prietor may difpofe of it as he pleafes, and may hold, poffefs and improve, to the exclufion of all the rest of the world.

CHAPTER FIFTEENTH.

OF TITLE BY DESCENT.

WE have confidered the different kinds of eftates in things re

al and the requifites to conftitute a general title. We now proceed to a contemplation of the particular titles to lands.

There are but two methods by which a title to real estates can be acquired. Defcent, where the title refults from the operation of law, and purchafe where the title is acquired by the act and agreement of the parties. This chapter will be devoted to a particular investigation and illustration of the law, respecting the acquifition of property by defcent.

Defcent, or hereditary fucceffion, is the title by which a man. on the death of his ancestor or other relations acquire his estate by right of representation, as his heir at law. An heir therefore is the perfon on whom the eftate devolves by force of law, on the death of the ancestor: and all fuch estates thus defcending to the heir are called inheritances. To elucidate the doctrine of defcent it is neceffary to exhibit a concife view of the nature of kindred and the feveral degrees of confanguinity, or alliance by blood.

Confanguinity is defined to be the relation fubfifting between all the different perfons, that descend from the same stock or common ancestor. Some portion of the blood of the common ancestor flows into the veins of all his defcedants, and tho mixed with the blood flowing from a thousand other families, yet it conftitutes the kindred or alliance by blood, between each individual, this relation by blood has two divifions. Lineal confanguinity, and collateral, or tranfverfal confanguinity. We fhall first explain lincal confanguinity. This is that relation which exifts between perfons where one is defcended from the other, as between the fon, the father, the grandfather, the great-grandfather, and fo upwards in a direct afcending line, or between the father, the fon, the grandson, the great-grandfon, and fo downwards in a direct defcending line.

2 Black. 200. Co. Lit.

Every

Every generation in this direct course, makes a degree of confan guinity, computing either in the afcending or defcending line,-This being the natural method of computing the degrees of lineal confanguinity, it has been adopted by the canon, the imperial, and the common law.

y It is remarked by judge Blackftone in his commentaries on the laws of England, to be aftonishing to confider the number of lineal ancestors, which a man has in a few degrees, and that he is faid to contain as many bloods in his veins, as he has lineal ancftors; that he has two in the fift degree, his own parents, four in the fecond, his grand parents, eight in the third, his great-grandparents, and so on, doubling the number at every degree, which by the rule of geometrical progreffion, demonftrates, that there are a thousand and twenty-four lineal ancestors, in the tenth degree, and more than a million in the twentieth. To pursue this calculation upon the fame principles, through as many generations as have paffed away fince the creation of the first pair, would extend the number of our lineal ancestors infinitely beyond all human conception. But we have the authority of revelation to affure us, that in the origin of the world, one pair only was created, and that from them has fprung the whole race of mankind. We must therefore, in making our calculations upon thefe principles, take into confideration the circum.ance, that in fome ftage of our calcu lation, we must begin to leffen our number of lineal ancestors, for the purpose of uniting in our defcent from the original parent of the human race. The flighteft obfervation will fhew, that there is a conftant intermarriage between relations in degrees not very remote, by which the number of lineal ancestors are diminished, in a manner not capable of calculation. So that a whole country in tracing their progrefs through a few ages, will find, they all defcended originally from a few families. America furnishes a most illuftrious example, to demonftrate this fact. From a few thoufand perfons, who firft emigrated into this country, a wide extended continent has been peopled in lefs than two centuries.-Much the greatest part of the inhabitants now living in the United States, muft trace their lincal ancestry through the first emigrants.

The

2 Black. Com. 203.

The rule of geometrical progreffion, would be mathematically true, if there were no intermarriages between relations in any, even the remotest degrees; but when we confider the constant intermarriage of relations, which neceffarily took place for the ori ginal propagation of the human race, and which muft now take place for their prefervation, it is evident that this rule in no meafure, afcertains the actual number of our lineal ancestors, even in degrees not very remote, and that it is wide of the truth, to fay, that a man has as many different bloods in his veins, as he has lineal ancestors, by the rule of geometrical progreffion, as adopted by Blackstone.

Collateral, or tranfverfal confanguinity, is a relation fubfifting between perfons that defcend from the fame common ancestor, b not from each other. It is eflential to conftitute this relation, that they all fpring from the fame common root or fstock, but in different branches. Thus if John Stiles have two fons, and they both have iffie the children of both are lineally defcended from John Stiles, as their common anceftor, but they are related to each other by colla teral confanguinity, because they have not defcended lincally from each other, but collaterally from the fame common ancestor.

