in general, is the tendency of a body from a higher to a lower place; thus all bodies, unless otherwise determined by a force superior to their gravity, descend towards the centre of the earth. See GRAVITY and MECHANICS.
or Hereditary Succession, in Law, 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.
Descent is either lineal or collateral. The former is that conveyed down in a right line from the grandfather to the father, and from the father to the son, and from the son to the grandson. The latter is that springing out of the side of the line or blood; as from a man to his brother, nephew, or the like.
The doctrine of descents, or law of inheritances in fee-simple, is a point of the highest importance: (See the article Fee). 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 heir; this is a point that we must restult back to the standing law of descents in fee-simple to be informed of.
And as this depends not a little on the nature of kindred, and the several degrees of consanguinity, it will be necessary to refer the reader to the article CON-SANGUINITY, where the true notion of this kindred or alliance in blood is particularly stated.
We shall here exhibit a series of rules or canons of inheritance, with illustrations, according to which, by the law of England, estates are transmitted from the ancestor to the heir.
1. "Inheritances shall lineally descend to the issue of the person last actually seised in infinitum, but shall never lineally ascend."
To understand both this and the subsequent rules, it must be observed, that by law no inheritance can vest, nor can any person be the actual complete heir of another, till the ancestor is previously dead. Nemo est heres viventis. Before that time, the person who is next in the line of succession is called heir apparent, or heir presumptive. Heirs apparent are such whose right of inheritance is indefeasible, provided they outlive the ancestor; as the eldest son or his issue, who must, by the course of the common law, be heirs to the father whenever he happens to die. Heirs presumptive are such, who, if the ancestor should die immediately, would in the present circumstances of things be his heirs; but whose right of inheritance may be defeated by the contingency of some nearer heir being born: as a brother or nephew, whose presumptive succession may be destroyed by the birth of a child; or a daughter, whose present hopes may be hereafter cut off by the birth of a son. Nay, even if the estate hath descended, by the death of the owner, to such a brother, or nephew, or daughter; in the former cases, the estate shall be divested and taken away by the birth of a posthumous child; and, in the latter, it shall also be totally divested by the birth of a posthumous son.
We must also remember, that no person can be properly such an ancestor as that an inheritance in lands or tenements can be derived from him, unless he hath had actual seisin of such lands, either by his own entry, or by the possession of his own or his ancestor's lessee for years, or by receiving rent from a lessee of the freehold: or unless he hath what is equivalent to corporal seisin in hereditaments that are incorporeal; such as the receipt of rent, a presentation to the church in case of an advowson, and the like. But he shall not be accounted an ancestor who hath had only a bare right or title to enter or be otherwise seised. And therefore all the cases which will be mentioned in the present article, are upon the supposition that the deceased (whose inheritance is now claimed) was the last person actually seised thereof. For the law requires this notoriety of possession, as evidence that the ancestor had that property in himself, which is now to be transmitted to his heir. Which notoriety hath succeeded in the place of the ancient feudal investiture, whereby, while feuds were precarious, the vassal on the descent of lands was formerly admitted in the lord's court Descent. (as is still the practice in Scotland); and therefore received his seisin, in the nature of a renewal of his ancestor's grant, in the presence of the feudal peers: till at length, when the right of succession became indefeasible, an entry on any part of the lands within the county (which if disputed was afterwards to be tried by those peers), or other notorious possession, was admitted as equivalent to the formal grant of seisin, and made the tenant capable of transmitting his estate by descent. The seisin therefore of any person, thus understood, makes him the root or stock from which all future inheritance by right of blood must be derived, which is very briefly expressed in this maxim, seisin facit stipitem.
When therefore a person dies so seised, the inheritance first goes to his issue: as if there be Geoffrey, John, and Matthew, grandfather, father, and son; and John purchases lands and dies: his son Matthew shall succeed him as heir, and not the grandfather Geoffrey; to whom the land shall never escheat, but shall rather escheat to the lord.
2. "The male issue shall be admitted before the female."—Thus sons shall be admitted before daughters; or, as our male lawgivers have somewhat uncomplaisantly expressed it, the worthiest of blood shall be preferred. As if John Stiles had two sons, Matthew and Gilbert, and two daughters, Margaret and Charlotte, and dies; first Matthew, and (in case of his death without issue) then Gilbert, shall be admitted to the succession in preference to both the daughters.
