36

title by purchase. The title to real estate in New York by descent is governed wholly by the law of New York-lex rei sitæ.37

Early Law of New York. Prior to independence of the Crown, the common law regulated in New York descent ab intestato.38 Although New York was originally granted to the Duke of York to be held by the socage tenure, as of the King's Manor of East Greenwich in Kent, the Kentish custom of gavelkind as a rule of descents never prevailed in New York, as contended by counsel in a recent case in this State. The object of stating this manor in Kent in the Duke of York's patent was to assure tenants in the Province of New York that the tenure was by free and common socage, and not by knight-service. It is probable that gavelkind, though the rule in Kent, never prevailed in the King's Manor of East Greenwich. Certainly primogeniture was the rule in New York prior to independence.

39

On the practical cessation of hostilities with England, the Legislature immediately turned its attention to the condition of the law, and in the year 1782, an act was passed regulating descents in this State, and converting estates tail into fees simple.40 This act, inter alia, abolished, in effect, primogeniture as a rule of descents11 within certain degrees, and it made real estates partible inherit

36 Buckley v. Buckley, 11 Barb. 43; Henriques v. Sterling, 26 App. Div. 30, 35; Pyatt v. Waldo, 85 Fed. 399; Matter of Chapman, 133 App. Div. 337.

37 Lynch v. Clarke, 1 Sandf. Ch. 583, 640; Story, Confl. Laws, § 448; Bollermann v. Blake, 24 Hun, 187, 189; 8 47, Decedent Estate Law; Hosford v. Nichols, I Paige, 220, 226; Smith v. Chesebrough, 82 App. Div. 578; Lynes v. Townsend, 33 N. Y. 558, 561; White v. Howard, 46 id. 144, 159; Matter of Davenport, 172 id. 454, 457; and see above under §§ 23, 24, 44, and 45, Decedent Estate Law. Cf. Miller v. Miller, 91

N. Y. 315.

38 Story on the Const. 77, and note, p. 78; 4 Kent Comm. 410; 4 Burge, Commentaries on Colonial and Foreign Law, 126; Jackson ex dem. Gomez v. Hendricks, 3 Johns. Cas. 214; and see § II, chap. 2, Laws of 1782, making lands partible “instead of descending to the heir at law."

39 See an article by this writer on the, "Old Rule of Descents in New York," 61 Alb. Law Jour. 163, citing authorities.

40 Laws of 1782, chap. 2 (sixth session).

41 Terry v. Dayton, 31 Barb. 519, 523. In certain remote cases primogeniture may still prevail in this State. Decedent Estate Law, § 92; Hunt v. Kingston, 3 Misc. 309.

42

43

ances among males and females, or divisable among all issue who were to hold as tenants in common. Failing issue, the estate was partible among collaterals, if not too remote, in like manner, to hold as tenants in common. In cases not particularly provided for, the common law was still to regulate the inheritance or succession. The act of 1782 was found to be defective, and it was repealed and its substance re-enacted in 1786, in better language and with some changes. The act of 1786 admitted the father of an intestate into the succession, failing lineal descendants, or issue of the body of the intestate; but if the estate was deduced ex parte materna, then the estate descended as if the intestate had survived the father. Failing both issue of the body and father, the estate under that act passed to collaterals as tenants in common. Thus, the common-law rule of impartible inheritances which had prevailed under the common law since the reign of Henry III,46 was finally abrogated in New York in almost all cases, and new canons of descent were prescribed. The act of 1786 also changed the rule excluding collaterals of the half blood. In all cases not provided for, the common law prevailed. The act of 1786 remained in force until the Revised Statutes finally remodeled it in much its present form.48

47

The Common-Law Rules of Descent. As prior to the statute of 1782, the common law regulated descent of lands held by the socage tenure in New York in all cases, we may briefly consider its leading rules or canons regulating such descent:

42 Chap. 2, Laws of 1782. Cf. § 92, Decedent Estate Law.

43 Jackson ex dem. etc. v. Van Zandt, 12 Johns. 169; Medcef Eden's Case, 20 id. 483.

44 Laws of 1786, chap. 12 (ninth session); I J. & V. 245.

45 The mother, if cousin to her son, might inherit as collateral. Watkins on Descents, 95, note a.

46 $ 2 Black. Comm. 56, 214. It was, however, some time subsequent to the Conquest before the common law was fully determined in this respect. See 2 P. & M. chap. VI; 3

49

Holdsworth, Hist. Eng. Law, 140, 141; 2 Hallam, Mid. Ages, 129.

