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Kilty's Land-Holder's Assistant, and Land-Office Guide
Volume 73, Page 363   View pdf image (33K)
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LAND-HOLDER'S ASSISTANT. 363

said to have ordained an original rule, since they made no
reference whatever to the ancient practice, further than by
using the word escheat, to denote, according to its known
import, that the land in the circumstances described should
revert, or fall by accidental succession, to the state, and
adopted a principle believed to be in some degree different from
that of the English laws to determine the cases in which this
should take place. The intention of these observations is to
shew the real ground upon which the free government of
Maryland, which permitted the proprietary's long catalogue of
royal rights and seignioral privileges to fall into oblivion
without a parting notice, adopted this single custom. It is
because some system or method was indispensibly requisite
for the disposal of lands in the predicament which has been
described; and the system of escheat, being already in use,
and furnished with necessary attendant rules and forms, was
too convenient to be rejected on account of the name.

    In regard to the principle or rule of escheat adopted by the
state, to ascertain in what particulars it is new it would be
necessary in the first place to speak of the English law upon
that subject, so far, at least, as regards escheats for want of
heirs, for, with forfeitures of any kind our present law of
escheat has nothing to do. I declined in the former book
to examine this matter, because I could not reconcile the
practice with any settled principle whatever: I shall still
decline any attempt towards a full explanation of the English
law of escheat, for, it is a subject not treated in any
authorities within my reach with that explicitness which might enable
a (a) person not professionally conversant in the science of the
law to state, with confidence, in what consists that failure of
heirs by means of which lands become escheat. I will just
observe that the rule laid down in law abridgements is that a
person's lands are escheat when he dies without heirs,
general or special. The general heir, or heir at law, is he who
after his father or ancestor's death hath a right to, and is
introduced into, all his lands, tenements, and hereditaments;
and it is held that he must be of the whole blood, not a
bastard, and not an alien. The special heir I shall not venture to
define, further than by saying that, in a general way, he is one
who does not claim, like the other, by the mere act of God,
and right of blood; that the description includes the issue in

    (a) It is proper here, to observe that I do not throughout this
compilation meddle with any subject upon which I have not endeavored to
obtain information by reading; and that, although I have not omitted such
means as mere conversations with a few professional gentlemen might
afford to connect or confirm my impressions, I write finally from those
impressions such as they are, and not under the sanction of any other
person's opinions consequently no other person is responsible for the
correctness of any thing here advanced.





 
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Kilty's Land-Holder's Assistant, and Land-Office Guide
Volume 73, Page 363   View pdf image (33K)
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