By the Court,
Bklknaf, J.:William H. Clark died intestate without issue, leaving a. widow and brothers and sisters, but no father or mother, heirs surviving.
The administrator of the estate1, under the orders of the court, sold some of the real property belonging to the estate, and, desiring to distribute a portion of the proceeds, petitioned' the district court for an order of partial distribution.
Upon the hearing- of the petition, and it being admitted that the1 property belonged to the community, the court directed that one-half of the property be distributed to the widow, in conformity with the requirements of the eleventh section of the statute entitled “An act defining- the rights of husband and wife.” (1 Comp. L>., sec. 151.) This section reads as follows: ‘ ‘ Upon the death of the husband one-half of the community property goes to the surviving wife, and the other half is subject to the testamentary disposition of the husband; and, in the absence of such disposition, goes to his descendants, equally, if such descendants are in the same degree of kindred to the decedent; otherwise, according to the right of representation, and, in the absence of both such dispositon and descendants, is subject to distribution in the same manner as the separate property of the husband >k *
To extent stated the order made is conceded to be correct, but the court excluded the widow from further participation in the proceeds, and directed the remaining one-half of the property to be distributed among the brothers and sisters of the intestate.
The question presented by this appeal is whether the widow is entitled to any portion of this one-half.
■ It is conceded that this case does not fall within any of the provisions of our statutes concerning descents.
In the absence of statutory regulation the common law of England, as modified by English statutes, adopted prior to the time of the declaration of American independence, is presumed *129to be the law of this state, so far as it is applicable to our condition.
Under this law the property (which, for the purposes of this case, should be treated the same as real property) would go to the brothers and sisters of the intestate.
The distribution was property made under this law, unless it is inconsistent with the enactments of our legislature, or with our institutions, or is unsuited to our condition. This latter exception has frequently been enforced.
The provision of the common law of England, which forbade the tenant to remove agricultural fixtures, is a case in point. The supreme court of the United States, in Van Ness v. Pacard, 2 Pet. 137, intimated that this feature of the law was inapplicable to this country, and as reason for the position suggested that at the time of its settlement the country was a wilderness, and the universal policy was to procure its cultivation and improvement. "The owner of the soil,” said the court, "as well as the public, had every motive to encourage the tenant to devote himself to agriculture, and to favor any erections which should aid the result; yet in the comparative poverty of the country what tenant could afford to erect fixtures of much expense or value, if he was to lose his whole interest therein by the very act of erection? His cabin or log hut, however necessary for any improvement of the soil, would cease to be his the moment it was finished.” (p'. 145.)
Upon the same principle it was decided in New York that the doctrine of ancient lights, as it existed in the mother country, was not brought by the colonists to this country. (Myers v. Gemmel, 10 Barb. 537.)
Among the reasons assigned for this conclusion was that the population of the new country was, scattered and houses not crowded together, and that under these circumstances there was not the same reason or occasion for applying the English doctrine here as in the city of London, where buildings were crowded together and some of the streets not more than fourteen feet in width.
In these and in other cases to be met with, courts have, for reasons which must commend themselves, declared that the *130common law, as- it existed in England, was unsuited to our' condition, and to this- extent have not been, bound by it.
Upon tbe same principle-, so much of the- English common law as. is inconsistent with our institutions, or repugnant to» the policy of our government, is. not presumed to have been adopted.
It is said by chancellor Kent, in his Commentaries. (4 vol., p. 274), that “ in the United States, the English common law of descents, in its most essential features, has- been universally-rejected, and each state has. established a law of descent for itself.”
Following the example of the older states, this state has. rejected many of the essential features, of the English law of descents. Disregarding the preference of males to females, and rejecting the- claims of primogeniture are illustrations of these changes.
But because of these and other changes it does, not follow that the particular provision of the common law of descents, which we are called upon to apply in this, case, is within any of the exceptions stated..
The establishment of canons of descent is a matter peculiarly within the province of the legislature. Most of the cases-likely to arise have been expressly provided for by statute,, and in cases not provided for we must assume that the legislature intended to allow the common law to stand unchanged. To bold otherwise would leave this latter class of cases subject to the doubtful result of inference or analogy to be drawn from our statutes. We cannot infer that tbe legislature intended something winch, it has. not expressed, nor can we assume its functions and interpolate anything into its enactments.
In tbe state of New York tbe first statute upon tbe subject of descents was passed in the year 1782, and afterwards, in 1786, a second statute was passed. Neither made any reference to the common law, but eaeh omitted cases for which the common law provided.
In tbe omitted cases, chancellor Kent assumed tbe common Taw to be the law of New York. Upon this subject he says.: ‘1 The common law rules of descent were the law of the colony *131and state of New York, down to 1782. The law was then altered, and the statute altering it re-enacted in an improved .state, in 1786. The law still inquired the heir to be heir to the person dying seized, and the inheritance descended: 1. To the lawful issue, standing in equal degree, in equal parts. 2. To his lawful issue and their descendants, in different ■degrees, according to the right of representation. 3. To the father. 4. To brothers and sisters. 5. To the children of brothers and sisters. The right of primogeniture and preference of males was, in their case, superseded. In all cases of ■descent beyond these five cases the common law was left to govern. The revised statutes, as we have seen, have carried the innovation much further, and the estate descends under ■the principle of equality of distribution. 6. To the descendants of brothers’ and sisters’ children to the remotest degree. 7. To the brothers and sisters of the father of the intestate and their descendants; and then to the brothers and sisters of the mother of the intestate and their descendants, or to the brothers and sisters of both father and mother of the intestate and their descendants, according to the various ways in which the estate may have been acquired. It is a matter of some surprise that the revised statutes of New York did not proceed and, in cases not provided for, follow the example of the law of descents in most of the states-of the Union, and direct the inheritance to descend to the next collateral kindred, to be ascertained, as in the statute of distribution of the personal estates of intestates, by the rules of the civil law. Instead of that we have retained in New York, in these remote cases, the solitary example of the application of the stern doctrine and rules of the common law.” .(Kent Commentaries, 4 vol. 411.)
The order of the district court is affirmed.