Degrees of relationship computed by the rules civil law


METHOD OF COMPUTING DEGREE OF RELATIONSHIP. The degree of a relationship is computed by the civil law method. Added by Acts , 73rd Leg., ch. Computed by civil law — Ancestor not limited to one from whom estate came . determined by the degrees of relationship, computed by the rules of civil law. Consanguinity is the basis of the laws that govern such matters as rules of the degrees of lineal, consanguinity, it has been adopted by the civil, the canon, and of computation is extended to the remotest degrees of collateral relationship.

Go to Read More Descent and distribution — Exempt property and widow's allowance a debt against estate — On widow dying intestate such assets pass, how — SectionGeneral Code — "Intestate share of surviving spouse" — Share spouse would take under SectionGeneral Code — Determination of next of kin — Computed by civil law — Ancestor not limited to one from whom estate came — Distinction between ancestral and non-ancestral property abolished.

Property exempt from administration of husband's estate and the year's allowance to the widow constitute a debt against the deceased's estate and on the widow's dying intestate such assets pass according to SectionGeneral Code, and are not affected by SectionGeneral Code. The phrase "except for the intestate share of the surviving spouse, if any, of such relict" in SectionGeneral Code, refers to the share a surviving spouse would take under the conditions set forth in the various paragraphs of SectionGeneral Code.

In determining the intestate succession "next of kin" as used in SectionGeneral Code, is computed by the rules of civil law, and in this respect the term "ancestor" is not limited to the ancestor from whom the estate came, but is used in a broader sense to include progenitor or progenitors, such as father and mother. The distinction between ancestral and non-ancestral property was abolished with the adoption of the new Probate Code.

Russell, administrator of the estate of Emma G. Howell, deceased, filed a petition in the Probate Court seeking the determination of the heirs of his decedent entitled to inherit her estate. The cause was submitted to that court upon an agreed statement of facts and two supplements thereto, the pertinent parts of which are as follows: Howell married Margaret E. Howell, a son born as the result of this marriage, died intestate June 14,leaving Helen Howell his widow, who has since remarried and is now Helen Howell Weber, and two minor sons who died in infancy, without issue, and prior to the death of their grandparents.

Howell died testate November 15,leaving Joseph N. Howell, her husband, and also certain brothers and sisters, and the child of a deceased sister. She devised her estate, including an undivided one-half interest in a lot in Athens, to Joseph N. Howell, who took under the will. Howell thereafter remarried, and died intestate January 7,leaving Emma G.

Howell, his widow, and also a number of brothers and sisters and the issue of a deceased sister. His estate consisted of the undivided one-half interest in the lot in Athens which had been devised to him by the will of his former wife, Margaret E.

Consanguinity (in Canon Law)

Howell died intestate February 5,without living spouse, issue or parents and leaving several sisters. During the short interval intervening between the death of her husband and her death she did not dispose of any of the personal property or real estate which came to her from the estate of her husband.

On February 15,an administrator de bonis non was appointed for the estate of Joseph N. Three groups of persons claimed either an interest in, or the whole of the estate of Emma G. Howell, namely, 1 the sisters of Emma G. Howell, deceased, 2 the aunts and uncles of Bertrand C. The Probate Court entered a decree finding that the sisters of Emma G.

Howell were entitled to the undivided half of the lot devised by Margaret E. Howell to Joseph N. Howell to the administrator of Emma G. Howell; and also that the aunts and uncles of Bertrand C. Howell were entitled to the real estate and personal property which had not come to Joseph N. Howell from his former spouse. Thereupon the sisters of Emma G. Howell, deceased, appealed to this court on a question of law. The various sections of the Probate Code in effect at the time of the death of Joseph N.

Howell and Emma G. Howell were enacted at the same time as a general bill to revise, consolidate and codify the probate laws. It follows that the various provisions thereof are to be construed together. SectionGeneral Code, provides: If there be no children, or their lineal descendants, three-fourths to the surviving spouse and one-fourth to the parents of the intestate equally, or to the surviving parent; if there be no parents, then the whole to the surviving spouse.

