Page images

of children, and continue longer or shorter as generations continue or cease to exist. Many families become extinct for want of descendants while others will last to the remotest ages; the line of descendants is therefore diversified in each family.

DESCENDER. Vide Formedon.

DESCENT. Hereditary succession. Descent is the title, whereby a person, upon the death of his ancestor, acquires the estate of the latter, as his heir at law. This manner of acquiring title is directly opposed to that of purchase, (q. v.) It will be proper to consider 1, what kind of property descends; and, 2, the general rules of descent.

§ 1. All real estate, and all freehold interest in land descend to the heir. And, as being accessory to the land and making a part of the inheritance, fixtures, and emblements, and all things annexed to, or connected with the land descend with it to the heir. Terms for years and other estates less than freehold, pass to the executor, and are not subjects of descent. It is a rule at common law that no one can inherit real estate unless he was heir to the person last seised. This does not apply as a general rule in the United States. Vide article Possessio fratris.

§ 2. The general rules of the law of descents.

1. It is a general rule in the law of inheritance, that if a person owning real estate, dies seised, or as owner without devising the same, the estate shall descend to his descendants in the direct line of lineal descent, and if there be but one person, then to him or her alone; and if more than one person, and all of equal degree of consanguinity to the ancestor, then the inheritance shall descend to the several persons as tenants in common in equal parts, however remote from the intestate the common degree of consanguinity

may be. This rule is in favour of the equal claims of the descending line, in the same degree, without distinction of sex, and to the exclusion of all other claimants. The following example will illustrate it; it consists of three distinct cases: 1. Suppose Paul should die seised of real estate, leaving two sons and a daughter, in this case the estate would descend to them in equal parts; but suppose, 2, that instead of children, he should leave several grandchildren, two of them the children of his son Peter, and one the son of his son John, these will inherit the estate in equal proportions; or, 3, instead of children and grandchildren, suppose Paul left ten great grandchildren, one the lineal descendant of his son John, and nine the descendants of his son Peter, these, like the others, would partake equally of the inheritance as tenants in common. According to Chancellor Kent, this rule prevails in all the United States, with this variation, that in Vermont the male descendants take double the share of females; and in South Carolina, the widow takes one-third of the estate in fee; and in Georgia, she takes a child's share in fee, if there be any children, and, if none, she then takes in each of those states, a moiety, of the estate. In North and South Carolina, the claimant takes in all cases, per stirpes, though standing in the same degree. 4 Kent, Com. 371; Reeves's Law of Desc. passim; Griff. Law Reg., answers to the 6th interr. under the head of each state. In Louisiana the rule is, that in all cases in which representation is admitted, the partition is made by roots; if one root has produced several branches, the subdivision is also made by root in each branch, and the members of the branch take between them by heads. Civil Code, art. 895.

2. It is also a rule that if a person dying seised, or as owner of the land, leaves lawful issue of different degrees of consanguinity, the inheritance shall descend to the children and grand-children of the ancestor, if any be living, and to the issue of such children and grand-children as shall be dead, and so on to the remotest degree, as tenants in common; but such grand-children and their descendants, shall inherit only such share as their parents respectively would have inherited if living. This rule may be illustrated by the follbwing example: 1. Suppose Peter, the ancestor, had two children, John, dead, (represented in the following diagram by figure I,) and Maria, living, (fig. 2,) John had two children, Joseph, living, (fig. 3,) and Charles, dead, (fig. 4,); Charles had two children, Robert, living, (fig. 5,) and James, dead, (fig. 6,); James had two children, both living, Ann, (fig. 7,) and William, (fig. 8.)

Peter (0) the ancestor.


[merged small][ocr errors][merged small][merged small][ocr errors][merged small]

3. When the owner of land dies without lawful issue, leaving parents, it is the rule in some of the states, that the inheritance shall ascend to them, first to the father, and then to the mother, or jointly to both, under certain regulations prescribed by statute.

4. When the intestate dies without issue or parents, the estate descends to his brothers and sisters, and their representatives. When there are such relations, and all of equal degree of consanguinity to the intestate, the inheritance descends to them in equal parts, however remote from the intestate the common degree of consanguinity may be. When all the heirs are brothers and sisters, or all of them nephews and nieces, they take equally. When some are dead who leave issue, and some are living, then those who are living take the share they would have taken if all had been living, and the descendants of those who are dead inherit only the share which their immediate parents would have received if living. When the direct lineal descendants stand in equal degrees, they take per capita, by the head, each one full share; when on the contrary, they stand in different degrees of consanguinity to the common ancestor, they take per stripes, by roots, by right of representation. It is nearly a general rule that the ascending line, after parents, is postponed to the collateral line of brothers and sisters. Considerable difference exists in the laws of the several states when the next of kin are nephews and nieces, and uncles and aunts claim as standing in the same degree. In many of the states, all these relations take equally as being next of kin; this is the rule in the states of New Hampshire, Vermont, (subject to the claim of the males to a double portion as above stated,) Rhode Island, North Caro


