How Dissolved.

Estates in common can only be dissolved two ways: 1. By uniting all the titles and interests in one tenant, by purchase or otherwise: which brings the whole to one severalty. 2. By making partitions between the several tenants in common, which gives them all respective severalties. For indeed tenancies in common differ in nothing from sole estates but merely in the blending and unity of possssion. And this finishes our inquiries with respect to the nature of estates.

Chapter XIII.

OF THE TITLE TO THINGS REAL, IN GENERAL.

195-201.

The chapter treats of the title to things real, with the manner of acquiring and losing it. A title is thus defined by Sir Edward Coke: It is the means whereby the owner of lands hath the just possession of his property. There are three several stages or degrees requisite to form a complete title to lands and tenements.

Ist. Naked possession; 2nd, Right of possession; 3rd, Right of property. A good title is where the right of possession is joined with the right of property. When to this is added actual possession then is the title completely legal.

Chapter XIV.

OF TITLE BY DESCENT.

201-241.

Methods of Acquiring and Losing Title.

The methods of acquiring on the one hand, and of losing on the other, a title to estates in things real, are reduced by our law to two: descent, where the title is vested in a man by the single operation of law; and purchase, where the title is vested in him by his own act or agreement.

Descent.

Descent, or hereditary succession, is the title whereby a man on the death of his ancestor acquires his estate by right of representation, as his heirs-at-law. An heir therefore is he upon whom the law casts the estate immediately on the death of the ancestor: and an estate so descending to the heir, is in law called the inheritance.

The doctrine of descents, or law of inheritances in fee-simple, is a point of the highest importance; and is indeed the principal object of the laws of real property in England.

The common-law doctrine of inheritance, it will now be our business to explain.

And, as this depends not a little on the nature of kindred, and

the several degrees of consanguinity, it will be previously necessary to state as briefly as possible, the true notion of this kindred or alliance in blood.

Consanguinity.

Consanguinity, or kindred, is defined by the writers on these subjects to be the connection or relation of persons descended from the same stock or common ancestor. This consanguinity is either lineal or collateral.

Lineal.

Lineal consanguinity is that which subsists between persons, of whom one is descended in a direct line from the other, as between John Stiles and his father, grandfather, great-grandfather, and so upwards in the direct ascending line; or between John Stiles and his son, grandson, great-grandson, and so downwards in the direct descending line. Every generation in this lineal direct consanguinity, constitutes a different degree, reckoning either upwards or downwards: the father of John Stiles is related to him in the first degree, and so likewise is his son; his grandsire and grandson in the second; his great-grandsire and great-grandson in the third. This is the only natural way of reckoning the degrees in the direct line, and therefore universally obtains, as well in the civil and canon as in the common law.

Collateral.

Collateral kindred answers the same description: collateral relations agreeing with the lineal in this, that they descend from the same stock or ancestor; but differing in this that they do not descend one from the other. Collateral kinsmen are such then as lineally spring from one and the same ancestor who is the stirps, or root, the stipes, trunk or common stock, from whence these relations are branched out. As, if John Stiles hath two sons, who have each a numerous issue; both these issues are lineally descended from John Stiles as their common ancestor; and they are collateral kinsmen to each other, because they are all descended from this common ancestor, and all have a portion of his blood in their veins, which denominates them consanguineos.

We must be careful to remember, that the very being of collateral consanguinity consists in this descent from one and the same common ancestor. Thus Titius and his brother are related; why? because both are derived from one father: Titius and his first cousin are related; why? because both descend from the same grandfather; and his second cousin's claim to consanguinity is this, that they are both derived from one and the same great-grandfather. In short, as many ancestors as a man has, so many common stocks he has from which collateral kinsmen may be derived.

Method of Computing Degrees.

The method of computing these degrees in the canon law, which our law has adopted, is as follows: we begin at the common ancestor and reckon downwards: and in whatsoever degree the two persons, or the most remote of them, is distant from the common ancestor, that is the degree in which they are related to each other. Thus, Titius and his brother are related in the first degree; for from the father to each of them is counted only one; Titius and his nephew are related in the second degree; for the nephew is two degrees removed from the common ancestor; viz., his own grandfather, the father of Titius.

The civilians count upwards from either of the persons related, to the common stock, and then downwards again to the other, reckoning a degree for each person both ascending and descending.

Rules of Inheritance.

The nature and degrees of kindred being thus in some measure explained, I shall next proceed to lay down a series of rules or canons of inheritance, according to which estates are transmitted from the ancestor to the heir; together with an explanatory comment, remarking their original and progress, the reasons upon which they are founded, and in some cases their agreement with the laws of other nations.

I. The first rule is, that inheritances shall lineally descend to the issue of the person who last died actually seised in infinitum; but shall never lineally ascend.

