Title by Descent

WE have already considered the nature of real property, the different quantities of interest which may be had in it, the conditions on which it is held, and the character and variety of joint ownerships in land. I now proceed to treat of title to real property, and of the several ways in which that title may be acquired and transferred.

To constitute a perfect title there must be the union of actual possession, the right of possession, and the right of property.¹ These several constituent parts of title may be divided and distributed among several persons; so that one of them may have the possession, another the right. of possession, and the third the right of property. Unless they all be united in one and the same party, there cannot be that consolidated right, that jus duplicatum, or droit droit, or the jus proprietalis et possessionis, which, according to the ancient English law, formed a complete title.²

All the modes of acquiring title to land, are reducible to title by descent, and by purchase. The one is acquired by operation of law, and the other by the act or agreement of the parties. Whether the agreement be founded upon a valuable consideration, or be the result of a free and voluntary gift, the property thereby acquired is still, in the eye of the law, a purchase.³ I shall treat of each of these sources of title in their order; but it will be the object of the present lecture to examine the doctrine of descents, which has always formed a prominent and very interesting title in every code of civil jurisprudence.

Descent, or hereditary succession, is the title whereby a person, on the death of his ancestor, acquires his estate by right of representation as his heir. The English law of descents is governed by a number of rules, or canons of inheritance, which have been established for ages, and have regulated the transmission of the estate from the ancestor to the heir, in so clear and decided a manner, as to preclude all uncertainty as to the course which the descent is to take. But, in these United States, the English common law of descents, in its most essential features, has been universally rejected, and each state has established a law of descents for itself. The laws of the individual states may agree in their great outlines, but they differ exceedingly in the details. There is no uniformity on this subject, and, according to the observation of a great master of this title in American law,⁴ C this nation may be said to have no general law of descents, which probably has not fallen to the lot of any other civilized country.” I shall not attempt to define and explain all the variations and shades of difference between the regulations of descent in the different states. This has been already done to our hand, with great fulness of illustration, in the work of Chief Justice Reeve, to which I have alluded, and it will be sufficient for the purpose of the present essay, to state those leading principles of the law of descent in these United States, which are of the most general application.

(1.) The first rule of inheritance is, that if a person owning real estate, dies seized, or as owner, without devising the same, the estate shall descend to his lawful descendants in the direct line of lineal descent; and if there be but one person, then to him or her alone, and if more than one person, and all of equal degree of consanguinity to the ancestor, then the inheritance shall descend to the several persons as tenants in common in equal parts, however remote from the intestate, the common degree of consanguinity may be.

This rule is in favor of the equal claims of the descending line, in the same degree, without distinction of sex, and to the exclusion of all other claimants, Thus, if A. dies owning real estate, and leaves, for instance, two sons and a daughter, or, instead of children, leaves only two or more grandchildren, or two or more great grandchildren, these persons being his lineal descendants, and all of equal degree of consanguinity to the common ancestor, that is, being all of them, either his children, or grandchildren, or great grandchildren, they will partake equally of the inheritance as tenants in common. This rule of descent was prescribed by the statute of New York of the 23d of February, 1786, and it has been adopted by the New York Revised Statutes.⁵ It prevails in all the United States, with this variation, that in Vermont the male descendants take double the share of females; and, in South Carolina, the widow takes one third of the estate in fee, and in Georgia she takes a child’s share in fee, if there be any children, and if none, she then takes, in each of those states, a moiety of the estate, In North and South Carolina, the claimants take, in all cases, per stirpes, though standing in the same degree.⁶

The transmission of property by hereditary descent, from the parent to his children, is the dictate of the natural affections, and Doctor Taylor holds it to be the general direction of Providence. It encourages paternal improvements, cherishes filial loyalty, cements domestic society, and nature and policy have equally concurred to introduce and maintain this primary rule of inheritance, in the laws and usages of all civilized nations. But the distribution among the children has varied greatly in different countries, and no two nations seem to have agreed in the same precise course of hereditary descent, and they have very rarely concurred, as we have done, in establishing the natural equality that seems to belong to lineal descendants standing in equal degree. A good deal of importance was attached to the claims of primogeniture in the patriarchal ages, and the first born son was the earliest companion of his father, and the natural substitute for the want of a paternal guardian to the younger children. The Jews gave the eldest son a double portion, and excluded the daughters entirely from the inheritance, so long as there were sons, and descendants of sons; and when the inheritance went to the daughters in equal portions, in default of sons, they were obliged to marry in the family of their father’s tribe, in order to keep the inheritance within it.⁷ In the Gentoo code, all the sons were admitted, with an extra portion to the eldest, under certain circumstances, and no attention was paid to the daughters, according to the usual and barbarous policy of the Asiatics.⁸ The institutions of the Arabs also excluded females from the right of succession; but Mahomed abolished this law, and ordained that females should have a determined part of what their parents and kinsmen left, allowing a double portion to the males.⁹ The law of succession at Athens, resembled, in some respects, that of the Jews, but the male issue took equally, and were preferred to females; and if there were no sons, then the estate went to the husbands of the daughters.¹⁰ Nothing can be conceived more cruel, says Sir William Jones,¹¹ than the state of vassalage in which women were kept by the polished Athenians. The husband who took the estate from the wife, might bequeath the wife herself, like part of his estate, to any man whom he chose for his successor. At Rome the law of succession underwent frequent vicissitudes. The law of the twelve tables admitted equally male and female children to the succession.¹² The middle jurisprudence under the praetors departed from this simplicity, and fettered the inheritance of females. The Voconian law declared women incapable of inheriting; but, in the time of Cicero, the praetors extended or restrained the Viconian law at pleasure. It was gradually relaxed under the Emperors Claudius, and Marcus Antoninus,¹³ until, at last, the Emperor Justinian, in his 118th novel, destroyed all preference among the males, and all distinction between the sexes in respect to the law of descent, and admitted males and females to an equality in the right of succession, and preferred lineal descendants to collateral relations.¹⁴ The regulations of the novel bore a striking, though not an entirely exact resemblance, to the first rule of inheritance prevailing in our American law.

The rule in this country, with the exceptions which have been stated, admits the lineal descendants to an equal portion of the inheritance, if they all stand in equal degree to the common ancestor. The law of Justinian adhered strictly to the doctrine of representation, and gave to the grandchildren, and other remoter descendants, though all the claimants were standing in equal degrees, the portion only that their parent would have taken, if living. This was adhering, in all cases, to the doctrine of representation per stirpes, and the states of North and South Carolina have followed, in this respect, the rule of the civil law. Thus, if A. dies leaving three grandchildren, two of them by B., a son, who is dead, and one of them by C., a daughter, who is dead, these three grandchildren, standing all in equal degree of consanguinity to the ancestor, would take equally under the above rule. But, by the novel of Justinian, they would take only their father’s share, and, consequently, one grandchild would take half the estate, and the other two grandchildren the other half.

