20. A Bill Directing the Course of Descents
Be it enacted by the General Assembly, that henceforth when any person having title to any real estate of inheritance, shall die intestate as to such estate, it shall descend and pass in parcenery1 to his kindred male and female in the following course: that is to say:
To his children or their descendants, if any there be:
If there be no children, nor their descendants, then to his father:
If there be no father, then to his mother, brothers and sisters and their descendants, or such of them as there be:
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:
First to the grandfather.
If there be no grandfather, then to the grandmother, uncles and aunts on the same side, and their descendants, or such of them as there be:
If there be no grandmother, uncle nor aunt, nor their descendants, then to the great-grandfathers, or great-grandfather if there be but one:
If there be no great grandfather, then to the great-grandmothers, or great-grandmother if there be but one, and the brothers and sisters of the grandfathers and grandmothers, and their descendants, or such of them as there be:
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.
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 intestates death.
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.
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.
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.
And where any of the 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 chuse to come into partition with the other parceners, such advancement shall be brought into hotchpot with the estate descended.
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 of transmitting inheritance on the part of their mother, in like manner as if they had been lawfully begotten of such mother.
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 of marriages deemed null in law shall nevertheless be legitimate.
Report description begins Report of the Committee of Revisors Appointed by the General Assembly of Virginia in MDCCLXXVI, Richmond, 1784 description ends , p. 16. The text of the Act as adopted is in Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends xii, 138–40.
The Bill was presented by Madison on 31 Oct. 1785, passed by the House on 22 Nov., and agreed to by the Senate 30 Nov. (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , Oct. 1785, 1828 edn., p. 12–15, 40, 47, 67, 132). The Bill as proposed by the Committee of Revisors was adopted without alteration, save for the addition of a final clause providing that the Act should be in force beginning 1 Jan. 1787. TJ regarded this reform in the rules of descent as being among the most important parts of the revision of the laws; indeed, this subject headed the list of “the most remarkable alterations proposed” that he drew up in Notes on Virginia. The important departure provided for in this Bill was that the lands of any person dying intestate should “be divisible equally among all his children, or other representatives, in equal degree” (Ford, description begins Paul Leicester Ford, ed., The Writings of Thomas Jefferson, “Letterpress Edition,” N.Y., 1892–1899 description ends iii, 243). The degrees of legal consanguinity and other parts of the law of descents as here set forth were agreed upon by the Committee of Revisors (see Document i, above). This was at TJ’s request, though, in view of his opposition to primogeniture and his provision for coparceny in his proposed Constitution, it is obvious that he took the lead in making the proposed change. His remembered statement in the Autobiography is explicit on this point: “As the law of Descents, and the criminal law fell of course within my portion, I wished the committee to settle the leading principles of these, as a guide for me in framing them. And, with respect to the first, I proposed to abolish the law of primogeniture, and to make real estate descendible in parcenary to the next of kin, as personal property is by the statute of distribution. Mr. Pendleton wished to preserve the right of primogeniture, but seeing at once that that could not prevail, he proposed we should adopt the Hebrew principle, and give a double portion to the elder son. I observed that if the eldest son could eat twice as much, or do double work, it might be a natural evidence of his right to a double portion; but being on a par in his powers and wants, with his brothers and sisters, he should be on a par also in the partition of the patrimony, and such was the decision of the other members” (Autobiography, Ford, description begins Paul Leicester Ford, ed., The Writings of Thomas Jefferson, “Letterpress Edition,” N.Y., 1892–1899 description ends i, 59). For the 1748 Act governing distribution of intestate estates, which set forth the law of descents as it stood prior to the Revolution, see Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends v, 444–8.
1. The Act of 1785, as given in Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends xii, 138, has an erroneous reading: “parency.”