In Pennsylvania, in the case of Killam v. Killam, 39 Penn. St. R. 120, it was held that an estate, already descended to the legal heir, cannot by a subsequent act of legislation be divested and given to another.

SECTION II.

THE COMMON LAW CANONS OF DESCENT; ORIGIN AND FOUNDATION OF.

The rules of descent, as ultimately established by the common law, are generally enumerated in the text-books as canons of descent.

The rules, so distinguished, relate only to the line of descent, and to the order in which kindred are to succeed each other. They have been so far superseded by statute rules in this country as to be of little practical importance, except as they show the source from whence the statute rules have been derived, and may aid in understanding and construing the statutes.

As enumerated by Blackstone, these canons are seven in number.

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

2 Bl. Com. 208.

This rule was derived from the feudal law. Estates, under the feudal system descended, but never ascended.

It seems to have been a part of the ambition of some of the early law-writers to find authority for this rule, of a kind greater than human.

Co. Litt. 11a; Ratcliffe's Case, Co. Rep. 40; 2 Bl. Com. 210.

The laws of Moses, and even the laws of nature, have sometimes been referred to as the original source. But it seems to be idle to look to any other source than the institution and establishment of feudal tenures. The maxim

hæreditas nunquam ascendit, was proclaimed as an established rule in England by the early writers.

Blackstone, in commenting upon this rule, says: "I think there is no doubt to be made but that it was introduced at the same time with, and in consequences of, the feudal tenures."

2 Bl. Com. 211.

And after considering the subject of the origin of the rule at some length, he expresses his final conclusion as follows: "These reasons, drawn from the history of the rule itself, seem to be more satisfactory than that quaint one of Bracton, adopted by Sir Edward Coke, which regulates the descent of lands according to the laws of gravitation.”

2 Bl. Com. 212.

There were two peculiarities in the feudal constitution which favored such a rule, if they did not absolutely demand it. Estates of inheritance could pass from one individual to another only by descent. The lineal descendant was compelled to wait the death of his ancestor before he could succeed to the tenancy. This was so in all ancestral feuds. It was impossible that the father could succeed the son. The original feudal law gave no opportunity for such succession.

There was another reason for the rule, more general in its application and more imperative in its demands. It was a military necessity of the feudal organization. Old men were unfitted for the military services required. That military necessity constituted all that can be claimed of divinity in the origin of this rule. The North American Indian practices upon the same rule, in selecting young men, instead of old, for war. And the statute regulations of the different States, which limit military requisitions to the age of fortyfive, or to some earlier period, are founded upon the same physical policy. They seek to make soldiers of the sons, not of the fathers.

This rule has been changed in England by a statute before noticed. So that, instead of a lineal descent to the issue of

the person last seised, the descent is to the issue of the last purchaser. It is not necessary that the person thus made. the stock of descent should have been seised or actually in possession. It is enough that he was the tenant in fee, and that he did not come to the title by inheritance. The term "purchaser " is so defined in the statute as to embrace practically every mode of acquiring title, except that of succession thereto by descent. The person who takes the title by inheritance cannot be the source of title, but his heirs must trace the right back to the person from whom he inherited, at least. And if that person also took by inheritance, the heirs must go still further back, until they find an owner who did not inherit.

The real property commissioners proposed to make every person who had the title, the stock of descent, without regard to the mode of acquisition. That would have been an adoption of the American rule. But parliament changed the proposition so as to confine the source, from which descent was to be reckoned, to the person last entitled who did not inherit. Williams on Real Prop. 78.

2. The second of the common law canons is, that males are preferred to females.

In the language of Blackstone: "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." 2 Bl. Con. 213. The same author remarks: "This preference of males to females is entirely agreeable to the law of succession among the Jews, and also among the States of Greece, or at least among the Athenians; but was totally unknown to the laws of Rome (such of them, I mean; as are at present extant), wherein brethren and sisters were allowed to succeed to equal portions of the inheritance."

2 Bl. Com. 213.

The principle which underlies that rule might be traced back to a much earlier period than those named by Blackstone. Preference of males over females belongs to man as a savage,

and rests upon the rule governing the brute, that might makes right. If there is any divinity in that rule, this second canon of the common law cannot be denied divine origin.

It is not, however, necessary to go back so far to find a foundation. Military necessity sufficiently sustained this rule also of the feudal law. Men were then, as now, better fitted for military service than women. The feudal government required soldiers, and had no means to get them except through the feudal compact.

Blackstone says: "The true reason of preferring the males must be deduced from feodal principles; for by the genuine and original policy of that constitution no female could ever succeed to a proper feud, inasmuch as they were incapable of performing those military services, for the sake of which that system was established."

2 Bl. Com. 214.

Chancellor Kent says: "Females were totally excluded, not only from their inability to perform the feudal engage ments, but because they might, by marriage, transfer the possession of the feud to strangers and enemies."

4 Kent, 383.

Some of the earlier writers assumed to base the distinction upon what they designated as dignity of blood, instead of proximity. Lord Hale expressed the grounds of the distinction as follows: "In descents the law prefers the worthiest of blood; therefore, the son inherits, and excludes the danghter. The brother is preferred before the sister, the uncle before the aunt."

3 Cruise, 377, § 20.

That seems to have been the prevailing idea of all rude nations. They tested the comparative merits by the standard of physical prowess.

3. "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 altogether."

2 Bl. Com. 214.

This rule is commonly distinguished as the law of primogeniture, and is also to be attributed chiefly to the military necessities of the feudal system, and other peculiarities of the feudal constitution, which were indispensable to its very existence. Blackstone says that it was "enforced by the inconveniences that attended the splitting of estates, namely, the division of military services, the multitude of infant tenants incapable of performing any duty, the consequential weakening of the strength of the kingdom, and the inducing younger sons to take up with the business and idleness of a country life, instead of being serviceable to themselves and the public, by engaging in mercantile, in military, in civil or in ecclesiastical employments. These reasons occasioned an almost total change in the method of feudal inheritances abroad; so that the eldest male began universally to succeed to the whole of the lands in all military tenures; and in this condition the feudal constitution was established in England by William the Conqueror.'

It is remarked by Cruise, that "as to females, all being equally incapable of performing any military service, there could be no reason for preferring the eldest.”

3 Cruise, 378, § 24.

They took "altogether;" that is, as coparceners, whenever they took at all. They enjoyed the right of forcing a partition of the premises without the consent of all. Any one could compel partition. The reason for this distinction in favor of female heirs, was, that "as the estate in coparcenary was cast on them by the act of the law, and not by their own agreement, it was thought right that the perverseness of one should not prevent the others from obtaining a more beneficial method of enjoying the property."

Williams on Real Prop. 81.

After the lands are partitioned, each of the heirs holds in severalty; but is regarded as holding by descent and not by purchase.