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Descent, Law of

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In Roman law, kindred on the paternal side only: the word is used in contradistinction to cognati, kindred on the mother's as well as on the father's side.

In Jewish law, the right of inheritance, based on the written law (Numbers 27:8-11), recognized among ascending and collateral kindred the Agnates only. The text reads:

The traditional construction of this law is found in the Mishnah (B. B. 8:2). The order of succession is as follows:

It will be seen that in default of issue the inheritance ascends to the father of the deceased. The Mosaic law does not provide for such a case; perhaps because the text deals with the original division of the Holy Land, the soil of which is supposed to be inalienable, so that no one can well have an inheritable estate in land until after his father's death. But during the second commonwealth the law of the Jubilee could no longer be carried out. Thus, it would often happen that the estate of a childless person would go tohis surviving father, as it did by the Roman law also; and this in preference to brothers and sisters and their descendants. Neither the Hebrews nor the Romans shared in the strange notion of the common law of England, that land must in no case "ascend."

Children's Share.

Both Bible and Mishnah treat the daughter only in the singular; but if there were several daughters they divided equally. So did the several sons, aside from the double share of the first-born, which, however, attached only to an inheritance from the father (in which his eldest son, irrespective of the situation of the mother, had a double share—Deuteronomy 21:15-17), and not to succession from the mother or brother. Under the words of Scripture, "of all that he hath" (literally, "all that is found with him"), it is held that the double share is allowed only of such estate as the father is possessed of at the time of his death. Hence, if the father's brother dies after him, the first son does not receive a double share of the estate which comes to the sons from this source through the father. And this notion is carried so far that even a loan or other demand owing to the father at the time of death, when collected, is divisible equally; and the eldest son must also recompense his brothers in money for the fruits or corn ears that have grown from buds and stalks since the father's death.

When a first-born son has died before his father, his own children take the double share in the grandfather's estate. Thus, when A has two sons, B and C, who die before him, and A dies, B's daughter (if he has no son) receives two thirds of A's estate, and C's children one third (B. B. 8:4, and Gem. ibid. 122b et seq.; "Ḥoshen ha-Mishpaṭ," § 278); and generally speaking, under the principle of representation, remote descendants of the decedent, or of a common ancestor, always take by families (per stirpes) and never by heads (per capita).

Sisters come after brothers and their descendants. Although they are not named in the Bible, the Mishnah takes account of them (B. B. 8:1): "A man inherits from his mother, and the husband from the wife, and the children of sisters inherit, but do not transmit"; and with these words it excludes the cognates, that is, the kindred on the mother's side.

The right of the surviving husband to inherit the estate of his wife is not derived from Scripture. The Talmud (B. B. 111b) points only to an obscure hint in Numbers 27:11 to support the customary law of inheritance to this extent; but the wife never inherits from the husband.

Illegitimate Children.

Illegitimates inherit, transmit, or, as links in the line of descent, pass a succession, in the same manner as those born in wedlock; even a mamzer (child begotten in incest or adultery) has the same standing as a legitimate child. From this rule are excepted children that are the fruits of intercourse with a "Canaanite" bondwoman or with a Gentile; because such children are reckoned after the mother, not after the father (compare Deuteronomy 7:4). This full kinship of illegitimates (subject only to this exception) with the father and his Agnates is recognized not only for the purpose of succession, but for all purposes; thus the law of the levirate applies to a natural brother. In fact, the Mishnah lays down the rule of equality under the very head of the levirate (Yeb. 2:5): "He who is a brother to somebody from any source puts his brother's wife under the duty of the levirate, and is a brother for every purpose, except when one brother comes from a bondwoman, or from a Gentile mother; when one is a son from any source, he frees his father's wife from the levirate, and is guilty of a deadly sin in striking or cursing the father, and is his son for all purposes, etc." (see also Maimonides, "Naḥalot," 1:7). The only difficulty resting on an heir, related through an illegitimate birth, is how to prove his kinship. Here the law deems recognition by the ancestor who transmits the inheritance sufficient; and the father's word is believed when he says "N. N. is my son" (B. B. 8:6, see Maimonides, c., 4:1-8).

An Israelite who becomes an apostate does not lose his standing as an agnate thereby, neither do his children who are born of an Israelite mother.

Gentiles and Proselytes.

Should the estate of a deceased Gentile fall under the jurisdiction of a Jewish court, it must be given to his Gentile kinsmen according to the rules of the Mosaic law. Though the sages held the chastity of the heathen in such low repute as not to recognize the kinship between heathens and converts, the reputed kinship between one heathen and another is deemed sufficient to determine the right of succession.

Every full-blooded Israelite is supposed to have agnatic heirs; for, if need be, the common ancestor would be found in the head of his tribe. But a proselyte dying without issue born while he was a Jew has no heirs, as the marriage of Gentiles is not recognized as a basis of heirship, and the estate of a proselyte in such cases has no owner (see Mishnah B. Ḳ. 4:7, and elsewhere).

The preference of sons over daughters is greatly moderated and often reversed by the right of the latter to maintenance, based on the marriage contract, or ḳetubah. R. Moses Isserles, in his notes to the "Ḥoshen ha-Mishpaṭ" (§ 276, 4) points out that a person born out of wedlock, whose father is unknown, stands on the same footing as a proselyte. If such a person acquires property and dies without issue, he has no heirs, and his estate belongs to the first occupant. In short, there is no heir by the mother's side either in the case of legitimate or of illegitimate children.

Right of Hotchpot.

The right of hotchpot (collatio), by which advances made by the father in his lifetime to his children are reckoned as belonging to the estate, so as to equalize the shares of the children after his death, is known both to Roman and to English-American law, but was not recognized (Mishnah B. B. 8:7,8) either in sharing the inheritance or in providing maintenance for the daughters. The same rule for the inheritance of lands applies to goods, effects, or slaves; and, as under the Roman law, the whole estate is treated as one aggregate.

Relationship is spoken of in the Mishnah as an objection against acting as judges—in criminal cases as in civil disputes—or as witnesses (Sanh. 3:3,4); but here Agnates are not the only kindred to whom the opposite party may object. In fact, affinity is ground enough.

This is the tradition according to R. Akiba; but the older tradition (first Mishnah) was as follows:

This earlier view seems to have confined the objection to Agnates, and to have proceeded on the ground that the nearest agnate was interested in the property or demand in dispute, and was therefore unfit to act as judge, or to give impartial testimony.