1902 Encyclopedia > Inheritance

Inheritance




INHERITANCE. In English law, inheritance, heir, and other kindred words have a meaning very different from that of the Latin hceres, from which they are derived. In Roman law the heir or heirs represented the entire legal personality of the deceased—-his universum jus. In English law the heir is simply the person on whom the real property of the deceased devolves by operation of law if he dies intestate. He has nothing to do as heir with the personal property; he is not appointed by will; and except in the case of coparceners he is a single individual. The Roman hceres takes the whole estate; his appointment may or may not be by testament; and more persons than one may be associated together as heirs.

The devolution of an inheritance in England is now regulated by the rules of descent, as altered by the Inheri-tance Act (3 & 4 Will. IV. c. 106), amended by 22 & 23 Vict. c. 35. 1. The first rule is that inheritance shall de-scend to the issue of the last " purchaser." A purchaser in law means one who acquires an estate otherwise than by descent, e.g., by will, by gratuitous gift, or by purchase in the ordinary meaning of the word. This rule is one of the changes introduced by the Inheritance Act, which further provides that " the person last entitled to the land shall be considered the purchaser thereof unless it be proved that he inherited the same." Under the earlier law descent was traced from the last person who had "seisin" or feudal possession, and it was occasionally a troublesome question whether the heir or person entitled had ever, in fact, acquired such possession. Now the only inquiry is into title, and each person entitled is presumed to be in by purchase unless he is proved to be in by descent, so that the stock of descent is the last person entitled who cannot be shown to have inherited. 2. The male is admitted before the female. 3. Among males of equal degree in consanguinity to the purchaser, the eldest excludes the younger; but females of the same degree take together as "coparceners." 4. Lineal descendants take the place of their ancestor. Thus an eldest son dying and leaving issue would be represented by such issue, who would exclude their father's brothers and sisters. 5. If there are no lineal descendants of the purchaser, the next to inherit is his nearest lineal ancestor. This is a new rule introduced by the Inheritance Act. Under the former law inheritance never went to an ancestor,—collaterals, however remote, of the person last seized being preferred even to his father. Various explanations have been given of this seemingly anomalous rule,—Bracton and Blackstone being content to say that it rests on the law of nature, by which heavy bodies gravitate downwards. Another explanation is that estates were granted to be descendible in the same way as an ancient inheritance, which having passed from father to son ex necessitate went to collaterals on failure of issue of the person last seized. 6. The sixth rule is thus ex-pressed by Mr Joshua Williams in his excellent treatise on The Law of Real Property : " The father and all the male paternal ancestors of the purchaser and their descend-ants shall be admitted before any of the female paternal ancestors or their heirs; all the female paternal ancestors and their heirs before the mother or any of the maternal ancestors or her or their descendants; and the mother and all the male maternal ancestors and her and their de-scendants before any of the female maternal ancestors or their heirs." 7. A kinsman of the whole blood shall come before the same degree of the half blood. The admission of kinsmen of the half blood into the chain of descent is one of the alterations made by the Inheritance Act. formerly a relative, however nearly connected in blood with the purchaser through one only and not both parents, could never inherit—a half-brother for example ; while relatives of the whole blood, however distant, might inherit to the exclusion of nearer relatives of the half blood. 8, In the admission of female paternal ancestors, the mother of the more remote male paternal ancestor and her heirs shall be preferred to the mother of the less remote male paternal and her heirs; and, in the case of female maternal ancestors, the mother of the more remote male maternal ancestor shall be preferred to the mother of a less remote male maternal ancestor. This rule, following the opinion of Blackstone, settles a point which has been much dis-puted by text-writers, although its importance was little more than theoretical. 9. When there shall be a total failure of heirs of the purchaser, or when any lands shall be descendible as if an ancestor had been the purchaser thereof, and there shall be a total failure of the heirs of such ancestor, then and in every such case the descent shall be traced from the person last entitled to the land as if he had been the purchaser thereof. This rule is enacted by 22 & 23 Vict. c. 35. It would apply to such a case as the following:—Purchaser dies intestate, leaving a son and no other relations, and the son in turn dies intestate ; the son's relations through his mother are now admitted by this rule. If the purchaser is illegitimate, his only relations must necessarily be his own issue. Failing heirs of all kinds, the lands of an intestate purchaser, not alienated by him, would revert by "escheat" to the next im-mediate lord of the fee, who would generally be the crown. If an intermediate lordship could be proved to exist between the crown and the tenant in fee simple, such intermediate lord would have the escheat. But escheat in any case is a matter of rare occurrence.

The descent of an estate in tail would be ascertained by such of the foregoing rules as are not inapplicable to it by the necessity of the case. By the form of the entail the estate descends to the " issue " of the person to whom the estate was given in tail,—in other words, the last purchaser. The preceding rules after the fourth, being intended for the ascertainment of heirs other than those by lineal descent, would therefore not apply; and a special limitation in the entail, such as to heirs male or female only, would render unnecessary some of the others. When the entail has been barred, the estate of course descends according to these rules. In copyhold estates descent, like other incidents thereof, is regulated by the custom of each particular manor; e.g., the youngest son may exclude the elder sons. How far the Inheritance Act applies to such estates has been seriously disputed. It has been held in one case (Muggleton v. Barnett) that the Inheritance Act, which orders descent to be traced from the last purchaser, does not override a manorial custom to trace descent from the person last seized, but this position has been controverted on the ground that the Act itself includes the case of customary holdings.





