dren, still had regard to representation. On a widow, the remainder created will be cona strict construction, perhaps, only children strued to vest immediately on testator's would take, but as it was used it included death in his surviving children, subject to the grandchildren of the deceased brother or the life estate of the testator's widow, so sister. Barstow v. Goodwin (N. Y.) 2 Bradf. as to give an interest to the son's widow. Sur. 413, 416, 417. Knight v. Pottgieser, 52 N. E. 934, 935, 176 Ill. 368. As heir or next of kin. "Descendant," as used in a bill to re strain the depredation of the graves, monuments, etc., of plaintiff's ancestors, while an anytonym of "ancestor," cannot be construed as a synonym of "heir"; and therefore the allegation that the ancestors of the plaintiff were buried in the yard could not be held to be equivalent to an allegation that the plaintiff's parents were buried, or that the plaintiff was the heir of the persons buried. Mitchell v. Thorne, 32 N. E. 10, 12, 134 N. Y. 536, 30 Am. St. Rep. 699. Children are, eo nomine, descendants, but descendants are not necessarily children. A descendant is a person who is descended from another; that is, one who proceeds from the body of another, however remotely, and includes every person descended from the stock referred to. It is coextensive with “issue,” but does not embrace others not of issue, and is not to be understood as "next of kin,” or “heirs at law," for these phrases comprehend persons in the ascending as well as the descending line, and they also include collaterals; but it means the issue of the body of the person named, of every degree. Bates v. Gillett, 24 N. E. 611, 612, 132 III. 287. Testator's will directed a certain fund to be invested and held in trust for the maintenance and support of certain slaves and their descendants. Held, that the word "descendants" was equivalent to "next of kin," or those who would take under the statute of distribution; and a contention that the word caused the creation of a perpetuity was without merit Walker v. Walker, 25 Ga. 420, 428. Where a will devises to one a life estate, with remainder "to his descendants, if any, in fee, according to the laws of descent and distribution," a mother and the brother and sister of the half blood of the devisee cannot claim the remainder in fee as descendants and heirs at law of the devisee. Tichenor v. Brewers' Ex'r, 98 Ky. 349, 352, 33 S. W. 86, 87 (quoting Webster, Rap. & L. Law Dict., and Bouv. Dict.). As issue. The term "descendants," used in speaking of the descendants of a deceased person, means issue. Pretty man v. Conaway (Del.) 32 Atl. 15, 17, 9 Houst. 221. A will provided that, on the death of one having a life interest in a trust fund, the interest theretofore received by her should pass to her sister, "or to her descendants in case of her death." Held, that the word "descendants" was the equivalent of "issue," and, being used with reference to personalty, was a word of purchase. In re Waln's Estate, 42 Atl. 299, 300, 189 Pa. 631. The word "descendants," as used in a provision of a will providing that if any of said grandchildren shall die previous to the "then I direct that such issue shall take the decease of my daughter, leaving descendants, share to which their parents would have been entitled, said share to be received by said grandchildren or their descendants free from any control or claim of any husband," is such provision. Cochrane v. Kip, 46 N. Y. used interchangeably with "issue" as used in Supp. 148, 152, 19 App. Div. 272. As issue of any degree. "Descendants," as used in a will, means the issue of the body of the person named Descendants are "those who have issued in every degree, as children, grandchildren, from an individual, including children, grandand great-grandchildren, and it does not in- children, and their children to the remotest clude the next of kin as heirs of law gen-degree-issue of any degree." Huston v. erally, such as brothers and sisters. Hamlin Read, 32 N. J. Eq. (5 Stew.) 591, 599. "Dev. Osgood (N. Y.) 1 Redf. Sur. 409, 417. scendants," says Bouvier, "are those who have issued from an individual, and include his children, grandchildren, and their children to the remotest degree." Bryan v. Walton, 20 Ga. 480, 512; Bates v. Gillett, 24 N. E. 611, 612, 132 Ill. 287; Van Beuren v. Dash, 30 N. Y. 393, 415. Where a will provided that at the death of the testator's wife the estate should go to and be divided "amongst my children and their descendants," the word "descendants" will not be limited in meaning so as to include only those persons who have proceeded in some degree from the body of a child of The word "descendants" used in a will the testator, so as to exclude from the de- does not mean next of kin or heirs generally, vise those who, though heirs at law of any but means the issue of the persons named, deceased child, were not the direct or re of every degree, as children, grandchildren, mote issue of such child; and hence where and great-grandchildren. Tompkins v. Verone of the children died prior to the death planck, 42 N. Y. Supp. 412, 415, 10 App. Div. of the testator's widow, leaving surviving 572. Bouvier defines "descendants" as "those not the children alone of the beneficiary, and who have issued from an individual, and in- therefore the will passes an estate tail, and cludes his children, grandchildren, and their not an executory devise. Holden v. Wells, 31 children to the remotest degree. The de- Atl. 265, 266, 18 R. I. 802. See, also, In re scendants form what is called the 'direct de- Gormley's Estate, 25 Atl. 814, 815, 154 Pa. scending line.' The term is opposed to that of 378. 