Descent

Discent. [Lat. descetnus; Fr. discent.'] The title by which a man, on the death of his ancestor, acquires his estate by right of representation, as his heir at law. 2 Bl. Com. 201. Co. Litt. 13 b. 3 Cru. Dig. 362. 4 Ken Cs Com. 374. — Succession by law to an estate in lands. jffalli/ax Anal. b. 2, c. 9, num. 2, 4.

— Discent. when land, &c., after the death of the ancestor, is cast by course of law upon the heir. Co. Litt. 237 b. 2 CrcM's Real Prop. 1012, § 2390. — The passage or transmission of an estate from the ancestor to the heir, usually in the descending line.* — The title to inherit land by reason of consanguinity, as well where the heir shall be an ancestor or collateral relation, as where he shall be a child or other issue. 1 Steph. Com. 357, note. This last is the new definition adopted by the English statute 3 & 4 Will. IV. c. 106. See Aneest&r, Heir^ Inheritance. Descent, as applied to the transmission of estates, is a term wholly derived from the feudal law, in which, after feuds or fiefs became hereditary, it was an established maxim that they should always be transmitted downwards from father to son, and so lineally, while heirs continued, and never in the opposite direction. Feud. lib. 2 t. 60. Id. 4 t. 84. Esprit des Lois, liv. 31, c. 33. Frsk. Inst. b. 3, tit. 8. 2 Bi. Com. 211. Hence, doubtless, the adoption of the word descent in its full, proper, and peculiar sense of passage downwards, as expressive of this doctrine, in preference to the Roman term succession, (successio,) which had no such exclusive meaning. Esprit des Lois, uh. sup. See Succession. The feudal law of descent was obviously founded on principles peculiar to the system, but it had also a quality which seems to have aided its reception and establishment, especially in England, namely, its seeming conformity to the order of nature. Hence the observation of Glanville, that an inheritance naturally descends, never naturally ascends; {hcereditas naturali" ter descendit, nunquam naturaliter ascendit.) Olanv. lib. 7, c. 1. Hence, also, the employment by.Bracton of the very expressive figure of a heavy body falling downwards, to illustrate the old English doctrine of descent, as denoting the natural course of succession. Descendit itaque jus, quasi ponderosum quid cadens deorsum, recta linea vel transvermli, et nunquam re-aacendit ed vid qua descendit; the right therefore descends like some heavy body falling downwards, in the right or transverse line, and never re-ascends the same way it descends. Bract, fol. 62 b. The feudal doctrine of descent was, however, adopted in England with a material quahfication confining it to lineal succession. Collaterally, the inheritance was allowed to ascend. A latere tamen ascendit. Bract, ub. sup. The ancient rule, thus modified — ^that inheritances shall lineally descend, but shall never lineally ascend — continued to be a leading canon of descent in English law almost down to the present time. It was abolished by statute 3 & 4 Will. IV. c. 106, which declares that " every lineal ancestor shall be capable of being heir to any of his issue," 1 Steph. Com. 378. In American law the ascent of estates has long been authorized. 4 JS'ent's Com. 392, 393 et seq. But, notwithstanding this material departure frgm the primitive or feudal law on this subject, the characteristic language of that law has been in a marked degree retained; the primitive terms descent and descend bein^ constantly used even to denote transmission in an upward direction. Thus, an inheritance is said to " descend to an ancestor," as " to a father." 1 Steph. Com. 376. 2 HUliard's Real Prop. c. 77. The ancient law of England, even in Bracton's time, was much more precise and discriminative; a right or estate being said to a;scend or descend according as it passed upwards or downwards in the lines of consanguinity. Nunquam re-ascendit. Bract, fol. 62 b. A latere ascendit. Id, ibid. So, in the Scotch law, it is said " the succession mounis upward to the father." Ersk. Inst. b. 3, tit. 8, § 9. But notwithstanding the ej^mple of very high American authority, (4 Kent's Com. 393, 397,) the terms ascent and ascend have never taken firm root even in American law; nor is the derivative ascendant employed with the frequency which its peculiar propriety would seem to suggest. See Ascendant. Descent was denoted in the Roman law by the term successio, which is also used by Bracton, and from which has been derived the succession of the Scotch and French jurisprudence. See Successio, Succession.