he were a citizen of the United States; but shall be incapable of voting at any election, or of being elected or appointed to any office, or of serving on any jury.

A person attainted of treason or felony was at common law incapable of taking by descent, or of transmitting his estate to his heirs. Such attainder operated as an extinction of his civil rights and capacities, which took place on pronouncing sentence of death. (4 Bl. Com. 380.) He is from that moment treated as dead in law. (Id. and 2 id. 251.) The constitution of the United States forbids the passage of any bill of attainder; and provides that no attainder of treason shall work corruption of blood or forfeiture, except during the life of the person attainted. (Const. U. S. art. 2, § 9, and art. 3, § 8.) This state, during the revolution, on the 22d October, 1779, (1 Greenl. 26,) attainted fifty-nine persons, who had been prominent subjects in the colony, and many of them high officers in the government, and confiscated their estates and vested the same in the people. The same act banished the said persons from the state, and directed that if any of them should be afterwards found in the state they should suffer death, as in cases of felony, without benefit of clergy.

The existing law of this state provides that whenever any person shall be outlawed upon a conviction for treason, the judgment thereupon shall produce a forfeiture to the people of this state, during the lifetime of such person, and no longer, of every freehold estate in real property, of which such person was seised in his own right, at the time of such treason committed, or at any time thereafter; and of all his goods and chattels. (2 R. S. 656, § 3.) A person sentenced to imprisonment in a state prison for life, shall thereafter be deemed civilly dead. (Id. 701, § 20.) Of course he cannot afterwards take by descent, or be the medium through which others may trace their title.

CHAPTER III.

OF THE RULES OF DESCENT.

The constitution of 1777 adopted such parts of the common law of England, and of the statute law of England and Great Britain, and of the acts of the legislature of the colony of New-York, as to

gether formed the law of the colony on the 19th April, 1777, as the law of this state, subject to such alterations and provisions as the legislature of the state should, from time to time, make concerning the same. This feature of the first constitution has been preserved and re-adopted in each of the subsequent constitutions of the state, and is still a part of the organic law. The common law of England with regard to descents, with its doctrine of primogeniture, preference of males over females, exclusion of the half blood, and its various other provisions, was the law of the colony, until altered by the act of the 12th July, 1782; which latter act was revised and repealed on the 23d February, 1786. (1 Greenl. 205.) This latter statute still required the heir to be the heir of the person last seised, and the inheritance was then directed to descend 1, to his lawful issue, standing in equal degree, in equal parts as tenants in common; 2, to his lawful issue, and their descendants, in different degrees, according to the right of representation; 3, to the father; 4, to brothers and sisters; 5, to the children of brothers and sisters. In all cases of descent beyond those five cases, the common law controlled. The foregoing, it will be seen, abrogated the law of primogeniture, and the preference of males to females, and the exclusion of the parents on failure of lineal descendants, and constituted them, in a certain order, heirs to their own children.

The law thus remained in this state until the revision of the statutes in 1830, when important changes were introduced. All the decisions of the courts of this state, prior to 1830, with respect to the transmission of real estate by descent, were made either with reference to the common law, or that law as modified by the acts of 1782 and 1786. Some cases, arising under the former law, were not the subject of adjudication until after 1830, and were determined according to the principles of the statutes in force at the time the respective cases arose. So long a period has elapsed since the act of 1782, that no case can be expected to arise depending wholly upon common law principles. And the period of thirty years and upwards, which has transpired since the revised statutes took effect, has made it needless to devote much time to a consideration of the state of the law antecedently in force.

The act of 1786 adopted the maxim of the common law, which had subsisted for ages, that lands in fee simple must descend to the heir of the person last actually seised thereof. Coke, in his commentary on the 8th section of Littleton, p. 15 a, states the law to

be, that if the father make a lease for years, and the lessee entereth and dieth, and the eldest son dieth during the term, before entry and receipt of the rent, the youngest son of the half blood shall not inherit, but the sister; because the possession of the lessee for years is the possession of the eldest son, so as he is actually seised of the fee simple, and consequently the sister of the whole blood is to be heir. But, he observes, in the case aforesaid, if the father made a lease for life, or a gift in tail, and dieth, and the eldest son dieth in the life of a tenant for life, or tenant in tail, the younger brother of the half blood shall inherit, because the tenant for life or the tenant in tail is seised of the freehold, and the eldest son had nothing but a reversion expectant upon that freehold or estate tail, and therefore the youngest son shall inherit the land, as heir to his father who was last seised of the actual freehold. (3 Co. Rep. 42, Radcliff's case.) This is the language of Spencer, J. in Jackson v. Hilton and others, (16 John. 99,) a case which arose under the common law, before it had been affected by the act of 1782 or 1786. In that case the testator, by his will, dated 1755, devised certain real estate to his daughter, without making any disposition of the reversion. The testator died, leaving B. his heir at law, who died before the termination of the life estate. It was held that the heirs of B. were not entitled as such to the land after the death of the tenant for life; for the reason that B., the son, had not such seisin as to create a new stock of descent; and a person claiming the land by descent must entitle himself as heir of the devisor who was last actually seised in fee.

