DESCENT. The transmission of real prop by operation of tan to the heir or heirs of one who I t• a principle k.orninon to most it not all legal systems, that the prop• erty of a decedent. if otherwise disposed of by him, n fixed line of tie,vent to those rt fated to him by ties of blood. ender some that of Rome, no distinetion was made the two classes of Ill•011erty ille 1 we Will and personal. the whole passing. ahulg with the liabilities the (11111er. III a personal representative, and this has been the nature of descent generally, both in ancient and in modern nations. In the vommon law system of England and the United States, however, a different principle has prevailed, only the personal property passing to the representa tive of the deceased. the real property devolving upon a lineal descendant, who heettme known as the heir. The personal representative was not necessarily a deseendant, nor even related by of vonsallizitinity to the decedent. and the use of the ierin 'descent' was, therefore. confined to the devolution Of the real property—the terms rat ion' and 'distribution' being employed to describe corresponding disposition made of the personal property after the death. The transmission of the real property to a klitTer ent individual from the one title. as per sonal representative, was affected with the obliga tion to pay the decedent's debts, was a conse qu•nce of the feudal system. and was due, among other things, to the necessity of holding the lands together. free front elaims on the part of others than the feudal lords of whom the lands were held.
The exeeptional and peeol r (diameter of the law of land at the common law. due to its emit plet e absorption in the feudal system. is strik ingly. exemplified in the history of the doctrine of inheritance, There was at first no general I •co;.,mition of the right to transmit freehold l•n& by descent, nor to alienate them without the consent of the lord of '1010111 they were held, and Ow right to dispose of one's real estate by will was not conceded until the reign of Henry VIII. The right of inheritance, once
strictly limited to freeholds 11)11(41 were in terms granted to a man and his heirs, and did not extend to such as were granted to a man absolute ly. but % ithout an express limitation to heirs. The latter. therefore. fell into the cate gory of life estates. while the quality of herit ability became the Chief characteristic .4 the estat• karma as a fee. Thimeeforth freehold were as 'freehold, of inheritance' and not of inheritance.' It is with the former, that the law of descent has 10 Ill). The right of free alienation of land. heIll in fee was not a.111111.ii 1111111 the quality of heritability had gouty to he considered an essential elkaraeter i-tie of such lands. and sin•, alienation was long tiled :I- as 11 f 1'111'2.0.1110.11i 1111011 t he expettant of the heir. as well as report the reserved rights of il( lord of es born the fee i‘n• 11,1,1. .1ny, lame\ er, Li) without possessing brut 1111•c1uality of free alienability and that of heritability within the limits preserilled by the laws of 0,-ectit, and an III te1111.1 10 l•rente a fee which shall lack either of these characteristics is ineffect Oat and void.
The exigencies of the feudal system determined the course as well as the fact of deseent at. conk mon law. The importance of holding an together, in the hands of a single heir, and that a male, nearest in blood to the devedent, fixed the cations of descent as they existed in England from the twolith to the nineteenth century. Originally, it is true. and down to the time of (twelfth century), hinds held by the Leanly •If tree and common sovage were governed by different rules from those which regulated the inheritance of military fees, or lands held by knight's service. and on the ancestor's death were divided among ;kit his sons equally; but long be fore the time of Littleton this distinction had disappeared and all lands hold in fee simple came under the of the feudal rules.