Descent, in law, the transmission of an estate in lands by operation of law, upon the decease of a proprietor, without any disposition thereof having been made by him. The term is derived from a principle existing until very recently in the English law, that an inheritance could never lineally ascend, yet upon failure of lineal descendants it could ascend collaterally. Thus the father could not be the heir of his son, but the uncle could inherit from the nephew. There was therefore an inaptness in the expression even as used in the common law doctrine of inheritance, and still greater incongruity in American law, which allows a lineal ascent from the son to the father. Succession is the more appropriate phrase in the Roman law, and from that adopted in the French and other modern systems. Gibbon has well remarked that the Roman law of hereditary succession "deviated less from the equality of nature than the Jewish, Athenian, or English institutions." The oldest son of a Hebrew inherited a double portion. By the Athenian law the sons inherited jointly, but the daughters were wholly dependent upon what provision their brothers might choose to give them by way of marriage portion.
The English law of primogeniture gives, not a larger portion, but the whole, to the eldest son; and in various other respects which will be presently referred to, the natural order of equity is singularly disregarded in the law of descent. On the other hand, by the Roman law, when a man died intestate, all his children, both sons and daughters, inherited alike; and in case of the decease of either, the descendants of the decedent would take such share as would have belonged to him or her. The distinction of agnates and cognates was indeed introduced at an early period, whereby the descendants of females, who were called cognates, were excluded; but by imperial constitutions they were restored to the right of succession, with a diminution of a third in favor of the agnates, that is, descendants of males, and even this discrimination was abrogated by Justinian. On failure of lineal descendants, the father and mother or other lineal ascendants were admitted. Such was the rule as to lineal succession. In respect to collateral inheritance, by the law of the twelve tables, agnates, whether male or female, were admitted alike, but by the latter law all females of collateral kindred were excluded; the hardship of the rule was in some measure relieved by the praetor, who gave to females thus excluded a share of the personal estate. . Justinian restored the right of succession as it had originally existed.
Descendants of females of the collateral kindred were still, however, left unprovided for. Thus, though a sister could inherit from her brother, yet her children could not; but the reverse of the rule did not hold, for there was no corresponding disability in the brother to inherit from the children of his sister. The rule of collateral succession was that the nearest agnate (or all the agnates of the same degree) took the whole estate. The mode of estimating the degree of consanguinity by the Roman law was to take the entire number of intermediate persons in the ascending and descending scale between the parties whose relationship was in question; thus, first cousins would be related in the fourth degree, being each two removes from the common ancestor. But by the canon law, which has been taken as the basis of the English rule of descent, the consanguinity is measured by the number of degrees between the more remote of the two persons and the common ancestor, which in the case of cousins would be two degrees; and it would be the same between uncle and nephew. The rules of descent by the common law of England are exceedingly artificial, being derived chiefly from the old feudal system, and by usage become fixed, though the reasons that first gave rise to them have long ceased to exist.
The principal of these rules are as follows: 1. The estate descends lineally to the oldest son, to the exclusion of all others; or if he is deceased, then to his descendants, male or female, following the same rule of preference in all respects as prescribed in this and the following rules. 2. In case of the decease of the oldest son without issue, then to the next oldest and his descendants, and so to the last of the males. 3. In case of failure of male issue, then to the daughters, who, contrary to the order prescribed in the preceding rules, do not take successively, but become seized jointly of a peculiar estate called coparceny, each coparcener having an absolute undivided interest, which she may convey, or which on her decease will descend to her heirs. 4. Failing all lineal descendants, the estate does not ascend lineally (that is to say, to the father or grandfather, who by the common law are incapacitated to take directly from the son or grandson, though they may indirectly through collateral heirs), but to the nearest collateral kindred, still following the preference of males to females, and, of the males of the same degree, the oldest having the exclusive right.
Thus the oldest brother and his descendants will take; failing whom, the next brother and his descendants; or in default of brothers, then all the sisters in coparceny; but if there be no brothers or sisters, then the kindred of next degree will succeed, subject to the same rules of preference. 5. In respect to collateral succession, several other rules apply, (a.) The heir must be not only the nearest of kin of the person last seized, but must be of the whole blood, that is to say, must be descended from the same two ancestors, male and female; as, if A and B are brothers having the same father but not the same mother, if an estate descends to A from the father and he dies, B shall not inherit from him, although if A had died before the father B would have been the heir of the father. So far was this exclusion carried by the common law, that a sister of the whole blood would take in preference to a brother of the half blood, and the estate would even escheat rather than it should descend to the latter; and the same rule prevailed in respect to more remote collateral relatives, (b.) It is also necessary, in order to inherit collaterally, to be of the blood of the first purchaser, that is to say, of the person who first acquired the estate; as, if A purchase land and it descends through several generations to B, who dies without issue, no collateral relative of B can take the estate unless he is also of the blood of A, from whom it originally came. (c.) Kindred on the side of male ancestors, however remote, are preferred to kindred descended from females, however near, unless the estate descended from a female, in which case the kindred of such female can alone inherit.
