Escheating Death

Jessie Allen, School of Law, University of Pittsburgh

Book the Second, Chapter the Fifteenth. Of TITLE by PURCHASE, and First by ESCHEAT.

This chapter is about line drawing – and erasing. The focus is ostensibly the line that separates two different ways of acquiring property: by descent or by purchase. But a graphic Table of Descents shows that Blackstone is also interested in lines that connect things. Staring at this map of property’s passage across generations, it struck me that the common law system of property rights both defies and mimics mortality.

If you think about it, it makes sense that there would have to be some kind of extinction of the hereditary line. As a structure built to triumph over death, property has to go on after an owner dies. But only something convincingly lifelike can defeat death, and death is part of life, so to make inheritance a convincing meta-life, there has to be a risk of meta-death: “The law of escheats is founded upon this single principle, that the blood of the person last seised in fee simple is, by some means or other, utterly extinct and gone.” Bk II, 245.

Sitting with my mother in the weeks before she died, I had the impression that she was making an effort to stay connected, even as she lost her connection to the past that had for so long sustained her. It was the first time in all the years of her dementia that she ceased to talk about New Orleans, where she was born and grew up, and she seemed no longer to remember the house on Oak Street where so often in the past decade she was convinced she still lived. In a strange way she became more present just as she began to disappear. I realized that she had begun to catalog the things she saw. First it was couched as commentary: “That’s a really nice picture,” “I like that dress you are wearing,” “the clouds are beautiful.” Then gradually the evaluation fell away, and she would just name things –“trees,”or, more often, colors –“blue” “white.” And then she stopped. You could almost hear the guy wires let go, like that weird stage direction at the end of Chekhov’s Cherry Orchard (a play, incidentally, about the fate of family property): “A distant sound is heard from the sky, as it were, the sound of a snapping string mournfully dying away.”

The family line, the blood line. What is line-like about family life, anyway, that chaos, that crowded (or deserted) space where people come and go and mix it up together? The family porridge, the family cistern, the restless nightmare bed, the old blood bucket.

Is there anything more hopeful than a straight line, more redolent of a desire to straighten out this mess once and for all and get on with it for God’s sake? The optimism of it. Blackstone is the great organizer of common law confusion, but he never fully capitulates to this drive for linear abstraction. On his Table of Descents, ancestors and descendants connect with lines shaded to look three dimensional, like ropes, maybe, or pipes the blood flows through. They zig-zag across the pages like Seussian plumbing or those plastic tubes my daughter used to use to make a sort of roller coaster for the marbles she sent clattering down the track, spinning plastic tumblers and flipping levers as they went. The table’s marriage bonds literally pale by comparison. At various points on the bloodline infrastructure, a circle-wife and square-husband are joined horizontally by dashed lines so slender and faint they look made to be undone, like the basting stitches you rip out of a new suit’s pockets the first time that you wear it.

There’s another kind of line drawing and erasure in this chapter as well. Rule after doctrinal rule is met with exceptions that make it hard to see the rules as rules after all. You could get whiplash trying to follow why “escheat” counts as a purchase rather than an inheritance, and by the time the explanation rounds the last hairpin turn, little is left of the line between purchase and inheritance, or, for that matter, real-life actions and legal fictions:

  1. “Purchase” is every method of acquiring property other than “acquisition by right of blood,” or, inheritance. Someone who inherits acquires property “not by his own act or agreement, but by the single operation of law.” In contrast, a purchaser acquires land “by his own act or agreement; and not by descent from any of his ancestors.” Bk II, 241.
  2. “Escheat” is the transfer of property back to the original grantor after an owner dies without descendants. Escheat happens when there is no one left to inherit the property. So by definition escheat is not inheritance, and must be a form of purchase.
  3. But of course escheat doesn’t usually go back to the natural person who originally granted the land (who is generally long dead by the time the escheat happens), but to one of his descendants, and is thus “a title frequently vested in the lord by inheritance.“ Bk II, 244.
  4. But escheat is still a form of purchase, because law alone is not enough to complete a title by escheat; “it is necessary that the lord perform an act of his own, by entering on the lands,” and that means he acquired title by his own act not strictly by the law of descents. Bk. II, 245.
  5. But “this may also be said of descents themselves, in which an entry or other seisin is required to make a complete title” by inheritance. Bk. II, 245.
  6. Uh-oh.

Ambiguity eats category. Escheat is neither inheritance nor purchase, or maybe it is both, and just as soon as Blackstone lays it down, the line between these two defining property-law structures disappears in a puff. This kind of thing happens constantly in law. In fact, it may be that muddling lines is as much a defining feature of law as drawing them. Things can’t be safely confined to one side or the other of the categorical coin; concepts switch back and forth depending on when and how you look at them, cross over and disappear. Moment by moment, all the boundaries seem solid, then evaporate, then shimmer with what the great anthropologist Mary Douglas called the powers of danger.

My mother asked me what her name was. “I love you,” I said, over and over; “I love you, too,” she mouthed.  Blue. White.  Now you see her.  Now you don’t.

Originally published on October 6, 2014.