'ascendants.'" Those who are denominated "descendants" do not comprise all of those who come to the title by descent. Jewell v. Jewell, 28 Cal. 232, 236. A "descendant" is one who descends as offspring, however remotely; correlative to "ancestor" or "ascendant." The term includes the most remote lineal offspring, and is practically synonymous with "issue" in its legal meaning; hence it excludes collateral relations, nor does it include relatives in the ascending line. The word "descendant," in section 13, c. 78, Code 1899, means one who proceeds from the body of another, however remotely, and is coextensive with "issue," but does not embrace others not of issue.Waldron v. Taylor, 45 S. E. 336, 338, 52 W. Va. 284. "Descendants" does not mean "next of kin" or "heirs at law" generally, as these terms comprehend those as well in the ascending as in the descending line, and collaterals; but it means-what the word obviously imports-the issue of the body of the person named of every degree, as children, grandchildren, and great-grandchildren. Brothers and sisters cannot take under the term "descendants." Hamlin v. Osgood (N. Y.) 1 Redf. Sur. 409, 411. In Williams, Ex'rs, p. 376, it is said: "Under this description is comprised every individual proceeding from the stock or family referred to by the testator." In 2 Jarman, Wills, 632: "Descendants are issue of every degree." And, where a legacy was left to the descendants of F., the great-grandchildren were held entitled to share with the grandchildren. Levering v. Orrick, 54 Atl. 620, 622, 97 Md. 139 (citing Crossley v. Clare, Ambler, 397). "Descendants," as used in Act 1850, defining the rights of husband and wife, section 11, declaring that, on dissolution of the community by the death of a husband, one-half of the community property shall go to the surviving wife and the other half to the descendants of the deceased husband, means all persons who are children and grandchildren of the ancestor, and their children to the remotest degree. Jewell v. Jewell, 28 Cal. 232, 236. The words "child, children or descendants," in a will in which testator devises land to his daughter and her heirs and assigns forever, providing that she dies leaving lineal heirs of her body, but, in case she dies leaving no "child, children, or descendants," the lands shall go to others, shows that testator had reference to descendants indefinitely, and The word "descendants," as used in a devise of a home to the testator's son and his wife in trust, the purpose being to provide a home for the family during the life of the son and his wife, "and of the survivor of them, and at the death of the survivor to divide the trust fund among their descendants by stocks," is not synonymous with the word "children," but the word "descendants” includes children, comprising issue of every degree, and does not evince an intent that the remainder should vest at the death of the life tenant, rather than at the death of the testator. Neilson v. Brett, 40 S. E. 32, 33, 99 Va. 673. "Descendants," in its ordinary sense as well as its legal sense, includes the issue of the body of the testator of every degree, no matter how remote. Consequently, as the numbers constituting the class of descendants must vary according to the point of time at which the determination is to be made, it becomes necessary to determine the period at which the testator intended that those who then answered to the designation of descendants would be entitled to receive the gift; and where, in a will, the word "descendants" is used, and another clause provides that such descendants and the widow may sell real property, and in still another provision the word "descendants" is used synonymously with "children," the word "descendants" will be construed to relate to the time of the death of the testator. In re Collins, 24 N. Y. Supp. 226, 228, 70 Hun, 273. As issue of living person. The word "descendant," according to its lexicographical and legal meaning, designates the issue of a deceased person, and does not describe the child of a parent who is still living, the word being the correlative of "ancestor"; but as used in a will giving a life estate to the testator's daughter, with power to appoint it thereafter to her child or children, or