SEC. 10. And so on in other cases without end; passing to the nearest lineal male ancestors, and for the want of them to the lineal female ancestors in the same degree, and the descendants of such male and female lineal ancestors, or to such of them as there be. SEC. 11. But no right in the inheritance shall accrue to any person whatever, other than to children of the intestate, unless they be in being and capable in law to take as heirs at the time of the intestate's death. SEC. 12. And where for want of issue of the intestate, and of father, mother, brothers and sisters, and their descendants, the inheritance is before directed to go by moieties to the paternal and maternal kindred, if there should be no such kindred on the one part, the whole shall go to the other part: And if there be no kindred either on the one part or the other, the whole shall go to the wife or husband of the intestate. And if the wife or husband be dead, it shall go to her or his kindred, in the like course as if such wife or husband had survived the intestate and then died, entitled to the estate. SEC. 13. And in the cases before mentioned where the inheritance is directed to pass to the ascending and collateral kindred of the intestate, if part of such collaterals be of the whole blood to the intestate, and other part of the half blood only, those of the half blood shall inherit only half so much as those of the whole blood: But if all be of the half, blood, they shall have whole portions, only giving to the ascendants (if there be any) double portions. Per capita. Per stirpes. SEC. 14. And where the children of the intestate, or his mother, brothers, and sisters, or his grandmother, uncles, and aunts, or any of his female lineal ancestors living, with the children of his deceased lineal ancestors male and female in the same degree come into the partition, they shall take per capita, that is to say by persons; and where a part of them being dead, and a part living, the issue of those dead have right to partition, such issue shall take per stirpes, or by stocks, that is to say, the share of their deceased parent. SEC. 15. And where any of the children of the intestate, or their Advancements issue, shall have received from the intestate in his life time any real estate by way of advancement, and shall choose to come into partition with the other parceners, such advancement shall be brought into hotchpot with the estate descended. Hotchpot. SEC. 16. In making title by descent it shall be no bar to a de- Aliens, descent mandant that any ancestor through whom he derives his descent through. from the intestate, is or hath been an alien. Bastards also shall be capable of inheriting or of transmitting inheritance on the part of Bastards, thro' their mother, in like manner as if they had been lawfully begotten of such mother. mothers. Bastards le SEC. 17. Where a man having by a woman one or more children, shall afterwards intermarry with such woman, such child or children, gitimated. Mother not to inherit in certain cases. Father not to inherit in certain cases. Alienage of an ancestor, no bar in a title by descent. if recognized by him, shall be thereby legitimated. The issue also in marriages deemed null in law shall nevertheless be legitimate. 1790. IN FORCE FROM FIRST OF MARCH 1791. AN ACT to amend the act entitled "An act directing the course of descents :" SEC. 4. Where an infant shall die without issue, having title to SEC. 5. In making title by descent in any suit whatsover, it shall be no bar to a party, that an ancestor, through whom he derives his descent from the intestate, is, or hath been an alien. SEC. 6. One parcener may maintain an action of waste against Rights of par- another, but no parcener shall have or possess any privilege over another in any election, division or matter to be made or done, concerning lands which shall have descended to them. ceners. SEC 7. So much of all acts as comes within the purview of this Repealing act, and particularly of the act entitled "An act directing the course of descents," shall be and the same is hereby repealed. clause. 1796. IN FORCE FROM FIRST OF MARCH 1797. AN ACT to reduce into one the several acts directing the course of descents: SEC. 1. Be it enacted by the General Assembly, That henceforth How dece- when any person, having a title to any real estate of inheritance, shall die intestate as to such estate, it shall descend and pass in parcenary to his kindred, male and female, in the following course, that dent's estate to descend. is to say, 563 SEC. 2. To his children, or their descendants, if any there be. To his children. SEC. 3. If there be no children, nor their descendants, then to his father. SEC. 4. If there be no father, then to his mother, brothers and sisters, and their descendants, or such of them as there be. To his father. Mother, brothers, &c. Mother not to tain cases. SEC. 5. Where an infant shall die without issue, having title to any real estate of