An understanding of inheritance laws is very useful, even critical, to genealogists. When a person died intestate, or failed to distribute all his property in a will, or acquired property subsequent to writing his last will, the laws of succession determined who inherited that property. Inheritance of personal property was subject to a different process than real property, and that process is treated separately in a separate article. Our interest here is in inheritance of the land, the real property.
Feudal England had developed an inheritance process for land which was designed to retain lands, as intact as possible, in the hands of males and especially first-born males. The first person in the line of succession inherited all of an intestate’s land, and the first-born son was at the head of the line.1 While the New England colonies quickly replaced this common-law succession with laws dividing the land among all a deceased’s children (typically giving the eldest a double share), the southern colonies preserved the ancient custom of primogeniture until after the Revolution. Understanding the law of succession to real property is important to genealogists, for we can use land ownership to identify relationships (or the lack of them) that might not otherwise be discernible.
It should be noted that husbands and wives were not heirs of one another insofar as land. Land was rarely left to wives by a husband’s will, and wives figured in no way in inheritance of real estate. Instead, wives and husbands held a limited interest in the lands of a deceased spouse. (See the separate article on dower and its male counterpart, curtesy.) While few husbands devised land outright to their wives, many husbands wrote wills giving their wives a lifetime interest in land, meaning that possession by the heir was delayed until the death of the widow.
Primogeniture applied only to real property, not to personal property. Throughout the colonial period, all of the land of an intestate person in the southern colonies passed directly to an heir in a specific line of succession completely outside any probate process. That is, the title passed “automatically”, requiring no action on the part of any person or court. Likewise, if a will failed to devise a piece of land, the line of succession determined who inherited. And any real property acquired after a will was written was subject, not to the will’s provisions, but to the law of succession.2 The southern colonies followed English common law in this regard until after the Revolution, when each state introduced its own succession statutes. This discussion is limited to land held in fee simple. A separate page is devoted to the subject of land held in fee tail.
The Succession Principles
Most genealogists think of primogeniture as “the eldest son inherits”, but it’s much more complex than that. Valuable genealogical clues can be wrung out of succession of land if one understands lines of inheritance, the effect of “whole blood”, and other factors. To understand the line of succession, it is helpful to review the principles that, taken together, defined the precise sequence of heirs. Here is a summary of the principles as set forth by Sir William Blackstone, together with a brief explanation.3
- … inheritances shall lineally descend to the issue of the person last actually seized, in infinitum; but shall never lineally ascend.
In other words, the line of succession is determined “downward” from the person who actually held title last, to include that person’s issue (children, grandchildren, etc.). Later principles will address the case in which the person had no living descendants. “Actually seized” is a key phrase, in that it requires the deceased to have actually held the title rather than, say, a future interest in the land.
- … the male issue shall be admitted before the female.
This means that sons will be higher in the line of succession than daughters, regardless of their respective order of birth.
- … where there are two or more males in equal degree, the eldest only shall inherit; but the females all together.
The line of succession for males in the same family is determined by birth order. For instance, the eldest son is first in line. If the eldest son dies without heirs then the second-born son is next in line, and so on. If there are no sons, the daughters inherit as a group, with equal shares to each regardless of their birth order. By rule 2, the daughters inherit only if there are no sons.
- … 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.
This means that a child assumes his deceased father’s or mother’s position in the line of succession. For example, if the eldest son dies leaving one or more children of his own, those children assume the highest positions in the order of succession in the sequence defined by Rules 2 and 3. That is, the heir becomes the eldest son’s own eldest son (or his daughters if there are no sons.) Notice that all the issue of the eldest son take precedence over the second-born son. The concept that children are due their parent’s position in the line of succession continues, of course, into modern times.[Note that Principles 1 through 4 are sufficient to cover the case in which the deceased has issue. The final three Principles address the case in which the deceased has no lineal descendants. Most commonly, we see the case where one sibling inherits from another, or when the closest relative is a cousin or aunt or uncle. These situations can become quite complex, and I recommend reading Blackstone’s detailed explanations.]
- …on failure of lineal descendants, or issue, of the person last seized, the inheritance shall descend to the blood of the first purchasor; subject to the three preceding rules.
If a man dies with no issue (no living descendants), then we must consider the heirs of the original purchaser of the land.4 In this context, “original purchaser” normally means the person within the family who first acquired the land.5 For example, suppose John Smith buys land which he conveys by will or deed to his son Samuel Smith, who then dies intestate without issue of his own. The line of descent will then revert to the descendants of John Smith, the “original purchaser” and specifically (by Rule 1) to those who descend. Note that the original purchaser could be several generations back. This rule is then combined with Rules 6 and 7 to determine the order of succession subject to the first few rules.Note also that this rule, in combination with Rule 1, would generally exclude the father of the deceased. In England, this rule was replaced in the 19th century to permit a father to inherit from a childless son.
- …the collateral heir of the person last seized must be his next collateral kinsman, of the whole blood.
