandfathers and great-grandmothers be dead, shall go to the brothers and sisters of the grandfathers and grandmothers, and the descendants of such brothers and sisters of the grandfathers and grandmothers; and if there be no brother nor sister of any grandfather or grandmother, nor the descendant of any such brother or sister, then the whole of the moiety shall go to such of the great-grandfathers and great-grandmothers as may then be living, in equal shares, or to the survivor of them;
(k) And so on, in like manner, in other cases without end, passing to the nearest lineal ancestors, male and female, and if any of them he dead his or her share, or if all of them be dead the whole, to the brothers and sisters of the lineal ancestors, male and female, of the degree next nearer the intestate, and the descendants of such brothers and sisters; and if there be no brother nor sister of any lineal ancestor, male or female, of the degree next nearer the intestate, nor descendant of any such brother or sister, then to such of the lineal ancestors in this subdivision (k) first mentioned as may then be living, in equal shares, or to the survisor of them;
(1) If there be no paternal kindred the whole shall go to the maternal kindred, and if there be no maternal kindred the whole shall go to the paternal kindred. If there be neither paternal nor maternal kindred, the whole shall go to the kindred of the wife or husband of the intestate in the like course as if such wife or husband had survived the intestate and died entitled to the whole of the estate.(Code 1849, c. 123, §1; Code 1860, c. 123, §1; Code 1868, c. 78, §1; 1872-3, c. 191, §1; 1882, c. 94, §1; Code 1923, c. 78, §1.)
Revisers’ Note.—The principal new provisions of this redraft of §1, c. 78, Code 1923, are: (a) When there are neither children, nor the descendants of any child, the estate, instead of going entirely to the father, goes to both father and mother, each taking a half, and if either be dead his or her share, or if both be dead the whole, goes to the wife or husband of the intestate and the brothers and sisters of the intestate and the descendants of such brothers and sisters; (b) The wife or husband of the intestate, instead of taking when there is neither paternal nor maternal kindred of the intestate to take, is let in to share in the estate with the brothers and sisters of the intestate, participating in a half if a father or mother survives, or in the whole if neither survives. In case intestate has no descendants, nor wife or husband, nor brother, nor sister, nor descendants of a brother or sister, the father and mother, or the survivor, takes the whole; (c) The grandfather does not take to the exclusion of the grandmother, but they both take a half of the moiety, and if either be dead his or her share, or if both be dead their shares, go to the uncles and aunts of the intestate on the same side and their descendants. In case the intestate has no such uncles and aunts, nor descendant of such uncle or aunt, the grandfather and grandmother, or the survivor, takes the whole moiety; (d) Similar changes are made with reference to great-grandfathers and great-grandmothers and lineal ancestors still further remote from the intestate.
§2. How Collaterals of Half Blood Inherit.—Collaterals of the half blood shall inherit only half so much as those of the whole blood. But if all the collaterals be of the half blood, the ascending kindred, if any, shall have double portions.(Code 1849, c. 123, §2; Code 1860, c. 123, §2; Code 1868, c. 78, §2; 1882, c. 94, §2; Code 1923, c. 78, §2.)
§3. When Parties Take Per Capita and When Per Stirpes.—Whenever the children of the intestate, or the wife or husband of the intestate with his brothers and sisters, or the uncles and aunts of the intestate, or the brothers and sisters of any of the intestate’s lineal ancestors of the same degree, come into the partition, they shall take per capita, or by persons; and where, a part of them being dead and a part living, the descendants of those dead have right to partition, such descendants shall take per stirpes, or by stocks, that is to say, the shares of their deceased ancestors; but whenever the persons entitled to partition, other than the wife or husband of the intestate and those whose shares are definitely fixed by the statute of descents, are all in the same degree of kindred to the intestate, they shall take per capita or by persons.(Code 1849, c. 123, §3; Code 1860, c. 123, §3; Code 1868, c. 78, §3; 1882, c. 94, §3; Code 1923, c. 78, §3.)
