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with Notes of Reference (1803)
St. George Tucker
Discourse Concerning the Several Acts Directing the Course of Descents
BY the several charters granted to the first settlers in the colony of Virginia, all the lands therein were held of the crown in free and common socage: and as the common law of England and all statutes made in aid thereof prior to the fourth year of James the first were recognized in our courts, as the law of the land, in all cases to which they were applicable, the rules respecting landed property in Virginia were conformable to the laws of England, in respect to socage lands; at least so far as respected the course of inheritances, either by the common law, or as regulated by the statute de donis conditionalibus, by virtue of which it was held that lands might be entailed in Virginia, as well, as in England: a doctrine much favored by the legislature of Virginia before the revolution, and even extended to slaves as well as lands; insomuch that the ordinary methods of docking entails in England were absolutely prohibited here; nor could any estate tail be unfettered, without a special act of assembly passed for that purpose,1 until the act of 1734, c. 6, paved the way for doing it by writ of ad quod damnum, where the estate was under the value of two hundred pounds sterling.2 … But immediately after the commencement of the revolution, the legislature passed an act, declaring tenants of lands, or slaves, in tail to hold the same in fee simple: and from that period, till the commencement of the act of 1785, c. 60, entitled an act directing the course of descents, all lands in Virginia descended in the same course of inheritance, as lands in fee simple in England by the rules of the common law. That important act wholly changed the course of descents; introducing and establishing principles in direct opposition to those of the common law, and scarcely agreeing with it in any one principle. For the better understanding of it, I shall first transcribe the act at large, and then endeavor to collect such general rules, as I conceive are deducible from it; after which, I shall, as far as my abilities will enable me to do so, attempt to point out the difficulties which have been created by two subsequent acts passed upon the same subject.
I. First then; the act declares,
Sect. 1. That henceforth, when any person having title to any real estate of inheritance, shall die intestate as to such estate, it shall descend and pass in parcenary to his kindred male and female in the following course, that is to say,
Sect. 2. To his children or their descendants, if any there be:
Sect. 3. If there be no children nor their descendants, then to his father:
Sect. 4. If there be no father, then to his mother, brothers and sisters, and their descendants, or such of them as there be.
Sect. 5. If there be no mother, nor brother, nor sister, nor their descendants, then the inheritance shall be divided into two moieties, one of which shall go to the paternal, the other to the maternal kindred, in the following course, that is to say;
Sect. 6. First to the grandfather;
Sect. 7. If there be no grandfather, then to the grandmother, uncles and aunts on the same side, and their descendants, or such of them as there be;
Sect. 8. If there be no grandmother, uncle nor aunt, nor their descendants, then to the great grandfathers, or great grandfather, if there be but one;
Sect. 9. If there be no great grandfather, then to the great grandmothers or great grandmother if there be but one, and the brothers and sisters of the grandfathers and grandmothers and their descendants, or such of them as there be;
Sect. 10. And so on in other cases without end; passing to the nearest lineal male ancestors, and for want of them to the lineal female ancestors, in the same degree, and the descendants of such male and female lineal ancestors, or such of them as there be.
Sect. 11. But no right in the inheritance shall accrue to any persons whatever, other than to children of the intestate, unless they be in being and capable in law to take as heirs at the time of the intestate’s death.
Sect. 12. And where for want of issue of the intestate, and of father, mother, brothers and sisters, and their descendants, the inheritance is before directed to go by moieties to life paternal and maternal kindred, if there should be no such kindred on the one part, the whole shall go to the other part: And if there be no kindred either on the one part or the other, the whole shall go to the wife or husband of the intestate. And if the wife or husband be dead,.it shall go to her or his kindred, in the like course as if such wife or husband had survived the intestate and then died entitled to the estate.
Sect. 13. And in the cases before mentioned, where the inheritance is directed to pass to the ascending and collateral kindred of the intestate, if part of such collaterals be of the whole blood to the intestate, and other part of the half blood only, those of the half blood shall inherit only half so much as those of the whole blood: But if all be of the half blood they shall have whole portions, only giving to the ascendants (if there be any) double portions.
Sect. 14. And where the children of the intestate, or his mother, brothers, and sisters, or his grandmother, uncles, and aunts, or any of his female lineal ancestors living, with the children of his deceased lineal ancestors male and female in the same degree, come into the partition, they shall take per capita, that is to say, by persons; and where a part of them being dead, and a part living, the issue of those dead have right to partition, such issue shall take per stirpes, or by stocks, that is to say, the share of their deceased parent.
Sect. 15. And where any of the children of the intestate or their issue, shall have received from the intestate in his life time any real estate by way of advancement, and shall choose to come into partition, with the other parceners, such advancement shall be brought into hotchpot, with the estate descended.
Sect. 16. In making title by descent, it shall be no bar to a demandant, that any ancestor through whom he derives his descent from the intestate, is or has been an alien. Bastards also, shall be capable of inheriting or of transmitting inheritance on the part of their mother, in like manner as if they had been lawfully begotten of such mother.
Sect. 17. Where a man having by a woman one or more children, shall afterwards intermarry with such woman, such child or children, if recognized by him, shall be thereby legitimated…. The issue also in marriages deemed null in law, shall nevertheless be legitimate.
Sect. 18. This act shall commence and be in force from and after the first day of January, one thousand seven hundred and eighty seven.
I shall now proceed to collect such general rules, as I conceive are deducible from this act, with a view to compare them with the correlative rules of the common law.
1. The first general rule to be drawn from this important act, and which may serve as a guide and clue to the whole, will be best expressed in the very words of the act, itself: viz:
“When any person having title to any real estate of inheritance, shall die intestate as to such estate, it shall descend and pass in parcenary to his kindred male and female; in the course thereinafter prescribed.”
The correlative rule of the common law may be thus expressed…. “When any person having title to an estate of inheritance in fee simple, shall die actually seized of such estate, intestate, it shall descend and pass to his eldest son or his issue; or other most worthy heir of the whole blood of the intestate, or of the first purchasers; in exclusion of his younger children, and their issue, and of all other lineal, or collateral kindred of the intestate.”
The essential and irreconcilable difference between those two primary general rules, or canons, will be better understood by comparing their several parts together.
1. First then; by our law when any person having title to any teal estate of inheritance, shall die intestate as to such estate, it shall descend in the course therein prescribed. Whereas the common law superadds the necessity of an actual seizin of the estate, in order to constitute the person having title thereto, such an ancestor, as that an estate of lands or tenements can be derived from him; it being a maxim in that law that seisina facit stipitem: and, therefore, he shall not be accounted an ancestor who has only a bare right or title to enter or be otherwise seized.3 … And, therefore, if a man purchase lands in fee simple, and die leaving issue two daughters by one venter, and his wife enseint with a child of the half blood, to the daughters, and the daughters enter into his estate, and then the son is born, this son may enter upon the possession of his sisters, as heir to his father; but if he dies without entry into the estate, or perception of the rents, by himself or his guardian, in this case, by the common law, the heirs of the whole blood to the son, shall not inherit from him, and divest the estate of the daughters, as the .son himself, might have clone; for he, having never had actual seizin of the lands, is not such an ancestor, as that an estate in lands could be derived from him. Whereas, now, I apprehend, that in the same case, the heirs of the son shall succeed to his portion of the inheritance, which descended from his father, equally, as if he had been actually seized of the land…. For all the children being parceners, and all the parceners making but one heir, the entry of one shall enure, as the act and entry of the whole;4 and the heirs of him, who was never actually in possession, shall, nevertheless, be entitled to partition with the rest, in the same manner, as if he had actually entered into the lands, in his life-time: and this rule of the common law, in respect to parceners, is not confined to such as are parceners by the common law, but extends also to parceners by custom;5 and being founded in reason, seems equally applicable to parceners by the statute at this day.
But the reason upon which I principally rely in this case, is this; that it was the intent and meaning of the framers of this law, to change and annul the former rule of the common law, which required actual seizin of lands, in order to transmit the inheritance thereof, to the heirs of the person having title to enter therein: and I ground this conclusion upon several reasons.
1. The framers of the act, were all persons profoundly skilled in the law, and if they had not intended to introduce a new rule of law, would certainly have adhered to the usual, and obvious, technical phrase of dying seized.
2. The situation and local usages in this country, from the first settlement: whereby lands which have never been cultivated, have been transmitted for a series of years, by inheritance, without any actual entry, or seizin, in any person, whatsoever, other than such a legal seizin, as the first patentee, derived from his patent.
It may be objected, that all lands were liable to forfeiture by law, before the late revolution, if not seated within three years after the date of the patent.
To this we may answer, that the seating, required by law, was partial and temporary; and often colorable;6 and that the lands were frequently devised to different persons, from whom they afterwards descended, without cultivation, or any actual entry therein.
3. That the policy of the present law, was to prevent disputes, in all such cases, as might have otherwise happened for want of actual seizin; and to preserve to the heirs of minors and absentees, the rights which such minors and absentees derived from their deceased ancestors.
4. That inasmuch as by an act of 1792, c. 76, actual possession need not be proved to maintain a writ of right, it is evident that the legislature thereby, intended to show that it was their intention, that in future, actual possession should not be necessary to transmit an inheritance: for if the demandant in a writ of right, bring his suit for the recovery of a tract of land, granted to his grandfather deceased, by whom the land was devised to the demandant’s father, being a younger son, and the elder brother, or a stranger, enters by abatement, within fifty years, and holds the lands during his life, and during the life of his younger brother, to whom they were devised; and then dies, and his son enters and holds the lands, against whom the writ is now brought; yet, as the law now stands, I apprehend, the demandant shall recover, although the grandfather be dead more than fifty years, and yet, in this case the demandant claims as heir to his father, who was never actually seized. For inasmuch as he claims under the devise from his grandfather, who has been dead more than fifty years, he must be barred unless he be admitted to claim as heir to his father, who never was actually seized of the lands; but had merely a right to enter upon the possession of his elder brother, or other abater, by virtue of the devise. And, if, in this case, the demandant shall not be barred by virtue of the act of 1794, c. 76, but permitted to claim as heir to his father, without showing any actual seizin in his father, I can see no reason why he shall be barred in any parallel case.
