Page images
PDF
EPUB

CHAPTER THE FOURTEENTH.

of TITLE BY DESCENT.

THE several gradations and stages, requisite to form a

1 complete title to lando, tenements, and hereditaments, having been briefly stated in the preceding chapter, we are next to consider the several manners, in which this complete title (and therein principally the right of propriety) may be reciprocally lost and acquired: whereby the dominion of things real is either continued, or transferred from one man to another. And here we must first of all observe, that (as gain and loss are terms of relation, and of a reciprocal nature) by whatever method one man gains an estate, by that same method or it's correlative some other man has loft it. As where the heir acquires by descent, the ancestor has first lost or abandoned his estate by his death: where the lord gains land by escheat, the estate of the tenant is first of all lost by the natural or legal extinction of all his hereditary blood: where a man gains an interest by occupancy, the former owner has previously relinquished his right of possession: where one man claims by prescription or immemorial usage, another man has either parted with his right by an antient and now forgotten grant, or has forfeited it by the supineness or neglect of himself and his ancestors for ages : and so, in case of forfeiture, the tenant by his own misbehaviour or neglect has renounced his interest in the estate; where. upon it devolves to that person who by law may take advantage of such default: and, in alienation by common afiurances, the two considerations of loss and acquisition are so

Q.4

interwoven,

[merged small][merged small][ocr errors][ocr errors][ocr errors][merged small]

interwoven, and so constantly contemplated together, that we never hear of a conveyance, without at once receiving the ideas as well of the grantor as the grantee.

The methods therefore of acquiring on the one hand, and of losing on the other, a title to estates in things real, are re. duced by our law to two: descent, where the title is vested in a man by the single operation of law; and purchase, where the title is vested in him by his own act or agreement a (1). .

DESCENT, or hereditary succession, is the title whereby a man on the death of his ancestor acquires his estate by right of representation, as his heir at law. An heir therefore is he upon whom the law casts the estate immediately on the death of the ancestor: and an estate, so descending to the heir, is in law called the inheritance.

The doctrine of descents, or law of inheritances in feesimple, is a point of the highest importance; and is indeed the principal object of the laws of real property in England, All the rules relating to purchases, whereby the legal course of descents is broken and altered, perpetually refer to this settled law of inheritance, as a datuin or first principle universally known, and upon which their subsequent limitations are to work. Thus a gift in tail, or to a man and the heirs of his body, is a limitation that cannot be perfectly undere stood without a previous knowlege of the law of descents in fee-fimple. One may well perceive that this is an estate confined in it's descent to such heirs only of the donee, as have sprung or shall spring from his body; but who those heirs are, whether all his children both male and female, or

a Co. Litt. 18.

(1) Purchase in law is used in contradistinction to descent, and is any other mode of acquiring real property, viz. by devise, and every species of gift, and grant; and as the land taken by purchase has very different inheritable qualities from land taken by descent, the distinction is important. See page 241. poff.

the

the male only, and (among the males) whether the eldest, youngest, or other son alone, or all the sons together, shall be his heir ; this is a point, that we must result back to the ftanding law of descents in fee-simple to be informed of.

[ocr errors]

In order therefore to treat a matter of this universal consequence the more clearly, I shall endeavour to lay aside such matters as will only tend to breed embarrassment and confufion in our inquiries, and shall confine myself entirely to this one object. I shall therefore decline considering at present who are, and who are not, capable of being heirs ; reserving that for the chapter of efcheats. I shall also pass over the frequent division of descents in those by custom, statute, and coinmon law: for descents by particular cuftoin, as to all the sons in gavelkind, and to the youngest in borough-english, have already been often hinted at, and may also be incidentally touched upon again; but will not make a separate consideration by themselves, in a system so general as the present: and descents by statute, or fees-tail per formam doni, in pursuance of the statute of Westminster the second, have also been already copiously handled ; and it has been seen that the descent in tail is restrained and regulated according to the words of the original donation, and does not entirely pursue the common law doctrine of inheritance; which, and which only, it will now be our business to explain.

AND, as this depends not a little on the nature of kindred, and the several degrees of consanguinity, it will be previously necessary to state, as briefly as possible, the true notion of this kindred or alliance in blood .

CONSANGUINITY, or kindred, is defined by the writers on these subjects to be “ vinculum personarum ab eodem ftipite To defcendentium ;” the connexion or relation of persons des

o See Vol. I. pag. 74, 75. Vol. II, pag. 83. 85.

c See pag. 112, &c.

• For a fuller explanation of the doc. frine of consanguinity, and the conse

quences resulting from a right apprehenfion of it's nature, see an eliny on collateral confanguiniry. (Law tra&ts, Oxen. 1762. 8vo, or 1771, 4to.)

fccnded

scended from the same stock or common ancestor. This confanguinity is either lineal, or collateral.

( 203 ) LINEAL consanguinity is that which sublists between per

sons, of whom one is descended in a direct line from the other, as between John Stiles (the propofitus in the table of consanguinity) and his father, grandfather, great-grandfather, and so upwards in the direct afcending line; or bee tween John Stiles and his son, grandson, great-grandfon, and so downwards in the direct descending line. Every generation, in this lineal direct consanguinity, constitutes a different degree, reckoning either upwards or downwards: the father of John Stiles is related to him in the first degree, and fo likewise is his fon; his grandsire and grandson in the sea cond; his great-grandfire and great-grandson in the third. This is the only natural way of reckoning the degrees in the direct line, and therefore universally obtains, as well in the civil®, and canon', as in the common law 5.

The doctrine of lineal confanguinity is fufficiently plain and obvious; but it is at the firit view astonishing to consider the number of lineal ancestors which every man has, within no very great number of degrees; and fo many different bloodsh is a man said to coniain in his veins, as he hath liveal ancestors. Of these he hath two in the first ascending degree, his own parents; he hath four in the second, the parents of his father and the parents of his mother; he hath eight in the third, the parents of his two grandfathers and two grandmothers; and by the same rule of progression, he hath an hundred and twenty-eight in the seventh; a thoufand and twenty-four in the tenth ; and at the twentieth degree, or the distance of twenty generations, every man hath above a million of ancestors, as common arithmetic will demonstrate'. This lineal consanguinity, we may ob• Ff38. Io. Io.

who are unacquainted with the encreasa f Decretal. l. 4. tit. 14.

ing power of progreffi ve numbers : but is 8 Co. Liti. 23.

palpably evident from the following table h Ibid. 12.

of a geometrical progreflion, in which 1 This will seem surprizing to those the first term is 2, and the denominator

allo

« PreviousContinue »