tendency to obliterate the distinctions between the two classes of property as regards the powers of the executor or administrator in regard thereto. Generally, moreover, in this country, the persons to whom the real property passes upon the death of the owner intestate are approximately the same as those entitled to the personal property when distributed by the personal representative.

At common law, the right of succession to real property on the death of the owner was determined by the relationship of the claimant to the person who last died seised in deed of the land. This rule has been changed in England by a statutory provision that descent shall be traced from the last purchaser of the land, while in this country, in most, if not all, the states, descent is traced from the person last entitled to the land, regardless of whether he was seised, or whether he obtained the land by purchase or descent."

At common law, as in England at the present day, the male issue inherits before the female, and, when there are two or more males of equal degree, the elder alone inherits, while females inherit all together. These rules, in so far

Litt. 8; 2 Bl. Comm. 209.

This common-law rule that seisin in deed makes the root of descent, in connection with the rule that persons of the half blood could not inherit, received what was regarded as its typical exemplification in the following case: If, on the death of a father seised in fee simple, leaving a son and a daughter by a first marriage, and a son by a second marriage, the elder son, the heir, entered and obtained seisin, and then died without issue, his half brother could not inherit, but the land passed to the sister, while, if he did not enter, the land would pass to the half brother. Hence the maxim, "Possessio fratris de feodo simplici facit sororem esse haeredem," and the rule that seisin in deed is necessary to make the root of descent was frequently referred to as the doctrine of "possessio fratris." See Litt. § 8; Williams, Seisin, 55; Challis, Real Prop. 187.

3 & 4 Wm. IV. c. 106, "The Inheritance Act."

4 Kent's Comm. 388; 1 Dembitz, Land Titles, § 30.

as they give priority to the male issue, and to the eldest of such issue, have been changed in all the states of this country, and all those in the same degree of relationship, whether male or female, share equally in the inheritance, the legislation in this country having followed in this respect, as it has frequently done in other respects, the provisions of the English statute as to the distribution of personal property.10

426. Descent to issue.

In all the states, realty descends to all the legitimate children of deceased living at his death, and to the descendants of deceased children, these latter taking per stirpes, and not per capita,—that is, the descendants of each child taking what their ancestor would have taken had he been alive, without reference to their number.11 In case all the children of the intestate are dead, the grandchildren and issue of deceased grandchildren inherit in their place. Such descendants take per stirpes if they are not all in the same degree of relationship to the intestate, as when some are grandchildren and some are great-grandchildren, while, if they are all in the same degree of relationship, they take in some states per capita, though in other states per stirpes."

427. Surviving consort as heir.

At common law, the surviving husband was entitled to an estate by curtesy in his wife's real property,13 while he took an absolute interest in her personal property, including chat

104 Kent's Comm. 379; 1 Stimson's Am. St. Law, § 3101 et seq. Occasionally a naked legal title still descends as at common law. As to estates tail, see ante, § 29.

111 Stimson's Am. St. Law, § 3101.

121 Stimson's Am. St. Law, §§ 3103, 3137; 1 Dembits, Land Titles, 33.

18 Ante, §§ 204-211.

tels real.14 Apart from his estate by curtesy, her real property did not pass to him, even though otherwise it escheated for failure of heirs. In this country, at the present day, the surviving husband is frequently given a fee-simple interest in his wife's real property. In some, he is, if the wife leaves no issue, given a fee-simple interest in all her realty, while in some he is given one-half or two-thirds of her realty in such case. In a number of states, although there are children, he takes a share by descent, which is greater or less, according to the number of children who are to share in the intestate's property. In some states, moreover, he takes all the realty, if the wife leaves no issue, parent, nor brother or sister, and in most, if not in all, the states, he takes it if she leaves no kindred.15