5. The whole policy of our law being in every other respect diametrically opposite to that of the common law, I conclude that the framers of the act meant to render it uniform, and conformable throughout.
6. Because the law of the same session7 directs, that personal property shall be distributed to the same persons, and in the same proportions, as lands are directed to descend by this law. And, if a right to personal property cannot be transmitted to representatives without actual possession thereof, by the person having the right, the intention of that law would be altogether defeated. And, if the rule in the case of lands be, seisina facit stipitem, the correlative rule, in respect to personal estates, must be, that possession does the like: it rule which, it is presumed, the legislature never intended to introduce. For, if that be made the rule of personal property, the children of a son entitled to distribution of his father’s personal estate, would, in many instances, be deprived thereof, because the executorship was not closed … and yet they might be entitled to their father’s portion of the real estate, because he might have made an actual entry therein, though no part of the personal estate had come to his hands. So that under this construction of the law, the personal estate would not be distributed in the same proportions, and to the same persons, as the real estate. On the other hand, if the rule with respect to personals be dispensed with, but insisted on as to real estate, it might happen that the children of the son might have their proportion of the personal estate, but not of the real estate, for want of entry therein by the father; which would be contrary to the act, for in this case they would not have the same proportions. Therefore, it must be construed alike, as to both kinds of estates; and inasmuch as real estates are now put upon the same footing in general, that personal estates were formerly, if the rule with respect to personals cannot be made to conform to the common law rules, respecting real estates, the interpretation ought to be made so as to reconcile both together, and establish one uniform rule which may apply, without inconvenience, to either. And since real property is neither susceptible of motion, nor liable to alienation, but by certain and notorious acts, which is not the case of personal property, there seems to be less reason for adhering to the feudal maxim of seisina facit stipitem real
estates, than for requiring the actual possession of personals, in order to transmit to the representatives of a person having title, a right to a share thereof.
For these reasons I conclude, that actual seizin of lands and tenements, is not necessary at this day to transmit an inheritance; but that any estate of inheritance, into which the intestate at the time of his death has the right to enter, may be transmitted to his heirs, by descent, in the same manner as if he had been thereof actually seized.
2. By our law, any estate of inheritance to which the intestate has a title, shall descend according to the course prescribed by the act: whereas, by the common law, and the statute “de donis conditionalibus,” heirs may be either general or special, according to the course in which the land has descended to the intestate, or been acquired by him. Thus the lands which might have descended on the part of the father, shall go to the heirs on the part of the father only, and not to those on the part of the mother; and, vice versa, whilst those purchased by the intestate might go to the heirs on either part, preferring those first on the part of the father; and if the inheritance were in tail general or special, the descent in that case was regulated by the deed or will of him by whom the estate tail was created. Whereas by our law, it matters not how, or from whom, the estate may have descended, or been acquired; nor in what manner the original donor may have marked out the course in which he wished the succession to take place.8 The estate being once vested in the intestate, must follow the rules of the law, without inquiring into the mode by which it was acquired, or the will of him who gave it.
3. A third and most important distinction between these two general rules, or canons is, that by our law, all lands shall descend in parcenary, whereas, by the common law, sole seizin in lands is more favored than several seizin: and, therefore, the heir male shall always be preferred to the heirs female in the same degree; because the heir male shall take the entirety of the lands to himself, whereas the heirs female take several portions, and may compel a partition of the lands to be made between them. And upon the same principle it is that the common law favors joint-tenancy more than tenancy in common, not only because the seignorial rights are better preserved where the services incident to the feud are indivisible, as in the former case; but, because if the jointure be not severed during the life of the joint-tenants, the survivor shall be sole seized of the whole, by the jus accrescendi, instead of the moiety of him who dies first descending to his heirs. But this jus accrescendi, we may remember, is now abolished in Virginia, our law favoring a tenancy in common, wherein the portion of each tenant descends to his heirs, more than joint-tenancy by which the impartibility of estates is favored. And, upon the same principle it is, that incur law, descents in parcenary are more favored than descents in severally. For thereby all the children or collateral kinsmen of the intestate, in the same degree of consanguinity to him, shall share his estate, as being all, probably, equally entitled to share his affection and bounty. The law in this case making that will for him, which it presumes he would have made had he died testate.
4. But although our law declares that inheritances shall descend in parcenary, yet is there an essential difference between parceners by the common law, or parceners by particular custom, in different parts of England, and that course of descents in parcenary, which is established by our law. For, by the common law, females only shall be parceners; and, by the custom, males only; but, by our law, both males and females shall be parceners together, without any distinction between them. And not only may males be coparceners with females, or females with males, by our law; but lineal ancestors may be parceners with their own descendants, and other collateral kindred of the intestate; and kinsmen of the half blood with kinsmen of the whole blood; and bastards with legitimate kindred, as will be more fully shown hereafter.
5. A further distinction between the rules of the common law and our law, under this head of parceners, arises from the different methods in which the portion of such of the kindred of the intestate as may be deceased, shall be divided among their descendants; our law preferring, in certain cases, the succession per capita, according to the course of the Roman law, to that per stirpes, which the common law uniformly adopts in the same cases, as will be more fully explained hereafter; being mentioned here, only for the sake of method.
Thus, these two primary rules, or canons, which may be considered as the ground-work and foundation of the two systems of law, established in England, by immemorial usage on the one hand; and in this country, by the mature consideration of the most eminent sages of the law, and confirmed by the deliberate voice of the legislature on the other, are found in no one instance whatsoever agreeing, but, on the contrary, in continual and diametrical opposition to each other. The former being the offspring of feudal barbarism and prejudice, the latter the dictates of enlightened reason, following the course which nature herself seems to have marked in the human breast, and endeavoring to obliterate the traces and memorials of the former, wheresoever they could be discerned. We shall now proceed to examine the application of this primary canon, or fundamental general rule, to particular cases, according to the course prescribed by the act, comparing each subordinate rule, with the correlative rules of the common law.
2. Secondly, then; “the inheritance of any person dying intestate, shall descend and pass to his children, or their descendants, if any there be.”9
The correlative rule of the common law, is, “that inheritances shall lineally descend to the issue of the person who last died actually, seized, in infinitum.”
Nearly as these two rules may appear to conform to each other, their interpretation is essentially different, and even opposite; for by the common law, the word issue is limited to certain particular descendants, in exclusion of all the rest, as to the eldest son, in exclusion of his brothers and sisters; or to the eldest son of such eldest son, in exclusion of his uncles and aunts, as well as of his own brothers and sisters; whereas the rule of our law, comprehends the whole of a man’s children, or other descendants without regard to sex or primogeniture; all of whom, of whatever age or sex, or however remote, (if in ease at the time of the death of the intestate) shall have a portion of the inheritance. Thus if I. S. die leaving a son, a daughter, and two grandchildren, the issue of a son or daughter, deceased; the grand children shall take a portion of the inheritance, as well as the son and daughter; whereas by the common law, the eldest son only, or if he were dead leaving issue a son or a daughter that son or daughter should have succeeded to the whole inheritance, in exclusion of all the rest.
Another essential distinction between the common law rule and the rule in our law, is this: that by the common law, any descendant of I. S. the person last actually seized, to whom the inheritance should have descended (if in esse, at the time of the death of I. S.) although born at any remote period after that event takes place, may succeed to the inheritance, unless barred by the statute of limitations; whereas by the act of 1785, no right to the inheritance shall accrue to any person whatever, other, than the children of the intestate, unless they be in being and capable in law, to take as heirs, at the time of the intestates death. Thus, if I. S. have one son only, who dies in the lifetime of his father; leaving two daughters, and his wife enseint or big with child of another daughter; and before the birth of such other daughter, L S. the grandfather dies, by the law of England, the inheritance should descend to the two daughters of the son of L. S. as parceners, until the birth of the third daughter happened; and then, such third daughter should succeed to one third part of the inheritance as coparcener with her sisters. And if such after born child had been a son, he should have had the whole inheritance in exclusion of his sisters; and this may be carried so far, by the common law, that the same estate may be frequently divested by the subsequent birth of nearer presumptive heirs, before it fixes on an heir apparent. As, if an estate is given to an only child, who dies, it may first descend to an aunt, who may be stripped of it by an after born uncle, on whom a subsequent sister may enter, and who again may be deprived of the estate by the birth of a brother.10 Whereas, such after born children under the provisions of the act of 1785, would, I apprehend, be totally excluded from any participation in the inheritance. For I understand the words of the act viz. “unless they be in being and capable,” according to the common law11 construction; viz. such as are already born. And, that this is the true construction, may be inferred from the provisions in favor of posthumous children, contained in the statute 10 and 11 W. 3.c. 16, which enabled
them to take the benefit of a remainder, as if born, and which have been likewise introduced into our own statute book, but do not extend to the case here spoken of; posthumous children, other than the children of the intestate himself, remaining in the same condition with respect to inheritances, as they were in respect to remainders, before the last mentioned statutes.
3. “If there be no lineal descendant, the inheritance shall ascend to the father, or other nearest lineal male ancestor, or ancestors, in preference to the lineal female ancestor, or ancestors, and collateral kindred in the same degree; but the mother or other nearest lineal female ancestor, or collateral kinsman, in the same degree, or their descendants, shall be preferred to a more remote lineal male ancestor, or ancestors.”
Thus the father shall succeed to the whole inheritance, in exclusion of the mother, brothers and sisters and their descendants; the grandfather in exclusion of the grandmother, uncles and aunts, and their descendants; and the great grandfathers or great grandfather, if there be but one, in exclusion of the great grandmothers, and all the collateral relations of the deceased, or their descendants, in the same degree. But the mother, brothers and sisters, and their descendants, in infinitum, shall be preferred to the grandfather, and so of the rest. For, we may remember, that according to the rules12 of consanguinity, the father, mother, brothers and sisters, are all related to the intestate in the same degree: and the grandfathers, grandmothers, uncles and aunts, are in like manner related to him in the same degree with each other. And this preference to the lineal male ancestor, or ancestors, is the only preference which our law makes in favor of that sex: for in all cases of lineal descendants or collateral heirs, no regard is paid to sex or primogeniture.
