CHAPTER XLVII.

RIGHTS OF PROPERTY.-TITLE TO PROPERTY BY DESCENT, OR INHERITANCE; WILLS AND TESTAMENTS.

§ 1. EVERY citizen of the United States may hold lands, and take the same by descent, devise, or purchase. To take land by descent, is to obtain it by inheritance. When a person, dying, makes no previous disposal of his property, it falls, or descends, by right, to his children or other relatives hence they are said to become heirs to the property by descent. But a person may direct his property to be given, after his death, to whomsoever he pleases. This is called devising property, or bequeathing it; and the person receiving the property is said to have acquired it by devise. A person paying for property an equivalent in money or some other property, obtains it by purchase.

§ 2. But though every citizen of the United States may hold real estate, and convey it to others, the like privilege is not enjoyed by all aliens. By the common law, aliens can not hold and convey real property. In many states, however, laws have been enacted removing this disability. On declaring their intention to become citizens, and complying with certain regulations prescribed by law, an alien acquires the right to take and hold real estate to himself and his , heirs forever.

§ 3. The laws of each state prescribe the order in which the property of intestates descends to their heirs. A testament, or will, is a written instrument, in which a person declares his will concerning the disposal of his property after his death. The word testament is from the Latin testis, meaning witness: hence the application of the word to this instrument, which is the witness or proof of a person's will. The person making a will is called testator; a person dying without making a will or testament, is called an intestate.

§ 4. The order in which the real estate of an intestate descends, being to a great extent determined by the laws of the states, is not uniform in this country. In general, however, the property of an intestate descends, first, to his lineal descendants; that is, persons descending in a direct

line, as from parents to children, and from children to grandchildren. The lineal descendant most nearly related to the intestate, however distant the relation may be, takes the property.

§ 5. If any children of an intestate are dead, and any are living, the inheritance descends to the children living, and to the descendants of the children dead; so that each child living shall receive such share as he would receive if all were living, and the children of those who are dead, such share as the parents would receive if living. Thus, suppose an intestate to have had three sons, one of whom is dead, but has left children. In this case, each of the sons living would share one-third of the property, and the children of the other son would have the remaining third.

§ 6. But if the children are all dead, and there are grandchildren living, the grand-children share equally in the inheritance, though not an equal number are children of each parent. If, for example, A dies intestate, leaving two sons, B and C, both of whom die, the one leaving three children, and the other two, the five share equally in the estate. If, however, B, having three children, were living, and C were dead, leaving two children; then one-half of the property would descend to B, the son, and the other half to the two grand-children, the children of C.

§ 7. The order of descent is so various in the different states, especially in cases in which there are no lineal descendants of an intestate, that it can be ascertained only by reference to the laws of each state. As a general rule, however, the inheritance passes, (1.) to the lineal descendants of the intestate; (2.) to the father; (3.) to the mother ; (4.) to the collateral relatives. But even to this general rule, there are exceptions in the laws of some states.

§ 8. All persons of full age and sound mind, except married women, may give and bequeath real and personal estate by a last will and testament. In many of the states, perhaps in most of them, personal estate may be willed by persons at an earlier age. In a few states, females at eighteen may make a will of real and personal estate. In Connecticut, married women may dispose of real and personal estate by will, as any other person; and infants of either sex may bequeath personal estate at seventeen. In Ohio and some other states, personal estate may be willed verbally, if the

will is reduced to writing within ten days after speaking the testamentary words, and subscribed by two disinterested witnesses.

§ 9. In most of the states, laws have been recently enacted, by which married women are allowed to hold, in their own exclusive right, all the property, real and personal, which they possessed at the time of marriage, and which they may acquire after marriage. (See Chap. XLV. § 6.) With the right of possession is also given, in most of these states, the power of disposing of the property by will.

§ 10. A will devising real estate must be subscribed by at least two attending witnesses, in whose presence the testator must subscribe the will, or acknowledge that he subscribed it, and declare it to be his last will and testament. In the six New England states, and several others, three subscribing witnesses are necessary. If the testator is unable to sign his will, another person may write the testator's name by his direction; but he should sign his own name as witness to the will.