At the risk of oversimplifying, in most cases this will be combined with Rule 5 to mean that the line of descent of the most recent ancestor applies. Thus the heirs of the deceased’s father become the heirs of the deceased (subject to the caveat in the next paragraph). In our example, Samuel Smith’s next eldest brother, or his issue, inherits. Or his sisters, if there are no brothers or issue of brothers. More generally, the next heir of the person last seized (Samuel Smith in our example) must be (a) a direct descendant of the original purchaser who is (b) the closest available relative in degree (i.e., a sibling is preferred over a cousin) to Samuel Smith and (c) not in an earlier generation (by Rule 1). The closest such relatives are siblings. Note that even if his siblings are dead, the issue of a brother (or sister) assume their parent’s place by Rule 4. If he had no brothers or sisters, we move back a generation to the descendants of his grandfather, and a first cousin (or their issue) would become the heir, as determined by Rules 2 and 3.There is one very important additional criterion in this Principle. ”Whole blood” is the key phrase. This means that the heir must be descended from the same pair of common ancestors. In our example, this eliminates all half-brothers or half-sisters from consideration. That is, two sons by different mothers cannot inherit from one another even though they can inherit from the common father. For instance, when we see a deceased man’s land being inherited by a cousin rather than a brother, we can be certain that they were children of different mothers. As we consider prior generations, this is complicated enough that I recommend reading Blackstone’s lengthy explanation of this principle and its application.
- …in collateral inheritances the male stocks shall be preferred to the female; (that is, kindred derived from the blood of the male ancestors shall be admitted before those from the blood of the female) — unless where the lands have, in fact, descended from a female.
This means that that the descendants of those with a common gender with the original purchaser are preferred. See Blackstone for comments on this rarely applied principle.
The heir to a deceased person’s land would be the person highest on this list. (The list is truncated here but covers most situations we see in genealogy.)
- The eldest son
- If the eldest son is dead but left children of his own, then to his children in this sequence:
- His oldest son who is either alive or has died leaving issue of his own
- If no sons and no issue of sons, then to his daughters in equal shares.
- If the eldest son is dead and has no issue, then the next oldest son who is either living or has left issue of his own (as in the sequence above)
- If there are no sons and no issue of sons, then the daughters inherit as a group, sharing the inheritance equally. If any daughter is dead, then her own children (in the above sequence) inherit her share.
- If there are no living issue of the deceased, then his eldest brother (of the same mother) who is either living or has left issue
- If he had no brothers of the same mother, then his whole-blood sisters (or their issue) inherit as a group.
- If the deceased had no siblings by the same mother, then we apply Rules 5-7 to determine the his heir
Post-Revolution Inheritance Laws
After the Revolution, the southern states eliminated primogeniture in favor of a system of distribution which was similar for both real property and personal property. The new statutes were generally similar to one another, with the major change being that the intestate’s land was shared among all his children. Georgia passed its law in 1777. The Virginia law, passed in 1784, is treated below. North Carolina initially enacted a law in 1784 which divided land equally among the sons, or among the daughters if there were no sons. This was amended in 1795 to give equal shares to both sons and daughters, as in the other states. South Carolina passed a similar law in 1791, providing that the children would share equally regardless of gender. Note that in each case, the notion that grandchildren would retain and represent their deceased parent’s interest was retained.
Virginia’s 1784 act, to be effective 1 January 1787, is representative. It defined the line of succession for real property, either for an intestate or for land not distributed in a will, as follows:6
- The children of the deceased, in equal shares to each. If a child was deceased, his or her own children inherited their parent’s share.
- If the deceased had no children, then his father inherited.
- If his father was dead, then his mother, brothers and sisters inherited in equal shares. (If a sibling was deceased, his or her children equally divided their parent’s share.)
- If the deceased had no issue, no living parents, no siblings, and no descendants of siblings, then the inheritance was distributed to grandparents, aunts, and uncles in a similar sequence. The first step was to divide it in half with one half distributed to his paternal line and the other half to his maternal line. These shares went to his respective grandfathers, or his aunts and uncles (or their descendants) in a similar order. (See the original act for the details of these situations, as well as for those situations involving fractional bloodlines.)
The major change after the Revolution was that the children shared equally, regardless of age or gender. Note also that the father, rather than a sibling, was the first contingent heir. The deceased’s widow remained outside the line of succession for real property, receiving only her dower interest.
A significant result for genealogists was that the deceased’s land was now likely to descend to more than one person. (Previously, this was possible only when his daughters or sisters inherited as a group.) Thus, for the first time, land had to be valued and a process was needed to divide, or partition, the land among the heirs.
This summary does not attempt to address the post-Revolution inheritance laws insofar as consanguinity is concerned. Each state dealt with half-siblings rights differently.
- That is, the land held in fee simple. See separate discussion of lands held in fee tail. [↩]
- In common law, land had to be explicitly devised. That is, a will could not devise land acquired after the will was written, regardless of the language used in the will. [↩]
- See Commentaries on the Laws of England, Sir William Blackstone (Published 1765-1769), Book 2, Chapter 14. [↩]
- “Original Purchaser” in this context means that someone who acquired the land other than by inheritance under the succession law. It includes not only purchase in the modern sense but also acquisition by gift or other means. Note that the original purchaser could have been someone who acquired the land via a will. [↩]
- If this person is unknown, the descent can become complicated. See Blackstone for the gory details. [↩]
- Hening, Vol. 12, pp138, An Act Directing the Course of Descents. [↩]