Page:The New International Encyclopædia 1st ed. v. 06.djvu/190

* DESCENDANTS. 154 DESCENT. of the property of a deceased ancestor. The terra is the converse of asceudaiils. .Sec roperty which we distinfiuish as real and personal the yvhole passinj;. aloiiR with the liabilities of the owner to a personal representatiye. and this has been the nature of descent generally, both in ancient and in modern nations. In the cammoii- law system of Eiifiland and the Inited States, howeyer, a diiTerent princijilc has prevailed, only the personal property passing to llic representa- tiye of the <lcccased. the real proj'crty devolving upon a lineal descendant, vho l)ecanie known as the heir. The ]ieis(inal represenlatiye was not necessarily a descendant, nor even related by any ties of consanguinity to the decedent, and the use of the term 'descent' was, therefore, confined to the dcyolulion of the real properly— the terms 'administration" and 'distribution' being employed to describe the corresponding disposition made of the personal property after the owner's death. The transmission of the real property to a dilTer- ent individual from the one whose title, as per- sonal representative, was anVcted with the obliga- tion to l>ay the decedent's debts, was a conse- .luci.ce of the feudal system, and was due among otlicr things, to the necessity of holding the lands to.'elher. free from claims on the part of others than the feudal lords of whom the lands were held. The exceptional and peculiar character of the law of land at the comiiion law. due to its com- plete absorption in the feudal system, is strik- inelv exemplified in tlic history of the doctrine of inhcritan.e. There was at first no gcncr.-i recognition of the right to transmit freehold linds by descent, nor to alienate them without the consent of the lord of whom they were held, and the right to dispose of one's real estate by yvill was not conceded until the reign of Henry VIII The ri"ht of inheritance, once acquired, yyas strictly limited to freeholds which were in terms .Tan'ted to a man and his heirs, and did not extend to such as were granted to a man absolutely, but without an express limitation to heirs The latter, therefore, fell into the cate- "orvof life estates, while the quality of lient- abiiity became the chief characteristic of the estate known as a fee. Thenceforth freehold es- tates were classified as 'freeholds of inheritance and 'freeholds not of inheritance.' 11 is with the former, only, that the law of descent has to do. The right of free alienation of lands held in fee was iiol acquired unlil the <piality of herit.ability had come to be considered an essential character- istic of such lands, and such alienation was long reenrdcd as an infringement upon tlic expectant rights of the heir, as well as upon the reserved rights of the lord of whom the fee was held. To- day, however, no fee can exist without possessing boili the quality of free alienability and that of heritability within the limits prescribed by the lows of descent, and an attempt to create a fee which shall lack either of these characteristics is ineU'eclual and void. The exigencies of the feudal system determined the course as well as the fad of di'sccnt at com- mon law. The importance of holding an estate together, in the hands of a single heir, and that a male, nearest in blood to the decedent, lixed the canons of descent as they existed in Kngland from the twelfth to the nineteenth cciituiy. Originally, it is true, and down to the time of Glanville" (twelfth century), lands held by the teiiuic of free and coinmon socage were governed by dilVercnt rules from those which r.'gulatcd the inheritance of military fees, or lands held by kniglil's service, and on the ancestor's dcatli were divFdcd among all his sons cpially; but long be- fore the tiiue of l.itllelon this distinction had disappeared and all lands held in fw simple came under the operation of the feudal rules. Briclly slated, these rules were as follows: ( 1 i Inheritances shall lineally descend to the issu« of the person who last died actually seizi'd th. iv of. 111 iii/iiiidiiii, hut shall never lineally ascend. father or mother cannot inlicrit directly from a son or daughter. Ci) The male issue shall be admitted before the female, to the total ex- clusion of the latter. (3) Where there are two or more males in equal degree of consanguinity to the ancestor, the eldest only shall inherit; but there being no male of equal degree, the females inherit all together. (-4) The lineal de- scendants in iiilhiitum of any person diseased, who, if he had survived, would have l>een the heir, shall represent their ancestor; that is, shall stand in the same place in the line of descent as hv w(aild have o<-cupied. if living. Thus, the issue, whether male or female, of the eldest son will l>e iircferred to the younger son or the daughter of the de- ceased ancestor. (5) On failure of lineal de- Bcendanls, or issue, of the person la-st actually seized of the lands, the inheritance shall Jiass to his collateral relations of the blood of the tirst purchaser (i.e. of the tirst in the line of ancestors to transmit it by descent, having ai'quiied it himself in some other way), on the same terms as *o preference of males, ])rimogenilure, etc., as it would have passed to issue, if there had been any. Thus an elder brother, or his issue, will take the inheritance to the exclusion of sisters and younger brothers. (0) The collatera heir of the'person last seized must be his next collateral kinsman of the whole blood. The half blood is wludlv excluded from the line of descent. (7) In collateral inheritances the male stocks shall be preferred to the female; that is. kindred derived from the blood of the mah> ancestors, however remote, shall be admitted before those from the blood of the female, however near, un- less, indeed, the lan<ls have descended from a female ancestor, in which case the rule is re- versed and the female stock preferred to the male. ^, , , , _ These common-law rules of descent have been ehan-ed in some inijiortant respects by the Inheritance .e( CI and 1 Will. W .. c lOCI. la' famous rule of primo^'cniture. embodied in til* second canon and the first part of the third, re- mains unchanged, notwithstanding its complete rejection by the Iniled Stales and the sell governing colonies of fireat Britain, as well as by the nations of Continental T',uroi>c. The seciMid half of the second canon and the seventh also re- main unaltered. The first has been changed by