284. The title to the real property of an intestate descends to certain persons designated by law, called heirs. The acquisition of title by descent is governed by the following rules:
(a) Only estates of inheritance go to the heirs (p. 479).
(b) Posthumous children may inherit (p. 480).
(c) In most states an illegitimate child inherits from its mother and from its father, when acknowledged or legitimized by marriage (p. 480).
(d) Advancements are deducted from the share of the person advanced (p. 481).
(e) By the common law, inheritance is governed by certain canons of descent which are in force in the United States in a more or less modified form (p. 482).
Title by descent is a matter which is regulated in each state by the local statutes, and in no two states are the statutes of descent exactly the same. Titles arising by descent must be examined with reference to the law as it existed at the death of the owner. The statute of the several states governing descent are at the present time subject to such frequent changes that no attempt to give any detail as to the statutes is feasible.575 Title by descent is, like
573 Magaw v. Field, 48 N. Y. 668; Downing v. Marshall, 23 N. Y. 3G6; Schaffer v. Kettell, 14 Allen (Mass.) 528; Yeates v. Gill, 9 B. Mon. (Ky.) 203.
574 Lawrence v. Hebbard, 1 Bradf. Sur. (N. Y.) 252; Goodall v. Mclean, 2 Bradf. Sur. (N. Y.) 306.
575 For an exhaustive discussion of statutes regulating descent, see 1 Dem-bitz, Land. Tit. c. 4.
§ 284) title by devise, governed by the lex loci;576 that Is, the law of the state in which the land is located determines the manner in which it shall descend to the heirs of its intestate owner. These statutes, though they differ in the minor details, are all founded on the English statute of descent, which was taken largely from the civil law. The owner of land may determine to whom it shall pass at his death by means of a will. If, however, he does not make a will, the law determines for him the division of his land among his heirs, or rather it selects those heirs. An ancestor is one from whom land descends, and an heir is one to whom land descends. It may be that an ancestor is really a descendant of the heir, as where a father inherits from a son.577 Persons who take under a will are not heirs.578
What Descends to Heirs.
The word "descent" is applied only to real property. The personal property of one who has died intestate is said to be "distributed." 579 All the estates of inheritance of one who had died intestate descend to his heirs, unless disposed of during his life.580 The heirs, of course, take no rights in life estates held by the ancestor unless they be estates per autre vie, so limited that the heirs take the remainder of such estates.581 We have seen that chattels
576 Darby's Lessee v. Mayer, 10 Wheat. 465; Williams v. Kimball, 35 Fla, 49. 16 South. 783.
577 Prickett's Lessee v. Parker, 3 Ohio St. 394.
578 in re Donahue's Estate, 36 Cal. 329. An heir apparent is one whose right of inheritance is indefeasible, provided he outlives the ancestor; for instance, under rules of primogeniture, the eldest son or his issue, who must be the heir to the father whenever he happens to die. An heir presumptive Is one who, if the ancestor should die immediately, would, under present circumstances, be his heir, but whose right of inheritance may be defeated by the contingency of some nearer heir being born; for example, a brother or nephew, whose presumptive succession may be destroyed by the birth of a child. 2 Bl. Comm. 208. Heirs do not take as purchasers. Godolphin v. Abingdon, 2 Atk. 57.
579 Lincoln v. Perry, 149 Mass. 368, 21 N. E. 671; In re Donahue's Estate, 36 Cal. 329; Swaine v. Burton, 15 Ves. 365. In some states the distinction between descent and distribution no longer exists. See 1 Dembitz, Land Tit. 204.
580 See ante, 34.
581 See ante, p. 67.
480 title. (Ch. 16 real do not descend to the heirs, but go to the personal representa-tives.582 When the land of the decedent is subject to a right of curtesy, dower, or homestead, in states where these are only life interests, the land descends to the heir subject to these rights.583 The heh takes the land subject also to any claims which the creditors of the intestate mav have on it for the satisfaction of their demands.584