Page:The American Cyclopædia (1879) Volume VI.djvu/47

 DESCENT 39 scendants, the father and mother or other lineal ascendants were admitted. Such was the rule as to lineal succession. In respect to col- lateral inheritance, by the law of the twelve tables, agnates, whether male or female, were admitted alike, but by the latter law all fe- males of collateral kindred were excluded ; the hardship of the rule was in some measure relieved by the praetor, who gave to females thus excluded a share of the personal estate. Justinian restored the right of succession as it had originally existed. Descendants of fe- males of the collateral kindred were still, how- ever, left unprovided for. Thus, though a sis- ter could inherit from her brother, yet her children could not ; but the reverse of the rule did not hold, for there was no correspond- ing disability in the brother to inherit from the children of his sister. The rule of col- lateral succession was that the nearest agnate (or all the agnates of the same degree) took the whole estate. The mode of estimating the degree of consanguinity by the Roman law was to take the entire number of intermediate persons in the ascending and descending scale between the parties whose relationship was in question ; thus, first cousins would be re- lated in the fourth degree, being each two removes from the common ancestor. But by the canon law, which has been taken as the basis of the English rule of descent, the con- sanguinity is measured by the number of de- grees between the more remote of the two persons and the common ancestor, which in the case of cousins would be two degrees ; and it would be the same between uncle and nephew. The rules of descent by the common law of England are exceedingly artificial, being derived chiefly from the old feudal system, and ~)y usage become fixed, though the reasons that irst gave rise to them have long ceased to exist, ^"he principal of these rules are as follows : 1. Che estate descends lineally to the oldest son, the exclusion of all others ; or if he is de- d, then to his descendants, male or female, lowing the same rule of preference in all >ects as prescribed in this and the following 2. In case of the decease of the oldest m without issue, then to the next oldest and descendants, and so to the last of the males. In case of failure of male issue, then to the ughters, who, contrary to the order prescrib- in the preceding rules, do not take succes- ively, but become seized jointly of a peculiar state called coparceny, each coparcener having absolute undivided interest, which she may )nvey, or which on her decease will descend her heirs. 4. Failing all lineal descendants, e estate does not ascend lineally (that is to iv, to the father or grandfather, who by the common law are incapacitated to take directly from the son or grandson, though they may indirectly through collateral heirs), but to the nearest collateral kindred, still following the preference of males to females, and, of the males of the same degree, the oldest having the ex- clusive right. Thus the oldest brother and his descendants will take ; failing whom, the next brother and his descendants ; or in default of brothers, then all the sisters in coparceny but if there be no brothers or sisters, then the kindred of next degree will succeed, subject to the same rules of preference. 5. In respect to collateral succession, several other rules ap- ply, (a.) The heir must be not only the near- est of kin of the person last seized, but must be of the whole blood, that is to say, must be de- scended from the same two ancestors, male and female ; as, if A and B are brothers having the same father but not the same mother, if an estate descends to A from the father and he dies, B shall not inherit from him, although if A had died before the father B would have been the heir of the father. So far was this exclusion carried by the common law, that a sister of the whole blood would take in prefer- ence to a brother of the half blood, and the estate would even escheat rather than it should descend to the latter ; and the same rule pre- vailed in respect to more remote collateral rel- atives. (5.) It is also necessary, in order to inherit collaterally, to be of the blood of the first purchaser, that is to say, of the person who first acquired the estate ; as, if A purchase land and it descends through several generations to B, who dies without issue, no collateral relative of B can take the estate unless he is also of the blood of A, from whom it originally came, (c.) Kindred on the side of male ancestors, however remote, are preferred to kindred descended from females, however near, unless the estate descended from a female, in which case the kindred of such female can alone inherit. Thus the relatives on the father's side are preferred to the mother's, and on the grandfather's to the grandmother's, and so in all the degrees of ances- try, (d.) In computing degrees of consanguin- ity, the rule of the canon law is adopted as be- fore mentioned, whereby the relationship to the common ancestor is alone considered. Accord- ing to this rule, brothers are related in the first degree, cousins in the second ; but as this would often make a different degree of relationship be- tween the same parties, according as it was com- puted from one or the other to the common an- cestor, it was found necessary to adopt a further rule, that the consanguinity of each to the other was to be determined by that of the most re- mote from the common ancestor. Again, there might sometimes be different sets of kindred in the same degree of relationship by referring to different ancestors, as a nephew is in the same degree as an uncle, the common ancestor of the one being the father, of the other the grand- father ; in such a case, another rule intervenes, viz. : that the relative representing the nearest ancestor shall take priority, according to which the nephew would inherit before the uncle. Several important changes have been made in the law of descent by statute 3 and 4 William IV., c. 106 (1833), the principal of which are : 1. That a lineal ancestor is permitted to inherit,