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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 ownerships 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 constitute 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 droit droit, or the jus proprietatis et possessionis, which, according to the ancient English law, formed a complete
All the modes of acquiring title to land, are reducible to title by descent, and by purchase. The one is acquired by operation of law, and the other by the act or agreement of the parties. Whether the agreement be founded upon
a 2 Blacks. Com. 199.
Co. Lill. 266. a.
( 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; but 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 succession, is the title whereby a person, on the death of his ancestor, acquires his estate by
ght of representation as his heir. The English law of descents 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 these United States, the English common law of descents, in its most essential features, has been universally rejected, and each state has established al law of descents for itself. The laws of the individual states may agree in their great outlines, but they differ ex: ceedingly in the details. There is no uniformity on this subject, and, according to the observation of a great master of this title in American law, “ 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 difference between the regulations of de scent in the different states. This has been already done to our hand, with great fulness of illustration, in the work fof 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 these United States, which are of the most general application.
a Co. Litt. 18. a. b. þ Reeve's Treatise on the Lare of Descents, Pref
(1.) The first rule of inheritance is, that if a person owning real estate, dies seised, or as owner, without devising the same, the estate shall descend to his lawful descendants in the direct line of lineal descent; and if there bę 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 Tine, in the same degree, without distinction of sex, and to the exclusion of all other claimants. Thus, ir 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 NewYork of the 23d of 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 Vermont the male descendants take double the share of females; and, 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, in each of those states, a moiety of the estate. In North and South Carolina, the claimants take, in all cases, per stirpes, though standing in the same degree.b
a New-York Revised Statutes, vol. i. 751. sec. 1, 2. Ibid. 753. sec. 17. lbid. 754. sec, 19.
6 Reeve's Law of Descents, passim. Griffith's Law Register, No. 6. under the head of each state. Civil Code of Louisiana, No. 898
The transmission of property by hereditary descent, from the parent to his children, is the dictate of the natural affections, and Doctor Taylor holds it to be the general direction of Providence. It encourages paternal improvements, cherishes filial loyalty, cements domestic society, and nature and policy have equally concurred to introduce and maintain this primary rule of inheritance, in the laws and usages of all civilized nations. But the distribution among the children has varied greatly in different countries, and no two nations seem to have agreed in the same precise course of hereditary descent, and they have very rarely concurred, as we have done, in establishing the natural equality that seems to belong to lineal descendants standing in equal degree. A good deal of importance was attached to the claims of primogeniture in the patriarchal ages, and the first born son was the earliest companion of his father, and the natural substitute for the want of a paternal guardian to the younger children. The Jews gave the eldest son a double portion, and excluded the daughters entirely from the inheritance, so long as there were sons, and descendants of sons; and when the inheritance went to the daughters in equal portions, in default of sons, they were obliged to marry in the family of their father's tribe, in order to keep the inheritance within it. In the Gentoo code, all the sons were admitted, with an
Stent v. M.Leod, 2 M Cord's Ch. Rep. 354. The allowance of a double portion to the males was the law in Massachusetts prior to the American revolution, and, in several of the other colonies, the English law of primogeniture prevailed. It prevailed in Rhode Island until the year 1770, and in New York, New-Jersey, Maryland, and Virginia, until the Revolution. In Connecticut and Delaware, the eldest son had formerly a double portion. In Pennsylvania, by the law of 1682, the law of primogeniture, and of the preference of males, were abolished.
a Numb. ch. 27. Deut. ch. 21. v. 17. Jones's Com. on Isaeus, 177, Hale's Hist. Com. Law, vol. ii, 76.