1911 Encyclopædia Britannica/Inheritance
INHERITANCE. In English law, inheritance, heir and other kindred words have a meaning very different from that of the Latin haeres, from which they are derived. In Roman law the heir or heirs represented the entire legal personality of the deceased—his universum jus. In English law the heir is simply the person on whom the real property of the deceased devolves by operation of law if he dies intestate. He has nothing to do as heir with the personal property; he is not appointed by will; and except in the case of coparceners he is a single individual. The Roman haeres takes the whole estate; his appointment may or may not be by testament; and more persons than one may be associated together as heirs.
The devolution of an inheritance in England is now regulated by the rules of descent, as altered by the Inheritance Act 1833, amended by the Law of Property Amendment Act 1859.
1. The first rule is that inheritance shall descend to the issue of the last “purchaser.” A purchaser in law means one who acquires an estate otherwise than by descent, e.g. by will, by gratuitous gift, or by purchase in the ordinary meaning of the word. This rule is one of the changes introduced by the Inheritance Act, which further provides that “the person last entitled to the land shall be considered the purchaser thereof unless it be proved that he inherited the same.” Under the earlier law descent was traced from the last person who had “seisin” or feudal possession, and it was occasionally a troublesome question whether the heir or person entitled had ever, in fact, acquired such possession. Now the only inquiry is into title, and each person entitled is presumed to be in by purchase unless he is proved to be in by descent, so that the stock of descent is the last person entitled who cannot be shown to have inherited. 2. The male is admitted before the female. 3. Among males of equal degree in consanguinity to the purchaser, the elder excludes the younger; but females of the same degree take together as “coparceners.” 4. Lineal descendants take the place of their ancestor. Thus an eldest son dying and leaving issue would be represented by such issue, who would exclude their father’s brothers and sisters. 5. If there are no lineal descendants of the purchaser, the next to inherit is his nearest lineal ancestor. This is a rule introduced by the Inheritance Act. Under the former law inheritance never went to an ancestor—collaterals, however remote of the person last seized being preferred even to his father. Various explanations have been given of this seemingly anomalous rule—Bracton and Blackstone being content to say that it rests on the law of nature, by which heavy bodies gravitate downwards. Another explanation is that estates were granted to be descendible in the same way as an ancient inheritance, which having passed from father to son ex necessitate went to collaterals on failure of issue of the person last seized. 6. The sixth rule is thus expressed by Joshua Williams in his treatise on The Law of Real Property:—
“The father and all the male paternal ancestors of the purchaser and their descendants shall be admitted before any of the female paternal ancestors or their heirs; all the female paternal ancestors and their heirs before the mother or any of the maternal ancestors or her or their descendants; and the mother and all the male maternal ancestors and her and their descendants before any of the female maternal ancestors or their heirs.”
7. Kinsmen of the half-blood may be heirs; such kinsmen shall inherit next after a kinsman in the same degree of the whole blood, and after the issue of such kinsman where the common ancestor is a male and next after the common ancestor where such ancestor is a female. The admission of kinsmen of the half-blood into the chain of descent is an alteration made by the Inheritance Act. Formerly a relative, however nearly connected in blood with the purchaser through one only and not both parents, could never inherit—a half-brother for example. 8. In the admission of female paternal ancestors, the mother of the more remote male paternal ancestor and her heirs shall be preferred to the mother of the less remote male paternal and her heirs; and, in the case of female maternal ancestors, the mother of the more remote male maternal ancestor shall be preferred to the mother of a less remote male maternal ancestor. This rule, following the opinion of Blackstone, settles a point much disputed by text-writers, although its importance was little more than theoretical. 9. When there shall be a total failure of heirs of the purchaser, or when any lands shall be descendible as if an ancestor had been the purchaser thereof, and there shall be a total failure of the heirs of such ancestor, then and in every such case the descent shall be traced from the person last entitled to the land as if he had been the purchaser thereof. This rule is enacted by the Law of Property Amendment Act 1859. It would apply to such a case as the following: Purchaser dies intestate, leaving a son and no other relations, and the son in turn dies intestate; the son’s relations through his mother are now admitted by this rule. If the purchaser is illegitimate, his only relations must necessarily be his own issue. Failing heirs of all kinds, the lands of an intestate purchaser, not alienated by him, would revert by “escheat” to the next immediate lord of the fee, who would generally be the crown. If an intermediate lordship could be proved to exist between the crown and the tenant in fee simple, such intermediate lord would have the escheat. But escheat is a matter of rare occurrence.
The above rules apply to all freehold land whether the estate therein of the intestate is legal or equitable. Before 1884, if a sole trustee had the legal estate in realty, and his cestui que trust died intestate and without heirs, the land escheated to the trustee. This distinction was abolished by the Intestate Estates Act 1884.
The descent of an estate in tail would be ascertained by such of the foregoing rules as are not inapplicable to it. By the form of the entail the estate descends to the “issue” of the person to whom the estate was given in tail—in other words, the last purchaser. The preceding rules after the fourth, being intended for the ascertainment of heirs other than those by lineal descent, would therefore not apply; and a special limitation in the entail, such as to heirs male or female only, would render unnecessary some of the others. When the entail has been barred, the estate descends according to these rules. In copyhold estates descent, like other incidents thereof, is regulated by the custom of each particular manor; e.g. the youngest son may exclude the elder sons. How far the Inheritance Act applies to such estates has been seriously disputed. It has been held in one case (Muggleton v. Barnett) that the Inheritance Act, which orders descent to be traced from the last purchaser, does not override a manorial custom to trace descent from the person last seized, but this position has been controverted on the ground that the act itself includes the case of customary holdings.