If there be no spouse, no children or their lineal descendants, and no parent surviving, to the brothers and sisters, whether of the whole or of the half blood of the intestate, or their lineal descendants, per stirpes. If there are no children or next of kin of deceased children, then such estate, real and personal, except for the intestate share of the surviving spouse, if any, of such relict, shall pass and descend one-half to the brothers and sisters of such relict, or the next of kin of deceased brothers and sisters, and one-half to the brothers and sisters of the deceased spouse from whom such real estate or personal property came, or the next of kin of deceased brothers and sisters.

Howell, and the year's allowance to Emma G. Howell, his widow, provided for by Sections andGeneral Code, constituted a debt and preferred claim against the estate of Joseph N.

Howell and did not pass to Emma G. Howell died leaving "no spouse, no children or their lineal descendants, and no parent surviving. Howell is controlled by Sectionparagraph 6, General Code, and the sisters of this decedent are therefore entitled to these assets of her estate.

Howell died intestate leaving no children or their lineal descendants and no parents or parent surviving. By virtue of the provisions of Sectionparagraph 4, the property which he had acquired from sources other than the estate of his deceased spouse, Margaret, passed and descended to his surviving spouse, Emma.

This law was retained in the Western Churchthough it was revokedat least in the East, by Arcadius, for which reason, doubtless, the text of the law has been lost. This discipline continued throughout the Church till the eighth century. We then meet with the canon c. Von Scherer calls attention op. He states that in the eleventh century Alexander II c. In this way the degrees of relationship were determined by the number of generations on one side only; while in the Roman civil system the number of degrees resulted from the sum of the generations on both sides.

In the Roman system computatio Romana civilis first cousins would be in the fourth degree, while in the new computation they would be in the second degree of consanguinity. This, as is seen, would extend the impediment of consanguinity. Some have called the new computation Germanic computatio Germanica because it has a similarity to the peculiar Germanic system of determining inheritance, and whose technical terms were borrowed from the seven joints of the body on both sides from the neck to the finger-tips.

But Santi-Leitner calls attention ed. The latter system was more directly connected with the natural relations of marriage, and Alexander II treated it as peculiarly ecclesiastical law c. The reception and extension of this severe discipline regarding the impediment of consanguinity came about gradually and by custom, says Wernz, from the sixth and seventh centuries when first the third and then the fourth degree, i. It is, however, doubtful whether the sixth and seventh degrees of consanguinity were ever a diriment impediment, at least everywhere.

It is not improbable that even the fifth was only a preventive impediment Wernz, op. While in the twelfth century the theory of the remote degrees was strictly maintained by canonists, councils, and popesin practice marriages ignorantly contracted within them were healed by dispensation or dissimulation Wernz, loc. He explains that it was found difficult to carry out the extension to further degrees. For a defence of his illustrative reference to the current theory of the "four bodily humours", borrowed from the ancient physiology, see Santi-Leitner, op.


Gregory Iif the letter in question be truly his, granted to the newly converted Anglo-Saxons restriction of the impediment to the fourth degree of consanguinity c. For converted infidels it is recognized that the Church does not insist upon annulment of marriages beyond this first degree of consanguinity.

For further details of the history of ecclesiastical legislation concerning this impediment see Esmein, "Le mariage en droit canonique", Paris,I, ; II,; Santi-Leitner, op. Motives of impediment The Church was prompted by various reasons first to recognize the prohibitive legislation of the Roman State and then to extend the impediment of consanguinity beyond the limits of the civil legislation. The welfare of the social order, according to St.

By overthrowing the barriers between inimical families and races, ruinous internecine warfare was diminished and greater peace and harmony secured among the newly-converted Christians. In the moral order the prohibition of marriage between near relations served as a barrier against early corruption among young persons of either sex brought habitually into close intimacy with one another; it tended also to strengthen the natural feeling of respect for closely related persons St.

AugustineCity of God XV. Nature itself seemed to abhor the marriage of close kin, since such unions are often childless and their offspring seem subject to grave physical and mental weakness epilepsy, deaf-muteness, weak eyes, nervous diseasesand incur easily and transmit the defects, physical or moral, of their parentsespecially when the interbreeding of blood-relations is repeated Santi-Leitner, op.