3. "Where there are two or more males in equal degree, the eldest only shall inherit; but the females all together." As if a man hath two sons, Matthew and Gilbert, and two daughters, Margaret and Charlotte, and dies; Matthew his eldest son shall alone succeed to his estate, in exclusion of Gilbert the second son and both the daughters; but if both the sons die without issue before the father, the daughters Margaret and Charlotte shall both inherit the estate as coparceners.
4. "The lineal descendants in infinitum, of any person deceased, shall represent their ancestor; that is, shall stand in the same place as the person himself would have done had he been living." Thus the child, grand-child, or great-grand-child (either male or female), of the eldest son, succeeds before the younger son, and so in infinitum. And these representatives shall take neither more nor less, but just so much as their principals would have done. As if there be two sisters, Margaret and Charlotte; and Margaret dies, leaving six daughters; and then John Stiles the father of the two sisters dies without other issue; these six daughters shall take among them exactly the same as their mother Margaret would have done, had she been living; that is, a moiety of the lands of John Stiles in coparcenary: so that, upon partition made, if the land be divided into twelve parts, thereof Charlotte the surviving sister shall have fix, and her fix nieces, the daughters of Margaret, one a-piece.
5. "On failure of lineal descendants, or issue of the person last seised, the inheritance shall descend to the blood of the first purchaser; subject to the three preceding rules." Thus, if Geoffrey Stiles purchases land, and it descends to John Stiles his son, and John dies seised thereof without issue; whoever succeeds to this inheritance must be of the blood of Geoffrey, the first purchaser of this family. The first purchaser, perquisitor, is he who first acquired the estate to his family, whether the same was transferred to him by sale, or by gift, or by any other method, except only that of descent.
6. "The collateral heir of the person last seised must be his next collateral kinsman of the whole blood."
First, he must be his next collateral kinsman either personally or jure representationis; which proximity is reckoned according to the canonical degrees of consanguinity: See Consanguinity. Therefore the brother being in the first degree, he and his descendants shall exclude the uncle and his issue, who is only in the second.—Thus, if John Stiles dies without issue, his estate shall descend to Francis his brother, who is lineally descended from Geoffrey Stiles, his next immediate ancestor or father. On failure of brethren or sisters and their issue, it shall descend to the uncle of John Stiles, the lineal descendant of his grandfather George; and so on in infinitum.
But, secondly, the heir need not be the nearest kinsman absolutely, but only sub modo; that is, he must be the nearest kinsman of the whole blood; for if there be a much nearer kinsman of the half blood, a distant kinsman of the whole blood shall be admitted, and the other entirely excluded. A kinsman of the whole blood is he that is derived, not only from the same ancestor, but from the same couple of ancestors. For as every man's own blood is compounded of the bloods of his respective ancestors, he only is properly of the whole or entire blood with another who hath (so far as the distance of degrees will permit) all the same ingredients in the composition of his blood that the other hath. Thus the blood of John Stiles being composed of those of Geoffrey Stiles his father, and Lucy Baker his mother, therefore his brother Francis, being descended from both the same parent, hath entirely the same blood with John Stiles; or he is his brother of the whole blood. But if, after the death of Geoffrey, Lucy Baker the mother marries a second husband, Lewis Gay, and hath issue by him: the blood of this issue, being compounded of the blood of Lucy Baker (it is true) on the one part, but that of Lewis Gay (instead of Geoffrey Stiles) on the other part, it hath therefore only half the same ingredients with that of John Stiles; so that he is only his brother of the half blood, and for that reason they shall never inherit to each other. So also, if the father has two sons, A and B, by different venters or wives; now these two brethren are not brethren of the whole blood, and therefore shall never inherit to each other, but the estate shall rather escheat to the lord. Nay, even if the father dies, and his lands descend to his eldest son A, who enters thereon, and dies seised without issue; still B shall not be heir to this estate, because he is only of the half blood to A, the person last seised; but had A died without entry, then B might have inherited; not as heir to A his half-brother, but as heir to their common father, who was the person last actually seised.
The rule then, together with its illustration, amounts to this. That in order to keep the estate of John Stiles as nearly as possible in the line of his purchasing ancestor, it must descend to the issue of the nearest couple of ancestors that have left descendants behind them; because TABLE of DESCENTS.
Paternal Line. Maternal Line.