lina and Louisiana. In Alabama, Connecticut, Delaware, Georgia, Indiana, Illinois, Kentucky, Maine, Maryland, Massachusetts, Mississippi, Missouri, New Jersey, New York, Ohio, Pennsylvania, South Carolina, Tennessee, and Virginia, on the contrary, nephews and nieces take in exclusion of uncles and aunts, though they be of equal degree of consanguinity to the intestate. In Alabama, Connecticut, Georgia, Maryland, New Hampshire, Ohio, Rhode Island, and Vermont, there is no representation among collaterals after the children of brothers and sisters; in Delaware, none after the grand-children of brothers and sisters. In Louisiana the ascending line must be exhausted before the estate passes to collaterals. Code, art. 910. In North Carolina, claimants take per stripes in every case, though they stand in equal degree of consanguinity to the common ancestor. As to the distinction between whole and half blood, vide Half blood.

5. Chancellor Kent lays it down as a general rule in the American law of descent, that when the intestate has left no lineal descendants, nor parents, nor brothers, nor sisters, or their descendants, that the grandfather takes the estate, before uncles and aunts, as being nearest of kin to the intestate.

6. When the intestate dies leaving no lineal descendants, nor parents, nor brothers, nor sisters, nor any of their descendants, nor grand-parents, as a general rule, it is presumed, the inheritance descends to the brothers and sisters of both the intestate's parents, and to their descendants, equally. When they all stand in equal degree to the intestate, they take per capita, and when in unequal degree, per stripes. To this general rule, however, there are slight variations in some of the states, as, in New York, grand-parents do not take before collaterals.

7. When the inheritance came to the intestate on the part of the father, then the brothers and sisters of the father and their descendants shall have the preference, and, in default of them, the estate shall descend to the brothers and sisters of the mother, and their descendants; and where the inheritance comes to the intestate on the part of his mother, then her brothers and sisters, and their descendants, have a preference, and in default of them the brothers and sisters on the side of the father, and their descendants, inherit. This is the rule in Connecticut, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, Tennessee, and Virginia. In some of the states there is perhaps no distinction as to the descent whether they have been acquired by purchase or by descent from an ancestor.

8. When there is a failure of heirs under the preceding rules, the inheritance descends to the remaining next of kin of the intestate, according to the rules in the statute of distribution of the personal estate, subject to the doctrine in the preceding rules in the different states as to the half blood, to ancestral estates, and as to the equality of distribution. This rule prevails in several states, subject to some peculiarities in the local laws of descent, which extend to this rule.

It is proper before closing this article, to remind the reader, that in computing the degrees of consanguinity, the civil law is followed generally in this country, except in North Carolina, where the rules of the common law in their application to descents are adopted, to ascertain the degree of consanguinity. Vide thearticles Branch; Consanguinity; Degree ; Line.

DESCRIPTION is a written account of the state and condition of personal property, titles, papers, and the like. It is a kind of inventory (q. v.) but is more particular in ascertaining the exact condition of the property, and is without any appraisement of it. When goods are found in the possession of a person accused of stealing them, a description ought to be made of them. Merl. Rep. h. t. A description is less perfect than a definition, (q. v.) It gives some knowledge of the accidents and qualities of a thing; for example, plants, fruits, and animals, are described by their shape, bulk, colour, and the like accidents. Ayl. Pand. 60. Description may also be of a person, as description of a legatee. 1 Roper on Leg. chap. 2.'

DESERTER. One who abandons his post; as, a soldier who abandons the public service without leave; or a sailor who abandons a ship when he has engaged to serve.

DESERTION, crim. law, is an offence which consists in the abandonment of the public service, in the army or navy, without leave. The act of March 16, 1802, s. 19, enacts that if any non-commissioned officer, musician, or private, shall desert the service of the United States, he shall, in addition to the penalties mentioned in the rules and articles of war, be liable to serve for and during such period as shall, with the time he may have served previous to his desertion, amount to the full term of his enlistment; and such soldier shall and may be tried by a court martial and punished, although the term of his enlistment may have elapsed previous to his being apprehended or tried. By the articles of war it is enacted that "any noncommissioned officer or soldier who shall, without leave from his commanding officer, absent himself from his troop, company, or detachment, shall, upon.being convicted thereof, be punished according to the nature of his offence, at the discretion of a court martial." Art. 21. By the articles for the government of the

navy, art. 16, it is enacted that "if any person in the navy shall desert to an enemy or rebel, he shall suffer death;" and by art. 17, "if any person in the navy shall desert or shall entice others to desert, he shall suffer death, or such other punishment as a court martial shall adjudge."

