Hereditary title

“ It is not perhaps an unlikely conjecture that at the period when surnames were first ordered to be made hereditary, some families went back several generations to select an illustrious ancestor on whom to build themselves a name. ”

“ But it was sought to extend that custom to a person who was not immediate heir, but claimed through a. common ancestor, namely, a daughter of the eldest brother of the person last seised. By the 3 & 4 Wm. 4, c. 106, “ descent" shall mean the title to inherit land by reason of a consanguinity, as well where the heir shall be an ancestor or collateral relation, as where he shall be a child or other issue.” The heir must be traced from the purchaser, and throughout the youngest relations are to be preferred. ”

“ If his parents were natural born subjects, and capable to take as heirs of the deceased ancestor, it is clear that he could not inherit by descent through them, as they would intercept the title, as nearer heirs. The only cases in which he could inherit, living his parents, are those where the common law has prohibited the parents from taking, although they have inheritable blood. ”

“ He is the descendant of a younger son of that family, to whom the estate devolved about a century ago, although at that time there was search for the heirs of the elder son, who had disappeared after the bloody incident which I related to you. Now, singular as it may appear, at this late day, a person claiming to be the descendant and heir of that eldest son has appeared, and if I may credit my friend's account, is disposed not only to claim the estate, but the dormant title which Eldredge himself has been so long preparing to claim for himself. Singularly enough, too, the heir is an American. ”

“ Their office is also hereditary, and properly limited to the eldest son, whereas the chieftainship descends to the youngest son, or, failing sons, to the youngest surviving brother. The land also follows this law of inheritance, the younger sons in all cases inheriting, while the elder go forth and clear wild land for themselves. ”

“ II., therefore, after reciting the act of William, declares, that it shall not be construed to give any right or title to any persons to inherit as heirs, &c. by enabling any such persons to claim, or derive their pedigree, through any alien ancestor, unless the persons so claiming 'were, or shall be, in being, and capable to take the same estate as heir or heirs, &c. by virtue of the said statute, at the death of the person who shall last die seised,' and to whom they shall claim to be heir or heirs. ”

“ At the same time there can be no doubt that the headship of a family must rest with the heir male, and consequently it would seem that in those cases in which the supporters are borne by right of being head of a clan or chief of a name, the right of inheritance would devolve upon the heir male. ”

“ But an hereditament, says sir Edward Coke [3] , is by much the largest and most comprehensive expression; for it includes not only lands and tenements, but whatsoever may be inherited, be it corporeal, or incorporeal, real, personal, or mixed. Thus an heir loom, or implement of furniture which by custom descends to the heir together with an house, is neither land, nor tenement, but a mere moveable; yet, being inheritable, is comprized under the general word, hereditament: and so a condition, the benefit of which may descend to a man from his ancestor, is also an hereditament [4] . ”

“ But as to all estates derived to the intestate from parent or other kindred, by descent, gift, or devise; the statute makes the person, from whom the estate came or descended, the stock of inheritance; and it makes the next of kin to the intestate, who is of the blood of that person, the heir at law. Now, it is inquired, what possible object could there have been for this distinction, but that of keeping the family inheritance in the blood of the family?But further, the same distinction is made between estates derived, and derived in the same manner too, to the intestate. ”

“ The law of primogeniture still exists as in England, but with the modification that the inheritor may dispose of one half of the inheritance; and as they are a money-getting and commercial people, the purse is getting the ascendency over title. ”

“ The flocks and herds of the children are the flocks and herds of the father, and the possessions of the parent, which he holds in a representative rather than in a proprietary character, are equally divided at his death among his descendants in the first degree, the eldest son sometimes receiving a double share under the name of birthright, but more generally endowed with no hereditary advantage beyond an honorary precedence. ”

“ In Europe, where titles and property are inherited by male children, under the laws of entail and primogeniture, a legal significance attaches to the line of the surname, and to most Americans this line is of special interest. Nevertheless, it often happens that our ancestry along this line is less brilliant than along some of the other lines. In that case we will not do full justice to our surname until we reveal the glory of the sturdy stocks which our ancestors had the good sense to engraft upon our line by marriage. ”

“ The male member of the family inherits, but he does so only as the son of a female member of the family through whom he may justly claim kinship, or, to put it in another form, a man's natural heir is not his son, or his brother's son, or the descendant of a common male ancestor, but his sister's, or his sister's daughter's son, or the descendant of a common female ancestress. ”

“ It is evident that the institution of such castes originally arose from the notion of the great importance of hereditary distinctions possessed by certain families, which it was presumed would always be transmitted by the parents to the children. ”

“ We, however, have determined to follow a straightforward and simple path, and, preferring the mother to all other persons with a statutory title, to give her the entire succession of her sons, without deduction in favour of any other persons except a brother or sister, whether by the same father as the deceased, or possessing rights of cognation only ”

“ If a child die possessed of property and without descendants or a will the father is heir to all of it; if he is dead, the mother inherits only an equal share with each of the remaining children. If both parents and all brothers and sisters are dead, the grandfather is the sole heir ”

“ Great-grandchildren may inherit as grandchildren, unless a decidedly contrary intention appear in the will; and in several cases it has been decided, that the term relations, or family, in a will, means next of kin. A pecuniary legacy to the heir of a testator is construed to imply the heir-at-law, and not the next of kin, unless the sense of the passage in the will was influenced by the context to mean something else. ”