The Roman law had some singular provisions on the subject of descent, which have insinuated themselves into the law of successions of the continental nations of Europe. The term heir, in the civil law, applied equally to him who took by will, and by descent. It held, by a strange fiction in the law, that the heir was the same person as the ancestor, eadem persona cum defuncto. The estate, instead of being changed by the descent, was deemed to continue in the heir, who succeeded to the person, and place, and estate of the ancestor, and to all his rights and obligations. The heir is, therefore, under the civil law, said to represent the moral person of the intestate.¹⁵ His substitution to the ancestor was a kind of continual succession, similar to that which we apply to a corporation. The creditor could come upon the heir, not only to the extent of the assets, but to all the other property of the heir. To relieve himself from the oppression of the charge of responsibility for all the debts of the ancestor, whether he had or had not assets, the heir was not bound to assume the place of heir if he had not intermeddled with the estate, and the praetor allowed him a certain time to deliberate whether he would accept or renounce the inheritance.¹⁶ There was no fixed and invariable justice in the civil law, relative to the heir, until Justinian allowed him to protect himself from responsibility beyond the assets descended, by giving him the benefit of an inventory. As some compensation for these onerous duties thrown upon the heir, the ancestor could not disinherit him as to one fourth of the estate, and that part of it was called the falcidian portion.¹⁷

The French law of descent has followed the novel of Justinian, and the obligations, and the privileges of the heir, are the same as in the Roman law. The law of equal partition is of revolutionary growth, and it has been in operation in France near forty years. If the heir accepts the succession purely and simply, he assumes all the obligations of the ancestor, but if he accepts under the benefit of an inventory, he is chargeable only with the ancestral debts to the extent of the assets.¹⁸ The law of Holland is equally borrowed from the civil law, in respect to the equality of descent among the descendants, and in respect to the character and duties, the privileges and obligations of the heir.¹⁹ The equal partition which prevailed in the Roman law among all the children, prevails also in the law of Scotland in the succession of moveables, but the feudal policy of primogeniture has been introduced as to land. The heir is the exclusive successor to the land, and the other nearest of kin the exclusive successors to the moveables. A great privilege is, however, conferred upon the heir at law of an intestate estate, of allowing him to throw the heritable estate into a common stock with the moveables, and to demand, as one of the next of kin, his share, on an equal partition of the joint real and moveable estate with his brothers and sisters. This is termed his right to collate the succession.²⁰ In Spain, lands are equally distributed among the children of the deceased proprietor, excepting the cases in which they are fettered by an entail. As this is uniformly the case with the possessions of the grandees, and as the lands of the clergy are unalienable, the law of equal partition is comparatively of very little consequence.

The preference of males to females, and the right of primogeniture among the males, is the established and ancient rule of descent in the English common law.²¹ The right of primogeniture was derived from the martial policy of the feudal system, after it had attained its solidity and maturity. It is supposed to have been unknown, or not in use, among the ancient Germans, or the Anglo-Saxons, prior to the Norman conquest. They admitted all the sons equally to the inheritance; but the weight of authority is, that females were most generally excluded, even in the primitive ages of the feudal law.²² When the feudal system became firmly established, it was an important object to preserve the feud entire, and the feudal services undivided, and to keep up a succession of tenants who were competent, by their age and sex, to render the military services annexed to their grants. The eldest son was the one that first became able to perform the duties of the tenure, and he was, consequently, preferred in the order of succession. Females were totally excluded, not only from their inability to perform the feudal engagements, but because they might, by marriage, transfer the possession of the feud to strangers and enemies.²³

But these common law doctrines of descent are considered to be incompatible with that equality of right, and that universal participation in civil privileges, which it is the constitutional policy of this country to preserve and inculcate. The reasons which led to the introduction of the law of primogeniture, and preference of males, ceased to operate, upon the decline and fall of the feudal system, and those stern features of aristocracy are now vindicated by English statesmen upon totally different principles. They are not only deemed essential to the stability of the hereditary orders, but they are zealously defended in all economical point of view, as being favorable to the agriculture, wealth, and prosperity of the nation, by preventing the evils of an interminable subdivision of landed estates. It is contended, that the breaking up of farms into small parcels, and the gradual subdivision of these parcels into smaller, and still smaller patches, on the descent to every succeeding generation, introduces a redundant and starving population, destitute alike of the means, and of the enterprise requisite to better their condition. The appeal is boldly and constantly made to the wretched condition of the agriculture, and agricultural improvement of France, and particularly of the province of Normandy, under the action of the new system of equal partition. It is declared to be an enemy to all enterprising and permanent improvements in the cultivation of the soil, and employment of machinery; to all social comfort and independence, as well as to the costly erections of art, and embellishments of taste.²⁴ On the other hand, Dr. Smith, the author of the Wealth of Nations, severely condemns the policy of primogeniture, as being contrary to the real interest of a numerous family, though very fit to support the pride of family distinctions.²⁵ The Marquis Gamier, the French translator of that work, is also a decided advocate for the justice and policy of the principle of equal partition; and the Baron De Stael Holstein is of the same opinion, even in an economical point of view. He considers the equal division of estates much more favorable to the wealth and happiness of society, than the opposite system.²⁶

There are very great evils, undoubtedly, in the subdivision of estates, when it is carried to extremes, and property divided into portions not large enough for the comfortable support of a family. The policy of the measure will depend upon circumstances, and is to be considered in reference to the state of society, the genius of the government, the character of the people, the amount of cultivated land, the extent of territory, and the means and the inducements to emigrate from one part of the country to another. Without undertaking to form an opinion as to the policy of primogeniture under the monarchical governments, and crowded population of England, Ireland, and France, it would be very unfounded to suppose that the evils of the equal partition of estates have been seriously felt in these United States, or that they have borne any proportion to the great advantages of the policy, or that such evils are to be anticipated for generations to come. The extraordinary extent of our unsettled territories, the abundance of uncultivated land in the market, and the constant stream of emigration from the Atlantic to the interior states, operates sufficiently to keep paternal inheritances unbroken. The tendency of these causes, as experience in some of the eastern states would seem to confirm, is rather to enlarge than to abridge them; and if the inheritance will not bear partition without injury to the parties in interest, the eldest heir, in some of the states, is judiciously allowed to elect to take the whole estate to himself, on paying to the other heirs an equivalent for their shares in money.²⁷

By the common law, the ancestor from whom the inheritance was taken by descent, must have had actual seizin of the lands, either by his own entry, or by the possession of his or his ancestor’s lessee for years, or by being in the receipt of rent from the lessee of the freehold. The heir, to have entitled him to take in that character, must have shown himself to be the nearest male heir of the whole blood, to the person who was last actually seized of the freehold. This maxim of the law of England has subsisted from the earliest ages, and appears in Bracton, Britton, and Fleta. It is this seizin which makes a person the root or stock, from which all future inheritance by right of blood is derived. The maxim of the common law was, that non jus sed seizina facit stipitem. If, therefore, the heir on whom the inheritance had been cast. by descent, dies before he has acquired the requisite seizin, his ancestor, and not himself, becomes the person last seized of the inheritance, and to whom the claimants must make themselves heirs.²⁸ The rule was derived from the doctrine of the feudal law, which required, that whoever claimed by descent should make himself to be the heir of the first purchaser; and the seizin of the last possessor from whom he claimed as his heir of the whole blood, was considered as presumptive evidence of his being of the blood of the first purchaser. It supplied the difficulty of investigating a descent from a distant stock, through a line of succession, become dim by the lapse of ages.²⁹

