DESCENT. Hereditary succession.
Title by descent is the title by which one person, upon the death of another, acquires the real estate of the latter as his heir at law. 2 Blackstone, Comm. 201; Comyns, Dig. Discent (A).
It was one of the principles of the feudal system that on the death of the tenant in fee the land should descend, and not ascend. Hence the title by inheritance is in all cases called descent, although by statute law the title is sometimes made to ascend.
The English doctrine of primogeniture, by which by the common law the,Aldest son and his issue take the whole real dastate, has been universally abolished in this country. So, with few exceptions, has been the dis tinction between male and female heirs.
2. The rules of descent are applicable to real estates of inheritance. Estates for the life of the deceased, of course, termi nate on his death ; estates for the life of an other are governed by peculiar rules.
Terms of years, and other estates less than freehold, are regarded as personal estate, and, on the death of the owner, vest in his execu tor or administrator.
3. The rules of descent are prescribed by the statute laws of the several states; and, al though they correspond in some respects, it is doubtful whether in any two they are pre cisely alike. An abstract of these laws is here given, taken, by permission, from the excellent work of Professor Washburn on the American Law of Real Property (Little, Brown & Co., Boston, 1864).
The rules of descent, prescribed by the statutes of the several United States, are as follows :— In Alabama, the real estate of an intestate de scends-1. To the children and their descendants equally. 2. To the brothers and sisters, or their descendants., 3. If none of these, to the father, if living; if not, to the mother. 4. If there be neither of these, then to the next of kin in equal degree. 5. If there be none of the above-mentioned kindred, then to the husband or wife; and in default of these it escheats to the state. 8. There is no representation among collaterals except with the descendants of brothers and eistere of the intestate. 7. There ie no distinotiun between the whole and half blood, except that, in case the inheritance was ancestral, those not of the blood of the ancestor are excluded as against those of the same degree. Ala. Code, 1852, 1572-1576.
In Arkansas, real estate of inheritance descends -1. To the children or their descendants in equal parts. 2. To the father, ,then to the mother. 3. To the brothers and sisters, or their descendants. 4. To the grandfather, grandmother, uncles, and aunts, and their descendants, in equal parts; and so en, passing to the nearest lineal 'Itneestor and his descendants. 5. If there be no such kindred, then to the husband or wife; and in default of these it escheats to the state. 6. The descendants of the intestate, in all cases, take by right of re presentation, where they are in different degrees. 7. If the estate come from the father, and the in testate die without descendants, it goes to the father and his hairs; and if the estate be maternal, than to the mother and her heirs. But if the estate be an acquired one, it goes to the father for life, remainder to the collateral kindred ; and in default of father, then to the mother for life, an .1 remainder
to collateral heirs. 8. In default of father and mother, then first to the brothers and sisters, and their descendants of the father ; then to those of the mother. This applies only where thereais no near kindred, lineal ur collateral. 9. The half blood inherits equally with the whole blood in the same degree ; but if the estate be ancestral, it goes to those of the blood of the ancestor from whom it was derived. 10. In all cases not provided for by the statute, the inheritance demon Is according t the course of the common law. Dig. Ark. Stat. 1858, e. 56.
In California-1. If there be a surviving hus band or wife, and only one child, or the issue of one child, iu equal shares to the surviving husband or wife, and child, or issue of such child. If there be more than one child, or one and the issue of one or more, then one-third to the surviving hus band or wife, and the remainder to the children or issue of such by right of representation. If there be no child living, then to lineal, descendants equally, if they are in the same degree, otherwise by right of representation. 2. If there be no issue, then in equal shares to the surviving husband or wife and to the intestate's father. If there be no father, then one-half in equal shares to the brothers and sisters of the intestate, and the issue of such by right of representation : provided if there be a mother she shall take an equal share with the brothers and sisters. If there be no surviving issue, husband, ur wife, the estate goes to the father. 3. If there be no issue, nor husband, nor wife, nor father, then in equal shares to the brothers and sisters of the intestate, and to children of such by right of representation : provided, if there be a mother also, she takes equally with the brothers and sisters. 4. If there be none of these except the mother, she takes the estate to the exclusion of the issue of deceased brothers and sisters. 5. If there be a surviving husband or wife, and no issue, father, mother, brother, or sister, the whole goes to the surviving husband or wife. 6. If none of these, to the next of kin in equal degree, those claiming through the nearest ancestor to be preferred to time claiming through one more remote. 7. If there he several children, or one child and the issue of one or more, and any ouch surviving child die under age and unmarried, the•estate.ef such child which came from such deceased parent passes to the other children of the same parent and the issue of such by right of representation. 8. If all the other children be dead, in such case, and any of them have left issue, then the estate descends to such issue equally if in the same degree, otherwise by right of representation. 9. If the intestate leave no husband or wife, nor kindred, the estate escheats to the state for the use of the common schools. 10. The degrees of kindred are computed according to the rules of the civil law; and kindred of the half-blood inherit equally with those of the whole blood in the came degree, unless the estate come from an ancestor, in which case those not of the blood of such ancestor are excluded. Wood, Dig. Cal. Laws, 1858, p. 423; State. 1E62, c. 447.