Richard Stiles paternal grandfather paternal grandfather paternal grandfather
Anne Godfrey paternal grandmother paternal grandmother paternal grandmother
William Smith paternal grandfather paternal grandfather paternal grandfather
James King paternal grandfather paternal grandfather paternal grandfather
Thomas Kempe paternal grandfather paternal grandfather paternal grandfather
Sarah Browne paternal grandmother paternal grandmother paternal grandmother
Charles Holland paternal grandfather paternal grandfather paternal grandfather
Mary Wilton maternal grandfather maternal grandfather maternal grandfather
Henry Baker maternal grandfather maternal grandfather maternal grandfather
Susan Bates maternal grandfather maternal grandfather maternal grandfather
Edward Willis maternal grandfather maternal grandfather maternal grandfather
Joseph Carter maternal grandfather maternal grandfather maternal grandfather
Daniel Thrope maternal grandfather maternal grandfather maternal grandfather
Eliza Bishop maternal grandfather maternal grandfather maternal grandfather
Colinna Wood maternal grandfather maternal grandfather maternal grandfather
Issue of Richard and Anne Stiles paternal grandfather paternal grandfather paternal grandfather
Walter Stiles paternal grandfather paternal grandfather paternal grandfather
Christian Smith paternal grandfather paternal grandfather paternal grandfather
Issue of Walter & Christian Stiles paternal grandfather paternal grandfather paternal grandfather
George Stiles paternal grandfather paternal grandfather paternal grandfather
Anne of George & Cecilia Stiles paternal grandfather paternal grandfather paternal grandfather
Geoffery Stiles Father
Cecilia Kempe paternal grandmother paternal grandmother paternal grandmother
Issue of Luke & Francis Kempe paternal grandmother paternal grandmother paternal grandmother
Issue of Herbert & Hannah Baker maternal grandfather maternal grandfather maternal grandfather
Andrew Baker maternal grandfather maternal grandfather maternal grandfather
Hannah Willis maternal grandfather maternal grandfather maternal grandfather
Issue of Henry & Susan Baker maternal grandfather maternal grandfather maternal grandfather
Francis Holland paternal grandfather paternal grandfather paternal grandfather
Issue of Charles & Mary Holland paternal grandfather paternal grandfather paternal grandfather
Herbert Baker maternal grandfather maternal grandfather maternal grandfather
Edward & Dorothy Willis maternal grandfather maternal grandfather maternal grandfather
Issue of Daniel & Elizabeth Thrope maternal grandfather maternal grandfather maternal grandfather
James Thrope maternal grandfather maternal grandfather maternal grandfather
Emma White maternal grandfather maternal grandfather maternal grandfather
Issue of Roger & Catharine White maternal grandfather maternal grandfather maternal grandfather
Anne of George Stiles Half Sister paternal grandfather paternal grandfather paternal grandfather
Issue of George & Cecilia Stiles paternal grandfather paternal grandfather paternal grandfather
DEAD-EYES.
Francis Stiles eldest Brother John Stiles second Brother Oliver Stiles second Brother John Stiles the Yerfon first Rised Bridget Stiles Sister Alice Stiles Sister Matthew Stiles eldest Son Gilbert Stiles second Son Margaret Stiles Daughter Charlotte Stiles Daughter Issue of Lucy Gay half sister Lewis Gay second Husband Issue of Andrew & Esther Baker
DAVIT.
W. Archibald sculp. because the descendants of one ancestor only are not so likely to be in the line of that purchasing ancestor as those who are descended from two.
But here a difficulty arises. In the second, third, fourth, and every superior degree, every man has many couples of ancestors, increasing according to the distances in a geometrical progression upwards, the descendants of all which respective couples are (representatively) related to him in the same degree. Thus, in the second degree, the issue of George and Cecilia Stiles and of Andrew and Esther Baker, the two grandfathers and grandmothers of John Stiles, are each in the same degree of propinquity; in the third degree, the respective issues of Walter and Christian Stiles, of Luke and Frances Kempe, of Herbert and Hannah Baker, and of James and Emma Thorpe, are (upon the extinction of the two inferior degrees) all equally entitled to call themselves the next kindred of the whole blood to John Stiles. To which therefore of these ancestors must we first resort, in order to find out descendants to be preferably called to the inheritance? In answer to this, and to avoid the confusion and uncertainty that might arise between the several stocks wherein the purchasing ancestor may be sought for,— 7. The seventh and last rule or canon is, "That in collateral inheritances the male stocks shall be preferred to the female (that is, kindred derived from the blood of the male ancestors shall be admitted before those from the blood of the female);—unless where the lands have in fact descended from a female."—Thus the relations on the father's side are admitted in infinitum, before those on the mother's side are admitted at all; and the relations of the father's father, before those of the father's mother; and so on.