The ascendible quality communicated to real estates by the act of 1785, is diametrically in opposition to one of the fundamental maxims of the common law, according to which, inheritances should rather escheat, than violate the laws of gravitation.13
And here it may be proper to notice another departure from the rules of the common law; for, by that law, the lineal descendants, in infinitum, of any person deceased, shall represent their ancestor; that is, shall stand in the same place, as the person himself would have done, had he been living. And these representatives shall take neither more nor less, but just so much as their principals would have done: thus the child, grandchild, or great grandchild (either male or female) of an eldest son, or eldest brother, or eldest uncle, succeeds before the youngest son, and so in infinitum. According to which rule, whenever the father, if alive would be the next heir, his child, (or children if daughters) should represent him; that is to say, should take neither more nor less than he would have done. But in this case, by our law, the children of a deceased father, do not represent him; but come into the inheritance jure propinquitatis, i.e. in their own rights, and not jure representationis, or in right of their father. For the mother shall come in with them, and shall have an equal portion of the inheritance with them; and if there be children on the part of the mother, of the half-blood to those on the part of the father, they also shall be admitted into the inheritance; So that the children on the part of the father do not take the same, or, neither more nor less, than their father if living would have taken; therefore they do not represent him in this case. And even in the case of succession among the lineal descendants, or collateral kinsmen of the intestate, we shall find that the children sometimes claim jure propinquitatis, as being all in equal degree; though in some cases, the right of representation is admitted: as where nephews or nieces come into partition with their uncles and aunts. Collateral kindred in the same degree of consanguinity with a female ancestor, shall be admitted to an equal portion of the inheritance with her; and the descendants of such of them as are dead, shall be admitted to their ancestor’s portion thereof.
Thus the brothers and sisters shall share the inheritance with the mother; and if any of the brothers or sisters be dead, the descendants of such brother or sister shall inherit that portion of the estate, to which their ancestor, if living, would have been entitled, hi this latter case, the children of the deceased brother or sister are said to take per stirpes, by stocks, but the mother, brothers, and sisters, who are living, take per capita, or by heads.
4. “If there be neither child, father, mother, brother, sister, nor descendant from either of them, the inheritance shall be divided into moieties, one of which shall go to the paternal, the other to the maternal kindred, respectively, according to the foregoing rules; but if there be no kindred on the one part, the whole shall go to the other part.”
This also is diametrically opposite to the rule of the common law, which allows of no such participation between the paternal and maternal stocks in any case; but would rather the land should escheat, than descend to any other, than the blood of the first purchaser, how remote soever he may be from the person last actually seized.
According to this rule of our law, the grandfathers, respectively, shall be preferred to the grandmothers, uncles and aunts, on the same side; and these last and their descendants, shall succeed all together, in like manner as the mother, brothers, and sisters, and their descendants should have done. And here it must be observed, that if there be two great grandfathers living, on the same side, each of them, (if there be no person nearer to whom the inheritance may descend) shall be entitled to an equal portion of the moiety: but if there be only one, he shall have the whole moiety, in exclusion of the other great-grandfather’s descendants, or wife though living; which is one answer to the objections against the great number of heirs, who are admitted to share the inheritance: which objection is further narrowed, by that clause, which declares that no person, other than children of the intestate, shall have any portion of the inheritance, unless they be in being at the time of the intestate’s death, of which we have before taken notice and shall again have occasion to speak.
5. “Collateral heirs may be of the half-blood only, but they shall only inherit half portions; but if all be of the half blood they shall have whole portions, only giving to the ascendants (if there be any) double portions.”
This rule is expressly contrary to the maxims of the common law; by which the half blood are wholly excluded from any portion of the inheritance, which shall rather escheat for want of heirs.14 If there lie two brothers and a sister of the whole blood, and a brother of the half blood, and one of the brothers of the whole blood die, in this case the inheritance being divided into five parts, the brother and sister of the whole blood shall have two parts each, and the brother of the half blood one, only. And in this case, if the mother had also been living;, the inheritance should have been divided into seven parts, of which she should have two, and the remaining five parts be divided as before mentioned.
6. “Bastards may inherit, or transmit an inheritance on the part of their mother; and if the parents of the bastards marry, and the bastard be afterwards recognized by the father, he shall inherit or transmit an inheritance on the part of the father.”
This rule is also diametrically opposed to the common law principle; by which bastards are rendered incapable of inheriting even from their mothers.15 And the rule above laid down, extends to all persons, who would have been bastards at the common law, as being the issue of marriages deemed null in law; such issue, by the provisions of this act, as also of the act of 1788, c. 32, being declared legitimate.
7. “If there be no kindred either on the part of the father or of the mother, the husband or wife of the intestate shall succeed to the inheritance: and if the husband or wife be dead, the inheritance shall go to his or her kindred, as if he or she had survived the intestate, and the estate had descended from such wife or husband.” This also is an express deviation from the maxims of the common law; by which the husband, or wife, as such, can never succeed to the inheritance of each other. It is still further removed from the principles thereof in this instance that a stranger to the blood of the intestate, may, by possibility, be his next immediate heir. Thus if I. S. be an alien and afterwards be naturalized and purchase lands, and marry, and his wife die, and I. S. afterwards die without issue, and without heirs, other than aliens, the next of kin to his wife deceased, although utter strangers to his blood, shall succeed to his estate.
8. “Where several persons succeed to the inheritance at the same time, if they be all related to the intestate in equal degree, they shall take per capita, i.e. by persons; but if part of them be more remote than the others, the more remote shall take per stirpes, that is to say the share of their deceased parent. But no right of representation shall be admitted, where the inheritance is directed to go to the lineal ancestor, or ancestors of the intestate, if living; but it shall descend to the surviving lineal ancestor or ancestors, or such collateral kinsmen as shall be entitled to partition, according to the third rule.”
In the former case we find that the jus representationis or right of representation, which is one of the fundamental maxims of the common law, is entirely done away. For by the common law the representatives of any person deceased, shall stand in the same place precisely, that the ancestor himself, if living, would have done. Thus if John Stiles die leaving six grand-daughters, three, the children of one daughter deceased, two, the children of a second daughter deceased, and one of a third daughter deceased; in this case the inheritance, by the law of England, would have been divided into three portions only, os which, the three daughters of the eldest daughter, should have had one; the two daughters) of the second, another; and the daughter of the third daughter the third portion: but by our law, the inheritance shall be divided into six portions, of which, each of the grand-daughters shall have one. And herewith the Roman law agrees. But where some of those entitled to partition are more remote front the intestate than the rest, in this case, the representatives of any person deceased, who if alive would have come into partition, shall take neither more nor less, but just so much as their principals would have done, unless such principal be also the ancestor of the intestate. As if there be two sisters, Margaret and Charlotte, and Margaret dies leaving six daughters, and then John Stiles the father of the two sisters dies without other issue, these six daughters shall take among them exactly the same as their mother Margaret would have done, had she been living: that is, a moiety of the lands of John Stiles, in coparcenary: and this, also, by the common law, with which ours still agrees in this respect…. So if John Stiles had had two sons, only, and one had died in his lifetime, the issue of such son should have succeeded to his father’s portion of the inheritance by virtue of the act of 1785, c. 60. J U. But if John Stiles had died without any descendants, or lineal ancestor living, his brothers, and sisters, uncles, and aunts, should not take as representing their deceased father, or mother, but in their own rights, as next of kin to the intestate, Therefore if L. S. die leaving a brother of the half blood on the part of his father, deceased, and two of the half blood on the part of
his mother deceased, these shall take equal portions of the inheritance, instead of the whole going to the brother on the part of the father jure representationis; or the portion of the mother being divided between her two sons, as representing her. And this doctrine of the right of representation is still further narrowed by the next rule.
9. “No right to the inheritance shall accrue to any person whatsoever, other than the children of the intestate, unless they be in being, and capable in law to take as heirs, at the time of the intestate’s death.”
This rule was sufficiently explained under the second, here laid down. But although this rule excludes posthumous heirs in general, from the succession, yet we must be careful to remember, that it does not extend to the children of the intestate, who are still further favored by the act of 1785, c. 61. which declares, that every last will and testament, made when the testator had no child living, wherein any child he might have is not provided for, or not mentioned, if at the time of his death he leave a child, or leave his wife enseint of a child which shall be born, shall have no effect during the life of such after born child, and shall be void unless the child die without having been married, or before he shall have attained the age of twenty-one years…. Also, posthumous children, if unprovided for by settlement, and neither provided for, nor disinherited, but only pretermitted by the testator, shall succeed to the same portion of the father’s estate, as if such father had died intestate.16
10. “Where more than one person succeed to the inheritance, they shall take as parceners, and not as joint-tenants or tenants in common.”
A consequence of this rule, is I presume, that as all the parceners make but one heir, the act and entry of one, shall enure as the act and entry of the whole; and the heirs of him, who was never actually in possession, shall, nevertheless, be entitled to partition with the rest, in the same manner as if he had actually entered into the lands in his lifetime, as was before observed.
A second consequence of this rule is, that the heirs may sue and be sued jointly, for any matter respecting their joint inheritance; which tenants in common cannot.17
A further consequence is, that they may have an action of waste, against each other, which, in the case of joint-tenants, may be questionable. Moreover, the jus accrescendi, or right of survivorship between joint-tenants, does not take place among coparceners. And although this right of survivorship to be now abolished,18 yet the act by which that rule was established, was posterior in it’s commencement to the law of descents!
11. “Lastly, the person having title to any estate of inheritance, is considered as the first purchaser; that is to say any relation, either in the paternal or maternal line ascending or collateral, may succeed to the inheritance, subject to the preceding rules, without regard to the blood of that ancestor from whom the estate was derived.”
The correlative rule of the common law is, that upon failure of issue of the last proprietor, the estate shall descend to the blood of the first purchaser; or, that it shall result back to the heirs of the body of that ancestor, from whom it either really has, or is supposed, by fiction of law to have originally descended.19 A consequence of which was, that if the lands descended from the father’s side, no relation of the mother, as such, could ever inherit: because he could not possibly be of the blood of the first purchaser; and vice versa; but the lands shall rather escheat to the lord of the feud, than violate this fundamental principle of the feudal system.20 And even where lands descended from the first purchaser himself, the common law still preferred a remote collateral relation, on the part of the father, how far soever removed, to the brother of the half blood, or other nearest collateral relation on the part of the mother; which absurd preference, as it has no foundation in reason or in nature, our law has carefully abolished, not only in the last case here spoken of, but in all cases whatsoever. And this, upon the soundest reason and principle, I conceive; for the right of disposing of property after one’s death, being once admitted, it is most reasonable that the law should prefer those relations of the deceased, which he himself would most probably have preferred, if he had made a will. Now the inheritance being once indefeasibly vested in any person, it would seem that the disposition of the law ought to conform to what may be presumed to be his will; and not to the will of any other person who may formerly have possessed it, and either actually has, or may be presumed to have exercised his will over it already.