There are reasonable qualifications in the English law to the universality of this rule. If the ancestor acquired the estate by purchase, he might, in some cases, transmit it to his heirs without having had actual seizin; or if, upon an exchange of lands, one party had entered, and the other had not, and died before entry, his. heir would still take by descent, for he could not take in any other capacity.³⁰ It is likewise the rule in equity, that if a person be entitled to a real estate by contract, and dies before it be conveyed, his equitable title descends to his heir.³¹ The possession of a tenant for years is the possession of the person entitled to the freehold;³² and the seizin or possession of one parcener, or tenant in common, is the seizin and possession of the other. So, also, the possession of a guardian in socage, is. the possession of his infant ward, and sufficient to constitute the technical possessio fratris, and transmit the inheritance to the sister of the whole blood.³³

If the estate be out on a freehold lease when the father dies, then there is not such a possession in the son as to create the possessio fratris. The tenancy for life in a third person suspends the descent, unless the son enters in his lifetime, or receives rent after the expiration of the life estate. It is a well settled rule of the common law, that if the person owning the remainder, or reversion expectant upon the determination of a freehold estate, dies during the continuance of the particular estate, the remainder or reversion does not descend to his heir, because he never had a seizin to render him the stock, or terminus of an inheritance. The intervention of the estate of freehold between the possession and the absolute fee, prevents the owner of the fee from becoming the stock of inheritance, if he dies during the continuance of the life estate. The estate will descend to the person who is heir to him who created the freehold estate, provided the remainder or reversion descend from him; or if the expectant estate had been purchased, then he must make himself heir to the first purchaser of such remainder or reversion at the time when it comes into possession. He takes the inheritance, though he may be a stranger to all the mesne reversioners and remainder-men, through whom the inheritance had devolved.³⁴ This severe rule of the common law is so strictly enforced, that it will, in some cases, admit the half, to the exclusion of the whole blood.³⁵ Should the person entitled in remainder or reversion, exercise an act of ownership over it, as by conveying it for his own life, it would be an alteration of the estate sufficient to create in him a new stock, or root of inheritance. It would be deemed equal to an entry upon a descent.³⁶

The rule of the common law existed in New York under the statute of descents of 1786, and the heir was to deduce his title from the person dying seized. It has been repeatedly held in this state, that during the existence of a life estate, the heir on whom the reversion or remainder was cast, subject to the life estate, was not so seized as to constitute him the possessio fratris, or stirps of descent, if he died pending the life estate; and the person claiming as heir must claim from a previous ancestor last actually seized.³⁷ But the New York Revised Statutes³⁸ have wisely altered the pre-existing law on this subject; and they have extended the title by descent generally to all the real estate owned by the ancestor at his death, and they include in the descent every interest and right, legal and equitable, in lands, tenements, and hereditaments, either seized or possessed by the intestate, or to which he was in any manner entitled, with the exception of leases for years, and estates for the life of another person. This completely abolishes the English maxim that seizina facit stipitem. So, likewise, in Massachusetts, Rhode Island, Connecticut, NewJersey, Pennsylvania, Delaware, Virginia, South Carolina, Georgia, and Ohio, and probably in other states, the real and personal estates of intestates are distributed among the heirs, without any reference or regard to the actual seizin of the ancestor. Reversions and remainders vested by descent in an intestate, pass to his heirs in like manner as if he had been seized in possession, and no distinction is admitted in descents between estates in possession, and in reversion.³⁹ In the states of Vermont, New Hampshire, Maryland, and North Carolina, the doctrine of the possessio fratris would seem still to exist.⁴⁰

Though posthumous descendants inherit equally as if they had been born in the lifetime of the intestate, and had survived him, yet the inheritance descends, in the mean time, to the heir in esse, at the death of the intestate. It was declared, by Lord Ch. J. De Grey, in the case of Goodtitle v. Newman,⁴¹ on the authority of a case in the Year Books of 9 Hen. VI. 25. a. that the posthumous heir was not entitled to the profits of the estate before his birth, because the entry of the presumptive heir was lawful. This rule does not apply to posthumous children who take remainders under the statute of 10 and 11 Wm. III. They must take the intermediate profits, says Lord Hardwicke, for they are to take in the same manner as if born in the lifetime of the father.⁴² This construction of Lord Hardwicke applies to the New York Revised Statutes, for it is declared that posthumous descendants shall, in all, cases, inherit in the same manner as if born in the lifetime of the intestate. The provision in the laws of some of the other states, such as Rhode Island, New Jersey, Pennsylvania, and Missouri, would seem to be to the same effect, and admit of the same construction.⁴³

2. The second rule of descent is, that if a person dying seized, or as owner of land, leaves lawful issue of different degrees of consanguinity, the inheritance shall descend to the children and grandchildren of the ancestor, if any be living, and to the issue of such children or grandchildren as shall be dead, and so on to the remotest degree, as tenants in common. But such grandchildren, and their descendants, shall inherit only such share as their parents respectively would have inherited if living.

The rule is thus declared in the New York Revised Statutes, and it probably is to be found in the laws of every state in the Union.⁴⁴ The rule applies to every case where the descendants of the intestate, entitled to share in the inheritance, shall be of unequal degrees of consanguinity to the intestate. Those who are in the nearest degree take the shares which would have descended to them, had the descendants in the same degree, who are dead, leaving issue, been living; and the issue of the descendants who are dead, respectively take the shares which their parents, if living, would have received. It way be illustrated by the following example: A. dies seized of land, and leaves B., a son, living, and D. and E., two grandsons of C., a son who is dead. Here B., the son, and D. and E., the two grandsons, stand in different degrees of consanguinity, and B. will, therefore, under this second rule, be entitled to one half of the estate, and D. and E. to the other half, as tenants in common. Or suppose A. should leave not only B., a son, living, and D. and E., two grandsons by C., who is dead, but also F. and G., two great grandsons by )L, a daughter of C., who is also dead. Here would be descendants living in three different degrees of consanguinity, via. a son, two grandsons; and two great grandsons. The consequence would be, that B., the son, would take one half of the estate, DA and E., the grandsons, would take two thirds of the other half, and F. and G., the great grandsons, would take the remaining third of one half, and all would possess as tenants in common. Had they all been in equal degree, that is, had all of them been either sons, grandsons, or great grandsons, they would, under the first rule, have inherited the estate in equal portions, which is termed inheriting per capita. So that, when heirs are all in equal degree, they inherit per capita, or equal portions, and when they are in different degrees, they inherit per stirpes, or such portion only as their immediate ancestor would have inherited if living. Inheritance per stirpes is, therefore, admitted, when representation becomes necessary to prevent the exclusion of persons in a remoter degree; as, for instance, when there is left a son, and children of a deceased son, and a brother, and children of a deceased brother. But, when they are in equal degree, as all, for instance, being grandsons, representation is not necessary, and would occasion an unequal distribution of the estate, and they, accordingly, inherit per capita. This is the rule which prevails throughout the United States, with the exception; already noticed, of South Carolina; and it agrees with the general rule of law in the distribution of personal property.⁴⁵ The law of descent, in respect to real and personal property, bear, in this respect, a striking resemblance to the civil law, as contained in the 118th novel of the Emperor Justinian.⁴⁶

