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Descent in Law

estate, real, laws and tail

DESCENT IN LAW is the transmission of the real estate of a person dying intestate to his heir or heirs. The title acquired by the heir, in this manner, is called title by descent.

Prior to the Revolution, the law in England was that real estate could only descend and never ascend; but in the United States the law has been changed by statute, and at the present time real estate may ascend as well as descend; but, as far as the title is concerned, it is called title by descent.

According to the old English law, real estate descended to the oldest son who was living; provided that he had no elder brother who had died leaving a son to survive him; if all the sons had died without leaving issue, all of the daughters inherited together. There were ex ceptions to this rule, as in one part of England, the youngest child was the heir. Estates tail might also be called an exception, in some cases, as an estate tail female, where the daugh ter took the property; and if there were no daughters, the estate went to a person outside of that immediate family, the sons being excluded absolutely. In the United States, some of the States have passed laws by which any words used, in the granting of an estate, which would create an estate tail shall be considered as creating an estate in fee simple, and by this means have abolished estates tail.

The rules of descent are applicable only to real estate, although sometimes they are incor rectly spoken of as applying to personal property also. Distribution is the proper word to use in speaking of personal property.

In many of the States there is a wide dis tinction between the laws of descent and those of distribution. The laws on the subject are regulated by statute of the different States, and are consequently subject to change at any time. These laws differ materially, and it is therefore necessary to examine with care the statutes of any particular State in order to determine its rule on this subject.

The general rule in the United States seems to be that real estate, subject to the rights of the surviving spouse, descends to children, grandchildren and on down in the lineal line; in default of these heirs, then to parents, and, if they are dead, the estate goes to collaterals; and if there are no heirs to the State. In only a few States are the husband and wife placed in the line of inheritance. The law of the place where the real estate is situated is the law ac cording to which the estate passes to the heir; and it makes no difference where the decedent was domiciled.