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358

CHAPTER V.

OF INTESTACY.

1. INTESTACY AS ΤΟ REAL ES- 3. INTESTACY AS TO PERSONAL ESTATE.

TATE.

SECT. 1.-INTESTACY AS TO REAL ESTATE.

1. Course of Descent at Common Law,

358.

3.

tors and the Half Blood, 360. Seisin of the Ancestor,-first Purchaser under the Statute, 362.

2. Provisions of the 3 & 4 W. 4, c. 106,
as to the Descent to Lineal Ances-4. Effect of Attainder, 364.

1. Course of Descent at Common Law.]—WHEN a person, seised of an estate in fee-simple, dies without having made a will, or without having by his will disposed of the whole of such estate, then the whole thereof, or so much as has not been effectually disposed of, descends to his heir at law. According to the rules which govern the transmission of freehold estates of inheritance at common law, on the decease of an absolute proprietor, the estate descends to the eldest or only son, or his descendants, if he should be dead leaving issue; and next to the second and other sons, according to priority of birth, and their descendants; in default of sons and their descendants, it descends to daughters in equal shares, if more than one, and to the descendants of any deceased daughters, such descendants taking the share which would have gone to the parent, if living. When there is no lineal descendant, the estate goes to the eldest or only brother of the whole blood, that is, who was born of the same father and mother as the deceased proprietor, and to his descendants, if he should be dead leaving issue, and to the other brothers in succession and their descendants. If there be no brother, or

descendants of a brother, the sisters of the whole blood succeed in equal shares, and the descendants of deceased sisters, such descendants taking their parent's share as before. In case of the failure of brothers and sisters and their descendants, it becomes necessary to inquire whether the deceased proprietor took the estate himself by inheritance, or whether he acquired it immediately by a deed or will, or, in technical language, was a purchaser. In the former case, the heir is to be sought in the family from which the estate descended to the deceased proprietor, that is, either on the father's side or on the mother's side, as it happened: in the latter case, the law gives the preference to the relations on the paternal side; but if there be none such, then it directs the inheritance to go to the relations on the maternal side.

Here occurs a rule, drawn from feudal principles, which is at variance with ordinary feelings and notions, and has been long considered unjust; every lineal ancestor of the deceased proprietor, whether near or remote, is excluded from immediately inheriting. An estate may pass to the younger brother of the father, and upon his death it may pass to the father as his heir; but rather than go at once to the father or the mother of the deceased proprietor, the law directs it to escheat, that is, to fall, as for want of an heir, to the lord of whom the land was holden; that is, in most cases, to the crown. In default, however, of lineal and immediate collateral heirs and their descendants, the inheritance is to be traced through the nearest ancestor, that is, the father, unless it be a maternal inheritance, and if it be a maternal inheritance, the mother; and it will pass to his or her eldest brother of the whole blood or his descendants, and the other brothers in succession and their descendants; and, if none such, to sisters of the whole blood and their descendants, in equal shares as before; in failure of this line, the next more remote ancestor on the same side is made the stock in the same manner, and then the next more remote, and so on; the rule being still observed, that the paternal line has the preference in ascending from the first purchaser, and that, up to the first purchaser, the inheritance must be traced back through the line of ancestors by which it descended. If heirs in the pure male line ascending from the first purchaser should fail, then, in compliance with a rule above stated, a female ancestor, or some ancestor of a female ancestor,

is to be made the stock; and first, it is a rule that such female ancestor is to be taken on the paternal side, if any such can be found; and, therefore, the brother of the paternal grandmother (the father's mother) is preferred to the brother of the mother of the deceased proprietor, he having been the first purchaser.

Here also sometimes, though rarely, occurs a point about which a difference of opinion has existed for a long series of years. According to some authorities, when a female stock on the paternal side is to be introduced, proximity of blood is to have the preference, and consequently collateral relations of the paternal grandmother are to be preferred to collated relations of the paternal great grandmother; according to other authorities (and this is the doctrine maintained by Mr. Justice Blackstone in his Commentaries), the pedigree is still to be traced up as far as possible on the paternal side through males, and the female ancestor of the remotest male ancestor is to be preferred as a stock to the female ancestor of a less remote male ancestor, the paternal great grandmother to the paternal grandmother.

On failure of relations on the paternal side of the first purchaser, the maternal line is let in, that is, the mother of the first purchaser is considered as the stock, and her ancestors, first on the paternal, and then on the maternal side, as before. It is to be observed, that, on failure of heirs of the last proprietor on the side of the first purchaser, the estate does not pass to the heirs of the last proprietor on the other side, but escheats as before, so that an estate descended to the deceased proprietor from his mother can never pass to his collateral relations on the father's side. It has been laid down in the above statement, that collateral relations, in order to be let in to inherit, must be of the whole blood of the person from or through whom they are to derive their claim. Thus, a brother of the deceased proprietor by the same father, but a different mother, cannot inherit to the deceased proprietor, whether he took by purchase or descent. The estate will rather escheat; and the same is the case with an uncle, half brother of the father, and so on: this rule, like that which excludes the lineal ancestor, has long been felt to rest on no sound principle, and to be hard in its operation.