47 See below under § 92, Decedent Estate Law.

48 1 J. & V. 245; 1 Gr. 205; 1 K. & R. 44; I R. L. 52, 305; 1 R. S. 750. Cf. Laws of 1895, chap. 1022.

49 All the lands in New York were held by this tenure until 1787. Then lands granted by the State under the Great Seal were made allodial (2 J. & V. 67). The Revised Statutes made all other lands allodial, saving rents, escheats, etc. (1 R. S. 718, $ 3). See Fowler's Real Prop. Law (3d ed.), 49, 72, 84, 148.

(I) "Inheritances shall lineally descend to the issue of the person who last died actually seised, in infinitum; but shall never lineally ascend." 50 This rule was of purely feudal origin,1 and founded at a time when the succession of the strongest feudatory to fiefs was of paramount importance in the economy of the State.32 The importance of the actual seisin of the person last seised was a modification of the rule, that descent must be deduced from the first purchaser.53 The importance of actual seisin in this canon depended in like manner originally on the law of feuds, and is referable to a time when "seisin " implied a right to protect the freehold by the real actions. Seisin originally implied feudal investiture of the tenant,54 and not, as now, mere possession" of an owner.55 In its primitive meaning," seisin " was the best prima facie test of ownership, "jus proprietatis et possessionis."

66

(II) The second canon was, That the male issue should be preferred before the female." 56 This canon is also referable to the feudal law regulating succession to feuds. It is a modified or English form of the "Salic law" which excluded absolutely female succession.

57

(III) The third canon was, That where there are two or more males, in equal degree, the eldest only shall inherit, but the females altogether." 58 This preference of the eldest males is commonly called the "right of primogeniture.' It finally prevailed strictly

50 Watkins, Desc. 88; Cruise, Dig., tit. 29, chap. 3, § 1; 2 Black. Comm. 208; 4 Kent Comm. 411; Torrey v. Shaw, 3 Edw. Ch. 356, 360.

51 Cruise, Dig., tit. 29, chap. 3, § 15; 4 Kent Comm. 412; 2 Black. Comm. 211-228. Cf. 2 P. & M. 284-293.

52 Cf. Wright, Origin of Feudal Tenures, 15; 2 P. & M. 284-293.

53 2 Black. Comm. 228; 4 Kent Comm. 385, 386; Valentine v. Wettherill, 31 Barb. 655, 658.

54 Fowler's Real Prop Law (3d ed.), pp. 117, 149, 699.

55 The difference between seisin for purposes of descent and a title by purchase is pointed out in Fowler's Real Prop. Law (3d ed.), 249.

959

56 Watkins, Desc. 88; Cruise, Dig., tit. 29, chap. 3, § 16; 2 Black. Comm. 212. Cf. Brown v. Burlingham, 5 Sandf. 418.

57 2 Black. Comm. 213. Cf. 3 Holdsworth, Hist. Eng. Law, 140.

58 Watkins, Desc. 89; Cruise, Dig., tit. 29, chap. 3, § 17; 2 Black. Comm.

214.

59 This purely feudal attribute of tenure surived the abolition of the feudal system (12 Car. II, chap 24) where it originated. Sandys, History of Gavelkind, 238; Hallam, Mid. Ages, I, 129; 2 P. & M. 260; 2 Holdsworth, Hist. Eng. Law, 81, 206; 3 id. 140.