Revisers’ Note.—This section, while remaining the same in principle, is changed to accord with §1. To illustrate: (a) Where the intestate leaves three children who come into the partition, they take per capita, or each a third; but if one child has died and left two children, the grandchildren take per stirpes, thus giving to each child a third and to each grandchild a sixth. (b) Where the intestate leaves a wife, two brothers and a sister who come into the partition, they take per capita, or each a fourth, but if one of the brothers has died and left two children, such children take per stirpes, thus giving to the wife, the living brother and the sister each a fourth and to the children of the deceased brother each an eighth. (c) Where the intestate leaves a mother or father (not both) surviving, a wife, a brother, a sister, and two children of a deceased sister, the mother or father, whose share is definitely fixed by the statute, takes a half; the wife, who shares equally with brothers and sisters, takes an eighth; the brother and sister each an eighth; and the two children of the deceased sister each a sixteenth; but if the brother and both sisters have died and have left one two children, one three children, and one four children, then the mother or father takes a half; the wife an eighth; and the children of the deceased brother and sisters, all being in the same degree of kindred to the intestate, share per capita and take each a twenty-fourth.
§4. Alienage of Ancestor Not to Bar.—In making title by descent, it shall be no bar to a party that any ancestor, whether living or dead, through whom he derives his descent from the intestate, is or has been an alien.(Code 1849, c. 123, §4; Code I860, c. 123, §4; Code 1868, c. 78, §4; 1882, c. 94, §4; Code 1923, c. 78, §4.)
§5. From Whom Bastards Inherit.—Bastards shall be capable of inheriting and transmitting inheritance on the part of their mother, as if lawfully begotten.(Code 1849, c. 123, §5; Code 1860, c. 123, §5; Code 1868, c. 78, §5; 1882, c. 94, §5; Code 1923, c. 78, §5.)
§6. Legitimation by Marriage.—If a man, having had a child or children by a woman, shall afterwards intermarry with her, such child or children, or their descendants, shall be deemed legitimate.(Code 1849, c. 123, §6; Code 1860, c. 123, §6; Code 1868, c. 78, §6; 1882, c. 94, §6; Code 1923, c. 78, §6.)
Revisers’ Note.—The words “if recognized by him before or after the marriage,” that followed the word “descendants,” are omitted from this section.
§7. Issue Legitimate Though Marriage Null.—The issue of marriages deemed null in law, or dissolved by a court, shall nevertheless be legitimate.(Code 1849, c. 123, §7; Code 1860, c. 123, §7; Code 1868, c. 78, §7; 1882, c. 94, §7; Code 1923, c. 78, §7.)
§8. Posthumous Children to Take.—Any child in the womb of its mother at, and which may be born after, the death of the intestate, shall be capable of taking by inheritance in the same manner as if such child were in being at the time of such death.(Code 1849, c. 123, §8; Code 1860, c. 123, §8; Code 1868, c. 78, §8; 1882, c. 94, §8; Code 1923, c. 78, §8.)
Revisers’ Note.—Section 8, c. 78, Code 1923, is rewritten and English words used for the French words “en ventre sa mere,” and the limitation of ten months is omitted as being contrary to scientific opinion. See also §13, art. 1, c. 36.
§9. Establishment and Recordation of Descent.—Where any person having title to an estate of inheritance in real estate within this State has died intestate, or without having devised his real estate, his heirs, or any of them, or any person deriving title from or through such heirs, or any of them, may, at any time within twenty years after the death of such person, present to the circuit court of the county where such real estate, or any part thereof, is situated, a petition, under oath, describing such real estate, setting forth the interest or share of the petitioner and of each other heir of the decedent in such real estate, and praying for a decree establishing the right of inheritance thereto, and that all the heirs of the decedent and other parties in interest may be summoned to show cause why the prayer of the petition should not be granted. There shall also be set out in the petition, and be made parties, the heirs or devisees of any person who inherited from the decedent but who has died before the proceeding is instituted, and any purchasers or successors in title from such a person, and any holders of liens on the whole property or on the share of any person interested in the property. Upon the presentation of such petition a rule to show cause, returnable within such time as the court shall direct, shall be issued accordingly, except in a case where all the interested parties unite in such petition or appear and waive service of the rule. Guardians ad litem for all infants, convicts in confinement and insane persons, who may be parties to such proceeding, shall be appointed and attend, and nonresident persons may be proceeded against by order of publication, as in other cases. Upon the return of the rule to show cause the circuit court shall hear the allegations and proofs of the parties and determine all the issues raised. The petitioner shall establish the fact of the decedent’s death; the place of his residence at the time of his death; his intestacy, either generally, or as to the real estate in question; the heirs entitled to inherit the real estate in question; the name, age, residence and relationship to the decedent, of each; and the interest or share of each heir or other person in such real estate. The court, when these facts are established, shall make a decree, describing the real estate, and declaring that the right of inheritance thereto has been established to the court’s satisfaction, in accordance with the facts, which shall be recited in the decree, and that at the death of the intestate certain persons, who shall be named in the decree, were entitled to take the property in certain proportions, which shall also be set out in the decree. A certified copy of such decree shall be recorded in the office of the clerk of the county court of the county or counties in which such real estate is situated, in the record of deeds, and indexed in the general index of deeds in the name of the decedent as if grantor, and in the name of each heir as if grantee, and the fees for such recording and indexing shall be the same as for deeds. From the time when such copy is so recorded, the decree, or the record thereof, shall be conclusive evidence of the facts so declared to be established thereby against all parties to such proceeding.
