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OF TITLE BY DESCENT.
We have already considered the nature of real property, the different quantities of interest which may be had in it, the conditions on which it is held, and the character and variety of joint ownership in land. I now proceed to treat of title to real property, and of the several ways in which that title may be acquired and transferred.
To costitute a perfect title, there must be the union of actual possession, the right of possession, and the right of property. These several constituent parts of title may be divided and distributed among several persons, so that one of them may have the possession, another the right of possession, and the third the right of property. Unless they all be united in one and the same party, there cannot be that consolidated right, that jus duplicatum, or the droit droit, or the jus proprietatis et possessionis, which, according to the ancient English law, formed a complete title."
• 2 Blacks. Com. 199.
b Bracton, lib. 2, fo. 32, b. lib. 5, fo. 372, b. Co. Litt. 266, a. cient doctrine of remitter applies when a person has the jus proprietas in lands, but is out of possession, and the freehold is cast upon him by some subsequent and defective title during infancy or coverture, or by descent, and he enters under that title. In that case he is remitted, by operation of law, to his better title and the defeasible estate is annulled. 3 Blacks. Com. 19. 190. Littleton has a whole chapter on this title, and Coke has added a copious commentary. Co. Litt. 348.
17. C.S 530 *374
All the modes of acquiring title to land, are reducible to title by descent and by purchase, or, according to the better distribution of Mr. Hargrave, into title by act or operation of law, and title by purchase, or by the act or agreement of the parties. Whether the agree*374 ment be founded upon *a valuable consideration, or be the result of a free and voluntary gift, the property thereby acquired is still, in the eye of the law, a purchase. I shall treat of each of these sources of title in their order; and it will be the object of the present lecture to examine the doctrine of descents, which has always formed a prominent and very interesting title in every code of civil jurisprudence.
Descent, or hereditary possession, is the title whereby a person, on the death of his ancestor, acquires his estate by right of representation as his heir. The English law of descent is governed by a number of rules, or canons of inheritance, which have been established for ages, and have regulated the transmission of the estate from the ancestor to the heir, in so clear and decided a manner, as to preclude all uncertainty as to the course which the descent is to take. But, in the United States, the English common law of descents, in its most essential features has been universally rejected, and each state has established a law of descent for itself. The laws of the individual states may agree in their great outlines, but they differ exceedingly in the details. There is no entire, though there is an essential uniformity on this subject; and the observation of a great
■ Titles by curtesy and in dower arising by operation of law upon the death of the wife or husband as the case may be, seem to fall properly under the head of title by descent. See Co. Litt. 18, b. and n. 106. The learned author of the article alienage in the American Law Magazine for October, 1843, has referred to authorities in favour of the proposition, and particularly to the strong case of Pemberton v. Hicks, 1 Binney, 1. Co. Litt. 18, a, b. Harg. ibid. n. 106.
2 Blacks. Com. 201.
master of this title in American law,a is rather too strong, when he says, that "this nation may be said to have no general law of descents, which probably has not fallen to the lot of any other civilized country." I shall not attempt to define and explain all the variations and shades of differences between the regulations of descent in the different states. This has been already done to our hand, with great fulness of illustration, in the work of Chief Justice Reeve, to which I have alluded; and it will be sufficient for the purpose of the present essay, to state those leading principles of the law of descent in the United States, which are of the most general application.
*I. The first rule of inheritances is, that if a person owning real estate dies seised, or as owner,
• Reeve's Treatise on the Law of Descents, pref.
The law of descent in the provinces of France, before the revolution of 1789, was exceedingly various, and far exceeded that in the several American States. In the southern provinces, (Pays de droit ecrit,) the succession to intestates was generally according to the 118th novel of Justinian, to all the children male and female equally. But in the other provinces, (pays contumiers,) there was much difference even in the lineal line. In the nouveau coutumier de France, et des Provinces, connues sous le nons des Gaules, it was stated that the customs amounted to five hundred and forty-seven. In some the eldest son took the entire estate. In most of the provinces he was allowed advantages more or less considerable. In some the married daughters were excluded; in others unmarried daughters, as against male children. In the collateral line, the modifications and diversities of succession were infinite. The decrees of the constituent assembly, of the 15th March, 1790, and 8th of April, 1791, first abolished the rights of primogeniture and preference of males; and, after a distressing series of changes, retrospective decrees, confusion, and injustice, the French law of succession was permanently regulated by the Napoleon code. Prior to this consummation of their civil code, A. C. Guichard published a grave and sensible treatise, and one that was historical, analytical, and critical, on the revolutionary law of successions. See his Dissertation sur le Regime actuel des Successions, published at Paris, according to the republican calendar, Nivose An. 5. So, also, in the third year of the Republic, C. Vermiel, published at Paris, under the title of Code des Successions, a collection of Decrees, Sur les Successions, Testamens, Donations, Substitutions, Partages et autres actes civiles qui y ont rapport.
