Duhaime's Law Dictionary


Primogeniture Definition:

Oldest son inherits.

Related Terms: Dower

Primogeniture - oldest or first-born child.

Used in wills and estate common law to refer to a dated and antique inheritance law which usually required that a deceased person's property go to his oldest living son to the total exclusion of the spouse or female descendants, sometimes in the event of intestacy.

The system is an old relic of ancient Greek Law. Sparta implemented this system as a response to having too many men and not enough land. It continued on through history to become a vestige of common law.

Commenting in the British public affairs journal, Quarterly Review, 1848, on the comparison between England and France, then experimenting with an elimination of primogeniture, a lawyer of the epoch wrote:

"Notwithstanding the attempts which have been made, under various guises, to inoculate us with hostility to the law of primogeniture, the great bulk of our community remain firm to the old and true faith. And no wonder:—not only can we distinctly trace much of our own prosperity and the stability of our institutions to the principle of primogeniture, but we have only to cast our eyes across the Channel to perceive the vast importance, both politically and socially, of maintaining it inviolate. To the abandonment of it France principally owes her never-ending troubles; and as she perseveres in her present course, in the minute subdivision of her soil, so will her future be more and more overshadowed."

In his 1997 article, John Orth described primogeniture as follows (citing William Blackstone), that when there was no will:

".... the first-born male then inherited to the exclusion of all others.

"Of the seven common-law canons of inheritance, the first three operated together to produce the result in favor of the first-born male, often described as the law of primogeniture: (1) inheritances shall lineally descend to the issue of the person last actually seised, in infinitum; but shall never lineally ascend, the male issue shall be admitted before the female, where there are two or more males in equal degree, the eldest only shall inherit; but the females all together.

"Surviving spouses were not heirs at common law. Widows were entitled to dower (a life estate in one-third of the lands of which their husbands were seized during marriage). If live issue was born to the marriage, widowers were entitled to curtesy (a life estate in all lands of which their wives were seized during marriage)."

REFERENCES:

  • Orth, John V. , Tenancy by the Entirety: The Strange Career of the Common-Law Marital Estate, 1997 BYU L. Rev. 37, footnote 13.

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