At an early period in the history of the common law certain rules of inheritance, called the canons of descent, were formulated by Lord Chief Justice Hale, and, though these canons have been much changed as far as descent in this country is concerned, they are at the foundation of our laws of inheritance, and often have to be resorted to in construing statutory provisions. The canons are stated by Blackstone in the following form:
Same - Descending and Ascending Lines.
"The first rule is that inheritances shall lineally descend to the issue of the person who last died actually seised in infinitum, but shall never lineally ascend." 598 This rule has been changed in the United States, and persons in the ascending line, such as father and mother, are now permitted to inherit.599
Same - Preference of Males.
"A second general rule or canon is that the male issue shall be admitted before the female." 600 This canon has not been adopted in the United States,601 except that in some states the paternal kin in the ascending line are preferred to the maternal kin in the same degree.602
596 I stim. Am. St Law, § 8163 B, 2.
597 l Stim. Am. St. Law, § 3162. And see Murphy v. Murphy (Iowa) 63 N-w. 697 Branson v. Henry (Ind. Sup.) 39 N. B. 256. 598 2 Bl. Comm. 208. 599 l stim. Am. St. Law, §§ 3109, 311L 600 2 Bl. Comm. 212. 601 l Stim. Am. St. Law, § 3132. 602 l stim. Am. St. Law, §§ 3107, 3117, 3121.
Same - Primogenitore.
"A third rule or canon of descent is this: that where there are two or more males, in equal degree, the eldest only shall inherit; but the females all together." 603 This rule of primogeniture, as it is called, has been almost wholly abolished in the United States.604 But in a few instances the statutes which have changed the common-law rules of descent do not apply to remote collaterals, and consequently the common-law rule of primogeniture is still in force. So, in some states, the rule still applies to the estate of a trustee, and in Maryland a right to "elect" in partition-that is, to have first choice among the several shares-is reserved to the eldest male.605
Same - Per Stirpes and Per Capita.
"A fourth rule or canon of descent is this: 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." 606 This is called taking per stirpes, and is not the rule in all the United States. In some states the heirs take per capita.607 When the heirs take per capita, the descendants of the deceased heir take the same shares as those who stand in the same degree of relationship as the person deceased; that is, if there were two sons living, and three children of a deceased son, if they take per capita, each would have one-fifth of the intestate's real property. But if the inheritance was per stirpes, the sons would take one-third each, and the grandchildren would have each one-third of their father's third.
Same - Collateral Heirs and Ancestral Lands.
"A fifth rule is that, on failure of lineal descendants or issue of the person last seised, the inheritance shall descend to his collateral relation, being of the blood of the first purchaser, subject to the three preceding rules.608 Lineal relations609 are those in the
603 2 Bl. Comm. 214.
604 1 stim. Am. St Law, § 3132.
605 1 Dembitz, Land Tit 225.
606 2 Bl. Comm. 216.
607 1 stim. Am. St. Law, § 3137.
608 2 Bl. Comm. 220.
609 Relationship is of two kinds,-by consanguinity and by affinity. The former is relationship by blood, as that of father and son. Relationship by affinity is that which arises by marriage, as husband and wife. By the common law, inheritance was only by consanguinity, never by affinity. But ascending or descending line, such as father, mother, grandfather, grandmother, son, daughter, grandson, and granddaughter. Collateral relatives are those which are neither in the direct ascending or descending series. Examples of collateral relatives are uncles, aunts, nephews, and nieces.610 The degrees of relationship are in most states calculated according to the civil-law rules;611 that is, in ascertaining the degree of relationship between two persons you count up from the intestate to the common ancestor and then down to the collateral kinsman. In this way a father is related in the first degree, a brother or a grandfather in the second degree, an uncle or nephew in the third degree.612 By the common-law rules the degrees of relationship are the same as by the civil law for all persons in the direct ascending or descending line. But for collateral kinsmen the degrees are calculated from the common ancestor to the more remote descendant. In this way brothers are related in the first degree, while a nephew and an uncle are related in the second degree, and cousins are the same.613
In many states a distinction is made in the descent of lands between, on the one hand, lands which the ancestor acquires by descent or by gift or devise from a person from whom the lands would have descended to him,614 and, on the other hand, lands which the ancestor acquires by purchase, including devise or gift frorn a stranger. The lands embraced in the former class are called ancestral. In the states where this distinction is recognized, the inheritance of ancestral lands is restricted to those who are of the blood of the "first purchaser," as he is called; that is, to those who can trace a relationship by consanguinity to the one who acquired in most of our states a husband or wife inherits all or part of the real estate of a decedent when there is no issue to take, in addition to curtesy or dower. 1 Stlm. Am. St. Law, §§ 3109, 3123.
610 2 Bl. Comm. 202.
611 l Stim. Am. St. Law, § 3139.
612 Mcdowell v. Addams, 45 Pa. St. 430; Ryan v. Andrews, 21 Mich. 229; Mecracken v. Rogers, 6 Wis. 278; Martindale v. Kendrick, 4 G. Greene (Iowa) 307.
613 2 Bl. Comm. 206.
614 Oliver v. Vance, 34 Ark. 564; Galloway v. Robinson, 19 Ark. 396; Felton v. Billups, 2 Dev. & B. (N. C.) 308. Cf. Godbold v. Freestone, 3 Lev. 406.
§ 284) the lands by purchase. In some of these states, persons who are not of the blood of the first purchaser cannot inherit at all; in others, they are merely postponed.615
Same - Whole and Half Blood.
"A sixth rule or canon * * * is that the collateral heir of the person last seised must be his next collateral kinsman of the whole blood." 616 By whole blood it is meant that the heir and the intestate are descendants from the same pair of ancestors. Relationship by the half blood would be when there was only one ancestor in common, as where the two persons were descendants of the same father, but of different mothers. The rule of the common law as given above has been changed in all states.617 As to lands not deemed ancestral, the collaterals of the half blood are nowhere excluded altogether from the inheritance, though they are postponed or given lesser shares than the whole blood.618 As to ancestral lands, they are in most cases where the distinction between ancestral and other lands prevails postponed to collaterals of the whole blood.619
Same - Preference of Males im, Collateral Lines.
"The seventh and last rule or canon is that in collateral inheritances male stock shall be preferred to the female (that is, kindred derived from the blood of male ancestors, however remote, shall be admitted before those from the blood of the female, however near), unless where the lands have in fact descended from a female." 620 This rule has not been adopted in the United States. Where, as was seen in discussing the second canon, there is a postponement of the maternal to the paternal kin in the ascending line, the issue of such kin, who are collateral heirs of the intestate, take without any dis tinction between males and females.621