paternal and maternal lines, in the same degree, take equally.

New-York forms, also, a distinguished exception to this last rule of inheritance; for, in all cases not within the seven preceding rules, the inheritance descends according to the course of the common law."

The common law rules of descent were the law of the colony and the state of New-York, down to 1782. The law was then altered; and the statute altering it was re-enacted in an improved state, in 1786. The law still required the heir to be heir to the person dying seised; and the inheritance descended, 1. to his lawful issue, standing in equal degree, in equal parts; 2. to his lawful issue, and their descendants, in different degrees, according to the right of representation; 3. to the father; 4. to brothers and sisters; 5. to the children of brothers and sisters. The right of primogeniture, and preference of males, was, in these cases, superseded. In all cases of descent beyond *those five cases, the com- *411 mon law was left to govern. The Revised Statutes, as we have seen, have carried the innovation much farther; and the estate descends under the principle of equality of distribution; 6. to the descendants of brother's and sister's children to the remotest degree; 7. to the brothers and sisters of the father of the intestate, and their descendants; and then to the brothers and sisters of the mother of the intestate, and their descendants, or to the brothers and sisters of both father and mother of the intestate, and their descendants, according to the various ways in which the estate may have been acquired. It is a matter of some surprise,

Civil Code of Louisiana, art. 901-904. The law of succession in Louisiana is taken almost literally from the Code Napoleon.

New-York Revised Statutes, vol. i. 753, sec. 16.

• The first act was passed the 12th July, 1782; and the second act was passed on the 23d Feb. 1786. See 1 Revised Laws of 1813, p. 52. See also Jackson v. Howe, 14 Johns. 405.

that the Revised Statutes of New-York did not proceed, and, in cases not provided for, follow the example of the law of descents in most of the states of the union, and direct the inheritance to descend to the next collateral kindred, to be ascertained, as in the statute of distribution of the personal estates of intestates, by the rules of the civil law. Instead of that we have retained in NewYork, in these remote cases, the solitary example of the application of the stern doctrine and rules of the common law. But, except for the sake of uniformity, it is, perhaps, not material, in cases under this last rule, which of the provisions is to govern. The claims of such remote collaterals are not likely to occur very often; and as the stream of the natural affections, so remote from the object, must flow cool and languid, natural sentiments and feelings have very little concern with the question.

The distinguishing rules of the common law doctrine of descent, are the converse of those in this country. They consist of the following principles of law, viz: preference of males to females ;-primogeniture among the males; the inheritance shall never lineally ascend; the exclusion of the half blood ;-the strict adherence to the doctrine of succession, per stirpes ;-the collateral heir of the person last seised, to be his next collateral kinsman of the whole blood;-and kindred

derived from the blood of the male ancestors, *412 however remote, to be preferred to kindred *from the blood of the female ancestors, however near, unless the land came from a female ancestor. These rules are of feudal growth; and, taken together, they appear to be partial, unnatural, and harsh, in their principles, and operation, especially when we have just parted with the discussion of our own more reasonable and liberal doctrine of descent. Sir Matthew Hale,

e 2 Blacks. Com. c. 14.

however, was of a very different opinion. He was well acquainted with the Roman law of distribution of real and personal estates, which we, in this country, have closely followed; and yet he singles out the law of descent, and couples it with trial by jury, as being two titles equally showing, by their excellence, a very visible superiority of the laws of England above all other laws. So natural, and so powerful, is the impression of education and habit, in favour of the long established institutions of one's own country.b

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

I. Posthumous children, as has been already mentioned, inherit, in all cases, in like manner as if they were born in the lifetime of the intestate, and had survived him. This is the universal rule in this country.

Hale's History of the Common Law, vol. ii. 74.

