CHAPTER THE SIXTEENTH.

OF TITLE BY DESCENT.

ty is lost and

[200] THE several gradations and stages, requisite to form a How propercomplete title to lands, tenements, and hereditaments, acquired. 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 property) 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 its correlative some other man has lost 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 ancient 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; whereupon it devolves to that person who by law may take advantage of such default: and, in alienation by common assurances, the two considerations of loss and acquisition are so 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.

are reduced

descent and

purchase.

[201] The methods therefore of acquiring on the one hand, The methods and of losing on the other, a title to estates in things real, to two: by are reduced by our law to two: which are thus laid down by Lord Coke, 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; but, as will be seen, the title by descent is now much narrowed.

Descent, definition of.

The person last entitled

to the lands sidered the

shall be con

purchaser

thereof, un

less it shall

be proved that he in

same.

Descent, or hereditary succession, is the title whereby a man on the death of his ancestor acquires his estate by right of representation, as 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.

And it has recently been enacted," by s. 2, that in every case arising on descents after the 31st of December, 1833, descent shall be traced from the purchaser, the “purchaser," meaning by s. 1, the person who last acquired the land otherwise than by descent or than by escheat. herited the partition, or inclosure, by the effect of which the land shall have become part of, or descendible in the same manner as other land, acquired by descent; and, by s. 2, to the intent that the pedigree may never be carried further back than the circumstances of the case and the nature of the title shall require, the person last entitled to the lands shall be considered to have been the purchaser thereof, unless it shall be proved that he inherited the same; in which case the person from whom he inherited the same shall be considered to have been the purchaser, unless it shall be proved that he inherited the same; and in like manner the last person from whom the land shall be proved to have been inherited, shall in every case be considered to have been the purchaser, unless it shall be proved that he inherited the same. By the former law, if a man devised lands to a person who was his next heir When land and his heirs, the devise was void, and the heir took by But by 3 & 4 W. IV. c. 106, s. 3, it is enacted

shall be de

vised to the descent.c

a Co. Litt. 18.

b 3 & 4 W. 4, c. 106, s. 2. See, as to the comstruction of this clause, Doe d. Blackburn v. Blackburn, 1

Moo. & Rob. 547, and post, ch. 17.

c Dy. 124, pl. 38, 354, pl. 33; Plowd. 545.

testator, he

sidered to

ed the land

that when any land shall have been devised by any tes- heir of the tator, who shall die after the 31st of December, 1833, to shall be conthe heir or person who shall be the heir of the testator, have acquirsuch heir shall be considered to have acquired the land as devisee. as a devisee, and not by descent; and when any land shall have been limited by any assurance executed after the 31st of December, 1833, to the person or to the heirs of the person who shall thereby have conveyed the same land, such person shall be considered to have acquired the same as a purchaser by virtue of such assurance, and shall not be considered to have been entitled thereto as his former estate.

take by pur

limitations

of their an

land shall

the ancestor

And further, (by s. 4,) when any person shall have ac- When heirs quired any land by purchase, under a limitation to the chase under heirs, or to the heirs of the body of any of his ancestors, to the heirs contained in an assurance executed after the 31st day of cestor, the December, 1833, or under a limitation to the heirs or to descend as if the heirs of the body of any of his ancestors, or under any had been the limitation having the same effect, contained in a will of purchaser. any testator, who shall depart this life after such day; then such land shall descend, and the descent thereof shall be traced as if the ancestor named in such limitation had been the purchaser of such land. It will be seen therefore that the title by descent is now much narrowed.

of the doc

scents.

The doctrine of descents, or law of inheritance in fee- Importance simple, is still, however, a point of the highest import- trine of deance; 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 datum 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 understood without a previous knowledge of the law of descents in fee-simple. One may well perceive that this is an estate confined in its 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 the male only, and (among the males) whether the eldest, youngest, or other son alone, or all the sons together, shall be his

be treated of

ter.

heir; this is a point, that we must result back to the standing law of descents in fee-simple to be informed of. [ 202 ] In order therefore to treat a watter of this universal What it is to consequence the more clearly, I shall endeavour to lay in this chap- aside such matters as will only tend to breed embarrassment and confusion 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 escheats. I shall also pass over the frequent division of descents, into those by custom, statute, and common law: for descents by particular custom, as to all the sons in gavelkind, and to the youngest in borough English, have already been oftend 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.

Consanguinity, definition

of.

Is either

lateral.

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 of blood.

Consanguinity, or kindred, is defined by the writers on these subjects to be "vinculum personarum ab eodem lineal or col- stipite descendentium:" the connexion or relation of persons descended from the same stock or common ancestor. The consanguinity is either lineal or collateral. [ 203 ] Lineal consanguinity is that which subsisted between Lineal con- persons, of whom one is descended in a direct line from sanguinity, the other, as between John Stiles (the propositus in the table of consanguinity) and his father, grandfather, greatgrandfather, and so upwards in the direct ascending line: or between John Stiles and his son, grandson, great

what it is.

Sce ante, pp. 83, 84; and Rights of Persons, [74], [75].

e See

P.

130.

stitutes a de

grandson, and so downwards in the direct descending line. What conEvery generation, in this lineal direct consanguinity, con- gree. stitutes a different degree, reckoning either upwards or downwards; the father of John Stiles is related to him in the first degree, and so likewise is his son; his grandsire and his grandson in the second; his great grandsire 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."

This doctrine of lineal consanguinity is sufficiently plain and obvious; but it is at the first view astonishing to consider the number of lineal ancestors which every man has, within no very great number of degrees and so many different bloodsi is a man said to contain in his veins, as he hath lineal 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 thousand and twentyfour 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. The lineal consanguinity, we may observe, falls [ 204 ]