Sec. 166. Explanation

Upon a person's death, the law designates to whom his property shall pass; but extends to a person the right to direct the disposition by a direction, called a will, to take effect at his death.

As the law permits private ownership of property it is concerned that upon a person's death, his property shall pass to the ownership of others. Naturally, those who are the most logical beneficiaries are his relatives, and to those relatives the law accordingly disposes it, and calls them his "heirs"; but it also permits a person to name his own heirs, although in that case they are not called heirs, but (in case of personal property) legatees, and (in case of real property) devisees. In this and the succeeding chapter we are concerned with this course of descent and distribution where there is no will, and with the disposition where there is a will.

Sec. 167. Terminology

"Testator" - one who leaves a will. "Intestate" - one who dies without a will. "Devisee" - one to whom real property is left by will.

"Legatee" - one to whom personal property is left by will; the gift to whom is called a "legacy" or "bequest."

"Heir at law" - one who takes the real property of an intestate.

"Distributee" - one who takes the personal property of an intestate.

"Personal representative" - executor or administrator.

"Executor" - one named in a will to execute it, that is, to administer the estate.

"Administrator" - a person named by the court to administer an intestate estate.

"Administrator with the will annexed" - one who is named by the court to administer a testate estate where the will names no executor or where the executor named cannot or does not serve.

"Administrator with the will annexed de bonis non" - one who is named by the court to finish the administration of an estate partially administered by an executor or by an administrator with the will annexed.

Sec. 168. Rules Of Descent

THE ANCIENT CANONS. By the common law there were a number of rules governing descent of real property, called "canons of descent."

It being once established that it is the' policy of the law to pass the property of a person at his death to someone else, instead of having it revert to the state it becomes necessary for the law to indicate who those persons are. It may leave this to the owner himself, but the owner may make no disposition and accordingly the law must have rules of succession.

The early canons of descent were as follows:

(1) "Inheritances shall lineally descend to the issue of the person who last died actually seized in infinitum but shall never lineally ascend."

(2) "The male issue shall be admitted before the female." The canon means of course that the sons of man inherited by the common law instead of the daughter, and that the female inherited only in case there were no sons. This is a rule that has been abolished in American Jurisprudence, all the children, either male or female, being equally entitled.

(3) "Where there are two or more males of equal degree the eldest shall inherit." This rule is called the rule of primogeniture and gave the estate to the eldest son. The purpose originally was to keep the inheritance and the consequent loyalty to the lord undivided.

(4) "The lineal descendants in infinitum of any person deceased shall represent their ancestor." This rule means that the descendants of a person stand in his place. Thus the eldest son inherits and then his son and then the grandson in preference to the other brothers of the eldest son. In a modified sense this rule is still true, in this, that a person's heirs, as named by the law, stand in his stead and have the same estate that he had.

(5) "On the failure of lineal descendants or issue of the person last seized the inheritance shall descend to his collateral relations being of the blood of the first purchaser." As Blackstone says, "If Jeoffrey Stiles purchases land and it descends to John Stiles and John dies seized though without issue; whoever succeeds to this inheritance must be of the blood of Jeoffrey, the first purchaser of this family." This rule is now only true in this sense, that on the death of a person without children the estate goes to his collateral relations, that is, his brothers, cousins and the like.

(6) "The collateral heirs of the person last seizea must be his next collateral kinsman of the whole blood." We mean by one of the "whole blood," one that is derived from the same couple of ancestors. In our day the law admits the half blood and the whole blood equally, that is, a man's nearest collateral relations will take without reference to the whole or the half blood.

(7) "In collateral inheritances the male stocks shall be preferred to the female unless the land in fact descended from a female." This rule is an ancient one, now obsolete.

These are the ancient canons of descent but our modern canons differ from them quite essentially as we will note in the next section.

Sec. 169. The Present Day Canons Of Descent

The rule of descent differs in some respects in the different states but may be generally stated as follows:

In the first place when a man dies leaving children these children take his real estate whether or not he leaves a wife or other relatives. The wife of course has her dower and she may have also a portion of the personal property, absolutely as her own in the character of an heir. In the second place if a man dies leaving no children, the estate goes to his wife, his parents, his brothers and sisters in portions named by the law, as for instance, that the wife shall get one-half and his parents, brothers and sisters or their descendants shall get the remainder in equal proportions. This in a general way indicates the course of descent. The children are first preferred, and then the other relatives, if there are no children or descendants of children. Inheritances descend per stirpes and not per capita, just as at common law. That is, if A dies leaving two children ana two grandchildren of a child deceased the estate is divided into three parts, one part to each child and one part to the two grandchildren. If the division was per capita the four heirs would each get a one-fourth part.