The rule of inheritance per stirpes, is rigidly adhered to in the English law of descent of real estates. Parceners, in one single instance, do inherit per capita, but this is where the claimants stand, not only in equal degree, but are entitled in their own right, as daughters or sisters of the common ancestor. They never take per capita, when they claim the land jure representationis, and, therefore, if a man has two daughters, and they both die in his lifetime, the eldest leaving three, and the youngest one daughter, these four granddaughters, although in equal degree, yet claiming by right of representation, they inherit per stirpes, and the one of them takes as large n portion as the other three.⁴⁷ The civil law, in this, as well as in other cases, respecting the succession to the property of intestates, went upon more equitable principles, but still it went not to the extent that our law has proceeded. Like the English law, it rigidly adhered to the doctrine of inheritance per stirpes, that is, representation took place in infinitum in the right line descending, but, with respect to collaterals, it permitted it, as we have done, only when necessary to prevent the exclusion of claimants in a remoter degree.⁴⁸ Thus, for example, by the civil law, as well as by our American law of descents, and of distributions, a brother and a nephew took per stirpes, but nephews alone took per capita.

3. A third canon of inheritance, which prevails to a considerable extent in this country, is, that if the owner of lands dies without lawful descendants, leaving parents, the inheritance shall ascend to them, either first to the father, and next to the mother, or jointly, under certain qualifications.

(1.) Of the father.

The estate goes to the father in such a ease, unless it came to the intestate on the part of the mother, and then it passes to her, or to the maternal kindred; and this is according to the rule in the states of Maine, New Hampshire, Vermont,⁴⁹ Massachusetts, New York,⁵⁰ Indiana, Kentucky, and Virginia. In Georgia, the widow of the intestate takes a moiety if there be no children, and the other moiety, or the whole, if there be no widow, goes to the father, but only as one of the next of kin with the brothers and sisters, for the statute makes them equal of kin for the purpose of inheritance. In Maryland, if the estate was acquired by descent, it goes to the parent or kindred in the paternal or maternal line from which it descended. If otherwise, it goes to the father only in default of issue, and of brothers and sisters of the whole, and of the half blood. In the states of Rhode Island, Illinois, and Louisiana, the father and mother succeed equally as next of kin to the estate of the child dying intestate, and without issue. In Pennsylvania, the father takes for life only, if there be brothers and sisters of the deceased, and if none, then he takes a fee. In Missouri, the parents take equally with the brothers and sisters of the intestate. In South Carolina, in default of issue, or widow, (who takes a third, or moiety of the estate, as the case may be,) the father takes the estate in conjunction with the brothers and sisters. In Connecticut, New Jersey, Ohio, Tennessee, and Alabama, the father takes only in default of the brothers and sisters. In Delaware, the parents are postponed to the brothers and sisters, and their descendants; and in default of brothers and sisters, the estate is distributed equally “to every of the next of kindred of the intestate, who are in equal degree.” I do not know what construction has been given to the statute on this subject in Delaware, but the next of kindred to the intestate, I presume, must be the parents, if living. They are nearer of kin than brothers and sisters, but the statute having given brothers and sisters the preference, and then, in default of them, to the next of kindred to the intestate, it would seem, that the claim of the parents as next of kin reassumes its force, and that both father and mother jointly must be entitled to the inheritance. In North Carolina, the parents take for life only in default of issue, and of brothers and sisters.⁵¹

The admission of the father to the inheritance of his children dying intestate, and without lineal descendants, is an innovation, and a very great improvement upon the English common law doctrine of descents. The total exclusion of parents, and all lineal ancestors, in such a case, is said to be peculiar to the English laws, and to those of other nations which have been deduced from the feudal policy. Sir Martin Wright has labored to vindicate the English rule on the feudal theory, by a train of artificial and technical reasoning, which has no manner of foundation in the principles of justice. So far as the feud was presumed to be antigtium ala pagers, it was deemed to have passed already through the father, and, therefore, he could not succeed. It would be repugnant to the fiction, and the rights of the father, as it seems, must be sacrificed to sustain it. The heir was also bound to show himself entitled by a regular course of descent from the first feudatory or purchaser, and the best evidence of that which the case afforded, was to prove that he was heir of the whole blood to the person last seized.⁵² The very artificial nature, and absurd results of the English rule, are strikingly illustrated by the well known case stated by Littleton,⁵³ that though the father never can be heir to his son, for the inheritance never can ascend, and the uncle, or father’s brother, though in a remoter degree, will have the preference; yet, if the uncle should die intestate without issue, the father, as heir to the uncle, may succeed to the inheritance of his son; for, says Littleton, he comes to the land by collateral descent, and not by lineal ascent. So, it has been held, that if either parent stood in the relation of cousin to the son, they would inherit in that character, though not as father or mother.⁵⁴

By the Jewish law, on failure of issue, the father succeeded to the son,⁵⁵ And by the Roman law, on failure of lineal descendants, the parents, or lineal ascendants, succeeded, in conjunction with the brothers and sisters of the intestate, to his inheritance.⁵⁶ It was, however, a fixed principle in the civil law, that collaterals could never exclude ascendants, even in the remotest degree; and no collaterals, beyond brothers’ and sisters’ children, could share, in any degree, the estate with ascendants.⁵⁷ But the succession of parents, in the ascending line, was regarded, by the civil. Jaw, as a luctuosa haereditas, or tristis successio, and the natural order of mortality was held to be disturbed.⁵⁸

The Napoleon code,⁵⁹ in imitation of the rule in the civil law, gives to the parents of a child dying without issue a moiety of his estate, and to the brothers and sisters the other moiety. Touillier⁶⁰ justifies the ascent of the inheritance to parents in default of issue, as being laid on the foundations of natural law equally with lineal descent; and he severely arraigns, as unjust and dangerous, the theory of Montesquieu,⁶¹ who refers the whole right of succession in the descending, as well as in the ascending line, solely and exclusively to positive institution. Montesquieu is not singular, for Arch Deacon Paley refers the right of succession entirely to the law of the land.⁶² The elder text writers on public law, have generally placed the claim of children to the inheritance of their parents on the law of nature, and the claim of parents to the child’s estate on failure of issue, as partaking of the same reason, though in an inferior degree. But Grotius admits, that the law of succession, in its modifications, has exceedingly varied in different countries and ages, and that the law of nature is not of precise and absolute obligation on this subject.⁶³

(2.) Of the mother.

If the inheritance came to the intestate on the part of the mother, though his father survive him, or if he does not survive him, and the mother survives, and there be a brother or sister, or their descendants, the mother takes an estate for life only, and if there be no brother or sister, or their issue, or father, she takes the inheritance in fee.