his, her, or their descendant or descendants, will be construed to embrace all the persons in the line of descent from any child or children of the daughter, whether living or dead. Hillen v. Iselin, 39 N. E. 368, 371, 144 N. Y. 365. the meaning. Our laws of descent used the words with the same signification. Thus, in Rev. St. 1881, § 2469, it is provided that "if any intestate shall die without lawful issue, or their descendants, alive, one half the estate shall go to the father and mother of such intestate as joint tenants, and the other half to the brothers and sisters, and to the descendants of such as are dead, as tenants in common." The word "descendant" in Rev. St. 1881, 2571, reading, "Whenever any estate, real or personal, shall be devised to any descendant of a testator, and such devisee shall die during the lifetime of the testator, leaving a descendant who shall survive such testator, such devise shall not lapse, but the property so devised shall vest in the surviving descendant of the devisee as if such devisee had survived the testator, or died intestate," does not apply to a brother of a testator. It refers, we think, exclusively to a lineal descendant, as a child or grandchild. West v. West, 89 Ind. 529, 631. "Descendant," as used in 2 Rev. St. (3d Ed.) p. 126, § 44, providing that whenever any estate, real or personal, shall be devised or bequeathed to a child or other descendant of the testator, and such legatee or devisee shall die during the lifetime of the testator, leaving a child or other descendant who shall survive such testator, such devise or legacy shall not lapse, but the property shall vest in the surviving child or other descendant of the legatee or devisee, means "lineal descendant," and not any person upon whom property might descend, and is not equivalent to the term "relation." It means direct lineal descendants of the testator. Armstrong v. Moran (N. Y.) 1 Bradf. Sur. 314, 317. "Descendants," as used in Rev. St. 1879, § 2190, giving a widow the right, when her husband dies without a child or other descendants in being capable of inheriting, in lieu of dower, to elect to take one-half of his property, means those who descend in a direct line from the husband, as children, grandchildren, etc., and does not apply to collateral or ancestral kinship. Webster defines "descendant" as "one who descends, as offspring, however remotely; correlative to 'ancestor.'" Brawford v. Wolfe, 15 S. W. 426, 427, 103 Mo. 391. The word "descendants," when used in a devise of property to testator's descendants, will only be construed to include lineal heirs, unless it clearly appears from the will that testator used the word in a different sense. Baker v. Baker, 74 Mass. (8 Gray) 101, 119. vest in such child or children, descendant or descendants, from such devisee or legatee, cannot be construed to include nephews and nieces of a testator, but only extends to the child, grandchildren, etc., who descend from him in a direct line. Van Gieson v. Howard, 7 N. J. Eq. (3 Halst. Ch.) 462, 463. As nearest descendants. St. 1857, § 1, declares that the estate of a deceased person shall go to those of a particular class and their descendants, and if there be no descendants, then, etc. Held, that the word "descendants" as there used meant descendants nearest in degree. Daboll v. Field, 9 R. I. 266, 289. As personal representative. DESCENDIBLE. The word "descendible" and "devisable" are convertible terms, so that where a contingent remainder is descendible it is also devisable. Collins v. Smith, 31 S. E. 449, 451, 105 Ga. 525. DESCENT. See "Collateral Descent"; "Immediate "Descent" is the title whereby a person, upon the death of his ancestor, acquires the estate of the latter as his heir at law. Starr v. Hamilton (U. S.) 22 Fed. Cas. 1107, 1111 (quoting Bouv. Law Dict.); Meadowcroft v. Winnebago County, 54 N. E. 949, 950, 181 III. 504; Bennet v. Hibbert, 55 N. W. 93, 96, 88 Iowa, 154; Springer & Taylor v. Fortune (Ohio) 2 Handy, 52, 56; Barclay v. Cameron, 25 Tex. 233, 242; Freeman v. Allen, 17 Ohio St. 527, 530. "Property of lands by descent," says Lord Bacon, "is where a man hath lands of inheritance, and dieth not dispossessed of them, but leaves it to go (as the law causeth it) upon the heirs." This is called a "descent in law." Hamilton v. Homer, 46 Miss. 378, 395. Descent, or hereditary succession, is where the title to land which is acquired by the man on the death of his ancestor is established by right of representation as his heir at law. In re Donahue's Estate, 36 Cal. 329, 332 (citing Bl. Comm. 201, note 1). Descent is the process by which property is passed from father to son, or from ancestor to descendant. Shippen v. Izard (Pa.) 1 Serg. & R. 222, 224. "Descendants," as used in Rev. St. p. 369, § 22, providing that when any estate shall be devised or bequeathed to any other person, being a child or other descendant of the testator, etc., and such devisee or legatee shall die during the life