To explain the more clearly both this and the subsequent rules, it must first be observed, that by law no inheritance can vest nor can any person be the actual complete heir of another, till the ancestor is previously dead. Nemo est haeres viventis. Before that time the person who is next in the line of succession is called an heir apparent, or heir presumptive. Heirs apparent are such whose right of inheritance is indefeasible provided they outlive the ancestor; as the eldest son or his issue, who must by the course of the common law be heir to the father whenever he happens to die. Heirs presumptive are such who, if the ancestor should die immediately, would in the present circumstances of things be his heirs; but whose right of inheritance may be defeated by the contingency of some nearer heir being born; as a brother or nephew, whose presumptive succession may be destroyed by the birth of a child; or a daughter whose present hopes may be hereafter cut off by the birth of a son. Nay, even if the estate hath descended, by the death of the owner, to such brother, or nephew, or daughter, in the former cases, the estate shall be devested and taken away by the birth of a posthumous child; and in the latter, it shall also be totally devested by the birth of a posthumous son.

We must also remember that no person can be properly such an ancestor as that an inheritance of lands or tenements can be derived from him, unless he hath had actual seisin of such lands, either by his own entry, or by the possession of his own or his ancestor's lessee for years, or by receiving rent from a lessee of a freehold or unless he hath had what is equivalent to corporal seisin in hereditaments that are incorporeal; such as the receipt of rent, a presentation to the church in case of an advowson, and the like. But he shall not be accounted an ancestor, who hath had only a bare right or title to enter or be otherwise seised.

II. A second general rule or canon is, that the male issue shall be admitted before the female.

Thus sons shall be admitted before daughters; or, as our male law-givers have somewhat uncomplaisantly expressed it, the worthiest of blood shall be preferred.

III. A third rule or canon of descent is this: that where there are two or more males, in equal degree, the eldest only shall inherit; but the females all together.

IV. A fourth rule or canon of descents, is this: that the lineal descendants, in infinitum, of any person deceased, shall represent their ancestors: that is, shall stand in the same place as the person himself would have done had he been living.

Thus the child, grandchild, or great-grandchild (either male or female) of the eldest son succeeds before the younger son, and so in infinitum. And these representatives shall take neither more nor less, but just so much as their principals would have done.

This taking by representation is called succession in stirpes, according to the roots; since all the branches inherit the same share that their root whom they represent, would have done.

V. A fifth rule is that on failure of lineal descendants, or issue, of the person last seised, the inheritance shall descend to his collateral relations, being of the blood of the first purchaser, subject to the three preceding rules.

Thus if Geoffrey Stiles purchases land, and it descends to John Stiles his son, and John dies seised thereof without issue; whoever succeeds to this inheritance must be of the blood of Geoffrey, the first purchaser of this family. The first purchaser, perquisitor is he who first acquired the estate to his family, whether the same was transferred to him by sale or by gift, or by any other method, except only that of descent.

The rules of inheritance that remain are only rules of evidence, calculated to investigate who the purchasing ancestor was; which in feudis vere antiquis has in process of time been forgotten, and is supposed to be in feuds that are held ut antiquis.

VI. A sixth rule or canon therefore is: that the collateral heir of the person last seised must be his next collateral kinsman of the whole blood.

First, he must be his next collatera! kinsman either personally or jure representationis; which proximity is reckoned according to the canonical degrees of consanguinity before mentioned. Therefore, the brother being in the first degree, he and his descendants shall exclude the uncle and his issue, who is only in the second.

The right of representation being thus established, the former part of the present rule amounts to this: that on failure of issue of the person last seised, the inheritance shall descend to the other subsisting issue of his next immediate ancestor. Thus, if John Stiles dies without issue, his estate shall descend to Francis his brother, or his representatives, he being lineally descended from Geoffrey Stiles, John's next immediate ancestor, or father. On the failure of brethren, or sisters, and their issue, it shall descend to the uncle of John Stiles, the lineal descendant of his grandfather George, and so on in infinitum.

But though the common ancestor be thus the root of the inheritance, yet with us it is not necessary to name him in making out the pedigree or descent. For the descent between two brothers is held to be an immediate descent, and therefore title may be made by one brother or his representatives to or through another without mentioning their common father. But though the common ancestors are not named in deducing the pedigree, yet the law still respects them as the fountains of inheritable blood; and, therefore, in order to ascertain the collateral heir of John Stiles, it is first necessary to recur to his ancestors in the first degree, and if they have left any other issue besides John, that issue will be his heir. On default of such we must ascend one step higher, to the ancestors in the second degree, and then to those in the third and fourth, and so upwards in infinitum, till some couple of ancestors be found who have other issue descending from them besides the deceased in a parallel or collateral line. From these ancestors the heir of John Stiles must derive his decent, and in such derivation the same rules must be observed with regard to the sex, primogeniture, and representation, that have before been laid down with regard to lineal descents from the person of the last proprietor.

But, secondly, the heir need not be the nearest kinsman absolutely but only sub modo; that is, he must be the nearest kinsman of the whole-blood; for if there be a much nearer kinsman of the half-blood, a distant kinsman of the whole-blood shall be admitted, and the other entirely excluded; nay, the estate shall escheat to the lord sooner than the half-blood shall inherit.

A kinsman of the whole-blood is he that is derived, not only from the same ancestor, but from the same couple of ancestors.

VII. The seventh and last rule or canon is: that in collateral inheritances the male stocks shall be preferred to the female (that is, kindred derived from the blood of the male ancestors, however