Hereditary succession. Succession to the ownership of an estate by inheritance, or by any act of law, as distinguished from purchase. Title by descent is the title by which one person, upon the death of another, acquires the real estate of the latter as an heir at law. The title by inheritance is in all cases called descent, although by statute law the title is sometimes made to ascend. The division among those legally entitled thereto of the real property of intestates.
n. the rules of inheritance established by law in cases in which there is no will naming the persons to receive the possessions of a person who has died. The rules of descent vary somewhat from state to state and will usually be governed by the law of state in which the deceased party lived. Depending on which relatives survive, the estate may go all, or in part to the surviving spouse, and down the line from a parent to children (or if none survive, to grandchildren), or up to surviving parents, or collaterally to brothers and sisters. If there are no survivors among those relatives, then aunts, uncles, cousins, nieces and nephews may inherit, depending on their degree of kinship (closeness of family relationship), state laws of descent and distribution, or whether the deceased person lived in a community property state (in which the wife has a survivorship right to community property). (See: inheritance, intestate succession, degree of kinship, descent and distribution, community property)
DESCENT. Hereditary succession. Descent is the title, whereby a person, upon
the death of his ancestor, acquires the estate of the latter, as his heir at
law: This manner of acquiring title is directly opposed to that of purchase.
(q.v.) 2 Bouv. Inst. n. 1952, et seq.
2. It will be proper to consider, 1. What kind of property descends;
and, 2. The general rules of descent.
3.-1. All real estate, and all freehold of inheritance in land,
descend to the heir. And, as being accessory to the land and making a part
of the inheritance, fixtures, and emblements, and all things annexed to, or
connected with the land, descend with it to the heir. Terms for years, and
other estates less than freehold, pass to the executor, and are not subjects
of descent. It is a rule at common law that no one can inherit read estate
unless he was heir to the person last seised. This does not apply as a
general rule in the United States. Vide article Possessio fratris.
4.-2. The general rules of the law of descent. 1. It is a general
rule in the law of inheritance, that if a person owning real estate, dies
seised, or as owner, without devising the same, the estate shall descend to
his descendants in the direct line of lineal descent, and if there be but
one person, then to him or her alone; and if more than one person, and all
of equal degree of consanguinity to the ancestor, then the inheritance shall
descend to the several persons as tenants in common in equal parts, however
remote from the intestate the common degree of consanguinity may be. This
rule is in favor of the equal claims of descending line, in the same degree,
without distinction of sex, and to the exclusion of all other claimants. The
following example will, illustrate it; it consists of three distinct cases:
1. Suppose Paul shall die seised of real estate, leaving two sons and a
daughter, in this case the estate would descend to them in equal parts; but
suppose, 2. That instead of children, he should leave several grandchildren,
two of them the children of his son Peter, and one the son of his son John,
these will inherit the estate in equal proportions; or, 3. Instead of
children and grandchildren, suppose Paul left ten great grandchildren, one
the lineal descendant of his son John, and nine the descendants of his son
Peter; these, like the others, would partake equally of the inheritance as
tenants in common. According to 'Chancellor Kent, this rule prevails in all
the United States, with this variation, that in Vermont the male descendants
take double the share of females; and in South Carolina, the widow takes
one-third of the estate in fee; and in Georgia, she tales a child's share in
fee, if there be any children, and, if none, she then takes in each of those
states, a moiety of the estate. In North and South Carolina, the claimant
takes in all cases, per stirpes, though standing in the same degree. 4 Kent,
Com. 371; Reeves' Law of Desc. passim; Griff. Law Reg., answers to the 6th
interr. under the head of each state. In Louisiana the rule is, that in all
cases in which representation is admitted, the partition is made by roots;
if one root has produced several branches, the subdivision is also made by
root in each branch, and the members of the branch take between them by
heads. Civil Code, art. 895.
5.-2. It is also a rule, that if a person dying seised, or as owner
of the land, leaves lawful issue of different degrees of consanguinity, the
inheritance shall descend to the children and grandchildren of the ancestor,
if any be living, and to the issue of such children and grandchildren as
shall be dead, and so on to the remotest degree, as tenants in common; but
such grandchildren and their descendants, shall inherit only such share as
their parents respectively would have inherited if living. This rule may be
illustrated by the following example: 1. Suppose Peter, the ancestor, had
two children; John, dead, (represented in the following diagram by figure
1,) and Maria, living (fig. 2); John had two children, Joseph, living, (fig.
3,) and Charles, dead (fig. 4); Charles had two children, Robert, living,
(fig. 5,) and James, dead (fig. 6.); James had two children, both living,
Ann, (fig. 7,) and William, (fig. 8.)
Peter (0) the ancestor.
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(1) John (2) Maria
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(5) Robert (6) James
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(7) Ann (8) William