IF the inteftate have no kindred, his real eftate, which will be the fubject of our enfuing chapter, will efcheat to the King, or to the lord of the manor, or other perfon entitled thereto, by virtue of any grant from the Crown; for where no person can claim any property, there the King shall be entitled by his prerogative. As to perfonal eftate, concerning which we have been treating; where a bastard who has no kindred, being as the law terms him, nullius filius, that is, the fon of no one, or as he is fometimes termed, filius populi, that is, the son of the people (or any one else that has no kindred), dies inteftate, and without wife or child, it hath formerly been held, that the ordinary might seize his goods, and difpofe of them in pios ufus, or in pious ufes. But the usual courfe now is, for fome one to procure letters patent or other authority from the King; and then the ordinary of course grants adminiftration to fuch appointee of the Crown*. HENCE it may be perceived, that a baftard is utterly incapable of taking any real estate by defcent, and that he cannot be heir to any one; neither can he be entitled to any fhare in the diftribution of an inteftate's perfonal eftate: when born he is capable of taking by devife, and the lawful iffue of a baftard is capable of inheriting or taking by defcent or otherwise such estate as the parent might die poffeffed of, but no perfon except his wife or lawful iffue can claim any part of his estate as kindred; for he can have no collateral kindred. Baftards are children born out of wedlock, or before matrimony; but if a child be begotten while the parents are fingle, who afterwards marry, and thereby the child is born in lawful wedlock, he is no bastard. And children born fo long after the death of the hufband, that by the ufual courfe of geftation, they could not be begotten by him, are baftards. But this being a matter of fome uncertainty, the law is not exact as to a few days". So children born during wedlock may in fome circumítances be baftards: as in cafe the hufband be out of the kingdom of England (or, as it is commonly phrafed, without the four feas) for above nine months, fo that accefs to his wife cannot be prefumed, her iffue, during that period, will be bastards a. But generally during the coverture accefs of the hufband is prefumed, unlefs the contrary be proved. In cafe of a divorce in the fpiritual court a vincula matrimonii, or from the band of ma x Black. Com. 2 V. 505. Doug. Rep. 542. 2 Edit. y Co. Litt. 244. 2 Cro. Jac. 541. a Co. Litt. 244. b 3 P. Will. 276. Stra. 925. trimony, trimony, all the iffue born during the coverture are bastards; for such an absolute annulling of the marriage can only take place where fome caufe is fhewn, which made the marriage unlawful from the beginning. BESIDES what has been mentioned concerning baftards, it fhould be obferved, that it must be confanguinity or relationship by blood, and not affinity, a relationship by marriage, whereby perfons may be entitled as kindred to an inteftate's effate; for as to fuch as have married with any of the intestate's family or relations who have died before him, no advantage can accrue to them by fuch marriage for example, fuppofe A, was to die inteftate, and the only iffue he ever had were a fon and a daughter, both of whom had married, and died before him, leaving a wife and husband, who furvived him; neither this wife nor husband would have any part of A's real or perfonal eftate, though the iffue of his fon and daughter, with his wife (if fuch were living), would have the whole; but if none of them were living, the whole perfonal eftate would go to his next of kindred in fuch manner as has been fhewn, and the real estate to fuch as are defcribed in the ensuing chapter. And if A had died inteftate without wife or child, and his only kindred had been a brother and fifter, both of whom had married and died before him, leaving a wife and hufband, who had furvived him; neither this wife nor husband would be entitled to any part of A's eftate; but in this cafe he would die without kindred, and his real eftate would efcheat to the King, or lord of the manor, or other person who might be entitled thereto by virtue of any grant from the Crown, and his perfonal eftate would vest in the King, as we have lately hinted; and thus it would be in respect to the hufband of A's mother, and the husband or wife of any one that were his next of kin, and had married and died before him. But in cafe his fon or daughter, brother, fifter, or mother, or any other who were his next of kin, had furvived him, and died in ever fo fhort a time after, then the husband or wife of him, or fhe that had furvived him, might be entitled; that is, the husband in right of the wife, and the wife in respect of her husband; but neither of them as being of kin to A. The right of the diftributive thare vefts immediately on the inteftate's death, as hath been mentioned. Although by the ftatute no diftribution is to be made within a year; yet the fhare of the deceafed perfon is an intereft vested and tranfmiffible to his executors or admi niftrators. CHAP. IV. The Defcent of real Eftates, or Eflates of Inheri tance. How the Law difpofes thereof to the Heir; the Hufband of a deceased Wife, and the Wife of a deceafed Hufband. SECTION THE FIRST. HOW THE LAW DISPOSES OF THE INHERITANCE TO THE HEIR. AL LL freehold eftates are called real eftates, and may be of inheritance or not of inheritance, as mentioned page 28. The principal freehold eftates of inheritance are fce-fimple, and fee-tail. There are alfo eftates of inherit ance, which defcend according to the cuttom of gavelkind, borough-english, and the cuftoms of manors, yet do not all come under the legal defcription of freehold; with those latter, as well as the former, an adminiftrator, as fuch, has no concern, except it be with the eftate held pur auter vie (men. tioned page 30). To avoid confufion, thofe latter estates will be defined towards the end of this chapter.