DESCENT, in English law (from discent, Norman French, and so written in our older law books), may be defined to be the rule of law pursuant to which, on the death of the owner of an estate of inherit ance, without making any disposition thereof it descends to another as heir. Inheritance is sometimes used in the same sense as descent, though it rather signifies that which is, or ma' be, inherited, or taken by descent. (Littleton, sect. 9.) The law of inheritance with respect to descents which have taken place since or shall take place after the 1st of January, 1834, is now regulated by the Act 3 & 4 Wm. IV. c. 106. The object here is merely to explain the general notion of descent.
All modes of acquiring property in land by the English law are either Descent or Purchase. Descent, or hereditary suc cession, signifies the title by which a man acquires an estate in land as the heir-at law of a person deceased.
The death of the owner of the estate of inheritance is the occasion of the descent of it. In his lifetime there can be no descent, and therefore no heir, though there may be an "heir apparent," or "heir presumptive." An heir apparent is he who must be the heir, if he lives till the inheritance descends ; an heir presumptive is he who may be forestalled by the birth of a nearer heir.
The person who dies must be at his death owner of the estate of inheritance, or no descent of it will then take place.
Inheritances, otherwise called heredita meats, things which may be inherited or taken by descent, are various. The prin cipal of these is the Crown, or royal title, dignity, and power of the king of the British Empire, the descent of which differs in one material respect from that of a private inheritance, inasmuch as where there are no sons of the king, an elder daughter takes the whole of the inheritance, in exclusion of the younger sisters. In the case of the descent of private land, when there are several daughters, they all take alike in equal shares, and are called par ceners, or coparceners. Dignities and honours, as baronies and other peerages, are descendible, according to the limita lions contained in the patents by which they were created. If created by sum mons in the first instance, they are called dignities in fee, and are descendible to females. [Bsaosr.] Finally, all the sub jects of real property, and all annuities, offices, and whatever other kings may be " held in fee," are " descendible," and this whether they are in possession, rever sion, remainder, or expectancy. So are all rights and titles to things that may be held in fee, and the expectancy of an heir apparent or presumptive. There are also
" descendible freeholds," that is, estates created by leases for lives, which, though not estates in fee, may during their con tinuance be inherited as if they were. It has been already noticed [CHATTEL] that the large class of things called chattels are not generally the subject of descent, but that some of them are Upon the death of the owner, the in heritance devolves upon the heir, without any act done by him, or price paid for his acquisition : in both these respects, the present law of descent differs from the old feudal customs from which it is derived. According to the old feudal customs, upon the death of the tenant of a fee, the lord of whom it was held was entitled to take and retain it till the heir, for whom pro clamation was made, appeared, and paid a sum of money called a relief [RELIEF] as the consideration for his admission into the tenancy ; whereupon " seisin" or pos session was given him, and he took the " oath of fealty" [FEALTY], and if the tenancy was by "knight's service," "did homage" [HOMAGE] also to the lord. All this was more like a new donation, than the present quiet succession of an heir. The descent of copyholds, however, is still regulated much in the manner de scribed. The heir was not, however, formerly, to the same extent as now, sub ject to the charges and debts of the de ceased tenant, in respect of the property that descended to him. [AssETs]. The present law of descents qualifies materially in one respect the title of the heir to the inheritance descended. Though it makes him as completely the owner of it as if he had purchased it, that is, acquired it otherwise than by descent, as to right of enjoyment and power of alienation, it does not allow it at his death to descend as if he had purchased it, but, on the contrary, declares that it shall descend as if he had never had it. Such at least is the new law. (§ 1, 2, of the Act.) The heir of an inheritance must be always the heir of the last " purchaser" of it, that is, of the last person who acquired the property "other wise than by descent, or than by an es cheat partition or inclosure, by the effect of winch the land shall have become part of, or descendible, in the same manner as other land acquired by descent." The practical importance of this rule cannot be understood without knowing who the person is who in any case is designated by the law as the " heir" to another.