In the case of Jackson v. Hendricks, (3 John. Cases, 214,) the same doctrine was recognized. In that case Esther Hendricks died seised of real estate in 1775, leaving a husband and two sons and three daughters; the husband became seised by the curtesy until his decease in 1793; the eldest son died in 1784, intestate, and without issue; the youngest son entered after the death of his father; the sisters brought their ejectment, and the court held that the case was governed by the common law, and the statute of descents did not apply, (Act of 1786;) that the descent to the eldest son was suspended by the existence of the estate of the tenant by the curtesy, and the eldest son was not seised so as to form a new stock of descent, or to constitute a possessio fratris; and that the mother was the person last seised, from whom the descent must be claimed; and as she died before the statute of descents, (Act of 1786,) her surviv

ing son was adjudged to be entitled to the estate, to the total exclusion of his sisters. The same doctrine was held in Bates v. Shraeder, (13 John. 260.)

The possessio fratris is an expression found in the old books, and is used to denote the doctrine, which prevailed at common law, of the exclusion of the half blood from the succession to estates. The maxim was that the brother's possession of an estate in fee simple, makes the sister to be heir. This is best illustrated by Blackstone. (2 Black. Com. 227.) If a father have two sons, A, and B., by different wives; now these two brethren are not brethren of the whole blood, and therefore shall never inherit to each other, but the estate shall rather escheat to the lord. Nay, even if the father dies, and his lands descend to his eldest son A., who enters thereon, and dies seised without issue; still B. shall not be heir to this estate, because he is only of the half blood to A. the person last seised; but it shall descend to a sister (if any) of the whole blood A; for in such cases the maxim is that the seisin or possessio fratris facit sororem esse hæredem. Yet, had A. died without entry, then B. might have inherited; not as heir to A., his half brother, but as heir to the common father, who was the person last actually seised. This was the common law. It is, however, not now law in England, it having been recently abolished by 3 and 4 Will. 4th, and it is not law in this state, as we shall see when we come to examine the present law of descent as prescribed by the revised statutes of 1830.

Before we proceed to examine the several rules or canons of descents, a few more observations will be added. If the next heir of the person last seised be an alien, the lands do not escheat, but go to some remoter heir who is capable of taking by descent. (Leyman v. Abeel, 16 John. 30.)

The same rule of descent which governs in the case of corporeal hereditaments governs also in the case of incorporeal hereditaments. They are real property, and are subject to the like rules. (Id.)

A person who has a vested remainder in fee simple, expectant on the determination of a present freehold estate, has such a seisin in law, when the estate is acquired by purchase, as will constitute him a stirps or stock of descent. (Wendell v. Crandall, 1 Comst. 491, affirming Vanderheyden v. Crandall, 2 Denio, 9.)

The rule that the descent between brothers is immediate, and not impeded by the alienage of their father, holds between one of them and the representatives of the other, and also betweeen the repre

sentatives of both of them. Hence the alienage of the common grandfather does not impede descent between cousins, the children of brothers who were citizens, and capable of transmitting by descent. (McGregor v. Comstock, 3 Comst. 408.) In that case the death of the ancestor occurred prior to 1830.

We will now proceed to examine the rules or canons of descent, as they are prescribed by the revised statutes, and shall have occasion to compare them with those antecedently in force.

The general requirement of the law is that the real estate of every person who shall die without devising the same, shall descend in the manner following: 1. To his lineal descendants. 2. To his father. 3. To his mother; and 4. To his collateral relatives; subject in all cases to the rules and regulations prescribed in the act. (1 R. S. 751, § 1.)

I. The first rule or canon of descents is that if the intestate shall leave several descendants in the direct line of lineal descent, and all of equal degree of consanguinity to such intestate, the inheritance shall descend to such persons in equal parts, as tenants in common, however remote from the intestate the common degree of consanguinity may be. (Id. §§ 2, 17.)

This is the same as the first canon under the act of 1786, with the exception that the latter act applied only to cases of the death of the party last seised, leaving other cases when the ancestor had been disseised, or his right was contingent or executory, to be determined by the rules of the common law. The cases cited on a preceding page afford apt illustrations of the effect of that provision.

The rule at common law, as laid down by Blackstone, Cruise and the other approved English writers, was, that inheritances shall lineally descend to the issue of the person who last died actually seised in infinitum; but shall never lineally ascend.

The original rule, it will be perceived, required that the ancestor had no capacity to transmit the descent to his heirs, unless he was the person last seised of the actual freehold and inheritance.

The nature of seisin, and the difference between a seisin in law and a seisin in deed, have been explained in a previous chapter. Where a person acquired a fee simple in lands by descent, he acquired only thereby a seisin in law, and could not, on his death before entry, transmit the estate to his heir. It was necessary, at common law, that he should make an actual entry, so as to acquire