This is the rule in New York,⁶⁴ and it is the rule also in Pennsylvania,⁶⁵ but it cannot be said to be a general rule in this country. In New Jersey the mother is wholly excluded from the inheritance, and in North Carolina she takes with the father, or as survivor, an estate for life only in default of issue, and in default of brothers and sisters. She takes no other estate in Tennessee, nor even that estate, unless in default of a father. On the other hand, in Rhode Island, Illinois, and Louisiana, she is received on the most favorable terms, and, in default of issue, she takes the inheritance with the father, as next of kin, in preference to the brothers and sisters. In Georgia, the widow of the intestate takes a child’s share of the estate, and if no issue, then she takes a moiety. If no widow, issue, or father, the mother takes an equal share, as one of the next of kin, with the brothers and sisters. The mother, in Vermont, takes equally with the sisters of the intestate, and a sister’s portion is only half as much as a brother’s portion. On default of issue, and widow, (for she takes half of the estate,) and father, and brothers, and sisters, the mother takes the whole estate as next of kin. The law in Maine, and New Hampshire, is nearly similar, but with this variation, that the mother takes equally with the brothers and sisters, and they all take alike, and the widow of the intestate is confined to her common law dower. In Massachusetts, Connecticut, Ohio, Delaware, Maryland, Alabama, and Mississippi, the mother takes the inheritance in default of issue, and of brothers, and sisters, and father. But if there be brothers and sisters, then, by the laws of Massachusetts, Indiana, Virginia, Kentucky, and South Carolina, in default of issue, and father, the mother shares equally with the brothers and sisters.; ands in Missouri, she shares equally with them; and the father, though he be living; and; in Connecticut, she shares equally with the father.

In the ancient Attic laws of succession, the inheritance of an intestate without issue, went to the collateral, kindred on the father’s side, with a uniform preference of males; and it did not descend to the kindred on the mother’s side, until the relations in the paternal line, to the degree of second cousins, had failed. The mother, at Athens, as well as at Jerusalem, was excluded from the inheritance of her son. This appears from the speech of Isaeus on the estate of Hagnias. The exclusion was even broader, for the whole of the collateral, as well as the lineal ascendants, were excluded at Athens from the succession. Among the Jews, in default of issue, the father succeeded to the purchased estate of the son, excluding the brother.⁶⁶ The decemviral law at Rome, and which seems, in this instance, says Sir William Jones, to have been borrowed from that of Solon, excluded mothers from the right of succession to their children. This rigor was sometimes mitigated by the lenity of the praetors. Relief was promoted by the Senatus consultum Tertullianum, in the time of Hadrian; and completed, with some restrictions, by the Justinianean code.⁶⁷

The great diversity of opinion and policy among different nations, as to the succession of parents, and which appears so strongly in our American codes, is very strikingly illustrated in the jurisprudence of Holland. In South Holland, the inheritance, in default of issue, ascends to the parents in case they are both alive. But if only one of them survives, (and it is immaterial which of them,) the survivor is wholly excluded, because there is a separation of the bed. On the other hand, in North Holland, the surviving parent divides the estate with the brothers and sisters of the deceased, whether they be of the full or half blood, and if there be no brother or sister, the surviving parent takes the whole.⁶⁸

4. If the intestate dies without issue, or parents, the estate goes to his brothers and sisters, and their representatives. If there be several such relatives, and all of equal degree of consanguinity to the intestate, the inheritance descends to them in equal parts, however remote from the intestate the common degree of consanguinity may be. If they all be brothers and sisters, or nephews and nieces, they inherit equally, but if some be dead leaving issue, and others living, then those who are living take the share they would have taken if all had been living, and the descendants of those who are dead inherit only the share which their parents would have received if living. The rule applies to other direct lineal descendants of brothers and sisters, and the taking per capita when they stand in equal degree, and taking per stirpes when they stand in different degrees of consanguinity to the common ancestor, prevails as to such descendants to the remotest degree.

The succession of collaterals, in default of. lineal heirs in the descending and ascending lines, has existed among all nations who had any pretensions to civility and science, though under different modifications, and with diversified extent. In this fourth rule, the ascending line, after parents, is postponed to the collateral line of brothers and sisters. The rule I have stated is declared by the New York Revised Statutes,⁶⁹ and it is universally the rule, with the exception in Louisiana, that brothers and sisters are preferred, in the order of succession, to grandparents, though the latter stand in an equal degree of kindred. This is by analogy to the rule of distribution of the personal estate of intestates, as settled in the civil, and in the English law.⁷⁰ But there are very considerable differences in the laws of the several states, when the next of kin, in this collateral line, are nephews and nieces, and the claims of uncles and aunts to share with them are interposed. The direct lineal line of descendants from brothers and sisters, however remote they may be, take exclusively under the rule in New York, so long as any of that line exist; but this is not the case in many of the United States, and the rule is, therefore, to be received with this qualification, that in most of the states, nephews and nieces, and their descendants, take as there stated, but they do not take exclusively. Uncles and aunts take equally with nephews and nieces, as being of equal kin, in the states of New Hampshire, Vermont, (though in that state the claim of the males to double portions is preserved,) Rhode-Island, North Carolina, and Louisiana. But nephews and nieces take in exclusion of them, though they be all of equal consanguinity to the intestate, in the states of Maine, Massachusetts, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Ohio, Indiana, Illinois, Missouri, Kentucky, Virginia, Tennessee, South Carolina, Georgia, Alabama, and Mississippi. I draw this conclusion, because the inheritance appears to be given, in those states, to the brothers and sisters, and their descendants or children, before recurrence is had to a distinct branch of the grandparent’s stock. The principle on which the rule is declared to be founded, in the laws of Maine and Massachusetts, is, that collateral kindred, claiming through the nearest ancestor; are to be preferred to the collateral kindred claiming through a common ancestor more remote. The claim of the nephew is through the intestate’s father, and of the uncle, through the intestate’s grandfather.

In several of the states, as in New Hampshire, Vermont, Rhode Island, Connecticut, Ohio, Maryland, Georgia, Alabama, and Mississippi, there is no representation among collaterals, after brothers’ and sisters’ children, nor in Delaware, after brothers’ and sisters’ grandchildren. In some of the states, as in New Jersey, there does not appear to be any positive provision for the case; and in Louisiana, the ascending line must be exhausted, before the estate will pass over to the collateral line. In North Carolina, the claimants take, per stirpes, in every case, even though the claimants all stand in equal degree of consanguinity to the common ancestor.

The distinction between the claims of the whole and of the half blood, becomes of constant application in cases of collateral succession; and there is a wide difference in the laws of the several states in relation to that distinction. The half blood is entirely excluded by the English law,,on the very artificial rule of evidence, that the person who is of the whole blood to the person last seized, affords the best presumptive proof that he is of the blood of the first feudatory or purchaser.⁷¹ Our American law of descent would seem to be founded on more reasonable principles. The English rule of evidence maybe well fitted to the case to which it is applied; but the necessity or policy of searching out the first purchaser is to be questioned, so long as the last owner of the estate, and the proximity of blood to him, are ascertained. In Maine, New Hampshire, Vermont, Massachusetts, Rhode Island,⁷² New York, Illinois,⁷³ North Carolina,⁷⁴ Tennessee, and Georgia, there seems to be no distinction left between the whole and the half blood. They are equally of the blood of the intestate. But in the states of Connecticut, New Jersey, Pennsylvania, Delaware, Ohio, Indiana, Maryland,⁷⁵ Virginia, Kentucky, South Carolina, Alabama, and Louisiana, there is a marked preference (though more or less extensive in different states) given, by the law of descents, to the whole blood. The half blood is only postponed, and nowhere, unless perhaps in Indiana, and Louisiana, is it totally excluded.