Thus the relatives on the father's side are preferred to the mother's, and on the grandfather's to the grandmother's, and so in all the degrees of ancestry. (d.) In computing degrees of consanguinity, the rule of the canon law is adopted as before mentioned, whereby the relationship to the common ancestor is alone considered. According to this rule, brothers are related in the first degree, cousins in the second; but as this would often make a ditferent degree of relationship between the same parties, according as it was computed from one or the other to the common ancestor, it was found necessary to adopt a further rule, that the consanguinity of each to the other was to be determined by that of the most remote from the common ancestor. Again, there might sometimes be different sets of kindred in the same degree of relationship by referring to different ancestors, as a nephew is in the same degree as an uncle, the common ancestor of the one being the father, of the other the grandfather; in such a case, another rule intervenes, viz.: that the relative representing the nearest ancestor shall take priority, according to which the nephew would inherit before the uncle.
Several important changes have been made in the law of descent by statute 3 and 4 William IV., c. 106 (1S33), the principal of which are: 1. That a lineal ancestor is permitted to inherit, and takes precedence of a collateral heir; thus the father is preferred to the brother or sister.
2. Relatives of the half blood are relieved from disability to inherit, and succeed next after relatives of the same degree of the whole blood.
3. Several provisions are made for the determination of the question who was the purchaser from whom by the rules of common law the descent was to be traced. The person last entitled is to be deemed a purchaser, unless it be shown that he took by inheritance, and so of any preceding ancestor. In the case of a devise by a man to his heir, such heir shall be deemed to have taken by the devise and not by descent, and is to be regarded as a purchaser. When land is purchased under a limitation to the heirs of a particular ancestor, such ancestor is deemed the purchaser. From this summary of the English law of descent, which gives only the general rules without noticing certain exceptions which are said to exist by ancient usage in some places, it is apparent that the basis of the system was a condition of society no longer existing. The theory of seeking for a single male heir to the exclusion of all others belongs to the turbulent period when a military head of a family was needed, and all the other members of the family found shelter in a common mansion, under the protection of an organized domestic force. The perpetuation of the rule, in a period of private immunity from violence, can serve no other purpose than to keep together the estates of great land proprietors.
This may be essential for maintaining the respectability of the titles of nobility, but is inapplicable to all other proprietors; and moreover, personal property, which was comparatively unnoticed by the feudal law, but which has become a large portion of the wealth of the kingdom, is distributed by another rule, conforming to the equitable principle of the civil law. The retention of this part of the old feudal law is therefore mainly attributable to the prejudice in favor of ancient usage which has always been characteristic of the English. - The law of descent in the United States is based upon the English statute (22 and 23 Charles II.) for the distribution of the personal estates of intestates, which statute is substantially in conformity with the civil law. In most of the states real and personal estate descend by the same rule, with the exception only of the interest of the husband and wife respectively, the former of whom may have an estate by curtesy, and the latter in dower. (See Curtesy, and Dower.) The rule of descent in the state of New York, which may be taken as the law of most of the other states, is: 1. Of the lineal descendants of the intestate, an equal portion to all who are of equal degree of consanguinity, whether male or female; but in the case of the decease of any one of them, then his or her descendants take the portion that would have belonged to such deceased party if living; thus, should the intestate leave two children and three grandchildren, descendants of a deceased child, the estate will be divided into three parts, the three grandchildren taking the one third which would have belonged to the parent whom they represent. 2. Upon the failure of lineal descendants, the father of the intestate will inherit, unless the estate came by descent on the part of the mother. 3. If the father is not living, or cannot for the reason above mentioned take the estate, the mother will be entitled to hold it for life, the reversion to belong to the brothers and sisters. 4. If no lineal descendants or father or mother, then the estate will descend to the nearest collateral relatives of equal degree; and the same rule applies as in the case of lineal descendants, that the descendants of a deceased party take the same share that such ancestor would have been entitled to if living.
The rules as to collateral succession are as follows : (a.) Brothers and sisters, or the children of deceased brothers and sisters, are first entitled; but in case no brother or sister is living, but there are descendants of several, then such descendants take equally per capita, and not per stirpes or representation, as would be the case if one of the brothers or sisters were living. (5.) If no brothers or sisters of the intestate nor descendants of deceased brothers or sisters, the next heirs are uncles and aunts, who take equally unless the estate came by descent on the part of one parent, in which case the relatives of that parent have the preference. Lineal and collateral relatives of the half blood take equally with those of the whole blood. In some of the states the brothers and sisters take to the exclusion of the parents, while in others the rules are still more liberal toward the parents than as above stated. - The rules of succession by the French civil code are nearly the same as those prevailing in this country.
The variations are principally these: 1. If there are father and mother (or either of them) and brothers and sisters, the estate is divided into two parts, one of which belongs to the father and mother in equal proportion, the other to the brothers and sisters or descendants of a deceased brother and sister, such descendants taking by representation the share that the child whom they represent would have taken; if either father or mother is deceased, his or her share vests in the brothers and sisters. 2. If there is a father or mother, but no brothers or sisters, the collateral relatives take a half. 3. If there are children of different father or mother, the estate is divided into two parts, the paternal line taking one part and the maternal the other; children of the whole blood take a share in each moiety.