477 



DESCENT. 



DESCENT. 



173 



the half-blood, that is, persons descended not from the same father 

 and mother as the purchaser, or any lineal ancestor of his, but from 

 one of them only. Still further exclusions followed from the rule 

 which was afterwards established, that the heir of the fee must be the 

 heir of the person last seised or possessed of it, as well as a kinsman of 

 the whole blood to the actual purchaser. Among the practical con- 

 sequences of this rule were the following : That if the child of the 

 actual purchaser inherited to him, and became seised, the purchaser's 

 child by another wife could not succeed, because only half brother to 

 the person last seised ; and that if the father's brother inherited to the 

 son and became seised, the mother's brother could not succeed, because 

 only related by marriage to the person last seised. All these exclusions 

 and the fictions of the ancient feuds are done away with by the new 

 Act, the effect of which is, as before said, to admit among the heirs of 

 the purchaser all his kindred, both of the whole and the half blood, 

 and notwithstanding any previous descent to any heir of his. This it 

 does by enacting that every lineal ancestor shall be capable of being 

 heir to any of his issue (s. 6) ; that any person related to the purchaser 

 by the half blood shall be capable of being his heir (s. 9), and that in 

 every case descent shall be traced from the purchaser (s. 2). Still, 

 however, the wife or her relations cannot inherit to the husband, nor 

 the husband or his relations to the wife. But the hardship of these 

 exclusions is at least mitigated by the law of dower and curtesy, which 

 must be read together with the law of descent as one law. It remains 

 to show in what order the kindred of the purchaser inherit. The old 

 law on this subject is reduced by Blackstone to seven rules, which 

 have been generally copied by later writers ; but the new Act so inter- 

 feres with them, and they seem, besides, to be so capable of being sim- 

 plified, that we shall propose instead of them the following rules, 

 which, it is believed, embody the present law on this subject. We 

 shall follow Blackstone's plan of stating the rules in the order in which 

 they may have to be applied in searching for an heir. 



1. The child (if any) of the last owner deceased is the heir of the 

 purchaser. Thus not only is the child of the purchaser his heir upon 

 his death, but if any other heir of the purchaser dies after having in- 

 herited, his child is the heir of the purchaser. 



2. The person through whom another must trace his descent from 

 the purchaser is (if living) the hen- before that other person. Now, 

 bearing in mind that descent is always to be traced lineally, that is, 

 either from parent to child, grandchild, &c., or vice vend, it follows that 

 the purchaser's child must, if living, inherit before h!t child, the brother 

 before the nephew, the father before the brother or the grandfather, &c. 

 If the purchaser had a child who died in his lifetime, leaving a child, 

 that child is the purchaser's heir, according to rule 1 ; for the expect- 

 ancy of the child of being next heir to the purchaser descended upon 

 his death to his child, as being his next heir, who consequently becomes, 

 upon the purchaser's death, his heir. It is surprising that this plain 

 and certainly true explanation of the effect in question has been over- 

 looked by all the writers on the law of descents, who lay down a 

 separate rule (the 4th of Blackstone's) to account for it. 



According to these rules 1 and 2, the effect of which is very much to 

 simplify the course of descents, when an inheritance has once got into 

 a line, it will keep contmuaDr detcending in that line, till the line ends; 

 and then it will only go back as far as the head of the next line, which 

 springs from the linq in which it has been descending, and will descend 

 in that line, and so on ; thus : 



3. Of persons related to each other, as brothers and sisters, the males 

 inherit before the females : the former successively in order of birth 

 the latter altogether in equal shares, being therefore called eopari-i'mt 

 (This rule i.M <|u;ilifir<l liy rule 6.) Hence the sons of the purchaser 

 inherit before the daughters, and first his eldest son, then his second 

 Ac. ; then all hia daughters together. It makes no difference whether 

 the coparceners are related to each other by the whole or the hal 



lood. This division among females often causes the minute splitting 

 f inheritances, as thus : 



Purchaser (dead). 



According to the custom of gavelkind, all the sons, and in default of 

 sons, all the daughters inherit together as coparceners. As to the 

 lustom of Borough English, see that title. 



4. Every male ancestor inherits before any female one. This is 

 qualified by rule 2. (See s. 7 of the new Act.) Hence the father takes 

 before the mother, &c., but not the mother's father before her, for he 

 claims through her. 