§ 11. A testator may revoke or alter his will, by a later will or writing, executed in the same manner. But the second will, to revoke the former, must contain words expressly revoking it, or direct a different disposal of the property. A will may also be revoked by a sale of the property. And any alteration of the estate or interest of the testator in lands devised, by the act of the testator, is held to be an implied revocation of the will. Lands purchased after a will has been made, are not conveyed by it.

§ 12. As a general rule, a will is also revoked by the subsequent marriage of the testator and birth of a child. These circumstances, not contemplated at the time of making his will, and imposing upon him new duties and obligations, are presumed to have altered the testator's mind. If, however, the wife and child have been otherwise provided for, marriage and a child will not revoke a will. The will of an unmarried woman is revoked by her marriage.

13. By the statutes of some states, a child born after the death of the testator, or born in his lifetime and after the making of the will, inherits a share of the estate, as if the father had died intestate. In other states, the statute goes further, and gives the same relief to all the children

who are not provided for by will, and who have not had their portion in their parent's lifetime.

§ 14. A codicil is an addition, or supplement to a will, and must be executed with the same solemnity. It is no revocation of a will, except in the precise degree in which it is inconsistent with it.

§ 15. After the death of a testator who has bequeathed any real or personal estate, any executor, or any person interested in the estate, may have the will brought before the court for probate, which means proof. (See Chap. XXVII, § 14.) The court causes the witnesses to the will, and such others as any person interested may desire, to come before the court to be examined. An executor is a person named in the will of a testator, or otherwise appointed, to carry the will into effect.

§ 16. When a will has been duly proved and allowed, the court issues letters testamentary to the executor. Letters testamentary give to an executor authority to carry a will into effect, and to settle the estate of the deceased. If the person named in the will refuses to act, or is not lawfully qualified, the court appoints a person, who, in that case, is called administrator; and the court issues letters of administration with the will annexed. It is the duty of an executor to follow the directions of a will, so far as it goes; and in the rest of his duties, he must be governed by the law concerning administrators.

§ 17. Letters of administration are also issued in case of a person dying intestate. They give to the persons appointed to settle the estate of the intestate, the requisite authority. They are issued, first, to the widow or next of kin, or both, as the court may think fit. If such person or persons are incompetent or unsuitable, or if they refuse to serve, the letters of administration are granted to such other person as the law designates. The law prescribes particularly the manner in which the property of deceased persons shall be disposed of, and their debts paid.

CHAPTER XLVIII.

DEEDS AND MORTGAGES, AND THE PROOF AND RECORDING OF THEM.

§ 1. EVERY person capable of holding real property, may also dispose of and convey his right to such property to another person. Hence, the writing by which this right is transferred, is called a conveyance; but more frequently the instrument by which a title to land is conveyed, is called decd, and is held by the purchaser as evidence of his title to the land. Without a deed, he could not hold the land against a subsequent purchaser having a deed.

2. Whenever, therefore, any real estate is to pass from one to another, the seller gives the buyer a deed. The deed mentions the names of the parties, the consideration or price paid, or to be paid, the place where the land is situated, and its boundaries; and in express words grants and conveys all the interest of the seller or grantor to the purchaser, and to his heirs for ever: and the seller affixes his name and seal to the instrument, usually in the presence of one or more subscribing witnesses.

§ 3. But after a deed has been thus executed, the title of the purchaser is not secure, until the deed is recorded in the office of the proper recording officer of the county in which the land lies; or in the office of the town clerk, in those states in which conveyances are required to be there recorded. If the land should be conveyed by the seller to a subsequent purchaser who should get his deed first on record, such purchaser would hold the land, unless, before purchasing, he had had notice of a sale and deed to a prior purchaser.

§ 4. In some states, however, a reasonable time is allowed a purchaser to get his deed on record, before he loses his right of possession by the earlier recording of another's deed. In some others the time is fixed by law, and varies in the different states from fifteen days to two years. But a deed, though not recorded, is good against the seller or grantor; and the dispossessed purchaser has a lawful claim against him for the value of the land.