without devising the same, the estate shall descend to his lawful descendants in the direct line of lineal descent; and if there be but one person, then to him or her alone, and if more than one person, and all of equal degree of consanguinity to the ancestor, then the inheritance shall descend to the several persons as tenants in common, in equal parts, however remote from the intestate the common degree of consanguinity may be.
This rule is in favour of the equal claims of the descending line, in the same degree, without distinction of sex, and to the exclusion of all other claimants. Thus, if A. dies, owning real estate, and leaves, for instance, two sons and a daughter, or, instead of children, leaves only two or more grandchildren, or two or more great grandchildren, these persons being his lineal descendants, and all of equal degree of consanguinity to the common ancestor, that is, being all of them either his children, or grandchildren, or great grandchildren, they will partake equally of the inheritance as tenants in common. This rule of descent was prescribed by the statute of New-York of the 23d February, 1786; and it has been adopted by the New-York Revised Statutes." It prevails in all the United States, with this variation, that, in South Carolina, the widow takes one-third of the estate in fee, and in Georgia she takes a child's share in fee, if there be any children, and if none, she then takes a moiety of the estate. In Massachusetts, the statute law of descents applies only to estates whereof the ancestor died seised in fee simple or for the life of another, and the descent of estates tail (which are left as they stood at common law) is limited to the eldest male heir. In Rhode Island, New-Jer
Vol. i. 751. sec. 1, 2.
20 Pick. 514.
Ibid. 753, sec. 17. Ibid. 754, sec. 19.
sey, North and South Carolina, Tennessee, and Lousiana, the claimants take, in all cases, per stirpes, though standing in the same degree. In Alabama, the descendants of children also take per stirpes, and in Tennessee the male issue is preferred to the female in the descent of real property.b
The act of New-Jersey of 1817, is not clearly expressed in respect to the rights of the lineal descendants, but I have assumed the construction to be that representation prevails after children, or in the second class of de
b Statute Laws of Tennessee, edit. 1836, p. 247, 248. Lewis v. Claiborne, 5 Yerger, 369. Toulmin's Dig. 885. Act of Georgia, of December 26, 1826. Massachusetts Revised Statutes, 1835. North Carolina Revised Statutes, 1837, tit. Descents. Aikin's Alabama Dig. 2d edit. p. 128. The Massachusetts Revised Statutes, of 1835, have this further provision, that if any surviving child dies under age, and not having been married, his estate so inherited shall descend to the other children of the same parent, and the issue of any of them dead, by right of representation; if all the other children be dead, then to their issue equally; if of the same degree, otherwise by representation. The Ordinance of Congress, of 13th July, 1787, for the government of the north-western territory, provided, that the estates within the territory, of persons dying intestate, should go to the children and the descendants of a deceased child in equal parts; the descendants of a deceased child or grandchildren to take the parent's share in equal parts; and when there were no children or descendants, then the estates should go in equal parts to the next of kin in equal degree; and among collaterals, the children of a deceased brother or sister of the intestate should have, in equal parts among them, their deceased parent's share; and that there should in no case be a distinction between kindred of the whole and half blood; saving in all cases to the widow of the intestate her third part of the real estate for life. But this law relative to descents was to be subject to future legislative alteration, though it is presumed to be still the general law of descent in all those states and districts comprising what, in 1787, was the territory of the United States north-west of the river Ohio, except in the instances hereinafter mentioned. See, further, Reeve's Law of Descents, passim. Griffith's Law Register, No. 6, under the head of each state. Civil Code of Louisiana, No. 891.898. Act of Rhode Island concerning descents, passed January, 1822. Stent v. M'Leod, 2 M'Cord's Ch. Rep. 354. In several of the colonies, before the revolution, the English law of primogeniture prevailed. It prevailed in Rhode Island until the year 1770; and in New-York, New-Jersey, Virginia, the two Carolinas, and Georgia, until the revolution; and in Maryland until 1715. In Massachusetts, Connecticut, and Delaware, the eldest son had only a double portion, and this continued in Connecticut until 1792, when the law giving the eldest son a double portion was repealed. In Penn