2. It will be proper to consider, 1. What kind of property descends; and, 2. The general rules of descent.
3.
- §1. All real estate, and all freehold of inheritance in land, descend
to the heir. And, as being accessory to the land and making a part of
the inheritance, fixtures, and emblements, and all things annexed to, or
connected with the land, descend with it to the heir. Terms for years,
and other estates less than freehold, pass to the executor, and are not
subjects of descent. It is a rule at common law that no one can inherit
read estate unless he was heir to the person last seised. This does not
apply as a general rule in the United States. Vide article Possessio
fratris.
4.
- §2. The general rules of the law of descent. 1. It is a general rule
in the law of inheritance, that if a person owning real estate, dies
seised, or as owner, without devising the same, the estate shall descend
to his descendants in the direct line of lineal descent, and if there
be but one person, then to him or her alone; and if more than one
person, and all of equal degree of consanguinity to the ancestor, then
the inheritance shall descend to the several persons as tenants in
common in equal parts, however remote from the intestate the common
degree of consanguinity may be. This rule is in favor of the equal
claims of descending line, in the same degree, without distinction of
sex, and to the exclusion of all other claimants. The following example
will, illustrate it; it consists of three distinct cases: 1. Suppose
Paul shall die seised of real estate, leaving two sons and a daughter,
in this case the estate would descend to them in equal parts; but
suppose, 2. That instead of children, he should leave several
grandchildren, two of them the children of his son Peter, and one the
son of his son John, these will inherit the estate in equal proportions;
or, 3. Instead of children and grandchildren, suppose Paul left ten
great grandchildren, one the lineal descendant of his son John, and nine
the descendants of his son Peter; these, like the others, would partake
equally of the inheritance as tenants in common. According to
'Chancellor Kent, this rule prevails in all the United States, with this
variation, that in Vermont the male descendants take double the share
of females; and in South Carolina, the widow takes one-third of the
estate in fee; and in Georgia, she tales a child's share in fee, if
there be any children, and, if none, she then takes in each of those
states, a moiety of the estate. In North and South Carolina, the
claimant takes in all cases, per stirpes, though standing in the same
degree. 4 Kent, Com. 371; Reeves' Law of Desc. passim; Griff. Law Reg.,
answers to the 6th interr. under the head of each state. In Louisiana
the rule is, that in all cases in which representation is admitted, the
partition is made by roots; if one root has produced several branches,
the subdivision is also made by root in each branch, and the members of
the branch take between them by heads. Civil Code, art. 895.
5.
- 2. It is also a rule, that if a person dying seised, or as owner of
the land, leaves lawful issue of different degrees of consanguinity, the
inheritance shall descend to the children and grandchildren ofthe
ancestor, if any be living, and to the issue of such children and
grandchildren as shall be dead, and so on to the remotest degree, as
tenants in common; but such grandchildren and their descendants, shall
inherit only such share as their parents respectively would have
inherited if living. This rule may be illustrated by the following
example: 1. Suppose Peter, the ancestor, had two children; John, dead,
(represented in the following diagram by figure 1,) and Maria, living
(fig. 2); John had two children, Joseph, living, (fig. 3,) and Charles,
dead (fig. 4); Charles had two children, Robert, living, (fig. 5,) and
James, dead (fig. 6.); James had two children, both living, Ann, (fig.
7,) and William, (fig. 8.)
Peter
(0) the ancestor. - ȸ¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸Ø - - (1)
John (2) Maria - ȸ¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸Ø - - (3) Joseph (4) Charles -
ȸ¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸Ø - - (5) Robert (6) James -
ȸ¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸¸Ø - - (7) Ann (8) William
In
this case Maria would inherit one-half; Joseph, the son of John,
one-half of the half, or quarter of the whole; Robert, one-eighth of the
whole; and Ann and William, each one-sixteenth of the whole, which they
would hold as tenants in common in these proportions. This is called
inheritance per stirpes, by roots, because the heirs take in such
portions only as their immediate ancestors would have inherited if
living.
6.
- 3. When the owner of land dies without lawful issue, leaving parents,
it is the rule in some of the states, that the inheritance shall.
ascend to them, first to the father, and then to the mother, or jointly
to both, under certain regulations prescribed by statute.
7.
- 4. When the intestate dies without issue or parents, the estate
descends to his brothers and sisters and their representatives. When
there are such relations, and all of equal degree of consanguinity to
the intestate, the inheritance descends to them in equal parts, however
remote from the intestate the common degree of consanguinity may be.