inheritance, derived by purchase or descent from inherit in certhe father, the mother of such infant shall not succeed to, nor enjoy the same, nor any part thereof, if there be living any brother or sister of such infant, or any brother or sister of the father, or any lineal descendant of either of them, saving however to such mother any right of dower which she may claim in the said real estate of inheritance. (b) Father not to tain cases. SEC. 6. Where an infant shall die without issue, having title to any real estate of inheritance, derived by purchase or descent from inherit in certhe mother, the father of such infant, nor any issue which he may have by any person other than the mother of such infant, shall succeed to, or enjoy the same, or any part thereof; if there be living any brother or sister of such infant, or any brother or sister of the mother, or any lineal descendant of either of them, saving however to such father the right which he may have as tenant by the curtesy in the said estate of inheritance. SEC. 7. If there be no mother, nor brother, nor sister, nor their descendants, then the inheritance shall be divided into two moieties, one of which shall go to the paternal, the other to the maternal kindred in the following course, that is to say, SEC. 8. First to the grand-father. SEC. 9. If there be no grand-father, then to the grand-mother, uncles and aunts on the same side, and their descendants, or such of them as there be. SEC. 10. If there be no grand-mother, uncles nor aunts, nor their descendants, then to the great grand-fathers, or great grand-father, if there be but one. Divided into moieties, and how disposed of Grandfather. Grandmother. Great-grand father. Great-grand SEC. 11. If there be no great grand-father, then to the great grand-mothers, or great grand-mother, if there be but one; and the mother. (b) Where an infant having title to real estate derived from the father, dies without issue, leaving a mother, also uncles and aunts by the father's side, and a half brother by the mother's side, the estate descends to the half brother. The act of 1785 is only changed so far as to exclude the mother, but not her son.-Clay, &c. v. Cousins, &c. 1 Mon. 75. 2. When land, after the death of the mother, descends from her father to her son, who dies in infancy, without children, the land passes to the son's father, rather than to the mother's brothers and sisters.-Duncan v. Lafferty's Adm3r. &c. 6 J. J. Mar. 47. 3. The above section excludes the father from the inheritance only in cases where the estate came from the mother herself to the infant.-Ib. 4. If an infant who has inherited real estate from the mother, live until he has attained twenty-one years of age, and then dies without issue, his father, and not his mother's relations, succeeds to his estate. Ibid. To nearest lineal male an cestor. Then female. No right to accrue unless the person be in being. Where no kindred on part of the mother, all to go to the father's, and vice versa. Half blood, how to inherit. Where to brothers and sisters of the grand-fathers and grand-mothers and their descendants or such of them as there be. SEC. 12. And so on in other cases without end, passing to the nearest lineal male ancestors, and for the want of them, to the lineal female ancestors in the same degree; and the descendants of such male and female ancestors, or to such of them as there be. SEC. 13. But no right in the inheritance shall accrue to any persons whatever other than to children of the intestate, unless they be in being and capable in law to take as heirs at the time of the intestate's death. SEC. 14. And where for want of issue of the intestate, and of father, mother, brothers and sisters, and their descendants, the inheritance is before directed to go by moieties to the paternal and maternal kindred: if there should be no such kindred on the one part, the whole shall go to the other part; and if there be no kindred either on the one part or the other, the whole shall go to the "wife or the husband of the intestate: and if the wife or husband be dead, it shall go to his or her kindred in the like course as if such wife or husband had survived the intestate, and then died entitled to the estate. SEC. 15. And in the cases before mentioned, where the inheri tance is directed to pass to the ascending and collateral kindred of the intestate, if part of such collaterals be of the whole blood to the intestate, and other part of the half blood only, those of the half blood shall inherit only half so much as those of the whole blood; but if all be of the half blood, they shall have whole portions, only giving to the ascendants (if there be any) double portions. (c) SEC. 16. And where the children of the intestate, or his mother, brothers and sisters, or his grand-mother, uncles and aunts, or any take per capita. of his female lineal ancestors, living with the children of his deceased lineal ancestors, male and female, in the same degree