From this reprefentation of tranfverfal kindred, it is very eafy to conceive, that from each ancestor which a perfon has, there is iffuing a race of collateral kinfinen, and that the number of them in the various degrees in which they ftand related, must be beyond all conception.

Hereditary fucceffion among collateral relations, is the most dif cult to be ascertained. It is therefore neceflary to illuftrate the mode by which the degrees in this kind of confanguinity are computed. The method adopted by the canon law and the common law of Eng land is this. Having difcovered the common anceftor, to begin with him, and reckon downwards, and the degree the two perfons, or most remote of them is diftant from the ancestor, is the degree of kindred fubfifting between them. For inftance, two brothers are related to each other in the first degree, becaufe from the father to each of them, there is but one degree. An uncle and nephew,

are

are related to each other in the fecond degree, because the nephew is two degrees distant from the common ancestor, and the fame rule of computation is extended to the remoteft degrees of collateral relations.

The method adopted by the civil, or imperial law, is this, to begin at either of the perfons in question, and count up to the common ancestor, and then downwards to the other person, calling it a degree from each person, both afcendi ng and defcending, and the number of degrees they are diftant from each other, is the degree in which they stand related. Thus from a nephew to his father, is one degree, to the grand-father, two degrees, and then to the uncle three, which points out their relationship. Thus if John Stiles's two fons have each a son, they are related to each other in the fourth degree: for we must compute from one of the grandfons to the father, then to the grand father, then defcend to the father of the other, and then to him, which makes four degrees: but according to the other method, they are related in the second degree.

It is however immaterial which mode of computation is adopted, for both will establish the fame perfon to be the heir. As the imperial mode points out the actual distance between the perfons in queftion, and as our eftates defcend nearly according to the Roman law, there feems to be a propriety in making our computa tions according to that mode. Nor is it probable, that the mode according to the canon law had ever been introduced, had it not been calculated to answer an important purpose for the canonists. The prohibition of marriage originally extended to the third degree of confanguinity, according to the imperial mode of computation. The profits of granting difpenfations to perfons to marry within the prohibited degrees, was an object to the papal power, and the introduction of the mode of computation by the canon law, which extends the prohibition to the fixth degree, comprehended many more fubjects for difpenfation, than the mode before adopted, and poured a rich ftream of wealth into the treasury of God's vicegerent.

Having thus concisely explained the nature of confanguinity and the mode of afcertaining the degrees of kindred, I proceed to lay down the rules by which the fucceffion to eftates is determined.

The rules of descent are established by the ftatute concerning teftate and inteftate eftates. An explanation and illuftration of the principles contained in this statute, and the confequences refulting from them, is all that is neceffary to compleat this branch of our enquiries.

I. The first general rule is, that estates of inheritance where the proprietor dies inteftate, leaving children, fhall defcend to them all, in equal fhares, whether fons or daughters.

A pofthumous child, or one born after the death of the inteftate, will take with the other children; for the eftate will vest in the child in the mother's womb, or as the law calls it, in ventre fa mere.

This comprehends all estates to which the inteftate had the right of poffeffion, as well as the right, and actual poffeffion : but an exception is made to the general rule, where any of the children have had any estate by way of fettlement, from the inteftate in his life time, equal to the shares of the other children: but if the estate advanced by fettlement bé not equal to the shares of the reft, then fuch proportion fhall be allowed them, as will make all their fhares equal. The widow of the inteftate, if he leaves any, is entitled by way of dower, unless endowed before marriage, to the ufe, and improvement of one third part of the real estate during her life; and at her decease, the fame is to be divided in the fame manner as the rest of the estate, if it be undivided at that time.

As the ftatute refpecting defcents comprehends real, as well as perfonal eftate, there is a provifion that in the diftribution of the eftate, that the male heirs fhall have their parts in real estate as far as the estate will allow. So where a divifion of an estate in houses and lands will be of great prejudice and inconvenience, the court of probate may direct that the eldeft, or on his refufal either of the reft, if they confent, may take the whole at the appraisal of indifferent men, under oath, and pay, or fecure to each, their proportion in a reasonable time.

VOL. I.

This