The English law of inheritance underwent some amendments by the statute of 3 and 4 William IV., c. 106. It declared that descent should always be traced from the purchaser, and the person last entitled should be considered the purchaser unless he acquired the land by descent, and then the person from whom he inherited was to be considered the purchaser. And if land be devised to the heir, he shall take as devisee and not by descent, and when a person takes by purchase under a limitation by deed to the heirs of the ancestor, or under a similar limitation by will, the descent shall be traced as if such ancestor was the purchaser-brother or sister shall trace descent through their parent-lineal ancestor may be heir to his issue, in preference to collateral persons claiming through him, that is, for instance, the father before the brother-no maternal ancestors, or their descendants, to inherit until all the paternal ancestors and their descendants have failed-male paternal and maternal ancestors and descendants to be preferred to femalepersons related by the half blood may inherit, and the place of a relation by the half blood in order of inheritance, to be next after the relation in the same degree of the whole blood and his issue, where the common ancestor is a male, and next after the common ancestor, where a female.

• New-York Revised Satutes, vol. i. 754, sec. 18. New-Jersey Revised Statutes, 1847, p. 340. So, if a future estate be limited to heirs, issue, or children, posthumous children take, in the same manner, as if living at the death of their parent. Ibid. 725, sec. 30. Griffith's Register, h. t., and the

It is equally the acknowledged principle in the English law; and, for all the beneficial purposes of heirship, a child in ventre sa mere is considered as absolutely born."

II. In the mode of computing the degrees of consanguinity, the civil law, which is generally followed in this country upon that point, begins with the intestate, and ascends from him to a common ancestor, and descends

from that ancestor to the next heir; reckoning a *413 degree for each person, as well in the ascending

as descending lines. According to this rule of computation, the father of the intestate stands in the first degree, his brother in the second, and his brother's children in the third. Or, the grandfather stands in the second degree, the uncle in the third, the cousins in the fourth, and so on in a series genealogical order. In the canon law, which is also the rule of the common law, in tracing title by descent, the common ancestor is the terminus a quo. The several degrees of kindred are deduced from him. By this method of computation, the brother of A. is related to him in the first degree instead of being in the second, according to the civil law; for he is but one degree removed from the common ancestor. The uncle is related to A. in the second degree; for though the uncle be but one degree from the common ancestor, yet A. is removed two degrees from the grandfather, who is the common ancestor."

statute laws of the several states. Mass. Revised Statutes of 1835. This was not the law in Virginia until 1840, and then by statute, posthumous children, were restored to their full right of inheritance as children. Lamax's Digest, vol. i. 600, 601. In Tennessee and New-Jersey, if a posthumous child be neither provided for nor disinherited by will, but only pretermitted, he takes his share of the estate. Statute of Tennessee, 1836, p. 250. Revised Statutes New-Jersey, 1847.

* Statute 9 and 10 William III., c. 16. Doe v. Clark, 2 H. Blacks. Rep. 299.

b2 Blacks. Com. 206. 224. 504.

b

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

This introduction of a provision into the law of descents in New-York, in favour of the mother of bastards, falls short of the extent of the provision in relation to them in some of the other states. In the states of Maine, New-Hampshire Massachusetts, New-Jersey, Pennsylvania, Delaware, South Carolina, Georgia, Ala

• The heir must be born after actual marriage of his father and mother, in order to enable him to inherit real estate in England as heir. Though a person born in Scotland before marriage becomes by the law of Scotland legitimate upon the subsequent marriage of his parents, he still cannot take real estate in England as heir. Doe v. Vardill, 6 Bingham N. C. 385. b Vol. i. 753, sec. 14. Ibid. 754, sec. 19.

By the act of New-York of May 13, 1845, if the illegitimate has left a mother, and no child, descendant or widow, the mother takes the whole estate.

By statute in Maine, in 1838, ch. 338, an illegitimate child is deemed heir to the person adjudged to be the putative father, or who in writing acknowledges himself to be such, and he is in all cases an heir to his mother.

• Cooley v. Dewey, 4 Pick. Rep. 93. But, in 1828, the law in Massachusetts was so far altered as to allow an illegitimate child to inherit immediately from the mother. He is now the lawful heir to his mother, but he cannot claim, as representing her, any part of the estate of her kindred, lineal or collateral. If he dies intestate without lawful issue, his estate descends to his mother. And if the parents intermarry, and have other children, and the father acknowledges him as his child, the Revised Statutes of 1835, declare that such child shall be considered as legitimate to all intents and purposes, except that he shall not be allowed to claim, as representing either of his parents, any part of the estate of any of their kindred, either lineal or collateral. Massachusetts Revised Statutes of 1835, p. 414.