Thus having collected all the fundamental rules of our law, and compared them with those which formerly governed inheritances in this country, in lieu of which they have been substituted; and finding an irreconcilable opposition in every one of the latter, to those of the former, we may I apprehend be justified in concluding, that by the act of 1785, c. 60, the common law rules of inheritance were wholly and entirely abolished, and an entire new system of jurisprudence substituted for them in Virginia, the grounds and foundations of which, are wholly incompatible with those rules and maxims, which were generated by, and interwoven with the feudal system, of which, it appears to have been the policy and intention of the framers of our law, to eradicate every germ, and obliterate every former trace.
II. But this act has since undergone a very material alteration, in the case of the death of an infant, having title to an estate of inheritance, by two several acts: the first of which passed in 1790, c. 9, s. 34, and which I shall first consider, provides, that,
1. “Where an infant shall die without issue, having title to any real estate of inheritance, derived by purchase or descent from the father, the mother of such infant shall not succeed to, or enjoy the same, or any part thereof by virtue of the act directing the course of descents, if there be living any brother or sister of such infant, or any brother or sister of the father, or any lineal descendant of either of them.”
2. “Where an infant shall die without issue, having title to any real estate of inheritance, derived by purchase or descent from the mother, the father of such infant shall not succeed to, or enjoy the same, or any part thereof, by virtue of the said recited act, if there be living any brother or sister of such infant, or any brother or sister of the mother, or any lineal descendant of either of them.”
Here let us ask, does this act revive the common Jaw rules of inheritance, in the case of an infant dying Without issue, having title to lands of inheritance? To this we may answer,
1. First, that if the lands be derived to the infant in any other manner, whatsoever, except by descent, or purchase, from one or the other of his parents, the lands in any such case shall descend in the same manner as if he had been of full age.
2. The parent from whom the lands are derived, is not excluded from the inheritance, although the other parent be so excluded…. And therefore if a man gives lands to his son, and the son dies under age, and without issue, the father is clearly not within the act: and consequently shall be heir to his son, in preference to a brother, or uncle, who might have been the next heir at common law. And if lands be given to an infant by his mother, and the infant die without issue, the mother is not within the act.
3. The parent, from whom the lands are not derived, may still inherit them, if the infant lives to attain his age of twenty-one years: for the law takes no notice of the case of an adult person.
4. The brothers and sisters of the infant, are clearly not excluded by the act; for if lands descend from a father to his son, and then the son dies under age, and without issue, his brothers and sisters of the whole blood may undoubtedly inherit his estate in parcenary, by virtue of the act of 1785; for they are not named, and consequently, are not excluded by the second act….
And if the father had other children of the half blood to the infant, still shall they also come into the inheritance; for clearly the law meant not to exclude any descendant of the father, from a portion thereof, as is incontestably proved, by the further amendments afterwards introduced into the law, as it now stands. Neither would the brothers and sisters of the half blood, on the part of the mother be excluded; for they were not named in the act, any more than the others. And, therefore, there is no more reason for excluding them, than for excluding the brothers or sisters, (other than the heir at common law) on the part of the father. For the disability of the younger brothers and sisters, of the whole blood, to take during the life of the elder brother, or his issue, was equally as great at common law, as the disability of the half blood.
5. That the general system of inheritances, being changed, by the act of 1785, the rules of that act cannot be changed but by a subsequent legislative act:21 it being a rule of construction, that no statute can be repealed by implication;22 now the act of 1785, having substituted the father as next heir general to a son dying without issue, in the room of the former heir at the common law, the preference which this general law has once given him, shall never be taken away by mere implication, but his disability to take shall be confined to the single case in which the law expressly incapacitates him to be heir: nor can the heir at common law avail himself of the father’s disability, so as to exclude his brothers, and sisters, and their descendants, who are of equal capacity with himself, under the act of 1785 to take the inheritance. And, therefore, unless that act be repealed and the common law revived by implication, the heir at common law, as such, can never be the person, in whom the estate shall exclusively vest.
But whatever doubts might have been entertained, as to the revival of the common law, by implication, under the former rules of construction, viz: that the repeal of a repealing law revived the former law; yet the legislature by the act of 1789, c. 9, which was too recent not to have been remembered by them in 1790, prescribed a positive rule of construction, viz: “That whenever one law which shall have repealed another law, shall be itself repealed, the former law shall not be revived without express words to that effect.” Consequently, although it should be conceded, that a former statute may be repealed by implication; the doctrine that a former law may be revived by implication, is now totally exploded in our courts, by that act. Now nothing can be more certain, than that the common law rules of inheritance were totally repealed by the act of 1785, and there are no express words in the act of 1790, whereby any one rule of the common law, can in any manner be supposed to be revived. Those rules being once expunged from our code of jurisprudence, are as foreign from it at present, as those which appertained to military tenures, or other ancient branches of the feudal system. And we could with as much propriety adopt the ancient feudal doctrine, that none but the issue of the feudatory, or grantee of lands could inherit them, and that in defect of such issue, they should revert to the grantor, as to substitute the heir at common law, at this day, in the room of those whom the act of 1785, has marked out as general heirs of a person dying intestate.
The positive disability of the father or mother, to take as heir to the son, in a particular case, must not therefore be construed any otherwise, than as the act itself prescribes; viz. as merely personal to the father, or the mother, in the particular cases mentioned in the act, and not as extending that disability, by implication, to any other case, or to any other person, not named in the act: nor as reviving by implication, the right of the heir at common law, which had been totally extinguished and abolished, by the former act; nor yet as creating by implication, any new right; or directing by implication any other course in which an inheritance shall descend, except that which the act of 1785, expressly prescribes. Now from the cases before put, it is manifest that the father is still intended to be the general heir to his son, in every case, but this of an infant dying without issue, having title to lands derived from his mother: for if the infant attain his full age, and die the same day, the father shall be heir to all his lands without distinction. It is also manifest that the act of 1790, had no intention to. extend the disability of the father, to the children of the mother, all of whom may certainly be regarded as equally favored by that act, as by the act of 1785. Neither can we be authorized to extend the disability of the Father, to the grandfathers on either part; for they are not named in the act. And although it should be contended, that the father’s father, was disabled by implication, yet it would be difficult to distinguish his case from that of the mother’s father, against whose inheritable .blood, no reason, even by implication, can be suggested. The same remark applies to the uncles and other collateral relations on the part of the father, for these come into partition at the same time with those of the same degree on the part of the mother, by the act of 1785, and the former are no more excluded by the act of 1790, than the latter. The disability created by, the act of 1790, is, therefore, merely personal to the father, or mother; and temporary, being removed the instant the infant arrives at full age; and moreover, contingent, as depending upon the circumstance that the infant may have collateral relations, in the degree of a brother, or uncle, or their descendants, on the part of the
mother, or father, from whom the lands were derived, living at the time of his death…. For if the mother gives lands to her son, who dies an infant, having no such collateral kinsman as is mentioned in the act, and then the mother has another son or daughter, this son or daughter, not being in esse at the time of the infant’s death, shall not divest the father’s title which vested the moment of the infant’s death; but the father shall retain the lands, because at the death of the infant, he was under no disability to inherit as next heir to his son. And these circumstances all tend to show the difference between the disability of the father, by our law, and the disability of an alien, or of a person attainted by the common law: for an alien never had any inheritable blood in him; and the blood of the person attainted is forever corrupted: and the corruption extends to his issue as well as to himself.23 And if in a similar case to that last above mentioned, the father had died leaving lands to his son, being an infant, and leaving his wife ensient with child, and before the birth of the child, the infant die; in this case the mother shall succeed as next heir to her infant son: for her posthumous child was not in esse, and capable in law to take as heir to his brother, at the time of his death; and, therefore, the mother shall have the whole of his portion of his father’s estate. And yet this posthumous child would succeed to one half of the lands which descended from his father to his brother: not, indeed, as heir to his brother, but as heir to his father, under the express provisions in the act in favor of posthumous children of persons having title to lands at the time of their death.
From what has been said, I presume, it may be evident, that in the case of an infant dying without issue, entitled to lands by descent or purchase from either parent, the common law, in respect to inheritances, was not revived by the act of 1790, but remains for ever dead in such cases, until the legislature shall think fit, by an express declaration to that effect, to give it a new existence in this country. And consequently, that inheritances must be governed by the rules contained in the act of 1785, in all cases where those rules are not expressly altered and repealed by some subsequent act. And where any difficulties arise under any such subsequent act, the solution of them must first be sought for there; where the legislature has thought fit to collect all those general rules, by which it intended all cases of inheritance should henceforward be governed in Virginia.
We may now proceed one step further and observe;
6. Sixthly; that the act of 1790, while it prohibits the father or mother, under certain circumstances, to succeed to the inheritance of a son, does not proceed to declare to whom the lands under such circumstances shall descend: an omission to which all the difficulties and perplexities which may arise in the construction of our law of descents, are to be attributed. That omission may be ascribed to the solicitude which the penner of that act probably felt, to prevent the operation of the former law, in some particular case, without considering or regarding the general principles upon which that law was framed. And having found a remedy for that case, it seems to have been supposed, that it’s efficacy, like some famous specifics in medicine, would be equally as great in all others. To demonstrate the fallacy of such a conclusion, let us put the following case. “John Stiles, the propositus, being an infant, dies without issue, having title to lands derived to him from his mother, Lucy Baker, deceased; his father Geoffry Stiles, his paternal grandfather George Stiles, his maternal grandfather Andrew Baker; and several maternal uncles and aunts being living; but having neither brother nor sister of his own living.” How will the inheritance descend?
