CHAPTER XI. OF TITLE BY DESCENT. [DESCENT, or hereditary succession, is the title whereby a man, on the death of his ancestor, acquires his estate by right of representation, as his heir-at-law. An heir, therefore, is he upon whom the law casts the estate on the death of the ancestor. And an estate SO descending to the heir, is in law called an inheritance. The doctrine of descents depends, in England, entirely on the principle of consanguinity, or kinship by blood, i.e., the relationship of persons descended from a common ancestor. This consanguinity is either lineal or collateral. Lineal consanguinity is that which subsists between persons, of whom one is descended in a direct line from the other, as between father and son, grandfather and granddaughter, and the like. Collateral consanguinity is that which subsists between persons who are descended from a common ancestor, but who are not descended from one another; as between brothers, cousins, uncles and nephews, and so on. Different systems of law have different methods of reckoning collateral degrees of consanguinity; but the English method (which has been adopted from the Canon Law) is as follows. We begin at the common ancestor, and reckon downwards; and in whatever degree the two persons, or the more remote of them, are or is distant from the common ancestor, that is the degree in which they are related to one another. Thus, brothers are related in the first degree, for from the father to each of them is only one; uncle and nephew are related in the second degree, for the nephew is two degrees removed from the common ancestor, viz., his S.C.-VOL. I. Q [own grandfather.] But the importance of reckoning degrees of collateral kinship is now, for the purposes of descent of real estate, almost at an end. For the new method of tracing the inheritance prescribed by the Inheritance Act, 1833 (u), which governs all descents taking place on a death which has happened since 31st December, 1833, entirely ignores direct relationship between collaterals, and provides that they shall inherit from one another only as representing the common ancestor (r). Thus, if A. die intestate and without issue, his brother B., if he inherits A.'s estate at all, will do so, not as A.'s brother, but as representing their common father, to whom on failure of A.'s issue, the estate will first descend. [No inheritance can vest, nor can any person be the heir of another, till that other is dead; for nemo est hæres viventis. And, until such death, he can be at the most but an heir apparent or heir presumptive. An heir apparent is one whose right of inheritance is indefeasible, provided he outlives the ancestor; e.g., the eldest son, who must by the course of the common law be heir to the father whenever the latter happens to die. An heir presumptive is one who, if the ancestor should die immediately, would be his heir, but whose right of inheritance may be defeated by the contingency of some nearer heir being born before the death; as a brother or nephew, whose presumptive succession may be destroyed by the birth of a child, or a daughter, whose present hopes may be hereafter cut off by the birth of a son. Nay, even if the estate hath descended, by the death of the owner, to such brother or nephew, or daughter; in the two former cases, the estate shall be divested and taken away by the birth of a posthumous child. And, in the latter case, it shall also be totally divested by the birth of a posthumous son (y).] (u) 3 & 4 Will. 4, c. 106. (x) Ibid. ss. 5, 6. (y) Goodtitle v. Newman, (1774) 3 Wils. 516. The ancient rules of descent, which are still applicable in tracing the inheritances of persons who died before. the 1st January, 1834, were based, partly on the common law, or general custom of the realm, which became fixed and generally recognized about the end of the thirteenth century, partly on the special customs of different localities, known as Gavelkind, Borough-English, and the like (z). The modern rules of descent depend largely, but not entirely, on the Inheritance Act, 1833, which is applicable in all cases in which the person, whose heir is to be found, died after the 31st December, 1833, except when the lands in question are governed by some special custom. In treating of the subject, therefore, we shall state the canons of descent as they are left by the Inheritance Act, 1833, referring, however, to the important points in which these differ from the antient rules (a). But before proceeding to state the actual canons of inheritance, it is necessary to warn the student that, by the provisions of a recent Act of Parliament, the Land Transfer Act, 1897, these canons have, in effect, become now, in most cases, rules affecting only the beneficial interest in the inheritance. For it is enacted by that statute (b), that, upon the death, testate or intestate, of any owner of real estate which does not pass by survivorship to any other person, that real estate (if capable of descending at all) shall become vested in his personal representatives (i.e., his executors or administrators), for the purposes of the administration of his estate. It is, however, provided by the same Act (c), that such representatives shall hold the estate (after satisfaction of the deceased's liabilities) in trust for the persons beneficially entitled thereto; and thus the canons of inheritance are (z) See ante, Introduction. Sect. III., Descents under the old law has been reprinted. (b) Sect. 1 (1). |