The surviving wife had, at common law, her right of dower only out of his realty, while, by the English statute of distribution, she was given one-third of his personalty, unless he left no issue, in which case she had one-half.18 In this country the widow is frequently, by statute, given a feesimple interest in a portion of her husband's realty in certain contingencies, as when he leaves no issue, or no issue, parent, or brother or sister, or when he leaves no kindred, her rights corresponding, in a general way, to those of a surviving husband.17 In a number of states, moreover, she is given a third or a half in fee simple, even though her husband leaves issue,18 and this she is frequently allowed to take in lieu of any provisions made for her in his will.19

14 Co. Litt. 351; 2 Bl. Comm. 434.

15 1 Stimson's Am. St. Law, §§ 3105, 3109, 3115, 3119, 3123; 1 Woerner, Administration, § 66; 1 Dembitz, Land Titles, § 32.

16 2 Bl. Comm. 515.

171 Stimson's Am. St. Law, §§ 3109, 3115, 3119, 3123; 1 Woerner, Administration, § 67; 1 Dembitz, Land Titles, § 32.

181 Stimson's Am. St. Law, § 3105.

191 Stimson's Am. St. Law, § 3262.

$428. Parent as heir.

At common law, land could never lineally ascend, that is, it could not pass to the father or grandfather of the decedent upon the latter's death, though it could pass to his uncle, the brother of his father, and might from him pass to the father.20 This rule has been entirely changed in this country, and the statute frequently provides that the decedent's property shall pass to his father or mother in certain cases. Thus, in some states it is provided that, if the intestate leave no descendants, his property shall pass to his father, or to the father or mother, or to the mother, together with brothers and sisters, though in some states the brothers and sisters of deceased are preferred to either of his parents.21

429. Descent to collateral kindred.

In case the intestate leaves no issue surviving, and the realty does not pass entirely to the surviving consort, or to one or both of the parents, under the statutes referred to above, it descends among the collateral kindred of the intes tate,—that is, to persons not lineally related to him, but related by reason of the fact that they are descended from the same ancestor. Among such collateral kindred the brothers and sisters and their descendants hold the first place, and are sometimes, by the terms of the statute, preferred to the parents of deceased.2

22

As between other collateral kindred not particularly specified in the statute of descent, those standing in an equal degree of relationship to the intestate share the inheritance to the

20 Litt. 88.

Different explanations of the origin of this rule have been given. See 2 Bl. Comm. 211 et seq.; 2 Pollock & Maitland, Hist. Eng. Law, 287 et seq.; Holdsworth & Vickers, Law of Succession, 152.

211 Stimson's Am. St. Law, §§ 3107, 8111, 3117; 1 Woerner, Administration, § 68.

221 Stimson's Am. St. Law, §§ 3107 8111, 8113, 3121.

exclusion of those in a more distant degree. In calculating the degrees of relationship for this purpose, the common law adopted the rule that the intestate and a particular claimant were to be regarded as in the degree of relationship to one another which corresponded to the number of degrees between their common ancestor and the one of his two descendants who was most distant from him. So, if the claimant and intestate were both grandchildren of the common ancestor, they were regarded as related to one another in the second degree, while, if one was a grandchild and the other a great-grandchild, they were related in the third degree. By the civil-law method of computing relationship, on the other hand, the degrees between the common ancestor and the intestate are added to those between the former and the claimant, in order to ascertain the degree of relationship; and so two grandchildren of a common ancestor are related in the fourth degree, and a grandchild and a greatgrandchild in the fifth degree.23

In this country, in the majority of the states, the statute provides that the degrees of kindred shall be computed according to the rule of the civil law, though, in a few, that of the common law is adopted.24 The preference shown for the civil law is in accord with the general tendency to follow the English statute of distributions, which was construed with reference to the civil-law rule, 25

430. Kindred of the half blood.

At common law, in order that one might inherit as a collateral kinsman of the intestate, it was necessary that they

23 2 Bl. Comm. 206 et seq.

24 1 Stimson's Am. St. Law, §§ 3121, 3139; 1 Woerner, Administration, § 72.

25 See 2 Bl. Comm. 516, and Christian's note; Lloyd v. Tench, 2 Ves. Sr. 212.