I. By the act of 1785, Geoffry Stiles, his father, should have had the inheritance, not only in preference to all the relations above mentioned, but even to the brothers and sisters, and mother of the infant, if there had been such living. But, by the act of 1790, the father shall not succeed to or enjoy the inheritance, if there be living any brother or sister of the infant, or any brother or sister of his mother, or any of their descendants; and here are brothers and sisters of his mother; therefore, the father in this case cannot inherit. But can the brothers and sisters of the mother take the lands? I should apprehend they cannot.
1. Because, by the general rule prescribed in the act of 1755, both the grandfathers shall succeed, each to a moiety of the estate, before the uncles and aunts shall be admitted to any portion of it. Now the grandfathers are not mentioned in the act of 1790: of course I should conclude, that the order of succession, as to them, remains unaltered; for in the case now put, if the father had died in the life-time of the infant, the inheritance should have gone immediately to the two grandfathers by moieties.
2. Because here is no declaration contained in the law, that the brother or sister, uncle or aunt, shall succeed to the inheritance, notwithstanding the priority established in favor of the father and grandfathers by the act of 1785; but merely a declaration, that the father shall not succeed to, or enjoy the inheritance, if there be such persons living as this case supposes. This disability is merely personal, and may be temporary, perhaps:24 for, if the maternal uncles and aunts should die, there seems no longer any reason for excluding the father from the inheritance: a reason which certainly had it’s commencement in that unnatural principle, mentioned by Sir Edward Coke, that to commit the guardianship of a child to his next heir, was “quasi agnum committere lupo, ad devorandum“.
3. A third reason why the maternal uncles and aunts should not succeed to the inheritance in this case is, because, under the act of 1785, the paternal uncles and aunts shall come into the inheritance with them, taking one moiety thereof; whereas, if the maternal uncles and aunts were to succeed alone, they would take the whole inheritance. And, according to that act, where the first degree of consanguinity is passed, without heirs either lineal or ascending, the inheritance shall go by moieties to the most remote relation on either side, before the whole shall unite in either the paternal or maternal stock. And there is nothing in the act of 1790, which abolishes that rule.
4. A fourth reason is, that there is no ground upon which we can possibly suppose, that the law meant to prefer the maternal uncles and aunts, in this case, to the maternal grandfather, whose priority is established by the act of 1785, and not taken away by this act; for although it should be alleged, that the law, for good reasons, meant to exclude the paternal grandfather, yet those reasons could never be applied to the maternal grandfather in this case. No implication, therefore, necessarily arises in favor of the maternal uncles and aunts; and, without an absolute necessity, no implication is ever to be admitted.
II. If the maternal uncles and aunts cannot take the inheritance, can the grandfathers inherit it?
I apprehend not. The words of the act of 1785, are, “if there be no father, then to the mother,” etc. If there be no mother, etc. then « to the grandfathers;” which seems to be equivalent to this; “if there be neither father, nor mother,” etc. for the word “then,” most clearly postpones the course which the law directs, to the event which it contemplates, viz. the death of the father. But here the father is alive: it is true he cannot take the estate during the life of his wife’s brothers, or sisters, or any of their descendants then in being: but, as we have before observed, here is no provision in the law, that the inheritance shall vest in the next heir; and without such a provision the grandfathers must, I presume, be excluded. To this it may be answered, that the father being pretermitted by the law, and there being neither mother, nor brother, nor sister, it is the same as if they were neither father nor mother, etc. and, therefore, the grandfathers should take presently, by implication, notwithstanding the life of the father. But such an implication is altogether inadmissible, for even in wills, no implication is ever allowed which is not absolutely and indispensably necessary. Now the implication in favor of the uncles and aunts succeeding in preference to the grandfathers, is full as strong, as that the grandfathers shall succeed notwithstanding the life of the father. And, that the law did not intend to prefer the grandfathers to the father, is evident from this j that if there be neither children nor brethren of the mother, nor any descendant from them, living at the death of the infant, the father shall be heir to the infant, in preference to the mother’s father, although he may still be in life; and we must be wholly at a loss for any principle, upon which the father’s father shall be preferred to the father himself.
III. But let us put the case, that the infant’s mother, from whom the land was derived by purchase, were still in life, and that there were also brothers and sisters, of the infant living, the father being also living, should the mother, brothers and sisters, have succeeded in that case, jointly?
Here too, I should presume they could not, the father being still living, until whose death, by the act of 1785, the title of the mother, brothers and sisters, could not accrue. Now by the act of 1790, the parent, from whom the land is derived by purchase, if he or she survive the infant, is not excluded from the succession, although the other parent be. From hence I infer, that the act does not give the estate by implication, to those relations, during whose life, the parent from whom the land was not derived, is incapable of inheriting. As if John Stiles the father, give lands to his son, an infant, in fee, and the infant die without issue, under age, during the life-time of his mother, here the father should presently succeed to the inheritance, notwithstanding the life of the mother, in exclusion of the brothers and sisters of the infant. And in this case, if the lands had been given to the infant by his mother, and the father should die in the life-time of the infant, and then the infant die, the mother should enjoy the inheritance, in preference to her brothers and sisters; yet if the father had survived the infant, the succession of the mother, according to the act of 1785, must have been suspended, until the death of the father…. The same reasoning will apply to the grandfathers and grandmothers, under the act of 1785. Hence I conclude, that no estate by implication, is raised in favor of the uncles and aunts, by the act of 1790 … but that they are incapable of succeeding to the inheritance, during the life of the grandfathers, and shall not take it exclusively of, but in common with, the grandmothers. In all these cases the obstruction to the descent, occasioned by the life of the father, who is general heir to his son, seems to resemble those cases at the common law, where the succession of a special heir may be obstructed, by the life of a general heir. Thus the succession of an after-born son of a person attainted and pardoned; is impeded by a brother, born before the attainder. For, although the elder brother cannot inherit any lands, to which his father, if living, might have been heir, because his blood is corrupt, yet the younger son is not benefitted thereby: but the lands shall rather escheat, for want of heirs, than descend to the younger son, whilst his elder brother or any of his issue, are in
life; and yet, if the elder brother had died without issue, the younger might well have inherited.25 Thus new perplexities, seem to spring out of every new case; nor can we resort to any one rule, which presents itself to my mind, “unless we suppose the inheritance to be in abeyance during the joint lives of the pretermitted parent, and of the person or persons during whose life or lives, that parent is excluded from the inheritance.”
“The fee-simple or inheritance of lands, and tenements,” says Blackstone,26 “is generally vested and resides in some person or other.” Yet sometimes, the fee may be in abeyance, that is, in expectation, remembrance, and contemplation of the law. Thus, in a grant to John, for life, and afterwards to the heirs of Richard, the inheritance is in abeyance, during the joint lives of Richard and John.
When a parson dies, the freehold of his glebe is in abeyance, until a successor be named, and then it vests in the successor.27
And, according to Littleton, the fee-simple of all glebe-lands, which are granted to a parson and his successors, remains always in abeyance. For by a grant to a sole corporation and his successors, the fee passes out of the grantor,28 yet the parson or incumbent himself, has only a freehold, and not the fee-simple in him … nor is it in any other; but the right of the fee-simple is in abeyance.29
If an earl, whose dignity is limited to him and his heirs, dies, having issue one daughter, the dignity shall descend to that daughter.30 But if he have two, the dignity shall be in abeyance, till the king declare his pleasure, for he may confer it on which of them he pleases.31 But if he do nothing with it, and one of them then die, the survivor, I apprehend, should succeed to the dignity, for here is no longer any uncertainty who is entitled to it.32
Where a feoffment was made to the use of a man, and such wife as he should afterwards marry, for term of their lives, and he afterwards married, it was held that the husband and wife had a joint estate, though vested at different times: because the use of the wife’s estate was in abeyance, and dormant, till the intermarriage, and then had relation back, and took effect from the original time of the creation.33
So if a devise be made to A in fee, and if A die within age or without issue at. the time of his death, then to the right heirs of B in fee34 this limitation, I presume, would be good, by way of executory devise, and if B should survive A, the inheritance would remain in abeyance, during the life of B, for it could not be known to whom the inheritance should descend, by virtue of that devise, until the death of B, “nam nemo est haeres viventis“: for it is not necessary that an executory devise should vest immediately upon the determination of the precedent estate, and being limited to take effect upon an event, which depends upon a life in being, it is good; as was adjudged in the case of Taylor, vs. Biddal.35
In this case, the testator having parted with the whole fee, by the first devise to A in fee, nothing remained to his heirs, who, therefore, upon the death of A, living B, could have no right to enter. It may be alleged indeed, that the heir of A might enter and hold the land until the death of B, for inasmuch, as the fee was granted to A and his heirs, his heirs after his death should have the lands, until it could be known who should succeed thereto, as the right heir of B. But what, if the devise had been to A in fee: but if A die without issue under the age of twenty-one years, then to B for life, and after the death of B, to the right heirs of C…. Now if A dies without issue, under the age of twenty-one years, living B, the whole fee will pass from A and his heirs, at once, and B’s estate for life, immediately commence. Then, if B die in the life-time of C, there is no person in whom the estate can possibly vest. For the testator had parted with the whole fee, as in the former case, and the estate of A and his heirs was spent, upon the commencement of B’s life estate; and B’s life estate being also spent, before it can be known who is entitled to the inheritance, on the death of C, it must remain in abeyance until that event takes place…. Yet this is a good executory devise, for it is a rule “That whenever one limitation of a devise is taken to be executory, all subsequent limitations must, likewise, be so taken.36
In all the cases, under this act, which we have before put, there is no person to whom the inheritance can descend, during the life of the pretermitted ancestor. Yet there is one case, in which, I presume, the inheritance would not be in abeyance; and that is, where an infant having lands by descent or purchase from his father deceased, shall die without issue, having a mother, brothers and sisters living. Here, I should apprehend, the brothers and sisters, or their descendants would be presently entitled to the whole estate: for the mother, brothers and sisters succeed altogether, at the same time, and on the same event, and not successively, to each other, as to the father: now inasmuch as the act of 1790, totally excludes the mother from any part of the inheritance, the brothers and sisters, who come into partition with her by the act of 1785, shall take the whole. But it would have been otherwise, had there been no brother or sister of the infant, nor descendants from either of them, but only brothers and sisters of the father, from whom the inheritance descended; for these being postponed by the act of 1785, not only to the mother, but also to the grandfather; and being also wholly excluded by that act, from one moiety of the estate, if there be any kindred on the part of the mother; the inheritance for the reasons above assigned, would, during the joint lives of the mother and the paternal uncles and aunts, or such of them as were in esse at the time of the infant’s death, have remained in abeyance.