When all the heirs are brothers and sisters, or all of them nephews and
nieces, they take equally. When some are dead who leave issue, and some
are living, then those who are living take the share they would have
taken if all had been living, and the descendants of those who are dead
inherit only the share which their immediate parents would have received
if living. When the direct lineal descendants stand in equal degrees,
they take per capita, by the head, each one full share; when, on the
contrary, they stand in different degrees of consanguinity to the common
ancestor, they take per stirpes, by roots, by right of representation.
It is nearly a general rule, that the ascending line, after parents, is
postponed to the collateral line of brothers and sisters. Considerable
difference exists in the laws of the several states, when the next of
kin are nephews and nieces, and uncles and aunts claim as standing in
the same degree. In many of the states, all these relations take equally
as being next of kin; this is the rule in the states of New Hampshire,
Vermont, (subject to the claim of the males to a double portion as above
stated,) Rhode Island, North Carolina, and Louisiana. In Alabama,
Connecticut, Delaware, Georgia, Indiana, Illinois, Kentucky, Maine,
Maryland, Massachusetts, Mississippi, Missouri, New Jersey, New York,
Ohio, Pennsylvaaia, South Carolina, Tennessee, and Virginia, on the
contrary, nephews and nieces take in exclusion of uncles and aunts,
though they be of equal degree of consanguinity to the intestate. In
Alabama, Connecticut, Georgia, Maryland, New Hampshire, Ohio, Rhode
Island, and Vermont, there is no representation among collaterals after
the children of brothers and sisters in Delaware, none after the
grandchildren. of brothers and sisters. In Louisiana, the ascending line
must be exhausted before the estate passes to collaterals, Code, art.
910. In North Carolina, claimants take per stirpes in every case, though
they stand in equal degree of consanguinity to the common ancestor. As
to the distinction between whole and half blood, vide Half blood.
8.
- 5. Chancellor Kent lays it down as a general rule in the American law
of descent, that when the intestate has left no lineal descendants, nor
parents, nor brothers, nor sisters, or their descendants, that the
grandfather takes the estate, before uncles and aunts, as being nearest
of kin to the intestate.
9.
- 6. When the intestate dies leaving no lineal descendants, nor
parents, nor brothers, nor sisters, nor any of their descendants, nor
grand parents, as a general rule, it is presumed, the inheritance
descends to the brothers and sisters, of both the intestate's parents,
and to their descendants, equally. When they all stand in equal degree
to the intestate, they take per capita, and when in unequal degree, per
stirpes. To this general rule, however, there are sligbt variations in
some of the states, as, in Now York, grand parents do not take before
collaterals.
10.
- 7. When the inheritance came to the intestate on the part of the
father, then the brothers and sisters of the father and their
descendant's shall have the preference, and, in default of them, the
estate shall descend to the brothers and sisters of the mother, and
their descendants and where the inheritance comes to the intestate on
the part of his mother, then her brothers and sisters, and their
descendants, have a preference, and in default of them, the brothers and
sisters on the side of the father, and their descendants, inherit. This
is the rule in Connecticut, New Jersey, New York, North Carolina, Ohio,
Rhode island, Tennessee, and Virginia. In Pennsylvania, it is provided
by act of assembly, April 8, 1833, that no person who is not of the
blood of the ancestors or other relations from whom any real estate
descended, or by whom it was given or devised to the intestate, shall in
any of the cases before mentioned, take any estate of inheritance
therein, but such real estate subject to such life estate as may be in
existence by virtue of this act, shall pass to and vest in such other
persons as would be entitled by this act, if the persons not of the
blood of such ancestor, or other relation, had never existed, or were
dead at the decease of the intestate. In some of the states there is
perhaps no distinction as to the descent, whether they have been
acquired by purchase or by descent from an ancestor.
11.
- 8. When there is a failure of heirs under the preceding rules, the
inheritance descends" to the remaining next of kin of the intestate,
according to the rules in the statute of distribution of the personal
estate, subject to the doctrine in the preceding rules in the different
states as to the half blood, to ancestral estates, and as to the
equality of distribution. This rule prevails in several states, subject
to some peculiarities in the local laws of descent, which extend to this
rule.
12.
It is proper before closing this article, to remind the reader, that in
computing the degrees of consanguinity, the civil law is followed
generally in this country, except in Norrh Carolina, where the rules of
the common law in their application to descents are adopted, to
ascertain the degree of consanguinity. Vide the articles Branch;
Consanguinity; Degree; Line.
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