ON THE LAW OF INHERITANCE.

[Considerable alterations having been made in the law of inheritance since the preceding edition of this work, the editor has been induced to add the present chapter, to show the leading principles of that branch of the law of real property, as it is affected by the recent statute of the 3 & 4 Will. 4. c. 106.

First, with respect to the descent of estates of inheritance in fee simple in possession; Secondly, of estates of inheritance in fee simple in remainder or reversion; Thirdly, of descent by custom; Fourthly, descent of estates tail, or by statute.

1. Descent of estates of inheritance in fee simple in possession.

Descent or hereditary succession is the title by which the heir on the death of the ancestor intestate acquires his real estates, including heirlooms and other chattels annexed to the freehold. To constitute a person lawful heir, he must be legitimate, a natural born subject,* an alien naturalized by act of parliament, or a denizen by the king's letters patent. Descent may, under certain circumstances, be traced through an alien. But persons attainted for high treason, and, previously to the 54 Geo. 3. c. 145. for any kind of felony could neither inherit nor transmit an inheritance to their children. By the latter act no attainder for felony, except for high treason, petty treason or murder, or for abetting the same,

*7 Ann. c. 5. 4 Geo. 2. c. 21. 13 Geo. 3. c. 21. 4 T. R. 300.

† 11 & 12 Will. 3. c. 6. explained by 25 Geo. 2. c. 39. Cru. Dig. 4 ed. p. 322.

shall disinherit any heir. The late statute of 3 & 4 Will. 4. c. 106. s. 10. enacts, that attainder, happening before the descent. takes place, shall not interrupt the course of descent, unless the land shall have escheated in consequence of such attainder.

There are seven canons, or rules of descent, by which the law of descent was regulated previously to the late statute.

The first canon of descent is, that inheritances shall lineally descend to the issue of the person who last died seised in infinitum, but shall never lineally ascend. With respect to this canon the recent statute has made two material alterations in descents happening upon deaths on or after the 1st of January, 1834: the first by section 6, that lineal ancestors may inherit; and they come in next after the lineal descendants of the last proprietor; thus if A. dies intestate, and without issue, leaving a father, brothers and sisters, the father will take first, as heir to his deceased son, before the brothers or sisters and the second that actual seisin is not necessary to make the ancestor the root or propositus from whom the descent is to be traced; but by the first and second sections of the act the descent is to be traced from the person last entitled to the land, whether he did or did not obtain actual possession, or the receipt of the rents and profits. Under the old law, an actual entry was necessary to gain an actual seisin; seisin in law or right of possession was not sufficient, except where the ancestor acquired the estate by his own act, though he never had actual seisin of it: as in an exchange, one party having entered, the exchange was complete, and if the other died before entry, his heir was in by descent; or where a party, having contracted for the purchase of an estate, died intestate before the estate was conveyed. In the latter case the ancestor was in every sense the purchaser; and the same

rules were and still are applicable to equitable as to legal

estates.

The second canon is, that the male issue shall be admitted before the female; that is, a son before a daughter, an uncle before an aunt of the deceased; but his daughters shall succeed before his collateral relations. This canon is explained by the seventh section of the late act in the following words: "That none of the maternal ancestors of the person from whom the descent is to be traced, nor any of their descendants, shall be capable of inheriting until all his paternal ancestors and their descendants shall have failed; and also that no female paternal ancestor of such person, nor any of her descendants, shall be capable of inheriting, until all his male paternal ancestors and their descendants shall have failed; and that no female maternal ancestor of such person, nor any of her descendants, shall be capable of inheriting until all his male maternal ancestors and their descendants shall have failed.

The third canon is, that where there are two or more males in equal degree, the eldest only shall inherit, but the females all together; this canon remains unaltered.

The fourth canon is, "That the lineal descendants in infinitum of any person deceased shall represent their ancestor, that is, shall stand in the same place as the person himself would have done, had he been living. This canon remains unaltered; this is called succession per stirpes, according to the roots, from which it follows that the nearest relation is not always the heir-at-law, as the next cousin jure representationis is preferred to the next cousin jure propinquitatis.

The fifth canon was, that on failure of lineal descendants or issue of the person last seised, the inheritance should descend to his collateral relation, being of the blood of the first pur

2 Bl. Com. 214.

† Ib. 216. 217.