Here we must remember, that the utmost limit for which the inheritance, under this construction, can remain in abeyance, is for a life or lives in being, at the time of the infant’s death. For if there be no brother nor sister, nor uncle nor aunt of the infant, nor any of their descendants in being, at the time of the infant’s death, the parent shall immediately succeed to the inheritance. And when the parent dies, the inheritance shall go to the person, next in the order of succession, according to the act of 1785. If on the contrary the brother or sister etc. die without descendants, here, also, the obstacle to the parents succession seems to be removed.
These points, however, remain to be settled by our courts of judicature. It will now be proper to notice one or two particular circumstances (not yet touched upon) arising under this act.
1. By this act one of the rules of the common law, by which all purchased lands were considered in the same light as “feudum novum” to be held “ut antiquum” and therefore that any heir, whether “ex parte paterna” or materna, may succeed to the inheritance, is abrogated, in the case of an infant, so far as relates to his next heir in the ascending line; whereas before the act of 1790, all estates derived by descent were assimilated to estates taken by purchase; which rule is in this instance reversed; lands purchased of the father or mother, being put upon the same footing with such as are derived by descent.
2. Although the father or mother be excluded from the inheritance, the brothers or sisters of the half blood are not, nor are the grandfathers and grandmothers, or the more remote collaterals of the half blood, not even those of the pretermitted parent excluded. Hence we may conclude, that the legislature considered only the danger which might arise to an infant from his guardian being his next heir, without recurring to the principle of the common law, that the inheritance should be confined to the blood of that parent from whom it was derived.
Let us now consider the operation and effect of the act passed in 1792,37 the four first sections of which, are, word for word, the same as the act of 1785. See the edition of 1794, c. 93.
Sec. 5. “Declares that where an infant shall die without issue, having title to any real estate of inheritance, derived by purchase or descent from the father, neither the mother of such infant, nor any issue which she may have by any person, other than the father of such infant, shall succeed to or enjoy the same or any part thereof, if there be living any brother or sister of such infant on the part of the father, or any brother or sister of the father or any lineal descendant of either of them. Saving however to such mother any right of dower, which she may claim in the said real estate of inheritance.”
Sec. 6. “Where an infant shall die without issue, having title to any real estate of inheritance, derived by purchase or descent from the mother, neither the father of such infant, nor any issue which he may have by any person other than the mother of such infant, shall succeed to, or enjoy, the same or any part thereof, if there be living any brother or sister of such infant on the part of the mother, or any brother or sister, of the mother, or any lineal descendant of either of them. Saving however, to such father, the right which he may have as tenant by the curtesy in the said estate of inheritance.”
Sec. 7. “If there be no mother, nor brother, nor sister, nor their descendants, and the estate shall not have been derived either by purchase or descent from either the father or the mother, then the inheritance shall be divided into two moieties, one of which shall go to the paternal, the other to the maternal kindred, in the following course; that is to say;” as in the act of 1785.
The words in Italics in these sections were added at that period; the rest of the act is an exact transcript from the act of 1785.
Upon this act we may remark;
1. First; that by the fifth and sixth sections, the brothers and sisters of the half blood to the infant, on the part of the pretermitted parent, are excluded in the same manner as the pretermitted parent is, if there be living any brother or sister of such infant on the part of the parent, from whom the estate was derived; or any brother or sister of such last mentioned parent, or any descendant of either of them. The same rules and conclusions, therefore, which apply to the case of a pretermitted parent under the act of 1790, seem also to apply to the case of a brother and sister of the half blood, under the fifth and sixth sections of this act, if there be brothers and sisters only, on the part of the parent from whom the lands were derived.
2. That by the seventh section as it now stands, the partibility of the infant’s estate into moieties, in any case where there may be brothers and sisters of the parent from whom the land was derived, or any of their descendants, in being, at the time of the infant’s death is altogether impeded: but does this give the inheritance by implication to those collateral relations? As for example…. “If an infant die without issue, having neither father, mother, brother, nor sister living, nor any descendant from either of them, both his grandfathers and grandmothers being living; having also uncles and aunts on the part of both parents living;” who shall take the inheritance?
1. By the common law, the eldest uncle, or his issue, on the part of the parent from whom the land descended; or (if the land were acquired by purchase instead of descent) the eldest uncle on the part of the father should have succeeded to the inheritance; but we have shown that the act of 1785, has totally repealed those rules of succession, nor is there any reason to believe the legislature meant to revive it again by this act, for the reasons mentioned in the former part of this tract.
2. By the act of 1785, the grandfather is preferred to his own children, who may be collateral to the infant, and the grandmother comes in simul et semel, and in like proportion with them. Now there is as much reason to suppose, that the legislature intended to give the whole inheritance to the grandfather, on the side of the parent from whom the lands were derived, as to suppose the law meant to exclude him from the moiety, which the act of 1785, gave him. Of course, no implication can be supposed to be raised in favor of his children (who are the uncles and aunts of the infant) to his own prejudice. For being neither named in the law, nor within the reason of it, upon any possible grounds: no such implication can be supported under this act, any more than under the former. It might seem, therefore, that in this case, he would take the whole inheritance; for the same reason that the brothels, and sisters of an infant, dying entitled to lands derived from the father, would have taken it under the act of 1790, in exclusion of the mother; and as those of the whole blood will now take it, in exclusion both of the mother and the brothers and sisters of the half blood also. For both the grandfathers coming into the inheritance together, under the act of 1785, these cases may, perhaps, be considered as perfectly parallel to each other. But they are by no means parallel. The act of 1785, declares that the mother shall inherit simul et semel with her children. The act of 1790, declares she shall not have any part or share of the inheritance. The act of 1785, likewise directs that in the case therein mentioned, the inheritance shall be divided into moieties; the act of 1792, says, it shall be so divided, if it were neither derived from the father, nor the mother. But to whom the whole inheritance (when not thus divisible) shall go, the law has not declared. The two grandfathers were equally incapable of inheriting by the common law; the act of 1792, gives no preference to either. The collateral relations on both sides, (expect the next heir at common law) stand likewise in the same predicament. The act of 1792, neither prefers the one to the other, nor makes any provision for the course, which the inheritance must follow in this case. Thus new difficulties crowd upon us in every
new case. Nor can I devise any other possible mode by which they can be solved, and one uniform interpretation of the law established, than that before mentioned, viz. considering “the inheritance to be in abeyance, during the joint lives of the pretermitted heirs, and of the persons during whose lives those heirs are excluded from the inheritance.”
On the other hand, perhaps, this unlucky section may be interpreted as a general rule, not confined to the case of infants only, but extending to the case of every person, whether infants or adults, dying without issue, and without father, mother, brother, or sister, or their issue living; and, consequently, as repealing all the subsequent sections of the act of 1785. A construction, nevertheless, utterly unavoidable, if the act of 1792, had been an entire new law. But being, in its present form, altogether a piece of patch work, the same construction cannot be made upon it, as if it had been originally what it now is. For in the latter case, all omitted cases must have been supplied by reference to the common law, the rules of which, in every case not within the purview of the act, must still have prevailed. But the act of 1785, having abolished and annihilated all those rules, and established a complete system, in which, there is perhaps, not a single casus omissus, and the act of 1789, c. 9. prohibiting us from resorting again to the common law, to supply omitted cases: we are driven, in construing the act to the necessity of confining them to such as the legislature certainly contemplated, viz: to the case of infants only, and not of adults.38 … Nor even to the case of infants, always; for if the estate be derived from any other person than a parent, this case is not within the act: yet if the descent were mediately from the parent, but immediately from a brother or sister, perhaps, in that case, a doubt might arise upon the construction of the words “derived by descent,” etc; but it would seem advisable to construe these deviations from the general system established by the act of 1785, as strictly as possible, so as to exclude as many cases of difficulty, as a due respect for the intention of the legislature, (where it can be understood, and enforced, without manifest contradiction, and absurdity,) will permit.
Some doubts were entertained with respect to the period when this last act came into operation, occasioned by the passing of an act of the same session, which suspended this act, among a number of others, until the first of October, 1793; although a clause in this act declares it shall commence from the passing thereof. The question was discussed in the case of Harrison et al. vs. Allen. Wythe’s Reports, 33. And the chancellor decided it, upon principles which were not deemed convincing by the judges of the general court, in the case of one Ephraim Potter, adjourned thither from the district court of Prince Edward; this, however, was a criminal case, and the question was, whether upon the repeal of all British statutes, as also of the former laws of Virginia, which took away the benefit of clergy from horse-stealers, the suspension of the new law, made the same session, entitled the criminal to the benefit of clergy; which was decided in his favor. But a third case having arisen, in which the same question occurred, as to the commencement of the new act concerning foreign bills of exchange, the court of appeals removed the difficulty, by deciding, that all the laws of the session of 1792, whose operation was suspended by an act passed at the close of the session (Edi. 1794, c. 150,) although they contained a clause of commencement from the passage of each, respectively, must be considered as commencing from the first day of October, 1793.39
In the annexed table, I have endeavored to explain the course of descents, as established by the act of 1785, of which I shall now proceed to give the student some idea; comparing it, as we proceed, with the English rules of inheritance.
1. Let us suppose John Stiles, the Propositus, in the table, to have died intestate, having title to an estate of inheritance, and leaving two sons, Mathew and Gilbert, and two daughters, Margaret and Charlotte; these shall all share the inheritance equally, without regard to sex or primogeniture: whereas we may remember, that, according to the common law rules of inheritance, Mathew Stiles, the eldest son, or his issue, if he were dead, leaving any, should have succeeded in preference to the younger son Gilbert; and that Gilbert and his issue would also have been preferred to the daughters. But no preference whatever is given by our law; and if either of the sons or daughters were dead, leaving issue, that issue should succeed in the same manner to the portion of his or her deceased parent. This class is distinguished in the table by number I.