There is a difference, also, in the laws of the several states, between the succession to estates which the intestate had acquired in the course of descent, or by purchase. If the inheritance was ancestral, and came to the intestate by gift, devise, or descent, it passes to the kindred who are of the blood of the ancestor from whom it came, whether it be in the paternal or maternal line, so as to exclude the relations in the adverse line until the other line be exhausted. This is the rule in Rhode Island, Connecticut, New York,⁷⁶ New Jersey,⁷⁷ Pennsylvania,⁷⁸ Ohio, Virginia, Tennessee, and North Carolina. The distinction does not appear as a positive institution in many other states, as in Maine, New Hampshire, Vermont, Massachusetts, Georgia, Alabama, Mississippi, and Missouri. The estate, as I presume, descends in those states, and perhaps in some others, in the same path of descent, whether it came from the paternal or maternal ancestors, or was acquired by purchase.⁷⁹

The English law requires the, claimant of the inheritance to be heir to the person last seized, and of the blood of the first purchaser, and of the whole blood of the person last seized. It gives a universal preference in collateral inheritances, as far as relates to the first purchaser, of the paternal to the maternal line; and this English doctrine is founded on the technical rule already alluded to, that it is necessary the heir should show himself to be descended from the first purchaser, or afford the best presumptive evidence which the case admits, of the fact. The American law of descents does not go on the principle of searching out the first purchaser through the mists of past generations, except the estate be ancestral, and then it stops at the last purchaser in the ancestral line. Its general object is to continue the estate in the family of the intestate, and in effecting it, to pay due regard to the claims of the successive branches of that family, and principally to the loud and paramount claim of proximity of blood to the intestate.

Prior to the novels of Justinian, the civil law admitted the half blood to the inheritance equally with the whole blood; but the novel, or ordinance of Justinian, changed the Roman law, and admitted the half blood only upon failure of the whole blood.⁸⁰ The laws of all countries, and of our own in particular, are so different from each other on this subject, that they seem to have been the result of accident or caprice, rather than the dictate of principle. There seems to be no very strong general principle (though, no doubt, the feelings of nature might interpose some powerful appeals in particular cases) why the half blood should be admitted equally to the inheritance of their ancestor, which he acquired by purchase, and excluded from that which he acquired by descent, devise, or gift, from some remoter ancestor, in whose blood they do not equally partake. If the ancestor was lawfully seized in fee, why should the course of descent be varied according to the source from which his title proceeded, or the manner of his procuring it? If the rule of inheritance had required no examination beyond the title of the intestate, and the proximity of blood to him, there would have been more certainty and simplicity introduced into our law of descents.⁸¹

5. In default of lineal descendants, and parents, and brothers, and sisters, and their descendants, the inheritance ascends to the grandparents of the intestate, or to the survivor of them.

This is not the rule that has recently been declared in New York,⁸² for it excludes, in all cases, the grandparents from the succession, and the direct lineal ascending line stops with the father. The grandparents are equally excluded in New Jersey and North Carolina; and in Missouri the grandparents lose their preference as nearest of kin, but they are admitted into the next degree, and take equally with uncles and aunts. In Virginia and. Kentucky, the claim of the grandmother is reduced, from its natural priority, to the rank of that of the aunt; but the. grandfather has his right to the inheritance preserved, as being nearer of kin than uncles and aunts. The grandfather takes the estate before uncles and aunts, in most of the United States, as being nearer of kin to the intestate; and, therefore, I lay it down as a general rule in the American law of descent. I apprehend it to be the rule in the states of Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, Pennsylvania, Delaware, Maryland, Ohio, Indiana, Illinois, South Carolina, Georgia, Alabama, Mississippi, and Louisiana. The rule is the same as that existing under the English statute of distributions of personal estates, by which it has been repeatedly held,⁸³ that the grandmother took the personal estate equal footing as to inheritance, except that amongst kindred, claiming through one and the same ancestor of the first purchaser, preference shall be given to the whole blood of the first purchaser but when that blood fails, the inheritance to pass as if the person last seized or entitled had been the purchaser, in preference to uncles and aunts, as nearer of kin. The analogies of the law would have been preserved, and, perhaps, the justice of the case better promoted, if, in the New York Revised Statutes, remodeling the law of descent, the claim of kindred on the part of the grandparent had not been rejected.

6. In default of lineal descendants, and parents, and brothers and sisters, and their descendants, and grandparents, the inheritance goes to the brothers and sisters equally, of both the parents of the intestate, and to their descendants. If all stand in equal degree of consanguinity to the intestate, they take per capita, and if in unequal degrees, they take per stirpes.

This is the rule declared in New York, with the exception of the grandparents,⁸⁴ and I presume it may be considered, with some slight variations in particular instances, as a general rule throughout the United States. It is confined, in New York, to cases in which the inheritance had not come to the intestate on the part of either of his parents. The rule is controlled in that, and in some other states, by the following rule

7. If the inheritance came to the intestate on the part of his father, then the brothers and sisters of the father, and their descendants, shall have preference, and, in default of them, the estate shall descend to the brothers and sisters of the mother, and their descendants. But if the inheritance came to the intestate on the part of his mother, then her brothers and sisters, and their descendants, have the preference, and, in default of them, the brothers and sisters on the father’s side, and their descendants, take.

This rule is so declared in the New York Revised Statutes,⁸⁵ and the adoption of the same distinction in several of the states, and the omission of it in others, has been already sufficiently shown, in discussing the merits of the fourth rule of inheritance.

8. On failure of heirs, under the preceding rules, the inheritance descends to the remaining next of kin to the intestate, according to the rules in the English statute of distribution of the personal estate, subject to the doctrine in the preceding rules in the different states, as to the half blood, and as to ancestral estates, and as to the equality of distribution.