come into the partition, they shall take per capita, that is to say, by persons; and where a part of them being dead and a part living, the issue of those dead have right to partition; such issue shall take Where per per stirpes, or by stocks, that is to say, the share of their deceased stirpes. parent. Where estate shall be brought into hotchpot. SEC. 17. And where any children of the intestate, or their issue, shall have received from the intestate in his life time, any real estate by way of advancement, and shall choose to come into partition with the other parceners, such advancement shall be brought into hotchpot with the estate descended. (c) Where all the relations on one side are of the half blood, they shall nevertheless be entitled collectively to a moiety of the estate.-Pinkard, &c. v. Smith et ux. Litt. Sel. Cas. 331. 2. The clause restricting the portions of the half blood to half as much as the whole blood, must be understood to apply to the half blood on the part of the same ancestor.-Ibid. Alienage no bar to descent. Bastards may inherit on part SEC. 18. In making title by descent, it shall be no bar to a demandant that any ancestor, through whom he derives his descent from the intestate, is or hath been an alien. Bastards also shall be capable of inheriting or transmitting inheritance on the part of of mother. their mother, in like manner as if they had been lawfully begotten of such mother. (d) SEC. 19. Where a man, having by a woman one or more children, shall afterwards intermarry with such woman, such child or children, if recognized by him, shall be thereby legitimated. The issue also in marriage deemed null in law, shall, nevertheless, be legitimate. (e) SEC. 20. Wherever any lands shall descend from a person dying intestate to two or more heirs, any one of whom shall be an infant, feme covert, non compos mentis, or beyond sea, and the dividend of each heir shall not exceed the value of thirty pounds in the opinion of any court of chancery, it shall be lawful for such court to direct the sale of such lands, and the distribution of the money arising therefrom according to the rights of each claimant: Provided, always, That each heir residing within this Commonwealth, shall be first duly summoned to show cause (if any he can) against such sale: and where any heir shall reside without this Commonwealth, the court shall make an order for publication, which order being in (d) Previous to the year 1775, Hugh Stevenson, of Virginia, cohabited with Aun Whaley, also of Virginia, and had by her the appellants, whom he recognized as his children. In July 1775, he made his will, which was duly proved after his decease. In this will he described them as the children of himself and his wife Ann, and devised the whole of his property to them and their mother. In June 1776, he was appointed a colonel in the Virginia line on continental establishment, and died in the service, having, in July 1776, intermarried with the mother, the said Ann Whaley, and died leaving her pregnant with a child, who was afterwards born and named Richard Stevenson. After the death of Hugh Stevenson, and the birth of Richard, a warrant for a tract of military land was granted to the posthumous son, Richard, who died in 1796, in his minority, without wife or children, and without having located or disposed of the warrant. [His mother also died in 1796. Held, that the children of Hugh Stevenson were not entitled to the lands, as devisees under his will; nor did the will so far operate as to render them capable of taking, under the act of Virginia, entitling the legal representatives of an officer dying in the service, to receive the land which the officer would have received, (1 Litt. 422,) as being named his Certain issue legitimated. Where estates when divided, exceed not £30 to be sold. Proviso. legal representatives in the will.-Stevenson's Heirs v. Sullivant, 5 Wheat. 207. 2. The appellants were not legitimated by the and his recognition of them as his children, under marriage of Hugh Stevenson with their mother, the 19th section of the act of 1785, of Virginia, which provides, "that where a man having by a woman one or more children, shall afterwards intermarry with such woman, such child or children, if recognized by him, shall be thereby legitimated."-Ibid. 3. The appellants were not, as illegitimate children of Hugh Stevenson and Ann Whaley, capable of inheriting from Richard Stevenson, under the 18th section of the same act of descents, which provides, that "bastards shall be capable of inheriting, or of transmitting inheritance, on the part of the mother, as if they had been lawfully begotten of such mother."-Ibid. (e) Although a child or children may be recognized and claimed, by a man who shall intermarry with the mother, as his, yet if the evidence shows that such child or children were not his, they are not legitimated by the mere recognition.-Hamilton et ux. v. Hunt et ux. MS. Opinion, Spring Term, 1834. |