DESERTION, torts, is the act by which a man abandons his wife and children, or either of them. On proof of desertion, the courts possess the power to grant the wife, or such children as have been deserted, alimony, (q. v.)

DESERTION, MALICIOUS.— Vide Abandonment, malicious.

DESERTION OF SEAMEN,— contracts, is the abandonment by a sailor of a ship or vessel in which he engaged to perform a voyage, before the expiration of his time, and without leave. Desertion without just cause renders the sailor liable, on his shipping articles, for damages, and will, besides, work a forfeiture of his wages previously earned. 3 Kent, Com. 155. It has been de. cided in England, that leaving the ship before the completion of the voyage is not desertion, in the case, 1, of the seaman's entering into the public service,either voluntarily or by impress; and, 2, when he is compelled to leave it by the inhuman treatment of the captain. 2 Esp. R. 269; 1 Bell's Com. 514, 5th ed.; 2 Rob. Adm. R. 232.

DESIGNATION, wills, is the expression used by a testator instead of the name of the person or the thing he is desirous to name; for example, a legacy to the eldest son of such a person, would be a designation of the legatee. Vide 1 Rop. Leg. ch. 2. A bequest of the farm which the testator bought of such a person; or of the picture he owns painted by such an artist, would be a designation of the thing devised or bequeathed.

DESPACHEURS. The name given in some countries to persons appointed to settle cases of average. Ord. Hamb. t. 21, art. 10.

DESPOTISM, in government, is that abuse of government, where the sovereign power is not divided, but united in the hands of a single man, whatever may be his official title. It is not properly a form of government. Toull. Dr. Civ. Fr. tit. prel. n. 32; Rutherf. Inst. b. 1, c. 20, § 1. Vide Tyranny; Tyrant.

DESSEISED, pleading. This is a word with a technical meaning, which when inserted in an indictment for forcible entry and detainer has all the force of the words expelled or unlawfully, for the last is superfluous, and the first is implied in the word desseised. 8 T. R. 357; Cro. Jac. 32; vide 3 Ycates's R. 39; S. C. 4 Dall. Rep. 212.

DESTINATION, is the application which the testator directs shall be made of the legacy he gives; for example, when a testator gives to a hospital a sum of money, to be applied in erecting buildings, he is said to give a destination to the legacy. Destination also signifies the intended application of a thing. Mill stones, for example, taken out of a mill to be picked, and intended to be returned, have a destination, and are considered as real estate, although detached from the freehold. Heir looms, (q. v.) although personal chattels, are, by their destination, considered real estate; and money agreed or directed to be laid out in land, is treated as real property. Newl. on Contr. ch. 3; Fonbl. Eq. B. 1, c. 6, § 9; 3 Wheat. R. 577. Vide Mill. When the owner of two adjoining houses uses, during his life, the property in such a manner as to make one property subject to the other, and devises one property to one person, and the other to another, this is said not to be an easement or servitude,

but a destination by the former owner. Lois des Bat. partie l,c. 4, art. 3, §3.

DESUETUDE. This term is applied to laws which have become obsolete, (q. v.)

DETAINER. 1. The act of keeping a person against his will, or of keeping goods or property. All illegal detainers of the person amount to false imprisonment, may be remedied by habeas corpus. 2. A detainer or detention of goods is either lawful or unlawful; when lawful the party having possession of them cannot be deprived of it. The detention may be unlawful although the original taking was lawful; as when goods were distrained for rent, and the rent was afterwards paid; or when they were pledged, and the money borrowed and interest was afterwards paid; in these and the like cases, the owner should make a demand, (q. v.) and if the possessor refuse to restore them, trover, detinue, or replevin will lie, at the option of the plaintiff. 3. A writ or instrument issued or made by a competent officer, authorising the keeper of a prison to keep in his custody a person therein named; a detainer may be lodged against one within the walls of a prison, on what account soever he is there. Com. Dig. Process, E 3 b.

DETERMINATION, is the end, the conclusion of a right or authority; as, the determination of a lease, Com. Dig. Estates by grant, G 10, 11, and 12. The determination of an authority, is the end of the authority given, the end of the return day of a writ determines the authority of the sheriff; the death of the principal determines the authority of a mere attorney.

DETINET. Vide Debet et Detinet, and Detinuit.

DETINUE, remedies, is the name of an action for the recovery of a personal chattel in specie. 3

« PreviousContinue »