This rule is of very prevalent application in the several states. But there are some peculiarities in the local laws of descent, which extend their influence to this ultimate rule. Thus, in North Carolina, the next of kin must be the kin of the person last seized, and the rules of consanguinity are ascertained, not by the rules of the civil law as applied under the statute of distribution, but by the rule of the common law in its application to descent. In South Carolina, the widow, under this last rule, will take a moiety, or two thirds of the inheritance, according to circumstances. In Virginia, Kentucky, Maryland, and Alabama, the inheritance, in default of heirs, under the preceding rules, continues to ascend to the great-grandfathers, and, in default of them, to the great-grandmothers, and to the brothers and sisters of them respectively, and their descendants. In Louisiana, the direct lineal ascending line, after failure of brothers and sisters, and their descendants, is first to be exhausted before the estate passes to the collateral relations. The ascendants take according to proximity to the intestate, so that the grandfather will exclude the great grandfather. The ascendants in the paternal and maternal lines, in the same degree, take equally.⁸⁶ New York forms, also, a distinguished exception to this last rule of inheritance, for, in all cases not within the seven preceding rules, the inheritance descends according to the course of the common law.⁸⁷

The common law rules of descent were the law of the colony and state of New York, down to 1782. The law was then altered, and the statute altering it was re-enacted in an improved state, in 1786. The law still required the heir to be heir to the person dying seized, and the inheritance descended, (1.) to his lawful issue, standing in equal degree, in equal parts; (2.) to his lawful issue, and their descendants, in different degrees, according to the right of representation; (3.) to the father; (4.) to brothers and sisters.; (5.), to the children of brothers and sisters; the right of primogeniture, and preference of males, was, in these cases, superseded. In all cases of descent beyond those five cases, the common law was left to govern. The Revised Statutes, as we have seen, have carried the innovation much farther; and the estate descends under the principle of equality of distribution; (6.) to the descendants of brothers’ and sisters’ children to the remotest degree; (7.) to the brothers and sisters of the father of the intestate, and their descendants, and then to the brothers and sisters of the mother of the intestate, and their descendants, or to the brothers and. sisters of both father and mother of the intestate, and their descendants, according to the various ways in which the estate may have been acquired. It is a matter of some surprise, that the Revised Statutes of New York did not proceed, and, in cases not provided for, follow the example of the law of descents in most of the states of the Union, and direct the inheritance to descend to the next collateral kindred, to be ascertained, as in the statute of distribution of the personal estates of intestates, by the rules of the civil law. Instead of that we have retained in this state, in these remote cases, the solitary example of the application of the stern doctrine and rules of the common law. But, except for the sake of uniformity, it is, perhaps, not material, in cases under this last rule, which of the provisions is to govern. The claims of such remote collaterals are not likely to occur very often; and as the stream of the natural affections, so remote from the object, must flow cool and languid, natural sentiments and feelings have very little concern with the question.

The distinguishing rules of the common law doctrine of descent, are the converse of those in this country. They consist of the following principles of law, viz.: preference of males to females; — primogeniture among the males; the inheritance shall never lineally ascend; — the exclusion of the half blood; — the strict adherence to the doctrine of succession, per stirpes; — the collateral heir of the person last seized, to be his next collateral kinsman of the whole blood; — and kindred derived from the blood of the male ancestors, however remote, to be preferred to kindred from the blood of the female ancestors, however near, unless the land came from a female ancestor.⁸⁸ These rules are of feudal growth, and, taken together, they appear to be partial, unnatural, and harsh, in their principles and operation, especially when we have just parted with the discussion of our own more reasonable and liberal doctrine of descent. Sir Matthew Hale, however, was of a very different opinion. He was well acquainted with the Roman law of distribution of real and personal estates, which we, in this country, have closely followed, and yet he singles out the law of descent,, and trial by jury, as being two titles showing, by their excellence, a very visible preference of the laws of England above all other laws.⁸⁹ So natural, and so powerful, is the impression of education and habit, in favor of the long established institutions of one’s own country.

There are some other rules and regulations on the subject of descents, of which it would be proper to make mention before we close our examination of this title.

1. Posthumous children, as has been already mentioned,⁹⁰ inherit, in all cases, in like manner as if they were born in the lifetime of the intestate, and had survived him. This is the universal rule in this country.⁹¹ It is equally the acknowledged principle in the English law, and for all the beneficial purposes of heirship, a child in venire sa mere is considered as absolutely born.⁹²

2. In the mode of computing the degrees of consanguinity, the civil law, which is generally followed in this country upon that point, begins with the intestate, and ascends from him to a common ancestor, and descends from that ancestor to the next heir, reckoning a degree for each person, as well in the ascending as descending lines. According to this rule of computation, the father of the intestate stands in the first degree, his brother in the second, and his brother’s children in the third. Or, the grandfather stands in the second degree, the uncle in the third, the cousins in the fourth, and so on in a series of genealogical order. In the canon law, and which is the rule of the common law, in tracing title by descent, the common ancestor is the terminus a quo. The several degrees of kindred are deduced from him. By this method of computation, the brother of A. is related to him in the first degree, instead of being in the second, according to the civil law; for he is but one degree removed from the common ancestor. The uncle is related to A. in the second degree, for though the uncle be but one degree from the common ancestor, yet A. is removed two degrees from the grandfather, who is the common ancestor.⁹³

(3.) Under the English law, illegitimate children cannot take by descent, for they have not, in contemplation of law, any inheritable blood. Nor can they transmit by descent, except to their own offspring, for they have no other heirs.⁹⁴ The New York Revised Statutes⁹⁵ have continued the rule of the English law denying to children and relatives who are illegitimate, the capacity to take by descent; but the estate of an illegitimate intestate may descend to his mother; and if she be dead, to his relatives on the part of the mother, the same as if he had been legitimate.

This introduction of a provision into the law of descents in New York, in favor of the mother of a bastard, falls short of the extent of the provision in relation to them in some of the other states. In the states of Maine, NewHampshire, Massachusetts,⁹⁶ Rhode Island, New Jersey, Pennsylvania, Delaware, Maryland, South Carolina, Georgia, Alabama, and Mississippi, bastards are, indeed, placed under the disabilities of the English common law; though, in several of these states, as we noticed in a former volume,⁹⁷ bastards may be rendered legitimate by the subsequent marriage of their parents. But in the states of Vermont, Virginia, Kentucky, Ohio, Indiana, and Missouri, bastards can inherit from, and transmit to, their mothers, real and personal estates. The principle prevails, also, in Connecticut, Illinois, North Carolina, Tennessee, and Louisiana, with some modifications. Thus, it has been adjudged in Connecticut, that illegitimate are to be deemed children within the purview of the statute of distributions, and, consequently, that they can take their share of the mother’s real and personal estate, equally’ as if they were legitimate.⁹⁸ It is not said, in the Connecticut case, that bastards can transmit an estate by descent beyond the permission in the English law; and in the absence of any positive provision in the case, it is to be presumed they cannot. In North Carolina, bastards can inherit as lawful children to their mothers, but it would seem, that in default of their own issue, their mother does not take, but their brothers and sisters by the same mother. The rule in Illinois, and Tennessee goes as far as, that in North Carolina in respect to the capacity of the bastard to inherit, but I am not informed whether it be carried further; and, in Tennessee, the bastard does not inherit to the mother, unless she dies intestate without lawful issue. In Louisiana, the recognition of the rights of bastards is carried beyond any other example in the United States. They inherit from the mother if she has no lawful issue. They inherit from the father likewise, if he leaves no wife, or lawful heir. The father and mother inherit equally to their illegitimate offspring, and, in default of parents, the estate goes to the natural brothers and sisters of the bastard, and to their descendants.⁹⁹

