Legal Definition of Descent
Descent is the title, whereby a person, upon the death of his ancestor, acquires the estate of the latter, as his heir at law.5 min read
2. The General Rules Of The Law Of Descent.
3. Rules Applying to Descent
4. American Rule Regarding Descent
What Is Descent?
Hereditary succession. Descent is the title, whereby a person, upon the death of his ancestor, acquires the estate of the latter, as his heir at law: This manner of acquiring title is directly opposed to that of purchase. It will be proper to consider:
1. What kind of property descends
2. The general rules of descent.
All real estate, and all freehold of inheritance in land, descend to the heir. And, as being accessory to the land and making a part of the inheritance, fixtures, and emblements, and all things annexed to, or connected with the land, descend with it to the heir. Terms for years, and other estates less than freehold, pass to the executor, and are not subjects of descent. It is a rule at common law that no one can inherit read estate unless he was heir to the person last seised. This does not apply as a general rule in the United States.
The General Rules Of The Law Of Descent.
It is a general rule in the law of inheritance, that if a person owning real estate, dies seised, or as owner, without devising the same, the estate shall descend to his descendants in the direct line of lineal descent, and if there be but one person, then to him or her alone; and if more than one person, and all of equal degree of consanguinity to the ancestor, then the inheritance shall descend to the several persons as tenants in common in equal parts, however remote from the intestate the common degree of consanguinity may be. This rule is in favor of the equal claims of descending line, in the same degree, without distinction of sex, and to the exclusion of all other claimants.
The following example will, illustrate it; it consists of three distinct cases:
1. Suppose Paul shall die seised of real estate, leaving two sons and a daughter, in this case the estate would descend to them in equal parts; but suppose,
2. That instead of children, he should leave several grandchildren, two of them the children of his son Peter, and one the son of his son John, these will inherit the estate in equal proportions; or,
3. Instead of children and grandchildren, suppose Paul left ten great grandchildren, one the lineal descendant of his son John, and nine the descendants of his son Peter; these, like the others, would partake equally of the inheritance as tenants in common. According to 'Chancellor Kent, this rule prevails in all the United States, with variations.
Rules Applying to Descent
It is also a rule that if a person dying seised, or as owner of the land, leaves lawful issue of different degrees of consanguinity, the inheritance shall descend to the children and grandchildren of the ancestor, if any be living, and to the issue of such children and grandchildren as shall be dead, and so on to the remotest degree, as tenants in common; but such grandchildren and their descendants shall inherit only such share as their parents respectively would have inherited if living.
When the owner of land dies without lawful issue, leaving parents, it is the rule in some of the states, that the inheritance shall. ascend to them, first to the father and then to the mother, or jointly to both, under certain regulations prescribed by statute.
When the intestate dies without issue or parents, the estate descends to his brothers and sisters and their representatives. When there are such relations, all of equal degree of consanguinity to the intestate, the inheritance descends to them in equal parts, however remote from the intestate the common degree of consanguinity may be. When all the heirs are brothers and sisters, or nephews and nieces, they take equally. When some are dead who leave issue, and some are living, then those who are living take the share they would have taken if all had been living, and the descendants of those who are dead inherit only the share which their immediate parents would have received if living. When the direct lineal descendants stand in equal degrees, they take per capita, each one full share; when, on the contrary, they stand in different degrees of consanguinity to the common ancestor, they take per stirpes, by roots, by right of representation.
It is nearly a general rule that the ascending line, after parents, is postponed to the collateral line of brothers and sisters. Considerable difference exists in the laws of the several states, when the next of kin are nephews and nieces, and uncles and aunts claim as standing in the same degree. In many of the states, all these relations take equally as being next of kin, on the contrary, nephews and nieces take in exclusion of uncles and aunts, though they be of equal degree of consanguinity to the intestate.
American Rule Regarding Descent
A general rule in the American law of descent is that when the intestate has left no lineal descendants, nor parents, brothers, sisters or their descendants, that the grandfather takes the estate before uncles and aunts as being nearest of kin to the intestate.
When the intestate dies leaving no lineal descendants, nor parents, brothers, sisters or any of their descendants, nor grand parents, as a general rule it is presumed the inheritance descends to the brothers and sisters of both the intestate's parents, and to their descendants, equally. When they all stand in equal degree to the intestate, they take per capita, and when in unequal degree, per stirpes. To this general rule, however, there are slight variations in some of the states.
When the inheritance came to the intestate on the part of the father, then the brothers and sisters of the father and their descendant's shall have the preference and, in default of them, the estate shall descend to the brothers and sisters of the mother, and their descendants and where the inheritance comes to the intestate on the part of his mother, then her brothers and sisters and their descendants, have a preference, and in default of them, the brothers and sisters on the side of the father and their descendants, inherit.
When there is a failure of heirs under the preceding rules, the inheritance descends to the remaining next of kin of the intestate, according to the rules in the statute of distribution of the personal estate, subject to the doctrine in the preceding rules in the different states as to the half blood, to ancestral estates, and to the equality of distribution. This rule prevails in several states, subject to some peculiarities in the local laws of descent, which extend to this rule.