66

GO

in England, except in localities where some more antique system of law prevailed by custom. The common law of land was originally the law for the upper classes, the men of the fiefs, and it finally displaced the more humble rules. Primogeniture was the rule in New York even after independence, but prior to the act of 1782.01 The equal succession of females was also of English origin, and a modification of the feudal system of other countries.62 (IV) The fourth canon was, That the lineal descendants in infinitum of any person deceased shall represent their ancestor, that is, shall stand in the same place as the person himself would have done, had he been living." 63 It was this legal conception of an inheritable" feud" that gave rise to the later conception of a "fee simple." 64 This taking by representation is called succession per stirpes, or according to the roots, since each branch inherits the same share that their root or stirps whom they represent would have taken.65

(V) The fifth canon or rule of descent was, "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." This rule was also evolved from the feudal law, regulating succession to inheritable feuds, it being deemed proper to confine such succession to those of the blood of the first purchaser. But as it worked a hardship to those new feudatories who had no descendants, their collaterals were, according to Blackstone, let into the succession by limiting the feud so as to be held as an ancient feud; i. e., " ut feudum antiquum." 67

(VI) The sixth rule or canon of descent was, "That the collateral heir of the person last seised must be his next collateral

602 Holdsworth, Hist. Eng. Law, 399.

61 Supra, p. 335.

62

2 P. & M. 272; 3 Holdsworth, Hist. Eng. Law, 141.

63 Watkins, Desc. 89; Cruise, Dig., tit. 29, chap. 3, § 21; 2 Black. Comm. 217.

64 Fowler's Real Prop. Law (3d ed.), 9, 21, 172.

65 Co.; I Inst. 10b; 3 Holdsworth, Hist. Eng. Law, 142.

66 Watkins, Desc. 89; Cruise, Dig., tit. 29, chap. 23, § 25; 2 Black. Comm. 220; Valentine v. Wetherill, 31 Barb. 655, 658; 3 Holdsworth, Hist. Eng. Law, 145.

67 2 Black. Comm. 221; Hyatt v. Pugsley, 33 Barb. 373, 376. Cf. 2 P. & M. 285 seq.

kinsman of the whole blood.68 This exclusion of collaterals of the half blood was also referable to the law regulating succession tc feuds. It was the survival of the lords' attempt to limit such succession and promote escheats-escheats being one of the fruits of feudal tenure.69

70

(VII) The seventh and last canon or rule of descent at common law was, "That, in collateral inheritances, the male stock shall be preferred to the female; that is, kindred derived from the blood of the male ancestor, however remote, shall be admitted before those from the blood of the female, however near, unless where the lands have, in fact, descended from the female. Thus, the relations on the father's side are admitted in infinitum before those on the mother's side are admitted at all, and those of the father's father before those of the father's mother, and so on. The rights of collaterals to inherit were regulated by what is called the "parentelic scheme" whereby you take a given propositus and exhaust all his descendants, his parentela, before proceeding to the next nearest propositus.1

All the seven common-law rules of descent are stated by Kent to be of feudal origin.72 If we remember that the person who last died seised is always the propositus at common law, it is not difficult to apply the rules given. The succession to land is then in this order: (a) The male stock of the paternal line; (b) the female stock of the paternal line; (c) the male branches of the female stock of the paternal line; (d) the female branches of the female stock of the paternal line; (e) the male stock of the maternal line; (f) the female branches of the male stock of the maternal line; (g) the male branches of the female stock of the maternal line; (h) the female branches of the female stock of the maternal line.

68 Watkins, Desc. 89; Cruise, Dig., tit. 29, chap. 23, § 45; 2 Black. Comm. 224; Valentine v. Wettherill, 31 Barb. 655, 658.

69 2 P. & M. 300, 303; 3 Holdsworth, Hist. Eng. Law, 151, 153.

70 2 P. & M. 293; 3 Holdsworth, Hist. Eng. Law, 145.

71 Watkins, Desc. 89; Cruise, Dig., tit. 29, chap. 3, § 61; 2 Black. Comm.

72 4 Kent Comm. 412. All the common law of the land was of feudal derivation. Whether it was of feudal origin is another question. For a time there was little common law of much account, except that relating to land, as personal property was insignificant in value.