Any appeal from such decree shall lie to the supreme court of appeals as in other cases, and any person under disability or proceeded against by publication and not appearing may have the matter reheard as in other cases.
Revisers’ Note.—This section is new. It is intended to afford a means of getting on the land records the names of the heirs of a person who has died entitled to an estate of inheritance in real estate.
Article 2. Distribution.
§1. To Whom Personal Estate Distributed.—When any person shall die intestate as to his personal estate or any part thereof, the surplus, after payment of funeral expenses, charges of administration and debts, shall pass and be distributed to and among the same persons, and in the same proportions, that real estate is directed to descend, except as follows:
(a) If the intestate was a married woman, and leave issue surviving, her husband shall be entitled to one-third of such surplus, and if she leave no issue, he shall be entitled to the whole thereof;
(b) If the intestate leave a widow and issue by the same or a former marriage, the widow shall be entitled to one-third of such surplus, and if he leave no such issue, she shall be entitled to the whole thereof.(Code 1849, c. 123, §10; Code 1860, c. 123, §10; Code 1868, c. 78, §9; 1882, c. 94, §9; Code 1923, c. 78, §9.)
Revisers’ Note.—For the phrase “to whom and in which” that preceded the words “real estate,” the word “that” is substituted, and the word “proportion” put in the plural form. Also the subdivision on alienage is omitted as obsolete, as by Acts 1872-3, c. 191, §1, aliens are capable of inheriting real estate, and no exception needs to be stated in the above section to authorize the passing of personal estate to aliens. The word “issue” is used in place of “children,” because of the decision of Bernard v. Hipkins, 6 Call. 101, holding that the word “children” does not include grandchildren. The revisers of the Code of 1849 changed to the word “issue.” The Code of 1849 and all the codes of Virginia since have used the word “issue.” The West Virginia Code of 1868 uses the word “children,” but it seems better in view of the decision in Bernard v. Hipkins, to use the word “issue.”
§2. Personalty Accrues to the State if no Other Distributee.—To the State shall accrue all the personal estate of every decedent, of which there may be no other distributee.(Code 1849, c. 123, §11; Code 1860, c. 123, §11; Code 1868, c. 78, §10; 1882, c. 94, §10; Code 1923, c. 78, §10.)
Article 3. Provisions Relating to Husband or Wife of Decedent.
§1. Renunciation of Will by Husband or Wife.—When any provision is made in a will for the surviving wife or husband of the testator, such surviving wife or husband may, within eight months from the time of the admission of the will to probate, renounce such provision. If the will be contested, or the order admitting it to probate be appealed from, such renunciation may be made within two months of the final decision on such contest or appeal. Such renunciation shall be made either in person before the county court by which the will is admitted to probate, or by a writing recorded in the office of the clerk of such court, upon such acknowledgment or proof as would authorize a deed to be admitted to record. If such renunciation be made, or if no provision be made for such surviving wife or husband, such surviving wife or husband shall have such share in the real and personal estate of the decedent as such surviving wife or husband would have taken if the decedent had died intestate leaving children; otherwise the surviving wife or husband shall have no more of the decedent’s estate than is given by the will.(Code 1849, c. 123, §12; Code 1860, c. 123, §12; Code 1868, c. 78, §11; 1872-3, c. 204, §11; 1882, c. 94, §11; Code 1923, c. 78, §11.)
Revisers’ Note.—This redraft of §11, c. 78, Code 1923, decreases the time within which the renunciation shall be made.