The laws of different nations have been as various and as changeable as. those in the United States, on this painful, but interesting subject. By the Roman law, as declared by Justinian, the mother succeeded to the estate of her illegitimate children, and those children could take by descent from her, and they also took a certain portion of their father’s estate. There was a distinction between natural children who were the offspring of a concubine, and the spurious brood of a common prostitute; and while the law granted to the latter the necessaries of life only, the former were entitled to succeed to a sixth part of the inheritance of the father.¹⁰⁰ The French law, before the revolution, was, in many parts of the kingdom, as austere as that of the English common law, and the bastard could neither take nor transmit by inheritance, except to his own lawful children.¹⁰¹ In June, 1793, in the midst of a total revolution in government, morals, and law, bastards, duly recognized, were admitted to all the rights of lawful children. But the Napoleon code checked this extreme innovation, and natural children were declared not to be heirs, strictly speaking, but they were admitted, when duly acknowledged, to succeed to the entire estate of both their parents who died without lawful heirs, and to rateable portions of the estate, even if there were such heirs. If the child dies without issue, his estate devolves to the father and mother who have acknowledged him.¹⁰² The French law, in imitation of the Roman, distinguishes between two classes of bastards; and while it allows to the child of alt adulterous and incestuous intercourse, only a bare subsistence, the other, and more fortunate class of illegitimate, are entitled to the succession to the qualified extent which is stated. The new dispositions in the code are so imperfect, that M. Toullier says they have led to a great many controversies and jarring decisions in the tribunals.¹⁰³

In Holland, bastards inherit from the mother, and they can transmit by descent to their own children, and, in default of them, to the next of kin on the mother’s side.¹⁰⁴

When the statute law of New York was recently revised, and the law of succession on this point altered, it might have been as well to have rendered illegitimate children capable of succeeding to the estate of the mother in default of lawful issue. The alteration only goes to enable the mother, and her relations, to succeed to the child’s intestate estate. If a discrimination was to be made, and the right of descent granted to one party only, then surely the provision should have been directly the reverse, on the plain principle, that the child is innocent, and the mother guilty, of the disgrace attached to its birth. The parents are chargeable with the disabilities and discredit which they communicate to their offspring; and the doctrine has pretty extensively prevailed, that the law ought not to confer upon such parents, by its active assistance, the benefits of their child’s estate. The claim for the interposition of the law in favor of the mother and her kindred, and especially in favor of the putative father, is held, by high authority, to be destitute of any foundation in public policy.¹⁰⁵

(4.) There is, generally, in the statute laws of the several states, a provision relative to real and personal estates, similar to that which exists in the English statute of distribution, concerning an advancement to a child. If any child of the intestate has been advanced by him by settlement, either out of the real or personal estate, or both, equal or superior to the amount in value of the share of such child which would be due from the real and personal estate, if no such advancement had been made, then such child, and his descendants, are excluded from any share in the real or personal estate of the intestate. But if such advancement be not equal, then the child, and his descendants, are entitled to receive, from the real and personal estate, sufficient to make up the deficiency, and no more. The maintenance and education of a child, or the gift of money, without a view to a portion, or settlement in life, is not deemed an advancement.

This is the provision as declared in the New York Revised Statutes,¹⁰⁶ and it agrees, in substance, with that in the statute laws of the other states. The basis of the whole, is the provision in the statute of distribution of 22 and 23 Charles II., though there are a few shades of difference in the local regulations on the subject. The statutes in Maine and Massachusetts, have mentioned the requisite evidence of the advancement, and it is to consist of a declaration to that effect in the gift or grant of the parent, or of a charge in writing to that effect by the intestate, or of an acknowledgment in writing by the child. The provision in those states, and in Kentucky, applies equally to grandchildren, whereas the language of the provision is, generally, in the other states, like that in the statute of distribution, confined to an advancement to the child of the parent. It is declared in New York, that every estate or interest given by a parent to a descendant, by virtue of a beneficial power, or of a power in trust, with a right of selection, shall be deemed an advancement.¹⁰⁷ In New Jersey, the statute uses the word issue, which is a word of more extensive import than the word child; though children, as well as issue, may stand, in a collective sense, for grandchildren, when the justice or reason of the case requires it.¹⁰⁸ It would have been better, however, if the statutes on this subject had been explicit, and not have imposed upon courts the necessity of extending, by construction, and equity, the meaning of the word child, so as to exclude a grandchild who should come unreasonably to claim his distributive share, when he had already been sufficiently settled by advancement.

In some of the states, as in Virginia, Kentucky, and Missouri, there is a special provision, that the child who has received his advancement in real or personal estate, may elect to throw the amount of the advancement into the common stock, and take his distributive share; and this is technically said to be bringing the advancement into hotchpot. I do not find this privilege conceded by the laws of the other states, to the child who has been advanced, and there is nothing which would appear to render the privilege of any consequence.

(5.) An estate by descent renders the heir liable for the debts of his ancestor, to the value of the property descended. By the hard and unjust rule of the common law, land descended, or devised, was not liable to simple contract debts of the ancestor or testator; nor was the heir bound even by a specialty, unless he was expressly named.¹⁰⁹ But, in New York, the rule has been altered, and by a provision in the act of 1786, and continued in the subsequent revisions, heirs are rendered liable for the debts of the ancestor by simple contract, as well as by specialty, and whether specially named or not, to the extent of the assets descended, on condition that the personal estate of the ancestor shall be insufficient, and shall have been previously exhausted. This condition does not apply, when the debt is, by the will of the ancestor, charged expressly and exclusively upon the real estate descended to the heirs, or directed to be paid out of the real estate descended, before resorting to the personal estate.¹¹⁰ It is further provided, that whenever any real estate, subject to a mortgage executed by the ancestor or testator, shall descend to the heirs, or pass to a devisee, the mortgage shall be satisfied out of such estate; without resorting to the executor or administrator, unless there be an express direction in the will to the contrary.¹¹¹

The general rule of the English law is, that the personal estate is the primary fund for the discharge of the debts, and is to be first applied, even to the payment of debts with which the real estate is charged by mortgage, for the mortgage is understood to be merely a collateral security for the personal obligation.¹¹² The order of marshaling assets towards the payment of debts is, to apply, 1. The general personal estate; 2. Estates specifically devised for the payment of debts; 3. Estates descended; 4. Estates specifically devised, though generally charged with the payment of debts. It requires express words, or the manifest intent of a testator, to disturb this order.¹¹³ On the other hand, there is a material distinction between debts originally contracted by the testator, or intestate, and those contracted by another; and, therefore, if a person purchases an estate subject to a mortgage, and dies, his personal estate, as between him and his personal representatives, shall not be applied to the exoneration of the land, unless there be strong and decided proof, that in taking the encumbered estate, he meant to take upon himself the mortgage debt as a personal debt of his own.¹¹⁴ The last provision abovementioned, from the New York Revised Statutes, was an alteration of the antecedent rule, and makes a mortgage debt fall primarily upon the real estate.¹¹⁵

I assume, that the rule prevails, generally, in these United States, that the lands descended to the heirs are liable to the debts of the ancestor equally, in all cases, with the personal estate. In Massachusetts, the personal estate is first to be applied, and the land resorted to upon a deficiency of personal assets.¹¹⁶ This is probably the case in other states, in which the real and personal estate is placed as assets under the control of the personal representatives. In Pennsylvania, the lands are treated as personal assets, and the creditor who sues the executor, may sell the land in the hands of the heirs, without making them parties. This is complained of by high authority in that state, as contrary to the plainest principles of justice.¹¹⁷