For the origin and progress of the above canons, the reasons upon which they are founded, and their agreement with the laws of other nations, the curious reader may consult Blackstone's Commentaries, vol. ii. p. 208—237.
We shall conclude with exemplifying the rules themselves by a short sketch of the manner in which we must search for the heir of a person, as John Stiles, who dies seised of land which he acquired, and which therefore he held as a feud of indefinite antiquity. See the Table of DESCENTS on Plate CLXIX.
In the first place succeeds the eldest son, Matthew Stiles, or his issue, (No 1.)—If his line be extinct, then Gilbert Stiles and the other sons respectively, in order of birth, or their issue, (No 2.)—In default of these, all the daughters together, Margaret and Charlotte Stiles or their issue, (No 3.)—On the failure of the descendants of John Stiles himself, the issue of Geoffrey and Lucy Stiles, his parents, is called in; viz. first, Francis Stiles, the eldest brother of the whole blood, or his issue, (No 4.)—then Oliver Stiles, and the other whole brothers respectively, in order of birth, or their issue, (No 5.)—then the sisters of the whole blood altogether. Bridget and Alice Stiles, or their issue, (No 6.)—In defect of these, the issue of George and Cecilia Stiles, his father's parents; respect being still had to their age and sex, (No 7.)—then the issue of Walter and Christian Stiles, the parents of his paternal grandfather, (No 8.)—then the issue of Richard and Anne Stiles, the parents of his paternal grandfather's father, (No 9.)—and so on in the paternal grandfather's paternal line, or blood of Walter Stiles, in infinitum. In defect of these the issue of William and Jane Smith, the parents of his paternal grandfather's mother, (No 10.)—and so on in the paternal grandfather's maternal line, or blood of Christian Smith in infinitum; till both the immediate bloods of George Stiles, the paternal grandfather, are spent.—Then we must resort to the issue of Luke and Frances Kempe, the parents of John Stiles's paternal grandmother, (No 11.)—then to the issue of Thomas and Sarah Kempe, the parents of his paternal grandmother's father, (No 12.)—and so on in the paternal grandmother's paternal line, or blood of Luke Kempe, in infinitum. In default of which, we must call in the issue of Charles and Mary Holland, the parents of his paternal grandmother's mother, (No 13.)—and so on in the paternal grandmother's maternal line, or blood of Frances Holland, in infinitum; till both the immediate bloods of Cecilia Kempe, the paternal grandmother are also spent.—Whereby the paternal blood of John Stiles entirely failing, recourse must then, and not before, be had to his maternal relations; or the blood of the Bakers, (No 14, 15, 16.), Willis's (No 17.), Thorpe's (No 18, 19.), and White's (No 20.) in the fame regular successive order as in the paternal line.
The student should bear in mind, that during this whole process, John Stiles is the person supposed to have been last actually seised in the estate. For if ever it comes to vest in any other person, as heir to John Stiles, a new order of succession must be observed upon the death of such heir; since he, by his own seisin, now becomes himself an ancestor, or fitper, and must be put in the place of John Stiles. The figures therefore denote the order in which the several classes would succeed to John Stiles, and not to each other; and before we search for an heir in any of the higher figures, (as No 8.) we must first be assured that all the lower classes (from No 1. to 7.) were extinct at John Stiles's decease.
or Succession, in the Law of Scotland. See LAW INDEX.
DESCENT of the Crown. See SUCCESSION.
DESCENT of Dignities. A dignity differs from common inheritances, and goes not according to the rules of the common law: for it descends to the half-blood; and there is no coparcenership in it, but the eldest takes the whole. The dignity of peerage is personal, annexed to the blood; and so inseparable that it cannot be transferred to any person, or surrendered even to the crown; it can move neither forward nor backward, but only downward to posterity; and nothing but corruption of blood, as if the ancestor be attainted of treason or felony, can hinder the descent to the right heir.
in genealogy, the order or succession of descendants in a line or family; or their distance from a common progenitor: Thus we say, one descent, two descents, &c.
in Heraldry, is used to express the coming down of any thing from above; as, a lion en descent is a lion with his head towards the base points, and his heels towards one of the corners of the chief, as if he were leaping down from some high place.