of the testator, leaving a child or children who shall survive the tes- Descent, in its common-law sense, means tator, the legacy shall not lapse, but shall an estate which came to a person by law in Descent is hereditary succession to an right of blood. Brower v. Hunt, 18 Ohio St. the rule is to strike out of the will the par311, 338. ticular devise to the heir, and then If, without that, he would take by descent exactly the same estate which the devise purports to give him, he is in by descent and not by purchase." Springer v. Fortune (Ohio) 2 Cin. estate in realty. "Descent" usually applies to the devolution of real estate. Adams v. Akerlund, 168 Ill. 632, 639, 48 N. E. 454, 457 (citing Bouv. Law Dict.). The term "descent," as used in reference to the acquisition of title to real estate, means the acquirement thereof by a man "from his ancestor without writing." Priest v. Cummings (N. Y.) 20 Wend. 338, 349. R. 52, 55. St. 1831, § 4, providing that, when any person shall die intestate, without issue, possessed of a title to any real estate, by purchase with the estate of, or by "descent from the mother," it shall go to a living brother or sister of the mother of such person, cannot be construed to mean "descent from the mater-eal descent at common law is from the fanal grandfather," or taking the share of the ther to his son; the immediate collateral dedeceased parent. Case v. Wildridge, 4 Ind. scent is from one brother to another; the 51, 53. mediate, when one derives his inheritable blood to another by the medium of a third person; as in lineal descent, if a son claims as heir to his grandfather or great-grandfather, it shall be mediante patre, though the father be dead at the time of the descent; so in a collateral descent from a nephew to an uncle, or from an uncle to a nephew, it shall be made mediante patre." Garner v. Wood, 17 Atl. 1031, 1032, 71 Md. 37 (quoting Stewart's Lessee v. Jones [Md.] 8 Gill & J. 1). Mediate and immediate distinguished. "According to the principles of the common law of England, as well as the act of descents of this state, descents are either lineal or collateral, and both may be either mediate or immediate. The immediate lin As used in St. 1822, providing that when the title to any estate of inheritance, as to which the person having such title shall die intestate, "came by descent, gift, or devise" from the parent or other kindred of the intestate, and should such intestate die without children such estate shall go to the kin next to the intestate of the blood of the person from whom such estate came or descended, if any there be, means immediate descent, gift, or devise, and makes the immediate ancestor, donor, or devisor the sole stock of descent. Gardner v. Collins, 27 U. S. (2 Pet.) 58, 85, 7 L. Ed. 347. Devise distinguished. A descent may be said to be mediate or immediate in regard to the mediate or immediate descent of the estate or right, or it may be said to be mediate or immediate in regard to the mediateness or immediateness of the pedigrees or degrees of consanguinity. The word "descent," in its technical le- Thus a descent from a grandfather, who dies gal meaning, denotes the transmission of real in possession, to the grandchild, the father estate, or some interest therein, on the death being then dead, is in the former sense in law of the owner intestate, by inheritance, to an immediate descent. On the other hand, some person according to certain rules of with reference to the line of pedigree or conlaw. In such meaning it is distinguished sanguinity, a descent is often said to be imfrom "transmission by devise," which is tech-mediate where the ancestor from whom the nically by purchase, and also from the trans-party derives his blood is immediate, and mission of personal property, the title of which passes to the administrator, and, after the payment of all debts and claims against the estate, is governed by certain rules of distribution. Hudnall v. Ham, 49 N. E. 985, 987, 172 Ill. 76. "Descent' signifies when lands had by right of blood fall onto any one after the death of his ancestors, or a descent is a means whereby only death derived him title to certain lands. This is the noblest, worthiest means whereby lands are derived from one to another, because it is right, and vested by the act of law and right of blood unto the worthiest and next of the blood and kindred of the ancestor. If an estate is derived even from a father in any other shape than the course of descent would take, it is taken by purchase and not by descent. The test of without any intervening link or degree, and mediate when the kindred is derived from him mediante altero, another ancestor intervening between them. Thus a descent in lineals from father to son is in this sense immediate, but a descent from a grandfather to a grandson, the father being dead, or from uncle to nephew, the brother being dead, is Furenes v. Mickelson, 53 deemed mediate. N. W. 416, 417, 86 Iowa, 508. Transmission of personalty. Descent is hereditary succession to an estate in realty. "Descent" usually applies to the devolution of real estate. The word “inheritance" is often used synonymously with "descent," and refers to the devolution of real property. Adams v. Akerlund. 