case Evelyn versus Evelyn January SC Amb the question be whether the personal  estate of a brother who die intestate shall go whole to his brother or be  divide equal between he and the grandfather Lord Hardwicke of opinion it  belong entire to the brother and that the grandfather have no right to share  in the distribution with he in a former cause it be decree that the master  shall take a account of the personal estate of Charles Evelyn come to the hand  of sir John Evelyn his executor and that the clear residue of the personal  estate shall be lie out in Southsea annuity in the name of the  accountantgeneral and place to the credit of this cause and he be to declare  the trust thereof for the benefit of John Evelyn son of Charles Evelyn since  the decree videlicet on the that of December John Evelyn die a bachelor of  fourteen year of age leave Charles Evelyn his only brother who claim as next  of kin the residue of his late father personal estate and all the other  personal estate of John Evelyn decease but on account of his infancy  administration of the good c of John Evelyn be grant to William Evelyn for tie  benefit of Charles Evelyn sir John Evelyn the grandfather of the intestate and  of Charles Evelyn insist he be in equal degree of kindred to atkins the  intestate with Charles Evelyn the present bill be bring against sir John  Evelyn to account for the personal estate of Charles Evelyn decease the father  of the plaintiff Charles Evelyn and that the same may be pay to the plaintiff  as part of John Evelyn the testator personal estate and that the same together  with all other the personal estate of the intestate may be place out for the  benefit of the plaintiff Charles Evelyn the defendant sir John Evelyn by his  answer insist that he be grandfather of the intestate be in equal degree of  kindred to he with the plaintiff Charles Evelyn and equal entitle with he to a  distributive share of the testator personal estate the cause be hear last  Michaelmas term and after consideration Lord chancellor give judgement today  the question be whether the estate shall go whole to the plaintiff the brother  or be divide between he and the defendant the grandfather as be equal that be  second in degree by the civil law the statute of distribution must be the rule  of determination in these case the rule lie down after the general direction  in the act be only so many specification of particular case this question have  be twice determine in westminsterhall for the brother first in the case of  pool and Whishaw the that of July against the grandmother by the unanimous  opinion of the court they be so deliberate that they hear civilian before they  determine it and in the case of Norberry versus Richard hear by the late  master of the roll and may perhaps have be find on the former authority and it  be successive determination make the law but it have be say notwithstanding by  the counsel for the grandfather that these determination be erroneous for they  be in equal degree by the civil law the commonlaw indeed make a difference for  the brother be in the first degree and the grandfather in the second degree  but that law only take place in matrimonial case and by the civil law they be  both in the second degree Whishaw be right and I shall yet I be of opinion  that the decision in pool versus abide by it till I see it reverse I have see  note of Lord chief baron ware and baron price they be lose one indeed but it  appear by they that doctor lane be hear atkins Lord chief baron dod note be  short but plain than the former it be say there doctor lane argue that this  case be not to be determine by the statute but by the civil law and yet they  all hold that there be no such usage since the statute and dismiss the  grandfather bill this act be year ago and make on purpose to settle people  estate but if it be res integral I think there be just ground to prefer the  brother the word of the statute must be take together among the next of kin  pro his whoever it be jure accord to the law in such case and if by settle  determination a equality or preference have be give that be confirm by this  statute atkins er p as to the consequence first the civil law be no part of  the law of England any further than it have be receive here and this with  regard to personal estate second in real estate there be no degree between  brother as hold in Ventris Collingwood and pace and in Blackborough versus  Davis p wms the court rely on the old usage of England this alone will be  sufficient to support the determination in pool versus Whishaw that it answer  the intention of the act but it be argue from the civil law that there be a  ground for it before the novel the father take all the child fortune the  mother none at all the grandfather of the child if there be no grandchild take  the whole that be the paternal grandfather because the child be in pupillage  to he if there be no father Code law I do not find that it be any where say  the novel be ever admit in any part of the western empire no country in Europe  admit they entire but all follow some usage of their own the novel probable be  determination in the Prtorian court which Justinian in compile his body of law  adopt novel c let we in the brother and sister with the father and mother  exclude the grandfather as be observe by the commentator and it will be absurd  to make that novel atkins admit the grandfather c because by ascend still high  it will admit a great number of person almost to the exclusion ofbrothers and  sister Vinius p there be case in which person in the same degree or perhaps  near may take to the exclusion of those in equal degree this probable have  prevail in the Prtorial court and adopt there may be law rather argument of  inconvenience have be allude to in court of justice and it will be a very  great one in the present case to carry the portion of child to a grandfather  the grandfather by the course of nature be old must be suppose to have be  provide for and may very probable be in a die condition and not want it the  grandchild on the contrary be a infant and a provision necessary for he to  maintain he and set he out in the world beside such a determination will be  contrary to the very nature of provision among child as every child may very  proper be say to have a spes accrescend I will not be understand that the  argument of inconvenience alone have weight enough to decide the question but  it be a reason at least for not unsettle former determination and if I be to  vary in opinion it will tend to alter distribution make since and disturb the  peace of family therefore in favour of the plaintiff let the former decree be  carry into execution between the party to this suit in like manner as it ought  to have be between the party to the original cause and let the several account  thereby direct be take be carry on before the master and as to so much as  shall be come under the decree for the share of John Evelyn the infant who be  dead and also the surplus of all other the personal estate of John Evelyn the  infant his lordship declare that the same belong whole to the plaintiff  Charles his survive brother and the defendant sir John Evelyn the grandfather  have no right to share the distribution with he and refer it to the master to  take a account of the personal estate of John Evelyn the infant decease and  that what shall be come for the clear surplus of the personal estate of John  Evelyn the infant he direct to be apply for the benefit of the plaintiff  Charles Evelyn his survive brother and place out at interest in security in  like manner as be direct concern the share of the infant by the former decree  Reg lib a fol atkins er p