Husband and wife do not stand in the rank of heir to each other. Their interests in each other's real property are secured by curtesy and dower. See HUSBAND AND WIFE.
The personal property of a person dying intestate devolves according to an entirely different set of rules, which will be found under the head of INTESTACY.

In the law of Scotland the rules of descent differ from the above in several particulars. Descent is traced, as in England before the Inheritance Act, to the person last seized. The first to succeed are the lineal descendants of the deceased, and the rules of primogeni-ture, preference of males to females, equal succession of females (heirs-portioners), and representation of ancestors, are generally the same as in English law. Next to the lineal descendants, and failing them, come the brothers and sisters, and their issue as collaterals. Failing collaterals, the inheritance ascends to the father and his relations, to the entire exclusion of the mother and her relations. Even when the estate has descended from mother to son, it can never again revert to the maternal line. As to succession of brothers, a distinction must bs taken between an estate of heritage and an estate of conquest. Conquest is where the deceased has acquired the land otherwise than as heir, and corresponds to the English term purchase in the technical sense explained above. Heritage is land acquired by deceased as heir. The distinction is important only in the case when the heir of the deceased is to be sought among his brothers ; when the descent is lineal, conquest and heritage go to the same person. And when the brothers are younger than the deceased, both conquest and heritage go to the brother (or his issue) next in order of age. But when the deceased leaves an elder and a younger brother (or their issues), the elder brother takes the conquest, the younger takes the heritage. Again, when there are several elder brothers, the one next in age to the deceased takes the conquest before the more remote ; and when there are several younger brothers, the one next to the deceased takes the heritage before the more remote. "When heri-tage of the deceased goes to an elder brother (as might happen in certain eventualities), the younger of the elder brothers is preferred. The position of the father, after the brothers and sisters of the deceased, will be noticed as an important point of difference from the English axioms ; so also is the total exclusion of the mother and the maternal line. After brothers and sisters and their issue have been exhausted, the heir is sought among the relations of the father ; but even when these are exhausted, the estate, although it should have descended ex parte materna, can never revert to the maternal line. As between brothers and sisters the half-blood only succeeds after the full blood. Half-blood is either consanguinean, as between children by the same father, or uterine, as between children having the same mother. The half-blood uterine is excluded altogether. Half-blood consanguinean succeeds thus : if the issue is by a former marriage, the youngest brother (being nearest to the deceased of the consanguinean) succeeds first; if by a later marriage than that from which the deceased has sprung, the eldest succeeds first.

In the United States the English law of inheritance has been more completely repudiated than any other portion of our system. Each State has established rules of descent for itself, and the observation of Chief Justice Beeve that the nation "has no gene-ral law of descents, wdiich probably has not fallen to the lot of any other country," is to some extent justified by the great dif-ferences in detail between the rules obtaining in the different States. The following are the rules of most general application, as stated in Kent's Commentaries on American Law, twelfth edition, edited by 0. W. Holmes, jun. 1. Real estate shall descend to the lawful descendants of the owner, in the direct line of lineal descent; and if there be but one person, then to him or her alone ; and if more than one person, and all of equal degrees of consanguinity to the ancestor, then to the several persons or tenants in common in equal parts, however remote from the in-testate the common degrees of consanguinity may be. 2. When the lawful issue are of unequal degrees of consanguinity to the in-testate, the inheritance shall descend to the children and grand-children, if any be living, and to the issue of such as shall be dead, as tenants in common ; but such grandchildren and their descend-ants inherit only such shares as their parents respectively would have taken if living. These two rules are stated to prevail in all the United States, with some important variations, however, in the case of the first rule. 3. In the absence of descendants the inherit-ance goes to the parents, either first to the father and next to the mother, or jointly under certain conditions. This canon is de-scribed as prevailing "to a considerable extent." 4. If the intestate dies without issue or parents the estate goes to his brothers and sisters and their representatives. If the relatives are of equal degrees of consanguinity they take in equal parts ; but if, of the same degree, some be dead, leaving issue, and others living, the descendants of those who are dead take only their parents' share. Collaterals under this rule would be preferred to ascendants—after parents. "It is perhaps universally the rule that brothers and sisters are preferred to grandparents, though the latter stand in an equal degree of kindred " (Kent, vol. iv. p. 401). In some States there is no essential distinction left between the whole and the half-blood, in others the half-blood is postponed, but nowhere is it totally excluded. 5. In default of the foregoing, the inheritance generally goes to grandparents, but in some States (New York, New Jersey, and North Carolina) grandparents are excluded, and in others postponed. 6. Next come uncles and aunts and their descendants, taking per capita if of equal degree, and per stirpes if not. 7. If the inheritance came to the deceased on the part of his father, the father's brothers and sisters would exclude the mother's brothers and sisters, and the mother's brothers and sisters would have a similar preference in respect of property com-ing to the deceased ex parte materna. , A similar distinction is observed in some States in applying the fourth rule. 8. On failure of heirs under the preceding rules, recourse is had to the "next-of-kin " as ascertained by the English statute of distributions. In many of the States the harshness of the English rule that natural children have no inheritable blood is greatly mitigated. In Louisi-ana, if duly acknowdedged, they may inherit from both father and mother in the absence of lawful issue.

A full summary of the rules of descent prescribed by the statute law of the various States of the Union, will be found in a note appended to the first chapter of Washburn's American Law of Heal Property, vol. iii., Boston, 1868.







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