48 N. E. 454, 457, 168 Ill. 632. merely a description, but an implied covenant that there is such a street. It probably entered into the consideration of the purchase. Parker v. Smith, 17 Mass. 413, 416, 9 Am. Dec. 157. As used in a statute providing that it shall be lawful for any married female to receive by gift, grant, demise, bequest, or descent, and hold to her sole and separate use as if she were a single female, real and personal property, and the rents and issues and profits thereof, the word "descent" cannot be St. 1899, § 4241, providing that the auditor's The term "description," as used in Ky. construed to apply to personal property, though it may be given that meaning some-agent shall file in the clerk's office a statement containing a description and value of property to be assessed as omitted property. does not require a particular description or the exact amount of cash, notes, bonds, mortgages, choses in action, etc., that the owner times to effectuate the intention. Its mean ing in this case would not be extended by the necessity of giving it some effect, for here the word applies to the real estate mentioned, Horner v. Webster, 33 N. J. Law (4 Vroom) 387, 400. "Gift, devise, or descent" may be used in a will to indicate the manner of the devolution of both the real and personal property, or of personalty alone. Rountree v. Pursell, 39 N. E. 747, 749, 11 Ind. App. 522. DESCRIBE-DESCRIPTION. See "Sufficient Description." may have in his possession or may have had in the years past. The information on which the court is expected to act under this law must be from the nature of the case somewhat general. Commonwealth v. Collins (Ky.) 72 S. W. 819, 820 (citing Commonwealth v. Singer Mfg. Co. [Ky.] 21 S. W. 354). It is one of the essential elements in the description of real property in a conveyance that it must be sufficiently certain to furnish the means for identification of the premises intended to be conveyed. McRoberts v. McArthur, 62 Minn. 310, 311, 64 N. W. 903. In the statute relating to ejectment, and requiring the property to be described in the summons, the term "described" means the Insufficient description distinguished. same as "described with confident certainty," "Description," as used in the statute profor to "describe" a thing or place, and to "de-viding that parol testimony may be admitted scribe it with confident certainty," would for the purpose of fitting land to the descripseem to mean the same. Board of Education tion contained in a deed, means descriptions v. Crawford, 14 W. Va. 790, 803. "Description," within the meaning of the mechanic's lien law requiring claimant to file a true description of the property, means such a statement as to its character as will not only identify the property with reasonable certainty as between the parties, but which will be notice to strangers purchasing the property, and relying on the face of the description in the claim for their notice. Mechanics' Planing Mill v. Nast, 7 Mo. App. 147, 149. "Describing a way," as used in Rev. St. c. 18, 1, providing for the laying out of a highway by the county commissioners on presentation of a petition describing a way, should be construed to mean a statement of the places where the way is desired to commence and terminate, and its general course between them. Hayford v. Aroostook County Com'rs, 3 Atl. 51, 52, 78 Me. 153. In an indictment for forgery, a description, "the president, directors and company of the Bank of St. Albans," as the party intended to be defrauded, is a good description of an artificial person. State v. Phelps, 11 Vt. 116, 119, 34 Am. Dec. 672. Where land is conveyed by a deed bounding it on a way or street, by such description the grantor and his heirs are estopped from denying that there is a street or way to the extent of the land on the side of which the street is described. Such conveyance is not 3 WDS. & P.-2 which are legal in themselves, but which, in As substantial representation. In Act 1870, § 24, providing that any person who has invented any new and usefu art, machine, manufacture, or composition of matter not known or used by others in this country, and not patented or "described in any printed publication" in this or any foreign country before his invention or discovery thereof, may obtain a patent therefor, "described" means such a description and drawings as contain and exhibit a substantial representation of the patented improvement in such full, clear, and exact terms as to enable any person skilled in the art or science to which it appertains to make, construct, and practice the invention as they would be enabled to do if information was derived from a prior patent. Downton v. Yaeger |