Appeal of Campbell

• Decision Date: 04 May 1894
• Citation: 64 Conn. 277,29 A. 494
• Parties: Appeal of CAMPBELL.
• Court: Connecticut Supreme Court

29 A. 494

64 Conn. 277

Appeal of CAMPBELL.

Supreme Court of Errors of Connecticut.

May 4, 1894.

Appeal from superior court, Fairfield county; Shumway, Judge.

Appeal of James Campbell from a decree in probate ordering the distribution of the estate of Patrick Sloan, deceased.Cause erased, and Campbell appeals.Affirmed.

Allan W. Paige and George P. Carroll, for appellant.Stiles Judson, Jr., for appellees.George G. Sill, for appelleeSusan Hensen,

BALDWIN, J.The appellant claims to be aggrieved by the probate decree of distribution, as an heir at law and next of kin to the intestate, and also as a citizen of the state, acting for himself and all the rest of its citizens.His contention is that either the real estate in question escheated to the state, in which case he, as one of its citizens, has an interest in defeating a distribution to private individuals, or else that an escheat, so far as he is concerned, has been prevented by force of the statute of 11 & 12 Wm. III. c. 6, in favor of inheritances by natural-born citizens.

It was a rule of the common law of England 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 purcinser."2 Bl. Comm. 220.The requirement that the heir must be of the blood—that is, descended from the first purcinser—was something peculiar to the feudal system.It rested on the principle that feuds were granted for personal service and personal merit and that like service and like merit on the part of the successors in estate of the feudatory would be best assured by admitting to that number only those who derived their natural characteristics from him by descent A legal fiction was next invented by which, failing direct descendants of the person last seised, his collateral heirs were deemed to be of the blood of the first purcinser; that position being arbitrarily assigned to the common ancestor, whether in fact he ever owned the land or not in order to establish their title, however, it was necessary to trace their descent back to him, in each degree, through "inheritable blood."If, therefore, any intermediate ancestor was an alien, as he could have no heirs, so he could have no inheritable blood, and the land escheated.It is this regard paid by the common law to the original purcinser of the estate, real or fictitious, that led it to reckon degrees of consanguinity in accordance with the canon law, by simply going back to the common ancestor, without then proceeding, as by the civil law, to compute the degrees between him and the intestate.The real-estate tenures of a country are necessarily an important feature of its political system.The institutions of feudalism and primogeniture were obviously unsuited to the conditions under which New England was first settled, and her people looked more to the civil than to the common law to guide their policy as to the distribution of landed estates.2 Washb.Real Prop. 404, 408.In October, 1639, the general court of Connecticut, upon the report of a committee which had been appointed "to ripen some orders that were left unfinished, the former court," as to the "settling of lands, testaments of the deceased," and other matters, enacted that intestate estates should be divided by the public (or particular)court between the wife, children, or kindred, "as in equity they shall see meet;" and, if no kindred be found, the court"to administer for the public good of the commonwealth."1 Connecticut Colonial Records, 38; Ludlow's Code, Id. 553.In the Revision of 1673 (Ed.1865, p. 36), the provision is that such estates be divided between the wife and children or kindred "according to law, and for want of law, according to rules of righteousness and equity; and if no kindred be found, the court to administer for the publick good of the colony."At the close of the century, in 1699, a statute of distributions was passed, copied mainly from that adopted several years before in Massachusetts.It put all the children of an intestate on a footing of equality, except that the eldest son was to have a double portion.Statutes, Revision of 1702(Ed.1715, p. 61).In 1713 it was further provided that male heirs should have their shares set out in real estate, so far as this was practicable.Id. p. 192.In 1727(Sess. Laws, p. 110) it was enacted that real estate which came to the intestate by descent should be distributed among his kindred of the blood of the purchasing ancestor, without distinction between those of the whole blood and those of the half blood, nor should any such distinction be made as to real estate which came to the intestate by purchase, and also that "the next degree of kindred in the line transverse shall be admitted to the inheritance before the next degree of kindred in the line ascendant; and the next degree of kindred in the line ascendant shall be admitted to the inheritance before a remoter degree in the line transverse."This statute was omitted in the Revision of 1750.This course of legislation plainly set up for the colony of Connecticut rules...