§2. Provision in Lieu of Dower and Distributive Share.—If a person make provision by will for his or her surviving wife or husband, such provision shall be construed to be in lieu and bar of dower and distributive share of the personalty in the estate of the deceased consort, and such provision, unless the same be renounced as provided in the preceding section, shall be all that such surviving wife or husband shall take of the estate of the deceased consort, unless it clearly appears from a construction of such will, and the attendant facts proper to be considered in connection with it, that the testator intended the surviving wife or husband to take the estate or interest given by the will in addition to his or her dower and distributive share of the personalty.
Revisers’ Note.—The above is a new section. Under the decisions in Bruceton Bank v. Alexander, 83 W. Va. 573, 98 S. E. 804; Miller v. Miller, 76 W. Va. 352, 85 S. E. 542; Sperry v. Swiger, 54 W. Va. 283, 46 S. E. 125; Cunningham v. Cunningham, 30 W. Va. 599, 5 S. E. 139, and Shuman v. Shuman, 9 W. Va. 50, if a widow fails to renounce the will of her husband that makes provision for her, such failure does not bar her dower, unless it clearly appears from the true construction of the will, and the attendant facts proper to be considered in connection with it, that the provision in her behalf was intended by the testator to be in lieu of dower, and if it does not so appear, then she may consistently take both dower and the interest given her by the will. The rule was the same with curtesy, Bruceton Bank v. Alexander, supra. and Cunningham v. Cunningham, supra, and would be the same with the new estate of dower given to the husband by this revision. See c. 43, art. 1, §1. But the above section changes this rule, making the provision in the will take the place of dower and the distributive share of the personalty, unless by a construction of the instrument, and the attendant facts proper to be considered in connection with it, the intent is that the beneficiary is to take under the provision of the instrument in addition to dower and the distributive share of the personalty.
§3. Effect of Bar of Dower.—The provisions of this chapter in favor of the husband and the wife are all subject to this qualification, that if the husband would be barred of his dower in the estate of his wife, or the widow be barred of her dower in the estate of her husband, under any provision of law, neither shall have any part of the estate of the other, unless the same be given him or her by will and then only so much as is so given.(Code 1849, c. 123, §14; Code 1860, c. 123, § 14; Code 1868, c. 78, §12; 1872-3, c. 204, §12; 1882, c. 94, §12; Code 1923, c. 78, §12.)
Article 4. General Provisions.
§1. Advancements to be Brought Into Hotchpot.—Where any descendant or collateral relative of a person dying intestate as to his estate, or any part thereof, shall have received from such intestate in his lifetime, or under his will, any estate, real or personal, by way of advancement, and such descendant or collateral relative, or any descendant of either, shall come into the partition and distribution of the estate with the other parceners and distributees, such advancement shall be brought into hotchpot with the whole estate, real and personal, descended or distributable, and thereupon such party shall be entitled to his proper portion of the estate, real and personal.(Code 1849, c. 123, §15; Code 1860, c. 123, §15; Code 1868, c. 78, §13; 1882, c. 94, §13; Code 1923, c. 78, §13.)
Revisers’ Note. —While the doctrine of hotchpot is confined to cases of lineal descendants, principally children, yet the case of Waldron v. Taylor, 52 W. Va. 284, 45 S. E. 336, shows the advisability of applying the same rule to collateral kindred, and for that purpose the words “or collateral relative” are added in the first line following the word “descendant,” and for the words “and he or any descendant of his,” following the words “by way of advancement,” are substituted the words “and such descendant or collateral relative, or any descendant of either.”
§2. Homicide Bars Acquisition of Estate or Insurance Money.—No person who has been convicted of feloniously killing another, or of conspiracy in the killing of another, shall take or acquire any money or property, real or personal, or interest therein, from the one killed or conspired against, either by descent and distribution, or by will, or by any policy or certificate of insurance, or otherwise; but the money or the property to which the person so convicted would otherwise have been entitled shall go to the person or persons who would have taken the same if the person so convicted had been dead at the date of the death of the one killed or conspired against, unless by some rule of law or equity the money or the property would pass to some other person or persons.
Revisers’ Note. —This section is new. It is framed to meet a case like Johnston v. Metropolitan Life Ins. Co., 85 W. Va. 70, 100 S. E. 865.