This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
At common law, the real property belonging to decedents passed, in the absence of a valid will,1 to persons standing in a position of blood relationship to them, according to certain established rules or "canons" of descent.- Personal property, on the other hand, including chattels real, passed to the administrator, appointed by the ecclesiastical court from among the intestate's next of kin, who usuahlly, whether rightly or wrongly, appropriated to his own use all the surplus after payment of debts, until by statute it was provided that such surplus should be distributed, in a certain manner, to the widow and children, or, in default of children, to the next of kin.4
In this country, the common-law distinction between real and personal property in this regard is still re1. But a will was valid, except by particular custom, only after the Statute of Wills. See ante, Sec. 406.
2. Litt. Sec.Sec. 2-8; 2 Bl. Comm.
208 et seq.
3. Blackst. Comm. 515; iiohls-worth & Vickera La'w of Suecession. 132. 4. 22 & 23 Car. II. c 10.
Tained in perhaps a majority of states, though in some the executor is empowered, upon receiving authority from the court, to sell real property for the payment of debts.5 In some states the statute provides that real property shall pass to the personal representative, to be administered by him in the same manner as personal property,6 and there is a growing tendency to obliterate the distinctions between the two classes of property as regards the powers of the executor or administrator in redarg thereto. Generally, moreover, in this country, the persons to whom the real property passes upon the death of the owner intestate are approximately the same as those entitled to the personal property when distributed by the personal representative.
The original rule at common law was that the right of succession was determined by relationship to the "first purchaser," as he was termed, meaning thereby the person who in theory, at least, brought the land into the family, but who might as well have been termed the last purchaser, as being the person who last acquired the land otherwise than by descent. In course of time, when land had been in the same family for several generations, it frequently became difficult satisfactorily to identify such purchaser, and the courts came to regard relationship to the person last seised in deed of the land as sufficient for this purpose, on a presumption apparently to the effect that a person related to the person last seised was ordinarily likewise related, in the same line of descent, to the first purchaser.7 And so it is usually said that, at common law,
5. Post, Sec. 552.
6. Woerner, Administration, Sec.Sec. 276, 337; 1 Dembitz, Land Titles, Sec. 28; 11 Am. & Eng. Ene. Law, 1037 et seq.
7. Watkins, Descents (4th ed.) 11, 2 Blackst. Comm. 228, and Chitty's note to same on p. 209; Leake, Prop, in Land, 60.
The common-law rule that seisin in deed makes the root of descent, in connection with the rule that persons of the half blood could not inherit, received what was regarded as its typical exemplification in the following case: If, on the death of a father seised in fee simple, leavSec. 487 Intestate Succession. 1891 the person claiming land by descent must have shown that he was heir to the person who was last actually seised of the land. Nevertheless, if one acquired land by purchase, although he did not acquire the actual seisin. as for instance a devisee who failed to enter, his heir could take by descent to the exclusion of the heir of the person last actually seised.8
The present English statute provides that descent shall always he traced from the last purchaser8a while in this country, in most, if not all, the states, descent is traced from the person last entitled to the land, regardless of whether he was seised, or whether he acquired the land by purchase or by descent.9
At common law, as in England at the present day, the male issue inherits before the female, and, when there are two or more males of equal degree, the elder alone inherits, while females inherit all together. These rules, in so far as they give priority to the male issue, and to the eldest of such issue, have been changed in all the states of this country, and all those in the same degree of relationship, whether male or female, share equally in the inheritance, the legislation in this country having followed in this respect, as it has frequently done in other respects, the provisions of the English statute as to the distribution of personal property.10 ing a son and a daughter by a first marriage, and a son by a second marriage, the elder son, the heir, entered and obtained seisin, and then died without issue, his half brother could not inherit, but the land passed to the sister, while, if he did not enter, the land would pass to the half brother. Hence the maxim, "Possessio fratris de feodo simplici facit sororem esse haer-edem," and the rule that seisin in deed is necessary to make the root of descent was frequently referred to as the doctrine of "possessio fratis." See Litt. Sec. 8; Williams, Seisin, 55; Challis, Real Prop. 241.
8. Watkins, Descents (4th ed.) 29, 32; Hubback, Succession, 114.
8a. 3 & 4 Wm. IV. c. 106, "The Inheritance Act."
9. 4 Kent's Comm.388; Greenleaf's Cruise's Dip:, til. 29, ch. 3; Dembitz, Land Titles, Sec. 30.
10. 4 Kent's Comm. 379; 1 Stimson's Am. St. Law, Sec. 3101. Occasionally a naked legal title
- Reversions and remainders. Since at common law descent was traced either from the person last actually seised, or from the last purchaser, it followed that if a reversion or remainder subject to a particular estate of freehold was cast upon an heir, such heir did not, unless he did acts changing the course of descent, constitute a root of descent, in case of his death while the particular estate was still outstanding, but the person claiming as heir upon his death was required to trace his descent from the original reversioner or remainderman, as being the last purchaser, and it was the person who was the heir of the latter at the time of the termination of the particular estate who was then entitled to possession.11 A like rule applied in the case of an executory devise, that person being entitled who could show himself the hear of the original devisee at the time of the vesting.12