Page:The New International Encyclopædia 1st ed. v. 06.djvu/191

* DESCENT. 155 DESCENT. deriving the descent from the hist purchaser instead ot the person hist actually seized, and by adniilling lineal ancestors in default of lineal descendants and in preference to collateral heirs. The si.th canon has also heen altered by ad- inittinf; collateral relations of the lialf l)huHl in default of relations of the whole blood in the same dc^'ree. So far as they are applicable, these common- law rules of descent govern all common law, as distinj.'uished from customary inheritances, in- cluding the descent of fee-tail estates. These are the result of legislation of the end of the thir- teenth century, and, as they are expressly limited to heirs of the body, that is to lineal descendants only, the rules relating to collateral inheritance have no application to them. Even the canons governing lineal inheritances, however, may be varied by the form of the fee tail, as a fee tail special, which confines the inheritance to the issue of a certain wife, a fee tail male (which may be general or special) which limits descent tc the male issue, etc. So, too, while the common-law rules have to a great extent come to be applied to copyhold es- tates, whose qualities are largely determined by local custom, they have no application whatever to c-ertain other classes of customary estates. Thus lands held by the custom of gavelkind (q.v.). which is the prevailing tenure in Kent, and which occurs elsewhere, are still governed by the old rule of socage tenure, and pass to the sons of the decedent equally, while in the case of lands held by the ancient tenure of borough- English (q.v.) the common-law rule of primo- geniture is reversed, and the inheritance passes to the youngest son. And it may be said, in general, that, in many manors and boroughs in England, the course of descent of certain lands may still be governed by local customs of great antiquity, which have successfully resisted the encroachments of the feudalized common-law doc- trine. In the United States there- is much diversity in the law of inheritance. The course of descent is everywhere regulated by legislative enact- ment, and the statutes of the several States must be consulted by any one who desires to master its details. But there is a general and essential uniformity in the outlines of the law governing the matter throughout the nation. In the first place, the law of the descent of real property has generally been kept distinct from that of the distribution of personal prop- erly, and the heir from the personal representa- tive. Tn the second place, the descent of real property is still confined to those who are of the liloo<l of the decedent, excepting in a few States in which the wife and the husband have been placed in the line of inheritance. In the third place, the principle of priority according to the degree of consanguinity has been preserved, the relatives of one degree not being entitled to share in the inheritance if there is any repre- sentative of a higher degree living. In the fourth place, the rules in accordance with which the de- gree of consanguinity of collaterals is computed have remained the same as at common law. the count in every case being from the common an- cestor to the claimant of the inheritance. On the other hand, as has been said before, the rule of primogeniture has been universally re- jected in the United States, and, with it, the Vol, VI.— 11 fcmlal preference of the male over the female heir. AH the children of the decedent, and all the relatives of cijiial degree, share alike, usually as tenants in common, without distinction of age or sex. Ccnerally, also, the disability of the half blood has been wholh' or partially removed, and half brothers and sisters permitted to share equally with those of full blood, or, as now in England, admitted immediatelj- after the lat- ter. In all States the father and mother, and in some States all lineal ancestors arc admitted to the inheritance, usually inunediately after lineal descendants and before the collaterals. The prin- ciple of representation has also been retained, but in general the descent is traced, not from the person last actually seized, as at coiiimoii law, nor from tlic last juirchaser, as under the present English statute, but from the person last en- titled. The canons of descent, as given above from Blaekstone, do not in terras exclude illegiti- mate children, but no principle of the common law is better established than the rule which denies the right of inheritance to a bastard; only persons born in lawful wedlock are within the legal limits of consanguinity, and no others are capable of lineal or collateral inheritance. This princi])!e has been maintained in all its rigor in England, and has been generally observed in the inheritance laws of the United States, but with the following exceptions and modifications. In most of the States illegitimate children inherit from the mother equally with legitimate chil- dren, in one State ( New York ) only in case the mother has no legitimate issue, and in one (Kan- sas) from the father also, if his recognition of them is notorious. Tn many of the Stales the milder rule of the civil and canon laws, that the subsequent marriage of the parents legitimates previously born children, has been adopted. It remains to be said that the law of descent of a given jurisdiction is immutable and not to be varied by any form of grant or conveyance. An estate may, indeed, be taken out of its opera- tion by previous conveyance or by last will and testament, but if real property be left undisposed of it passes according to an iron law of inherit- ance and not otherwise. Xo limitation of an estate to a dili'eient class of heirs, no provision excluding an individual or a class of individuals, has any validity. To attempt to create a differ- ent line of descent from that established by law, as by granting lands to A and his male heirs only, or to B and his paternal line only, is to undertake the creation of a novel kind of estate, unknown to the law, and therefore not to be tolerated. Such a conveyance, if it creates an estate of inheritance at all. is at once subjected to the establislied rules of descent and the par- ticular restrictions imposed by the donor dis- regarded. The only exception to this principle is the case of the fee-tail estate, referred to above, and that is only an apparent and not a real exception, the qualities of the various kinds of fees tail being as clearly defined as are those of the ordinary estate in fee simple. Consult: Blaekstone. Commentaries on the Laiis of Eiifj- linid : AVillianis, Prhuiph-i of the l.nir nf I'rnl T'roiM-rtti (17th (International) ed.. I-ondon and Boston. 1804: 15th Ens. ed.. 1000) : .Tenks, Vnd- ern Land Law (Oxford, 1800) : Digby, .In Intro- duction to the Hi.itoni of the Lair of JienI Pmprrtii (."ith ed.. Oxford. 1800): Pollock and. Maitland, History of English Laic (2d ed., Lon-