2. If there be no child, or other descendant of John Stiles, his father (number II,) shall next succeed to the inheritance; whereas, by the law of England, the father can never inherit to the son, in a lineal course: but the uncle, or other collateral kindred in the most remote degree, shall be preferred to him; and, in default of these the land shall escheat to the lord of the fee.
3. If there be no father, the mother, if living, together with the brothers and sisters of John Stiles (number III,) shall divide the inheritance between them in equal portions, if of the whole blood, or, in half portions, if of the half blood, either on the part of the father, or the mother; and if any of them be dead leaving issue, such issue shall inherit the share of his deceased parent; even though it were a bastard, if the mother were one of those entitled to a portion of the inheritance. Whereas, by the common law, neither the mother, nor the brothers or sisters of the half blood, nor the bastard, could have any portion of the inheritance, by any means whatever. And the younger brother, and sisters of the whole blood, would have been all postponed to the elder brother, Francis Stiles, and his issue, in infinitum.
4. If there be none of these relations, the inheritance shall be divided into two equal moieties; one of which shall go to the paternal, and the other to the maternal kindred, in the following course ; that is to say, first to the grandfather; (number IV,) whereas by the common law no partition between paternal and maternal kindred, as such, can ever take place; nor could the grandfather inherit lineally from his grandson, but the land should rather escheat, for want of heirs. And, in the case here supposed, should descend to the issue of the paternal grandfather, if any, or, if none, to his nearest collateral kindred of the whole blood.
5. If the grandfather be dead, then the moiety to which, if living, he would have been entitled, shall be equally divided between the grandmother of the same side, if living, and the descendants of such grandfather and grandmother, or such of them as there be; (number V,) and this likewise, without regard to sex, or primogeniture, or half blood, or bastardy, where the mother of the bastard may have been one of those entitled to the inheritance: but the half blood take half portions only. And here we may remark, that even those of this class, who might by possibility come into the inheritance by the rules of the common law, if they happen to be of the maternal kindred, (as for example, the issue of Andrew and Esther Baker) come in only in the fourteenth place, instead of the fifth, as may be seen by referring to judge Blackstone’s table of descents.
6. In default of kindred in any of these degrees, the inheritance of each moiety shall go to the great grandfathers of the same side, (number VI,) or great-grandfather, if there be but one. That is, the paternal moiety shall go to Walter Stiles and Luke Kempe, or to whichever of them may be living, if the other be dead; and the maternal moiety shall in like manner go to Herbert Baker and James Thorpe, or the survivor of them, if either be living, in exclusion of the great grandmothers and collateral kindred in the same, or a more remote degree. But, if both the male ancestors in the same degree, and of the same side, be dead, then the female ancestor or ancestors of the same side, together with the descendants of such deceased male or female ancestors, or ancestor, (number VII,) shall come into the inheritance, according to the foregoing course. Whereas, in this case, the issue of Walter and Christian Stiles, (number VIII in Blackstone’s table, and number VII in this) according to their sex and seniority, would, by the rules of the common law, have succeeded to the whole inheritance, instead of a moiety only; in exclusion of all others, either in an equal or more remote degree.
7. In the same manner, the male ancestors in the next degree, of whom we may observe that there are four in each line, (number VIII,) or the survivors, or survivor of those on the same side, shall succeed to the inheritance of each moiety respectively, in exclusion of female ancestors and collaterals, in the same degree; but, if all the male ancestors in that degree, be dead, then the female ancestors, or ancestor, and collateral kindred in the same degree (number IX,) and the descendants of such of them as may be dead, shall take each moiety respectively. And, if there be no such kindred of the one part, the whole shall go to the other part; and if there be no kindred on either part, then the inheritance shall go to the wife or husband of the intestate, (number X,) and if the wife or husband be dead, it shall go to his or her kindred, (number XI,) in the like course as if such wife or husband had survived the intestate, and then died entitled to the estate. So that, in such a case, the wife or husband is to be considered as the propositus, or stock from whom the estate descends; and his or her kindred are to be sought out according to the preceding course.
The second table is intended to explain to the student the manner in which partition is to be made, pursuant to the act of 1792, e. 93. Sect. 16, which declares, that where the children of the intestate or his mother, brothers and sisters, or his grandmother, uncles and aunts, or any of his female lineal ancestors living, with the children of his deceased lineal ancestors, male and female in the same degree, come into the partition, they shall take per capita, that is to say, by persons; and where a part of them being dead, and a part living, the issue of those dead have right to partition, such issue shall take per stirpes, or by stocks, that is to say, the share of their deceased parent.
1. The order of succession to the intestate’s estate is, in this second table, denoted by the Roman numerals I, II, etc. pursuant to the course directed in the second, third, fourth, seventh, eighth, ninth, and tenth sections of the law, and show that all the persons thus distinguished alike, shall succeed at the same time to the inheritance in the order of those numbers. Thus the class marked (I,) or the descendants, in infinitum, of such of them as are dead, if such descendants be in esse at the time of the intestate’s death, shall succeed altogether, before any of the other classes, (marked II, III, etc.) are admitted to any part of the inheritance. And here, let it be remembered, that these different classes can never come into the partition together: but the first must be totally extinct before the second can come in; and the second must likewise be extinct before the third can be admitted to any portion of the inheritance; and so on, with all the rest.
2. The succession per capita, or by persons, is marked in each class by the letters A, B, C. Thus, if all those marked A, be living, they shall come into the partition per capita, and exclude the others, who are more remote from the intestate, from any share of the inheritance; if all those marked A be dead, those marked B, being now the next of kin to the intestate in equal degree, shall take the inheritance among them, if they be all living, per capita: to the exclusion of those marked C. But if all those marked A and B be dead, then the class marked C shall also inherit per capita, they being now related to the intestate in equal degree, together. But if a part of those marked A be living, and a part of them be dead, the descendants of the latter, who are marked B, shall not take per capita, with those marked A; but they shall take the share of their deceased parents only, which shall be divided among themselves; and this is what the law calls taking per stirpes, or by stocks. And, in like manner, if all those marked A, were dead, and a part of those marked B, were also dead, leaving issue, or other descendants, in esse, (marked C,) such issue could not come into the partition, per capita, with the class marked B, but they come per stirpes , taking the share of their deceased parent, only, which is to be divided among themselves, by persons. And this course is to be observed, as well in the collateral, as in the descending line, from the intestate.
Thus, if John Stiles, the propositus in the Table, die, leaving issue Mathew, Gilbert, and Charlotte Stiles, all living at the lime of his death, (see the class marked A in the descending line) they shall take per capita, and inherit equal portions; but if one of them, Charlotte, be dead, leaving two sons,, James and Benjamin, (marked B.) they shall not/take with Mathew and Gilbert, per capita, but only their deceased mother’s part, which they shall divide equally between them. But, if Mathew and Gilbert were also dead at the time of the death of their father, the latter without issue, and the former leaving three children, Joseph, Esther, and Richard, still living here, these three children of Mathew, and the two sons of Charlotte, being now the nearest of kin to the intestate, and all of them in equal degree, (see the class marked B.) they shall take per capita, and not per stirpes, as they must have done, if either of the children of John Stiles, suppose Gilbert, (who belongs to the class marked A.) had then been living. So, if all the children of John Stiles were dead, leaving issue as above supposed, except James, the son of Charlotte, now dead, leaving issue Mary and Daniel, (class C.) these children of James should not share the inheritance, per capita, with the three children of Mathew, and Benjamin the other son of Charlotte, but should take the portion of their father James only; yet, if Benjamin, the other son of Charlotte, and all the children of Mathew, were also dead, so that Anne, Robert, Philip, Mary, Daniel and William (class C.) would be .all the nearest of kin to the intestate, living at the time of his death, these being all related to him in equal degree, should take the inheritance among them, per capita, and not per stirpes, as they must have done, if Gilbert, or any other person in the class marked A, or if Joseph, the son of Mathew, or any other person in the class B, had then been living.
It now only remains to explain the principles upon which the proportions of those who come into the partition together, may be adjusted, where they are to take per stirpes, for in such cases it may happen that two persons who are related to the intestate in an equal degree, may take such different proportions, that one may have a third, and the other not more than a twentieth or thirtieth part of the inheritance. Thus if John Stiles, the propositus, should die intestate, his son Mathew being dead leaving eight children, and Gilbert being also dead, leaving one child, and Charlotte being still living: here, inasmuch as the succession of Mathew’s children, and Gilbert’s child must be per stirpes, each taking the share of their respective parents, the child of Gilbert will have one third of the whole estate; whilst the children of Mathew have only one eighth part of his proportion, each, or a twenty-fourth part of the whole estate…. But, if they had taken per capita, their portions must have been all equal.
And here I must premise one general rule, whenever the inheritance is to be divided per stirpes; that is to say, the inheritance must first of all be divided into as many different parts, as the number of persons then living in the nearest degree of consanguinity to the intestate, together with those in the same degree of consanguinity, who may be dead, leaving issue still living, will amount to. Thus if John Stiles during his life had eight children, two of whom died in his lifetime, leaving issue, and two without issue, and the remaining four still living; here the primary division of his estate must be into six equal parts, or portions; because so many children, or their representatives, will be entitled to share the estate: but to be more particular.
