As to descents in fee simple, the funda mental rule is, that any person of kin to another, that is, descended from the same ancestor, however distant, may be his heir, but that no person connected with him by marriage or affinity only, can inherit to him. [CONSANGUINITY; AF FINITY.] If the son inherits to the father, his mother cannot succeed to him, fur though she may be heir to the son, she cannot be heir to the father, from whom, and not from the son, " the descent is to be traced." On the other hand, if the father inherits to the son, the mother may succeed to him, for though she cannot be the heir of the father, she may be the heir of the son. The fee, fief, or feud, which may thus now descend to the kin dred of the purchaser in infinitum, was once nothing more than a given to the tenant or holder of it in con sideration of the military services to be rendered by the tenant to the donor. The fee was afterwards permitted to descend to the issue of the original grantee, and in process of time to his collateral heirs. This was only effected by means of a fiction ; for so firmly settled was the notion that " the blood" (descending) alone of the purchaser or original grantee could be allowed to inherit, that the feudal law was never brought to allow collateral heirs, as such, to be heirs. But when a feud was granted ut antiquum, that is, to be held by the donee as if it had descended to him from some remote unknown an cestor, then the law permitted collateral relations however distant, that is, relations descended from any common ancestor, however remote, to inherit. For it was not known how far distant the ancestor was who was supposed to have been the purchaser, nor who he was, and it was sufficient that the heir might be a descend ant of his. (See for the early history of inheritable fiefs, Robertson's Charles V., Sullivan's Lectures, Wright's Tenures, Gilbert on Tenures by Watkins, Butler's Coke upon Littleton, 191, a. v. 4, where there is a comparison of the Roman and feudal laws of inheritance.) While the law, however, went thus far, it did not, for reasons which some writers have attempted to explain, allow the lineal ancestors of the purchaser of the quasi ancient feud to inherit it, nor his relations by the half blood, that is, persons de scended not from the same father and mother as the purchaser, or any lineal ancestor of his, but from one of them only. Still further exclusions followed from the rule which was afterwards es tablished, that the heir of the fee must be the heir of the person last seised or pos sessed of it, as well as a kinsman of the whole blood to the actual purchaser. Among the practical consequences of this rule were the following : that if the child of the actual purchaser inherited to him, and became seised, the purchaser's child by another wife could not succeed, be cause only half brother to the person last seised ; and that if the father's brother inherited to the son and became seised, the mother's brother could not succeed, because only related by marriage to the person last seised. All these exclusions and the fictions of the ancient feuds are done away with by the new act, the effect of which is, as before said, to admit among the heirs of the purchaser all his kindred, both of the whole and the half blood, and notwithstanding any previous descent to any heir of his. This it does by enacting that ever lineal ancestor shall be capable of being heir to any of his issue (§ 6) ; that any person re lated to the purchaser by the half blood shall be capable of being his heir (§ 9), and that in every case descent shall be traced from the purchaser (§ 2). Still, however, the wife or her kin cannot inherit to the husband, nor the husband or his kin to the wife. But the hard ship of these exclusions is at least miti gated by the law of dower and curtesy, which must be read together with the law of descent as one law. The order in which the kindred of the purchaser in herit is a matter purely legal. The prac tical difficulty in finding who is heir, is not the difficulty of understanding the law, but in ascertaining the facts upon which the law of descent operates. The new act declares that the last owner of the land shall be presumed to be the pur chaser, unless it can be proved that he is not ; and this rule diminishes the difficulty of tracing the descent.
The English word heir comes from the Roman heres; but the Roman word heres had two siguificatious. It signified either the person or persons to whom a testator gave his property by testament; or the person or persons who took the property of a deceased person in case of his dying intestate. The heres by testament corre sponds to the English devisee, and to the person or persons to whom a man be queaths his personal estate for the purpose of distribution, that is, his executors. Fur ther, the Roman law made no distinction between land and other property, as to descent or testamentary disposition. The Roman heres, therefore, who succeeded in case of intestacy (ab intestato) filled the place of the English heir at law, and also of the person who obtains the administration of an intestate's personal estate. Again, in the case of intestacy among the Romans, all persons were heredes, and took the property in equal portions, who were in the same degree of consanguinity to the intestate : sons and daughters who were in the power of their father inherited alike, whether the real children of the intestate or his adopted children ; and the wife who was in the hand of her husband (in maim) inherited with the brothers and sisters of the intestate, for such wife was considered as a daughter. If a man left children living, and there were also chil dren of a son deceased, these grand-chil dren took the share which their father would have had if living : thus the division among the grandchildren in this case was not in capita, but in stirpes. In fact, the Roman law of succession, in case of intestacy, should be compared with the English law of succession to the personal estate of an intestate, which is founded on the Roman law ; and it should not be compared with the English law of descent, which is of a feudal character. The law of Roman intestacy is stated by Gains, lib. iii.
The rule of descent, which makes the eldest son, brother, &c. sole heir, exclusive of the other children, or the other ne phews and nieces, &c., is well known by the name of the law of primogeniture.' [PRIMOGENITURE. 3 It is almost peculiar to our country, not having been observed by the ancients, and being generally abo lished where it existed on the Continent and in the United States of America. For the history of this rule, see Hale's His tory of the Common Law ; Sullivan's Lectures; Robinson On Gavelkind ; 2 Blackstone's Corn. ; Wright's Tenures ; and for observations on its expediency, Smith's Wealth of Nations. The prefer ence of males to females is not so pecu liar. The Jews, Athenians, and Arabians, though not the Romans, gave the inherit ance to sons exclusive of daughters. (For the Athenian law of inheritance, see Jones's haus ; for that of the Jews, Selden, De Successionibus aped Hebraws.) This is not however the case among most foreign nations at present. The prefer ence of the child of the elder son dead in the purchaser's lifetime to the younger son has some interesting historical asso ciations. The law on this point seems not to have been settled till after most of the other rules of descent. It was still somewhat doubtful when King John kept his nephew Arthur from the throne by disputing it. (2 Blackstone's Com. ; Sulli van's Lectures, legit. 14. In Robertson's Charles V., vol. i. p. 272, there is a curi ous story of the trial by combat of this point of law.) The descent of estates tail (regulated by stet. 3 Ed. I. c. 1) differs from that of fees simple principally in this, that only the descendants of the first donee can inherit ; and of these only males claiming exclusively through males can be heirs when the estate is in ' tail male :' when it is in tail female (a mode of gift which is quite obsolete), only females claiming exclusively through females. [ENTAIL.] The limited descent of the estates, together with other qualities of them, makes them the best representa tives at present existing (excepting indeed copyholds) of the ancient fiefs.
(On the law of descent, as it existed before the late act, see Sir Matthew Hale's History of the Common Law, chap. xi.; 2 Blackstone, Com., chap. xiv. ; Cruise's Digest, vol. iii. Watkins On Descents principally treats of curious points, many of which have ceased to be important. As to the reasons for the new alterations, see First Report, Real Property Commis sioners.)