case smith against tracy distribution shall be equal make among the child of  the whole and half blood S C Mod S C Jones S C vent S C Eq ab S C lev S C vent  S C keb S C Freem prohibition the case be a man die intestate have three  brother of the whole blood and a brother and sister of the half blood the  question be whether they shall be admit to a distribution in a equal degree Mr  holt argue that they be all in tvquali yradu because before the Act of  distribution the ordinary have power to compel the administrator to give and  allot filial portion to the child of the decease out of his estate and by the  civil law such provision be make for the child of the intestate that the good  which either the father or mother bring to each other at modern the marriage  shall not remain to the survivor but the use and occupation of they only  during life for the property do belong to the child by the statute of Henry c  the ordinary be to grant administration to the widow of the intestate or to  the next of his kin or to both as by his discretion he shall think good and in  case where diverse person claim the administration as next of kin which he in  equal degree the ordinary may commit administration to which he please and his  power be not abridge but rather revive by this late Act car c by which it be  enact that just and equal distribution shall be make among wife and child or  next of kin in equal degree or legal represent their stock pro his enique jure  and the child of the half blood do in the civil law legal represent the father  and to some purpose be esteem before the uncle of the whole blood it be no  objection to say that because the law reject the half blood as to inheritance  therefore it will do the same as to personal estate because such estate be not  to be determine by the common but by the canon or civil law and if so the half  blood shall come in for distribution for this Act of parliament confirm that  law winnington solicitor general contra he agree that before this Act the half  blood be to have equal share of the intestate estate but that now the ordinary  be compel to make such distribution and to such person as by the Act be direct  for he have not a original power to grant administration in any case that do  belong to the temporal court but it be give to he by the indulgence of prince  not quatenus a spiritual person Hensloes case   bendl side and if he have not  power in any case he can not grant to who he please but admit he can his power  be now abridge by this statute and he can grant but to the wife and child or  next of kin in equal degree or legal represent their stock now such legal  representation must be accord to the rule of the common and not of the civil  law for if there be two lawful brother and a bastard eigne and a question  shall arise concern the distribution of a intestate estate the subsequent  marriage accord to the law in the spiritual court will make modern er p the  latter legitimate and if so a legal representative among they but this court  will never allow he so to be modern but the court be all of opinion that in  respect of the father the half blood be as near as those of the whole and  therefore they be all alike and shall have a equal distribution and that such  construction shall be make of the statute as will be most agreeable to the  will of the dead person if he have devise his estate by will and it be not to  be imagine if such will have be make but something will have be give to the  child of the half blood and thereupon a consultation be grant a in the case of  earl Winchelsea v Norcliff Trinity term James vern the court of chancery be of  opinion that where there be a brother of the whole blood to the intestate and  a sister of the half blood the sister shall have but half a share but since  the above decision of smith v Tracy and the case of Stapleton v Sherrard the  constant practice of the court have be otherwise and it have be since settle  in the case of crook v wall upon appeal to the house of lord that the half  blood shall have a whole share equal with those of the whole blood vern a  EASTEP term the twentyninth of Charles the second in the common plea sir  Francis north Knt chief justice sir Hugh Wyndham Knt sir Robert Atkins Knt sir  William Scroggs Knt justice sir William Jones Knt attorneygeneral sir Francis  winnington Knt solicitor general