Note: Do not rely on this information. It is very old.

Descent

Descent (from the Norman-French discent) is the rule of law, pursuant to which, on the demise of the owner of an estate of inheritance (i.e. a fee-simple or freehold estate), he having made no disposition thereof by will or otherwise, it descends to his heir. Inheritance is a somewhat analogous word to descent, it signifying what may be taken by descent. The law with regard to this subject, and which regulates all descents taking place after the 1st of January, 1834, is prescribed by the Statute 3 and 4 William IV., c. 106. It has been well said that estates descend from ancestor to heir as the blood trickles. Property is acquired in two ways only, viz. by purchase or descent; if acquired by will, gift, grant, devise, or otherwise than by descent, it is in legal language acquired by purchase. Descent or hereditary succession is the title by which anyone acquires an estate in land as heir-at-law of a person deceased. In the lifetime of that person there can be no descent, and therefore no heir, though there may be an heir-apparent or an heir-presumptive. An heir-apparent is one who must be the heir if he survive to inherit. An heir-presumptive is one whose inheritance may be defeated by the birth of a nearer heir.

The following are the canons which at present regulate the descent of lands: -

(1) The inheritance descends to the lineal descendants of the purchaser in infinitum (see above remarks as to the meaning of the word "Purchaser").

(2) And to the male issue in preference to females.

(3) And to the eldest male issue in exclusion of the others [Primogeniture], but if there are no male issue, then to female issue altogether.

(4) Lineal descendants in infinitum are to represent their ancestor.

(5) Failing lineal descendants of the purchaser, the inheritance is to go to the nearest lineal ancestor, the father succeeding before the brother or sister of the purchaser, and every more remote ancestor succeeding before his issue other than any less remote ancestor or ancestors and his or their issue.

(6) In the application of the fifth canon the succession is to be according to the following order: -

(a) The father and all male paternal ancestors and their descendants in infinitum.

(b) All the female paternal ancestors and their heirs.

(d) All the female maternal ancestors and their heirs.

(7) The half blood of the purchaser shall inherit: -

(a) Where the common ancestor is a male next after a kinsman in the same degree of the whole blood and the issue of such kinsman ia infinitum, and

(b) Where the common ancestor is a female next after that female.

(8) In the application of the sixth canon: -

(a) In the admission of female paternal ancestors the mother of the more remote male paternal ancestor and her heirs are to be preferred to the mother of the less remote and her heirs.

(b) In the admission of female maternal ancestors the mother of the more remote male maternal ancestor and her heirs are to be preferred to the mother of the less remote one and her heirs.

(9) Failing the discovery of an heir after the application of all the first eight canons, the land is to descend to the heir of the person last entitled, although he was not the purchaser thereof; and such heirs will, of course, have to be ascertained by the renewed application of the first eight canons, starting only from a different point of departure or propositus.

Estate Tail. The descent of an entailed estate or, in legal language, an estate tail, which is an estate limited to a person and the heirs of his body, follows the first four canons, unless it is barred, or unless it is limited to special heirs or to males or females, in which case the canons govern its descent, so far as they are applicable.

Customary Descent, such as Gavelkind and Borough English, are regulated by the customs of particular districts, and are exceptions to the above canons of descent so far as the respective peculiarities of those customs are concerned.