2. Provisions of the 3 & 4 W. 4, c. 106, as to the Descent to Lineal Ancestors and the Half Blood.]-Both these rules have, by the provisions of the act for the amendment of the law of inhe

c. 106.

ritance1, been abrogated in regard to all descents to be traced from 13 & 4 W. 4, an ancestor who has died since that act came into operation (1st January, 1834); it being thereby enacted *"That no brother or sister shall be considered to inherit immediately from his or "her brother or sister; but every descent from a brother or sister "shall be traced through the parent 2."

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And also, "That every lineal ancestor shall be capable of being " heir to any of his issue; and in every case where there shall be

no issue of the purchaser, his nearest lineal ancestor shall be "his heir in preference to any person who would have been en"titled to inherit, either by tracing his descent through such "lineal ancestor, or in consequence of there being no descendant "of such lineal ancestor, so that the father shall be preferred "to a brother or sister, and a more remote lineal ancestor

*The interpretation clause (sect. 1) enacts, that the word "land" shall extend to manors, advowsons, messuages, and all other hereditaments, whether corporeal or incorporeal, and whether freehold or copyhold, or of any other tenure, and whether descendable according to the common law, or according to the custom of gavelkind or borough- English, or any other custom, and to money to be laid out in the purchase of land, and to chattels, and other personal property transmissible to heirs, and also to any share of the same hereditaments and properties, or any of them, and to any estate of inheritance, or estate for any life or lives, or other estate transmissible to heirs, and to any possibility, right, or title of entry or action, and any other interest capable of being inherited, and whether the same estates, possibilities, rights, titles, and interests, or any of them, shall be in possession, reversion, remainder, or contingency; and the words, "the purchaser," shall mean the person who last acquired the land otherwise than by descent, or than by any escheat, partition, or inclosure, by the

effect of which the land shall have become part of or descendible in the same manner as other land acquired by descent; and the word, "descent" shall mean the title to inherit land by reason of consanguinity, as well where the heir shall be an ancestor or collateral relation, as where he shall be a child or other issue; and the expression "descendants" of any ancestor shall extend to all persons who must trace their descent through such ancestor; and the expression, "the person last entitled to land," shall extend to the last person who had a right thereto, whether he did or did not obtain the possession or the receipt of the rents and profits thereof; and the word, “ 'assurance," shall mean any deed or instrument (other than a will) by which any land shall be conveyed or transferred at law or in equity; and every word importing the singular number only shall extend and be applied to several persons or things as well as one person or thing; and every word importing the masculine gender only shall extend and be applied to a female as well as a male.

2

Sect. 5.

1 Sect. 6.

Sect. 7.

& Sect. 8.

4 Sect. 9.

"to any of his issue, other than a nearer lineal ancestor or his " issue 1."

And also, "That none of the maternal ancestors of the person " from whom the descent is to be traced, nor any of their descend"ants, shall be capable of inheriting until all his paternal ances"tors and their descendants shall have failed; and also that no "female paternal ancestor of such person, nor any of her descend"ants, 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 de"scendants, shall be capable of inheriting until all his male ma"ternal ancestors and their descendants shall have failed 2."

And also, "That, where there shall be a failure of male pater"nal ancestors of the person from whom the descent is to be "traced, and their descendants, the mother of his more re"mote male paternal ancestor, or her descendants, shall be the "heir or heirs of such person, in preference to the mother of a "less remote male paternal ancestor, or her descendants; and "where there shall be a failure of male maternal ancestors of "such person, and their descendants, the mother of his more "remote male maternal ancestor, and her descendants, shall be "the heir or heirs of such person, in preference to the mother of a less remote male maternal ancestor, and her descendants3."

66

And also, "That any person related to the person from whom "the descent is to be traced by the half-blood, shall be capable "of being his heir; and the place in which any such relation by "the half-blood shall stand in the order of inheritance, so as to "be entitled to inherit, shall be next after any relation in the same degree of the whole blood, and his issue, where the com66 mon ancestor shall be a male, and next after the common "ancestor where such common ancestor shall be a female; so "that the brother of the half blood on the part of the father "shall inherit next after the sisters of the whole blood on the part of the father and their issue, and the brother of the half"blood on the part of the mother shall inherit next after the "mother4."

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3. Seisin of the Ancestor,-first Purchaser under the Statute.]— A rule of law, founded on feudal principles, and expressed in the legal maxim, seisina facit stipitem, directs, that the inheritance is to be traced from the person who last died actually seised, that is, who was in possession, by himself, or a tenant for years, or had received

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