DESCENT

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DESCENT, in law, is the transmission of the right and title to lands to the heir, on the decease of the proprietor, by the mere operation of law. A title by descent is distinguished from a title by purchase, which latter includes title by devise, as well as by grant. The law of descent is, accordingly, the law relating to and regulating the inheritance of estates. Wherever there is an exclusive property in lands possessed by individuals, or, in other words, wherever the soil is held by distinct, permanent proprietaries, the law provides for the disposition of the possession in case of the death of the proprietor, without any designation of heirs by himself. It is a theoiy of all states, that the title to lands is originally in the government. Thus, in all the American states, the government granted the title originally; and, in case of a vacant possession, the title now reverts, by escheat, to this original grantor. The government considers itself to be the heir to all its subjects or citizens, who leave no other heir. In some countries, as in Egypt, particularly, the government is the perpetual and practical owner of the soil, and stands in the relation of landlord to all the cultivators, who are its tenants, and pay regular rents. It is a theory of the tenures of lands in England, that they are generally held, directly or indirectly, of the king, as superior lord. This is only the theoretical remnant of the principle, that the property in the soil belongs originally to the sovereign ; and the title is held by the subject in England upon certain conditions; for the lands of a traitor are forfeited, which makes allegiance one of the conditions of the tenure. Though there are countries in which the sovereign is the sole landed proprietor, while in others he is the heir of the landed proprietors, whose estates are accordingly for life, yet most countries provide for the transmission or descent of property in lands to the heirs of the proprietor; one distinction in the different laws being, that some codes, or the provisions relating to some particular kinds of estate, do not permit the occupant or proprietor, for the time being, to alter the disposition made by the law. Thus, bofore the conquest, lands were devisable in England, and the proprietor could appoint by will who should inherit them after his death; but it was one part of the policy of the feudal law, which was introduced into England after the conquest, to take away this power, and make lands descend only according to a prescribed rule. But expedients have been resorted to in England to break entails, and give the present proprietor the power of disposing of the lands during his lifetime. These expedients are denominated a fine and a common recovery. In the case of entailed estates, the successive possessors do not, in fact, come in as inheritors to the preceding occupiers, but in virtue of the grant or original constitution of the estate; and these grants make the law for these particular species of estates. Estates of this description were formerly much more numerous in the U. States than at present. But they were never much favored, and after the revolution, the laws leaned still more against them, so that at present they are but few. But in Great Britain and the continent of Europe, a very large part of the soil is held by this species of title. The rule determining to whom an estate belongs, on the decease of the proprietor, is that of consanguinity, or relationship by blood, though with some exceptions, as in the case of the portion or the use of a portion of a man's property, given, by the laws of England and the United States, to his widow. The rules of descent, designating what relations shall inherit, and their respective shares, will be determined by the genius and policy of the government and institutions; Hence the practice of entailments in the feudal system. And wherever the government is founded in family privileges, or very intimately connected with them, as is the case in ail governments where the hereditarily aristocrat!cal part of the community have a great preponderance, the sustaining of families will very probably be a characteristic feature in the code of laws. Thus, in England, all the lands of the father, unless otherwise directed by will, go to the eldest son; and accordingly all the eldest sons, who "receive any benefit from this law of descent, are naturally the supporters of aristocratical privileges. It has accordingly been predicted, that the provision introduced into the French laws, since the revolution, for equalizing inheritances, and thus dividing estates, and forming a numerous body of small proprietors, will have a rapid and powerful influence in giving a popular character to the government and institutions of the country. Some remnant of this family policy, which prevails so generally in Europe, appears in the early laws of the American colonies and provinces, in the preference given to eldest sons, by assigning them a double portionof the inheritance. This distinction probably resulted very much from the mere force of habit and custom. It is, however, not improbable that a reverence for the Levitical code might have led some of the colonies to this distinction in favor of the firstborn. This is an argument made use of in the pragmatic sanction, published by the Spanish king, March 29, 1830, annulling the rule of the Salic law, which excludes females from the succession. In this decree, an argument is cited from the petition of the cortes of 1789, in favor of the right of the eldest, which is vindicated, 1. from the order of nature; 2. from the Old Testament; 3. from usage; from all which the petition infers, that " the advantage of being the firstborn is a particular mark of the love of God." But the distinction in favor of the eldest son, which existed in the colonies now constituting the U. States, has been abolished since the establishment of independence. A compendious notice of the various laws of the several U. States on the subject of the descent of real estate, will be found in the first volume of the American Jurist and Law Magazine. These laws are founded upon the principle of equal distribution, both of real and personal estates, among heirs of the nearest surviving degree, and the representatives of deceased heirs of the same degree ; the representatives of a deceased heir who, when alive, was of the same degree with the nearest that survive, being entitled collectively to the share which would have come to such deceased heir, had he been living. This general principle is adopted from the English statutes of the 22d and 23d of Charles II, relating to the distribution of personal property; for the English law makes a great distinction as to the descent of real and personal estate, whereas, in the U. States, they descend and are distributed upon the same general principle, though there are some differences in the particular provisions. But this right of taking by representation is very variously modified in the different states. To make the subject better understood, a word ought to be sCd on the subject of affinity, or degrees of consanguinity, which is very lucidly treated in Blackstone's CommeiK taries. Kindred in blood are divided i|fco three general classes, viz. 1. descendants: 2. ancestors; 3. collateral relatives, that is, those who have descended from the same common ancestor. The civil law computes the degrees by counting the generations up to the common ancestor, a* father, grandfather, great grandfather; or mother, grandmother, great grandmother; and from him or her down to the collateral relative, as brother, cousin, &c, making the degree of relationship the sum of these two series of generations. Every person has two sets of ancestors, the paternal and maternal, and therefore two sets of collateral relatives. There is also a distinction of collateral kindred, into those of the whole blood, and those of the half blood. Our limits will not allow us to state the various regulations in England jjoid the U. States, as to the rules of inheritance among kindred of these different kinds; they are thus generally noticed, merely for the purpose of intimating some general diversities in the rules of descent. Thus in England and France, it is a rule, that real estate cannot ascend, that is, cannot go to father, grandfather, &c. on the decease of the son, grandson, &c.; for which the quaint reason is given by ISracton, that the weight of the inheritance makes it descend. Notwithstanding this supposed downward tendency of an inheritance in land, it is, in defect of descendants, made by the American laws to ascend, as well as to pass off' collaterally ; and this is the rule respecting personal estate, both in England and the U. States. Another distinction is made by the English laws, between collateral relatives of the whole and half blood, as the latter cannot inherit real estate; but in respect to personal estate in England, and both personal and real estate in the U. States, no distinction of this sort is made. Another diversity in the laws of inheritance relates to the distinction of male and female heirs. The Jewish law preferred the male heirs, and the present laws of Vermont (1830) give a similar preference. But the laws of the U. States generally, in regard both to real and personal estate, and those of England respecting the latter, make no distinction on account of the sex of the heirs.