This section is from the book "Real Property, An Introductory Explanation Of The Law Relating To Land", by Alfred F Topham. Also available from Amazon: The New Law Of Property.
This chapter deals with the descent of the beneficial interest.
Rules as to descent on intestacy apply only to estates of inheritance, that is to say, estates in fee simple or in tail, which go to the heirs.
An estate tail will only descend if the person to whom it was granted leaves issue (descendants) living at his death.
A fee simple will descend whenever the person entitled dies intestate, provided he leaves any relation, however remote.
The rides of descent of land on intestacy.
It is generally said that there are ten rules of descent; but many of these are already known to the student or are mere common sense. He should therefore concentrate his attention on the more difficult and unexpected rules, and will thus greatly simplify his task. For instance, every student knows that land descends to the eldest son. This statement will be found to contain three rules, namely, rules 2, 3, and 4, see next page.
The first rule determines whose heir is to be found; the student would naturally expect that when a tenant in fee simple dies intestate the search will be for his heir, but by a peculiar rule introduced by the Real Property Inheritance Act, 1833, (a)
(a) 3 & 4 Will. IV. c. 106.
this is not so; but the person whose heir is to be found is the "last purchaser." Thus the first rule is as follows: -
I. Inheritance is traced from the last purchaser, that is the last person who before the death of the tenant in fee simple, acquired the land otherwise than by descent or by partition or exchange. This is usually the tenant in fee simple himself.
Thus, if A buys land in fee simple or acquires it by will, and dies intestate, the land will descend to A's heir.
But if A inherited the land from his mother who died intestate, then the land will go to the heir of the mother.
II. The descendants of the purchaser take before any other relations.
III. Males take before females in the same degree.
IV. The eldest male is preferred to the younger males in the same degree.
E.g. P, the purchaser, has two sons, S1 and S2, and two daughters, D1 and D2, D1 being the eldest of the family. Thus -
The person who takes the land is, of course, S1. But now suppose that S1 is dead. We now come to a most important rule, namely -
V. Issue always represent their ancestor. That is where any person is dead who would have been entitled as heir if he had lived, his descendants (or one of them) always stand in his place.
Thus, if S1 is dead, but left any children or other descendants, one or more of those descendants will take - even though his only descendant is a granddaughter, the child of his deceased daughter, she will take before S2. If, however, S1 is dead without issue, S2 will take; and if he is dead, his issue; and if he has none, then D1 and D2 will share equally. This is Rule VI.
VI. Female heirs of the same degree take equally as "Co-parceners."
"Co-parceners" are in some respects like joint tenants, they have the same unities of interest, title, and possession; but there is no survivorship (a).
If D1 is dead, Rule V. applies, and her issue will be entitled to her half share.
Thus if D1 is dead, leaving one son, and D2 is alive, the son of D1 takes half, and D2 takes the other half.
W (the wife), who appears in the diagram, can never be the heir of P. She may, however, be entitled to dower of one third for her life, and possibly to £500 (see p. 92).
Now suppose that all the issue of P are dead, or that he had none -
VII. If there are no descendants the nearest male paternal ancestor takes.
In other words, you take the nearest male ancestor on the father's side. The nearest, of course, is the father himself: if he is dead, then under Rule V., his children or other issue stand in his place.
These will be the brothers and sisters, and possibly the half-brothers and half-sisters, of the purchaser. If so, the order in which they will take is fixed by the first rule as to the relations of the half blood.
Thus, suppose P has no issue, and his father, F, who is now dead, married a first wife, W1, before he married M (the mother of the purchaser (P); P had four children besides P, a son (1/2 B) and a daughter (1/2 S) by W1, who will be half-brother and half-sister of P and a son (B) and a daughter (S) who will be whole-brother and whole-sister to P.
(a) 2 Blackstone, 188.
F, being dead, his children stand in his place, and since in case of real property, the rule is that the whole blood are more nearly related than the half-blood, B (being a whole brother of P) will take first, and his issue if he is dead; then S; then the issue of S. Then 1/2 B or his issue; then 1/2 S or her issue; i.e. when brothers and sisters have the same father but a different mother, the half-brothers and sisters take after the whole brothers and sisters and their issue. The rule, therefore, is as follows: -
VIII. Relations of the half blood.
(a) When the common ancestor is a male, relations of the half blood take next after the relations of the same degree of the whole blood and their issue.
This rule applies wherever the relationship -arises by reason of a man having married two or more wives, whether that man is a relation on the mother's or the father's side. But it does not apply, where the "common ancestor" is a female, i.e. where the relationship arises by reason of a woman having married two husbands. In that case the rule is -
(b) When the common ancestor is a female, relations of the half blood take next after that female.
This will be explained later (see p. 90).
If the purchaser's father and all the father's issue are dead, yon continue up the male paternal ancestors, taking the father's father and his issue; then the grandfather's father and his issue, and so on as far as possible.