If John Stiles, the propositus, in the Table, die leaving issue three children (class A.) these being in the nearest degree of consanguinity to him, his inheritance, if he die intestate, shall be divided into three equal parts, which they shall take between them per capita, or by persons; but if one or more of them be dead, leaving issue, and one still living, the inheritance shall still be divided into three parts, of which the survivor, or survivors shall each have one, and the issue, (or other descendants in infinitum) of such as be dead shall take the share of their deceased ancestor, or ancestors, respectively, per stirpes, which shares shall be divided among the immediate representatives of the deceased, in equal degree, per capita; or again subdivided among the descendants of such of them as may be dead, per stirpes. Therefore, if Mathew Stiles (class A.) he dead, leaving three children, Joseph, Esther and Richard (class B.) and Charlotte Stiles, (class A.) be likewise dead, leaving two children, James and Benjamin (class B.) and then John Stiles the father die, leaving his second son Gilbert, (class A.) living; in this case the inheritance shall be divided into three equal parts, of which Gilbert shall have one; the children of Mathew, a second; each of whom shall take one third part thereof, or, one ninth part of the whole inheritance: and the remaining third part shall go to the children of Charlotte, each taking one moiety thereof, or one sixth part of the whole inheritance. Again; if Mathew be dead, leaving his son Joseph, (class B.) and two grand-children, Anne and Robert, (class C.) children of his daughter Esther, deceased; and Philip, (class C.) son of his son Richard, deceased: and James and Benjamin, the sons of Charlotte, be likewise dead, together with their mother, leaving Mary and Daniel, (class C.) children of James; and William the son of Benjamin; and then John Stiles die intestate, leaving his son Gilbert (class A.) still living; in this case the inheritance shall first be divided into three equal parts, of which, Gilbert shall have one, as before; the second shall go to the descendants of Mathew, per stirpes; that is to say, Joseph, his son, shall take one third part thereof, or one ninth of the whole inheritance, as before; Anne and Robert,
the children of his daughter Esther, shall take one other third part, as her representatives, between them; or, one eighteenth part of the whole inheritance, each: and Philip shall take the remaining third part of Mathew’s portion, as the sole representative of his father Richard, deceased: and the remaining third part of the whole inheritance shall go to the descendants of Charlotte Stiles deceased, in like manner, per stirpes; that is to say, Mary and Daniel shall take the portion which their father James, if living, would have been entitled to, in equal proportions; or, one twelfth of the whole inheritance each; and William the son of Benjamin shall take his entire portion, or one sixth part of the whole inheritance, as the sole representative of his father, deceased.
But if Gilbert Stiles, the second son of John, were also dead, leaving no issue living at the death of his father; Mathew and Charlotte, being dead, leaving issue, as above supposed…. In this case, the inheritance must be divided according to the number of stocks, in the second class; (marked B.) for these are now in the nearest degree of consanguinity to John Stiles: that is to say, into five equal parts, one of which must go to each of the living grandchildren of John Stiles, and one to the descendants of each of those who are dead. Joseph, therefore, (class B.) will have one entire fifth part, the number of stocks being five; Anne and Robert, the children of Esther, (class C.) will have one other fifth part between them, as representing their mother; Philip, the son of Richard, will take another entire fifth part, as representing his father: the children of James will take another fifth part between them; and the remaining fifth part will go to William, the son of Benjamin, Here Anne and Robert the children of Esther, and Mary and Daniel the children of James, will each take one moiety of their respective parent’s share; while Joseph the grandson of John Stiles Bind Philip the son of his grandson Richard, and William the son of his grandson Benjamin, will each take one equal fifth part of the whole inheritance.
But if there he neither child (class A.) nor grandchild, (class B.) living, then the great grandchildren (class C.) shall come in per capita, and not per stirpes. A consequence of which is, that they shall take the whole inheritance among them, in proportions; or, one sixth part, each, of the whole inheritance: they being now the nearest of kin to the intestate who are entitled to share his inheritance.
From what has been said, it will he evident; that whenever one class, whether those marked A. B. or C. come into the partition together, without either of the other classes having a share with them, the individuals of such class take per capita, and not per stirpes; but if any two classes, or all three come into the partition together, the nearest relations of the deceased shall take per capita and the more remote per stirpes; yet liable to a further subdivision per capita, where there may be more than one child of the same parent, who, if alive, would have been entitled to partition.
This differs from the rules of succession in parcenary, at the common law, where the right of representation is uniformly preserved, agreeing with the civil law in those cases, where all the persons entitled to partition are equally remote from the intestate.
THE act of 1785, c. 63, confirmed by that of 1792, Edi. 1794, c. 91. Sect. 27, declares, that the surplus of the personal estate, after payment of debts and funeral charges, and deducting the wife’s third part, if there be a wife, shall be distributed in the same proportions, and to the same persons, as lands are directed to descend in, by the acts of 1785, c. 60, and the act of 1792, entitled, An Act to reduce into one the several acts directing the course of descents:40 provides, that nothing therein contained shall be understood so as to compel the husband to make distribution of the personal estate of his wife, dying intestate.
But the act of 1801, c. 13, declares, “that when an infant having title to personal estate, shall die before the attainment of the age when one may legally bequeath that kind of property, or after attaining such age, shall die without bequeathing it, those of his or her kindred shall succeed to the said infant, who would have succeeded, if he or she had been at the time of his or her death, of the age of twenty-one years.”
This act was probably occasioned by a decision in the court of appeals, in October term 1801, in the case of Tomlinson vs. Dilliard, a report of which was published in some of the newspapers soon after, and was in substance, as follows:
Tomlinson, by his last will in February 1797, gave a moiety of a tract of land, in Greensville County and seven negroes, to his wife, and also the use, dining her life, of the plantation whereon he resided; which devises included all the property he had received with her, and much more. He then devised all the rest of his estate to the child of which he supposed his wife to be pregnant: she was accordingly delivered of a child, after his death, which lived till September, 1798, and then died, in the life-time of the mother, who had married Dilliard, and died soon after her child….
The question was, whether Dilliard, in right of his wife was entitled to the personal estate, or not. The chancellor decreed in his favor, and the Tomlinsons appealed from his decree to the court of appeals, where the same was reversed, for the following reasons:
That the act of assembly passed in the year 1792, for the distribution of intestates’ estates, (Edition of 1794, c. 92, J. 27.) having enacted, that, if there be no wife or children, the surplus of the personal estate shall be distributed to the same persons, and in the same proportions as lands are directed to descend by the act of 1792, to reduce into one, the several acts directing the course of descents; has adopted the exceptions in the fifth and sixth sections, of that act, which exclude the father and mother, and their children by another husband or wife from succession to the lands of an infant intestate, which came to him from the other parent, as well as the rule to which they are exceptions; and extends that exclusion equally to a distributive share of the personal estate coming to the infant in the same manner.41
It does not appear, from this statement, whether the Tomlinsons or Dilliard was the complainants in Chancery; nor in what degree the former were related to the child of Mrs. Dilliard, born after the death of her first husband: Circumstances which, in the apprehension of the author of this tract might have a very important influence upon the case, for reasons, which may be collected from what is therein contained.
1. 1 L. V. 1710, c. 13, §. 4 …. 1727, c. 4, §. 11, etc- 1748, c. 1, Sec. 14.
2. A copy of this act may be found bound up with some of the editions of 1733. It is also abridged by Mercer, p. 202. The act of 1748, c. 1, Sec. 15 and 16, contains some further provisions, than that of 1734, c. 6.
3. 2 Bl. Comm. 209.
4. Co. Litt. 163, 188, 243, Litt. Sec. 398.
5. Co. Litt. 243.
6. 1748, c. 1, Sec. 28, 4″, fcc.
7. 1785, c. 63
8. 1785, c. 62.
9. Sec. 2.
10. vi. Chris, notes on B. C. V. 2. 208.
11. 2. B. C. 169. 1 Salk 228. 1 Inst. 29. 6. The rule in the civil law is Qui in utero sunt, in jure civili intelliguntur in rerum natura esse, cum de eorum commodo agatur.
12. V. L. 1781, c. 62 Etli 1794. c 90.
13. 2. B.C. 208, 210, 212. 1 Inst. 11.
14. 3 Blacks. Com. 227.
15. 1 Blacks. Com. 459.
16. Children pretermitted in their father’s will, further provided for. 1794. c. 170.
17. 2. B C. 188. 194… Co. Litt. 164. 200 …. 2. Wils. 232. S I/MO. c. 15. V. L.
18. V. L. 1786, c. 60.
19. It took effect, July 1, 1757. 2. B.C. 223.
20. 2. B. C. 230.
21. 4 Bac. Abr. 638. 2 Wash. 296, 209.
22. Gub. Hist C. P. 212.
23. 2 B. C. 249, 254. V. L. 1785. c. 60, Sec. 11.
24. By the statute 1 James I. c. 4. Sec. 6, any child sent beyond seas for a popish education, was disabled from inheriting, having, or enjoying; any lands within the realms of England, but the statute contained no declaration who should have the lands. And thereupon, a subsequent statute, 3 Jas. 1, c. 5. Sec. 17, was made, declaring, that his next of kin, not being a popish recusant, shall have and enjoy the land, until such time as the person beyond seas shall conform himself to the injunctions of the statute.
25. 2 Blacks. Comm. p. 255.
26. Ibid. P- WT.
27. Litt. Sec. 647.
28. 1 Inst. 8, 6.
29. Litt. Sec. 646.
30. Co. Litt. 165.
31. Ibid. 165. & 2 B. C. 217.
32. The king, in the case of parceners of a title of honor, may direct which one of them, and her issue shall bear it; and if the issue of that one, become extinct, it will again be in abeyance, if there are descendants of more than one sister remaining. But upon the failure of the issue of all, except one, the descendant of that one, being the sole heir, will have a right to claim, and to assume the dignity …. Christian.
There are instances of a title, on account of a descent to females, being dormant, or in abeyance, for many centuries. Harg. Co. Litt. 165.
33. Dyer, 340. 1 Rep. 101. 2 Blacks. Com. p. 182.
34. Fearne 307, 315.
35. Cited Fearne 318. 1 Eq. Ca. 188, Case 11.
36. Fearne 593, 394. Carth. 310.
37. L. V. Edi. 1794, c. 93.
38. Since this tract was transcribed for the press, the author of it has been gratified in finding his ideas upon this subject confirmed by the decision of the court of appeals in the case of Drown et al. vs. Turberville et al. 2. Call’s Reports 390, just published. The case was shortly this: George Waugh of full age, died intestate without issue, and unmarried, seized and possessed of an estate partly derived by devise from his father Goury Waugh, and partly by descent from his brother Robert Waugh, leaving an uncle, and three cousins, children of a deceased uncle of the whole blood, on the mother’s side, and an uncle of the half blood, likewise on the mother’s side, and two relations on the father’s side. The estates were ordered to be divided into two moieties, of which one was to be divided between the two relations on the father’s side; and the other to be allotted to those on the part of the mother, as follows: two fifths to the uncle of the whole blood; two fifths to the three cousins; and one fifth to the uncle of the half blood …. 2. Call’s Rep, 390.
39. Call’s Hep. 1 vol 394.
40. L. V. Edi. 1794, c. 93.
41. Extracted from the Examiner of November 20, 1801.