Mode of calculation In calculating the degree of consanguinity special attention must be paid to three things, the line, the degree, and the stock or root. The stock, or root, is the common ancestor, or the personmale or femalefrom whom descend as from the nearest common bond the persons whose blood-relationship is to be determined.

The degree is the distance of one person from the other in regard to blood-relationship. The line is the classified series of persons descending from the common stock through one or more generations. The line is direct when the series of persons descend one from the other, as father and son, grandfather and grandchild.

Prohibited degree of kinship

The line is transverse, or collateral, when the blood-relations spring from a common stock, yet do not descend one from the other but form different branches side by side, as two brothers, two nephews. This collateral line is equal or unequal according as these persons derive equally or unequally from the same stock or root. The blood-relationship is computed according to the distance from the stock whence it is derived, and this is the rule by which the degrees or steps of consanguinity are determined.

In the direct line the Roman civil and the canon law agree on the principle that there are as many degrees as generations; hence as many degrees as there are personsomitting the stock or root. A son is one degree from his fathera grandchild two degrees from the grandfather. In the computation of the degrees of the transverse or collateral line there is a serious difference between the Roman civil and the canon law. The civil law founded its degrees upon the number of generations, the number of degrees being equal to the number of generations; thus between brothers there are two degrees as there are two generations; between first cousins four degrees, corresponding to the four generations.

The degrees are calculated easily in the civil law by summing up the number of persons in each line, omitting the common ancestor. Except for marriage, the canon law follows regularly the computation of the civil lawe. But the Canon law, in the collateral line of consanguinity, computes for marriage one series only of generations, and if the series are unequal, only the longer one. Hence the principle of canon law that in the transverse or collateral line there are as many degrees of consanguinity as there are persons in the longer series, omitting the common stock or root.

If the two series are equal, the distance is the number of degrees of either from the common stock. Thus brother and sister are in the first degree, first cousins in the second degree; uncle and niece in the second degree because the niece is two degrees from the grandfather who is the common stock.

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Thus if Caius has two sons, Titius and Sempronius, and Sempronius has a son and grandchild, the relationship of the grandchild of Sempronius to Titius is in the third degree, because this grandchild is distant three degrees from the common stock, Caius.

This rule holds if the common stock should only be one person ; thus half-brothers and half-sisters, that is from either father or mother, are in the first degree.

Children of the same father and mother are called german, as from the common germ; those of the same mother and not of the same father are called uterine, as from the same womb; and children of the same father and different mother are called blood-children.

The legitimacy or illegitimacy of any member of the series does not modify the relationship as a bar to marriage. For civil effects the civil law's computation of degrees must be known. In most European countries the law follows mainly the computation of the Roman civil law. In Englandsince the Reformationthe Levitical law has been recognized as the standard by which to determine the prohibitions of marriage. For Catholics everywhere, as Alexander II decreed c.

The Council of Trent required the absolute separation of those who knowingly contracted marriage within the prohibited degrees, and denied all hope of obtaining a dispensationespecially if the attempted marriage had been consummated. But in this regard the practice of the Churchprobably on account of the recognition of such marriages by the State, and the consequent difficulty of enforcing the dissolution of illicit unions, has tended towards greater leniency. The Council of Trentit is true Sess.

Rechts, Freiburg, sqq. In the Uniat Eastern Churchesthe marriage of blood-relations is forbidden in the collateral line to the seventh civil degree, 1. In the schismatic Churches of the East all marriages of relations in the direct line are prohibited; in the collateral line the seventh civil degree is the limit of prohibition; the remotest degree, however, is only a preventive impediment.

In the National Greek Churchsincemarriage is forbidden within the sixth civil degree, i. Dispensation from the impediment Whatever dispensing power is available resides principally in the supreme authority of the Churchnamely the Apostolic See. The pope generally exercises his power of dispensing through the Roman Congregations. The Congregation of Propaganda is the medium for countries dependent on it, e. Great Britain and its dependencies and the United States.