Overturf V. Dugan

29 Ohio State, 230. - 1876. [Reported herein at p. 20.]

March V. Berrier

6 Iredell's Equity (N. C), 524. - 1850.

[Reported herein at p. 70.]

Sherman V. Willett

42 New York, 146. - 1870. [Reported herein at p. 209.]

Bates V. Shraeder

13 Johnson (N. Y.), 260. - 1816. [Reported herein at p. 460.]1

Bates V. Brown

5 Wallace (U. S.), 710. - 1894.

Ejectment. - Wolcott devised his real estate to his wife Eleanor and his daughter Mary Ann, and their heirs and assigns forever. Mary Ann died intestate and without issue in 1832. In 1833 Eleanor conveyed the premises to David Hunter. In 1836 Eleanor remarried and plaintiff is the only issue of that marriage.

1 For the New York Statute of Descents, see R. P. L., §§ 280-296. Titles by curtesy and dower consummate are analogous to titles by descent. - Ed.

Swayne J. - Mary Ann Wolcott, from whom the plaintiff in error claims to have derived his title by inheritance, died nearly four years before his birth. During all the intervening time it is not denied that the title was vested in his mother and her grantee. Such was the effect of the statute. It is clear in its language, and there is no room for controversy upon the subject. Although born after the title became thus vested, he insists that upon his birth it became, to the extent of his claim, divested from the grantee and vested in him. His later birth and relationship to the propositus, he contends, is to be followed by the same results as if he had been living at the time of her death.

It is alleged that the rule of "shifting inheritances" in the English law of descent, is in force in Illinois, and must, govern the decision of this case.

The operation of this rule is thus tersely illustrated in a note by Chitty, in his Blackstone: "As if an estate is given to an only child, who dies, it may descend to an aunt, who may be stripped of it by an after-born uncle, on whom a subsequent sister of the deceased may enter, and who will again be deprived of the estate by the birth of a brother. It seems to be determined that every one has a right to retain the rents and profits which accrued while he was thus legally possessed of the inheritance. Hargrave's Co. Litt. II; Goodtittle v. Newman, 3 Wils. 526." 2 Christ. Bl. Comm. 208, note 9.

Such is undoubtedly the common law of England. Watk. Des. 169. It is said the Ordinance of 1787, which embraced the territory now constituting the State of Illinois, and the acts of the Legislature of that State of the 4th of February, 1819, and of the 3d of March, 1845, are to be considered in this connection.

The ordinance created a court which it declared "shall have common-law jurisdiction," and it guaranteed to the people of the territory "judicial proceedings according to the course of the common law." There is no allusion in it to the common law but these. The two acts of the Legislature contain substantially the same provisions. What is expressed in the second act, and not in the first, is clearly implied in the former. The latter declared that "the common law of England, so far as the same is applicable and of a general nature," ... "shall be the rule of decision, and shall be considered as in full force until repealed by legislative authority." Rev. St. 111. 1845, p. 337. Mary Ann Wolcott died, and the plaintiff in error was born before this act became a law, but it may be properly referred to as containing an exposition of the legis-lative intent in the prior act. Although the former act adopts ''the common law of England "in general terms, it was undoubtedly intended to produce that result only so far as that law was " applicable and of a general nature."

By the common law, actual seisin, or seisin in deed, is indispensable to the inheritable quality of estates. If the ancestor were not seised, however clear his right of property, the heir cannot inherit. According to the canons of descent, hereditaments descend lineally, but can never ascend. This rule is applied so rigidly that it is said "the estate shall rather escheat than violate the laws of gravitation."

The male issue is admitted before the female. When there are two or more males, the eldest only shall inherit, but females altogether.

Lineal descendants, in infinitum, represent their ancestors standing in the same place the ancestor would have stood, if living.

On failure of lineal descendants of the ancestor, the inheritance descends to his collateral relations - being of the blood of the first purchaser - subject to the three preceding rules.

The collateral heir of the intestate must be his collateral kinsman of the whole blood.

In collateral inheritances the male stock is preferred to the female. Kindred of the blood of the male ancestor, however remote, are admitted before those of the blood of the female, however near, unless where the lands have, in fact, descended from a female. Watk. Des. 95.

These principles sprang from the martial genius of the feudal system. When that system lost its vigor, and in effect passed away, they were sustained and cherished by the spirit which controlled the civil polity of the kingdom. The celebrated statute of 12 Car. II., c. 24, which Blackstone pronounces a greater acquisition to private property than Magna Charta, was followed by no change in the canons of descent. The dominant principles in the British constitution have always been monarchical and aristocratic. These canons tend to prevent the diffusion of landed property, and to promote its accumulation in the hands of the few. They thus conserve the splendor of the nobility and the influence of the leading families, and rank and wealth are the bulwarks of the throne. The monarch and the aristocracy give to each other reciprocal support. Power is ever eager to enlarge and perpetuate itself, and the privileged classes cling to these rules of descent with a tenacity characteristic of their importance - as means to the end they are intended to help to subserve.