5. Those who are relations by the half blood to the purchaser inherit 

 next after their brothers and sisters, who are relations by the whole 

 blood to the purchaser. (Qualified by rule 4 and*2 : see s. 9 of the 

 new Act.) What the half blood is has been already explained. Thus 

 (by an exception to rule 3) the half brother takes after the whole 

 sister, and the half sister does not share with the whole sister. The 

 like is true of half uncles, &c. According to this rule 5, however, the 

 purchaser's brother of the half blood on the part of the mother does 

 not take next after his brother of the whole blood, for such half 

 brother claims through, and therefore takes after (rule 2) the mother, 

 who (rule 4) is postponed to the father. 



6. The mother of the more remote male ancestor inherits before 

 the mother of the less remote ; and the mother of any male ancestor 

 before the mother. (See s. 8 of the new Act.) Thus the father's 

 mother takes before the mother, and the father's father's mother 

 before the father's mother, &c. 



These six rules, read one with another, will, it is believed, point in 

 any case to the heir. It is observable, and in this respect the new 

 differs from the old law, that there cannot be a nearer heir born after 

 the hen- who has inherited. Formerly the sister of the purchaser 

 might inherit, and a brother of his be afterwards born, in which case 

 the inheritance shifted to the Litter. But at present this cannot be, 

 as the father takes before his children (rule 2), and all children in the 

 womb are considered by law as if born. The practical difficulty in 

 finding an heir or proving a title by descent is, not to understand the 

 law, but to ascertain and prove the facts on which the law must 

 operate. (As to this, see Burton's ' Compendium of the Law of Real 

 Property.') The new Act provides against the difficulty of tracing 

 descent from the purchaser, by the enactment that the last owner 

 shall be always presumed to be the purchaser till the contrary is 

 proved (s. 2). 



To comment at length upon the rules regulating the course of de- 

 scent is beyond our limits. Some observations and references are 

 however necessary. Rule 3, which makes the eldest son, brother, &c., 

 sole heir, exclusive of the other children, or the other nephews and 

 nieces, &c., is well known by the name of " the law of primogeniture." 

 It is almost peculiar to our country, not having been observed by the 

 ancients, and being generally abolished where it existed on the Con- 

 tinent and in the United States of America. For the history of this 

 rule, see Hale's ' History of the Common Law ; ' Sullivan's ' Lectures ; ' 

 Robinson on ' Gavelkind ;' 2 Blackstone's ' Com.; ' Wright's ' Tenures ; ' 

 and for observation on its expediency, Smith's ' Wealth of Nations.' 

 The preference of males to females is not so peculiar. The Jews, 

 Athenians, and Arabians, though not the Romans, gave the inheritance 

 to sons exclusive of daughters. (For the Athenian law of inheritance, 

 see Jones's ' Isieus ; ' for that of the Jews, Selden ' de Successionibus 

 apud Hebncos.') This is not however the case among most foreign 

 nations at present. The preference of the child of the elder son dead 

 in the purchaser's lifetime to the younger son (which we have endea- 

 voured to show is the necessary consequence of rule 1 ) has some inter- 

 esting historical associations. The law on this point seems to have 

 been derived from the civil law, and not to have been settled till after 

 most of the other rules of descent. It was still somewhat doubtful 

 when King John kept his nephew Arthur from the throne by disputing 

 it. (See 2 Bl. ' Com. ; ' Sullivan's ' Lectures,' lect. 14. In Robertson's 

 ' Charles V.,' vol. i., p. 272, there is a curious story of the trial by 

 combat of this point of law.) 



The descent of estates tail (regulated by stat. 3 Edw. I., c. 1) differs 

 from that of fees simple principally in this, that only the descendants 

 of the first donee can inherit ; and of these only males claiming ex- 

 clusively through males can be heirs when the estate is in " tail male : " 

 when it is in tail female (a mode of gift which is quite obsolete), only 

 females claiming exclusively through females. [ENTAIL.] The limited 

 descent of the estates, together with other qualities of them, makes 

 them the best representatives at present existing (excepting indeed 

 copyholds) of the ancient fiefs. 



(On the law of descent, as it existed before the late Act, see Sir 