“ The law of inheritance for people of distinction differs from that of the kings in the fact that the eldest son inherits by right of primogeniture, and succeeds to all his father’s property, wives and slaves. He generally allows his mother a separate establishment and maintenance and finds employment and maintenance for his father’s other wives in the family residence. ”

“ Kinsmen of the half-blood may be heirs; such kinsmen shall inherit next after a kinsman in the same degree of the whole blood, and after the issue of such kinsman where the common ancestor is a male and next after the common ancestor where such ancestor is a female. The admission of kinsmen of the half-blood into the chain of descent is an alteration made by the Inheritance Act. Formerly a relative, however nearly connected in blood with the purchaser through one only and not both parents, could never inherit—a half-brother for example. ”

“ In direct opposition to the Roman law of hereditary claims which established the degree of relationship according to the number of actual descendants, so that father and son were counted as related in the first degree to one another, brothers and sisters as in the second degree, uncle and niece or nephew as in the third, brothers’ or sisters’ children as in the fourth degree, the canon law on hindrances to marriage begins this reckoning after the withdrawal of the common parents, so that brother and sister are related in the first degree, uncle and niece in the second, etc. ”

“ It declares, that persons might lawfully inherit and be inheritable, as heirs, and make their titles and pedigrees, by descent, from any of their ancestors, although their parents were born out of the realm; plainly supposing that they might take as heirs by descent, but for the circumstance of the alienage of the intermediate ancestors, through whom they must claim. It speaks of such intermediate ancestors, as persons who were or should be born out of the realm, and it enables the party to take, as heir, as effectually as if such ancestors had been natural born subjects. ”

“ If the child of two parents has any property inherited from relatives, and that child dies before it is of age to make a will, or without making a will, the only person who inherits the property of that child is the child's father; the mother does not exist as her child's heir at all ”

“ Thus, a man will not only apply the term “father” to all the brothers of his father, to all the sons’ sons of his father’s father, and to all the sons’ sons’ sons of his father’s father’s father, to all the husbands of his mother’s sisters and of his mother’s mother’s granddaughters, etc., but he will also apply the term to all the members of his father’s clan of the same generation as his father and to all the husbands of the women of the mother’s clan of the same generation as the mother, even when it is quite impossible to show any genealogical relationship with them. ”

“ For the ancestors of a person are his father, his grandfather, and his great-grandfather; the co-inheritors are brothers and cousins and second cousins; the heirs of a person are those who proceed from his body, as a son, and a grandson and a great-grandson; and if a person be skilful in the use of the figure described above, when a person descended from any one of the three kins of the body of the original stock shall die without heir of his body, he will know who is to obtain the land of such a one according to law. ”

“ Again, by the laws and customs of inheritance, the estate of the father descends to the first-born. The younger sons must be adopted into another family, or, failing this, must make their own fortunes independently. ”

“ You all have a birthright.
What that meant in the earliest times we do not fully know; but it meant at least to be the head or father of the family, a sort of domestic priesthood, [164] the chief of the tribe, or the head of a great nation. In our own times, in Great Britain the first-born son has by right of birth the headship of the family, inheriting the principal part of the property, and he is the representative of the estate. They call it there the law of primogeniture, or the law of the first-born. ”

“ And if any of the sons or daughters shall be found to have another lot of land in the country, which has accrued after the testament has been made, they shall leave the lot which they have inherited to the heir of the man who has made the will. If the testator has no sons, but only daughters, let him choose the husband of any one of his daughters whom he pleases, and leave and inscribe him as his son and heir. ”

“ A genealogist, however, is not satisfied with a pedigree which cannot be proved, and if our pedigree-hunter thinks, either from the high qualities with which he is endowed, or from the knowledge of noble ancestors having adorned his family tree, that kings must have been undoubtedly numbered among his forbears—well, of course, he must make good his claim, perhaps even to royal descent in the male line. ”

“ In the phrase “to mak” a (n) airff” the correct meaning of this word must be the partition of an inheritance; to had a (n) a., to hold a probate court or a court for the partition of an inheritance; cf. the quotation above under *a (i) rff 3, where the word in this connection is expressed by (arve) -skifte: partition of inheritance. — The form *arff is derived from O.N. arfr, m., inheritance, *airff, *ayrffe either from “arfr” or from O.N. erfð, f., succession to property; inheritance. In meaning 3, “airff” is prob. an abbr. of O.N. arfskipti, n., partition of inheritance. ”

“ Among the upper classes they possess no claim against the estate of their progenitors; entail ignores them, and they may not observe the family sacrifices. In the absence of legitimate issue, a son must be adopted for the purpose of [114] inheriting the properties of the family and of attending to the ancestral and funeral rites. ”

“ This clause takes the evidence one step further, and it is noticeable how the right of inheritance is determined by the great-grandchild of the common ancestor. In the direct line, a man's descendants [pg 057] down to his great-grandchildren inherited his estate. In dealing with inheritance through a brother of the deceased the heirship terminates with the grandchild of the brother, who would be great-grandchild of the nearest common ancestor with the previous owner of the estate. If there is no brother, the child of the cousin limits the next branch, as will be seen. ”

“ Children are considered the property of the wife’s56 relatives, the father has little or no control over them. The right of inheritance is from uncle to nephew, thus a man’s slaves and real property go to the eldest son of his eldest sister, or the next of kin on such lines. A wise nephew will therefore leave his father’s house, and go to live with his uncle, whom he hopes to succeed. ”