-Fee-fimple is where a man hath lands, tenements, or hereditaments, (the latter of which comprchend not only all kinds of grounds, as arable or plowed ground, meadows, paftures, woods, moors, marshes, and all kinds of houses, edifices, or buildings, which are called corporeal hereditaments, but al'o advow fons or rights of presentation to churches, commons, ways, offices, dignities, pentions, annuities, and rents, which are called incorporeal hereditaments ); to hold to him and his heirs for ever, generally, abfolutely, and fimply, without any particu lar heirs being mentioned, but that being referred to his own pleasure, or the difpofition of the law, in cafe he makes no difpofition thereof himfelf, as he may to whom he thinks fit. And hence we may perceive, that this eftate may confift both of corporeal and incorporeal hereditaments, or either. no perfon can be properly fuch an anceftor, as that an inheritance in lands or tenements can be derived from him, unless he hath had actual feifin of fuch lands, either by his own entry, or by the poffeffion of his own or his ancestor's leffee for years, or by receiving rent from a leffee of the freehold ; or unless he hath had what is equivalent to corporal feifin in hereditaments that are incorporeal; fuch as the receipt of rent, a presentation to the church in cafe of an advowson, and the like. And therefore all the cafes which will be hereafter Mentioned Page 24. Black. Com. 2 V. 209. But mentioned mentioned (refpecting defcent to the heir), are upon the fuppofition that the deceafed was the last perfon actually feifed of the inheritance. For the law requires this notoriety of poffeffion, as evidence that the ancestor had that property in himfelf which is to be tranfinitted to his heir ". DESCENT, or hereditary fucceffion, is a title whereby a man, on the death of his ancestor, acquires his eftate by right of representation, as his heir at law. An heir, therefore, is he upon whom the law cafts the eftate immediately on the death of the anceftor: and an eftate fo defcending to the heir, is in law called the inheritance. The doctrine of defcents, or law of inheritances in fee-fimple, is a point of the higheft importance, and the principal object of the laws of real property in England. All the rules relating to purchases, whereby the legal courfe of defcent is broken and altered, perpetually refer to this fettled law of inheritance, as a datum, or firft principle univerfally known, and upon which their subsequent limitations are to work. Thus a gift in tail, or to a man and the heirs of his body, is a limitation that cannot be perfectly understood without a previous knowledge of the law of defcents in fee-fimple. It may be perceived, that this is an eftate confined in its defcent, to fuch heirs only of the donee as have sprung, or fhall fpring from his body; but who those heirs are, whether all his children both male and female, or the male only, and (among the males) whether the eldest, youngest, or other fon alone, or all the fons together, thall be his heir: this is a point, that we must result back to the standing law of defcents, in fee-fimple to be informed of a‚— Concerning fee-tail, more will be faid in the two fubfequent fections. A brief defcription thereof, fee in p. 115.-In order to obtain a right conception of the law of delcents in fcefimple, which will now be treated on alone, it will be necellary to obferve the following rules: THE first rule is, that inheritances fhall lineally defcend to the iffue of the perfon laft actually feifed, in infinitum, or for ever; but fhall never lineally afcend. When therefore a perfon dies fo feifed, the inheritance firft goes to his flue: as if there be A, B, and C, grandfather, father, and fon and B the father purchases land and dies; his fon C fhall fucceed him as heir, and not A the grandfather; to whom the land fhall never afcend, but fhall rather efcheat to the lord. THE fecond rule is, that the male iffue thall be admitted before the female. Thus fons fhall be admitted before daugh a Ibid. 201. Black. Com. 2 V. 209. G 4 Littleton, fest. 3. ters. ters. As if A hath two fons, C and D, and two daughters, E and F, and dies; firft C, and (in cafe of his death without iffue) then D, fhall be admitted to the fuccellion in preference to both the daughters, THE third rule is, that where there are two or more males in equal degree, the eldeft only fhall inherit; but the females all together. As if a man hath two fons, A and B, and two daughters, C and D, and dies; A his eldest fon shall alone fucceed to his eftate, in exclufion of B the fecond fon and both the daughters; but if both the fons die without iffue before the father, the daughters C and D fhall both inherit the eftate as co-parceners. THE fourth rule is, that the lineal defcendants, in infinitum, of any perfon deceased, thall reprefent their ancestor; that is, shall stand in the fame place as the perfon himself would have done had he been living. Thus the child, grandchild, or greatgrandchild (either male or female) of the eldest fon, fucceeds before the younger fon, and fo in infinitum. And these representatives fhall take neither more nor lefs, but just fo much as their principals would have done. As if there be two fifters, A and B, and A dies leaving fix daughters, and then J. S. the father of the two fifters dies without other iffue; thefe fix daughters fhall take among them exactly the fame as their mother A would have done, had fhe been living; that is, a moiety, or one half of the lands of J. S. in coparcenary fo that upon partition made, if the land be divided into twelve parts, B the furviving fifter fhall have fix thereof, and her fix nieces the daughters of A one apiece. THIS taking by representation is called fucceffion in ftirpes, according to the roots; fince all the branches inherit the fame share that their root, whom they reprefent, would have done. For example, fuppofe the next heirs of Titius be fix nieces, three by one fifter, two by another, and one by a third; his inheritance by the law of England will be divided into three parts, and diftributed per ftirpes, thus; one third to the three children who reprefent one fifter, another Hale's Hiftory of the Common Law, 235. Black, Com. 2 V. 213. Hale, 238. Black. 2 V. 214, h Hale, 236, 237. Black. 2 V. 216. Black. 2 V.217. |