§ 395. Ways of acquiring title.-Title or ownership of real property may be acquired by occupancy or possession when it continues long enough to ripen into a perfect title, by marriage, by devise, by descent, or by con tract. § 396. Title by occupancy.-Mere possession or occupancy is the lowest form of title, but it is good in the Occupant against the world until some one shows a better title, but any show of right in a claimant would be good as against a mere intruder. As we have seen, property without an owner belongs to the first one who takes possession of it. This right, which was so important at the time of the early settlements on this continent, is of little value now that most of our public domain has been disposed of. Its assertion by the European nations, who are extending what they choose to call their "spheres of influence" in Africa, bids fair to result in serious complica tions and wars such as grew up here in the last century between France and England. Where two claim by possessory titles, one being in present possession and the other having had prior possession, it is the rule in England and America that proof of prior possession is presumptive evidence of title and will prevail over the claims of the more recent occupant. It is not necessary in such a case that the prior possession should have continued for twenty years. The statutes of limitations usually provide that no action for the recovery of the title or possession of real estate shall be maintained after twenty years from the time the cause of action accrued, unless the person entitled to such action was under the disabilities of infancy, coverture, insanity or imprisonment. Special periods of limitations are fixed by the statutes of different states and they are constantly undergoing modification. § 397. Adverse possession.-In order to make possession for the statutory period of limitations a bar to an action, the possession must be adverse. Adverse possession is a possession inconsistent with the right of the true owner; in other words, where a person possesses property in a manner in which he is not entitled to possess it, and without anything to show that he possesses it otherwise than as owner-that is, with the intention of excluding all persons from it, including the rightful owner -he is in adverse possession of it. Thus, if A is in possession of a field of B's, he is in adverse possession of it, unless there is something to show that his possession is consistent with a recognition of B's title. Adverse possession depends upon the intention with which it is taken and held. Where there is an unintentional encroachment on the land of another, as where a man thinking he is building on his own line by mistake puts part verse. of the structure over the line, such possession is not adThe possession must be hostile or adverse, actual, visible, notorious, exclusive, continuous and under claim of title. § 398. Occupying claimant.-It sometimes happens that one has a claim of title, and thinking it good enters upon land of another and makes valuable improvements on it. In such a case the occupant may, under the occupying claimant's statutes, which have been enacted in most of the states, file his complaint and have his improvements and the land appraised separately, and the owner is then given the option to take possession upon his paying the claimant the appraised value of the improvements and the taxes paid, with interest, deducting the value of the rents and profits and the damages assessed against the occupant for waste or other causes. If the owner fails to make his election, the occupant may remain in possession upon paying the value of the land aside from the improvements. This is not a common-law right, but is purely statutory. § 399. Title by marriage.-Title by marriage or by dower and curtesy we have already considered. § 400. Title by descent.-Where a man dies intestate being the owner of lands, the law disposes of the property by transferring the title to those who by virtue of the law of the place where the land lies are his heirs. The title the heirs take is a title by descent, and the person from whom the estate descends is called in law the ancestor. The statutes of descent vary in the different states according to the wishes of the citizens as expressed in legislation, as in some states, where those of the whole blood of the ancestor are preferred to those of the half blood, etc. Those who take land by descent take it charged with its burdens; these may be in the form of mortgage or other lien created by the ancestor, or in the form of a general indebtedness, which, so far as it is in excess of the personal estate of the ancestor, is a charge upon the real estate. Personal property left by an ancestor also descends to his heirs, but with this difference, the line of descent as to personal property is fixed by the laws of the place where the ancestor resided at the time of his death, not where he happened to be, but the place of his fixed residence; while the line of descent as to his land is governed by the law of the place where it lies. Where heirs are of one class, as sons or daughters, they take equally, share and share alike, but if there are children and grandchildren, the children take a full share each, and each set of grandchildren take what their parent would have taken if living. But in some states, as in Indiana, if there are grandchildren only left as heirs, the estate is divided equally amongst them all. Illegitimate children may inherit from their mothers alone, unless by adoption, according to rules prescribed for such proceedings, they are legitimized by the father. This is not the place to give the rules of descent as they prevail in all the states. It is believed, however, that the following are of general application. Where heirs take by descent, they take as tenants in common. Posthumous children may inherit. Bastards may inherit from and transmit inheritance to the mother. Children born before marriage and acknowledged after are legitimate and may inherit. Males are not preferred to females. § 401. Title by devise.-Title by devise is where the ownership of land is transferred by will. Such a transfer of land is called a devise. The person who takes it is a devisee. The person who dies and leaves a will is a testator, and the person named in the will and charged with the duty of carrying out its provisions is an executor. § 402. Wills.-Wills are of great antiquity, and it is said by some writers that it is impossible to find evidence of any time in human history when they did not exist in some form, though Sir Henry Maine maintains that they probably did not exist among the barbarians before their invasion of the Roman Empire. He further says that to the Romans belongs pre-eminently the credit of inventing the modern will, the institution of which, next to the contract, has exercised the greatest influence in transforming human society. § 403. Capacity to make wills-Written wills.— There is no general law of the United States on the subject of wills, each state having its own laws as they find expression in the decisions of the state courts, or in statutory enactments. Who may make a will is the first question. Generally all persons of full age and sound mind are capable, though in some states married women are deprived of the right. The capacity to make a will must exist when it is made, and subsequent incapacity will not invalidate it. Whether the testator possessed the requisite capacity is a question of fact for the jury; the interpretation of the will, the power to declare its meaning, is for the court. Ordinarily, a will must be reduced to writing and must be subscribed by the testator in the presence of attesting witnesses, who shall also subscribe the same in the testator's presence and at his request. Nuncupative or verbal wills may be made by which personal property can be disposed of, and the manner of making and proving such wills, as well as the amount of |