Husband and wife do not stand in the rank of heir to each other. Their interests in each other’s real property are secured by courtesy and dower.
The personal property of a person dying intestate devolves according to an entirely different set of rules (see Intestacy).
In Scotland the rules of descent differ from the above in several particulars. Descent is traced, as in England before the Inheritance Act, to the person last seized. The first to succeed are the lineal descendants of the deceased, and the rules of primogeniture, preference of males to females, equal succession of females (heirs-portioners), and representation of ancestors are generally the same as in English law. Next to the lineal descendants, and failing them, come the brothers and sisters, and their issue as collaterals. Failing collaterals, the inheritance ascends to the father and his relations, to the entire exclusion of the mother and her relations. Even when the estate has descended from mother to son, it can never revert to the maternal line. As to succession of brothers, a distinction must be taken between an estate of heritage and an estate of conquest. Conquest is where the deceased has acquired the land otherwise than as heir, and corresponds to the English term purchase in the technical sense explained. Heritage is land acquired by deceased as heir. The distinction is important only in the case when the heir of the deceased is to be sought among his brothers; when the descent is lineal, conquest and heritage go to the same person. And when the brothers are younger than the deceased, both conquest and heritage go to the brother (or his issue) next in order of age. But when the deceased leaves an elder and a younger brother (or their issues), the elder brother takes the conquest, the younger takes the heritage. Again, when there are several elder brothers, the one next in age to the deceased takes the conquest before the more remote, and when there are several younger brothers, the one next to the deceased takes the heritage before the more remote. When heritage of the deceased goes to an elder brother (as might happen in certain eventualities), the younger of the elder brothers is preferred. The position of the father, after the brothers and sisters of the deceased, will be noticed as an important point of difference from the English axioms; so also is the total exclusion of the mother and the maternal line. As between brothers and sisters the half-blood only succeeds after the full blood. Half-blood is either consanguinean, as between children by the same father, or uterine, as between children having the same mother. The half-blood uterine is excluded altogether. Half-blood consanguinean succeeds thus: if the issue is by a former marriage, the youngest brother (being nearest to the deceased of the consanguinean) succeeds first; if by a later marriage than that from which the deceased has sprung, the eldest succeeds first.
United States.—American law has borrowed its rules of descent considerably more from the civil law than the common law. “The 118 novel of Justinian has a striking resemblance to American law in giving the succession of estates to all legitimate children without distinction and disregarding all considerations of primogeniture. There is one particular in which the American law differs from that of Justinian, that while generally in this country lineal descendants if they stand in an equal degree from the common ancestor share equally per capita, under the Roman law regard was had to the right of representation, each lineal branch of descendants taking only the portion which their parent would have taken had he been living, the division being per stirpes and not per capita. But in some of the states the rule of the Roman law in this respect has been adopted and retained. Among these are Rhode Island, New Jersey, North and South Carolina, Alabama and Louisiana” (3 Washburn’s Real Property, pp. 408, 409; 4 Kent’s Comm. p. 375). When such lineal descendants stand in unequal degrees of consanguinity the inheritance is per stirpes and not per capita (In re Prote, 1907; 104, N.Y. Supplement 581). This is the rule in practically all the states. But as in no two states or territories are the rules of descent identical, the only safe guides are the statutes and decisions of the particular state in which the land to be inherited is situated. The law of primogeniture as understood in England is generally abolished throughout the United States, and male and female relatives inherit equally. In some states, as in Massachusetts, relatives of the half-blood inherit equally with chose of the whole-blood of the same degree; in others, like Maryland, they can inherit only in case none of whole-blood exist. In some of the states the English rule that natural children have no inheritable blood has been greatly modified. In Louisiana, if duly acknowledged, they may inherit from both father and mother in the absence of lawful issue. Degrees of kindred in the United States generally are computed according to the civil law, i.e. by adding together the number of degrees between each of the two persons whose relationship is to be ascertained and the common ancestor. Thus, relationship between two brothers is in the second degree; between uncle and nephew in the third degree; between cousins, in the fourth, &c.
In a few states such degrees are computed according to the common law, i.e. by counting from the common ancestor to the most remote descendant of the two from him—thus, brothers would be related in the first degree, uncle and nephew in the second, &c. In most states representation amongst collaterals is restricted—in some to the descendants of brothers and sisters, in others to their children only.
In some states, e.g. in California, Louisiana and Texas, the law of “community property” of husband and wife prevails. This is derived from the French and Spanish law existing in the territories out of which those states were formed, as the result of the conquest of Mexico by Spain and the colonizing of Louisiana by France. The foundation idea is an equal division at death of either party of all property acquired during their marriage except by gift, devise or descent. In general the husband has the control and management thereof during the marriage, and either survivor has the administration of the moiety of the one deceased. There is a conflict in the laws in such states as to the exact definition and as to whether or not the gains or profits of such property are to be deemed separate property or community property [Succession of Dielman (Louisiana, 1907), 43 Southern Rep. 972].