Front Page Titles (by Subject) CHAPTER XIV.: OF TITLE BY DESCENT. - Commentaries on the Laws of England in Four Books, vol. 1
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CHAPTER XIV.: OF TITLE BY DESCENT. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 1 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893). Vol. 1 - Books I & II.
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OF TITLE BY DESCENT.
The several gradations and stages, requisite to form a complete title to lands, tenements, and hereditaments, having been briefly stated in the preceding chapter, we are next to consider the several manners, in which this complete title (and therein principally the right of property) may be reciprocally lost and acquired: whereby the dominion of things real is either continued or transferred from one man to another. And here we must first of all observe, that (as gain and loss are terms of relation, and of a reciprocal nature) by whatever method one man gains an estate, by that same method or its correlative some other man has lost it. As where the heir acquires by descent, the ancestor has first lost or abandoned his estate by his death: where the lord gains land by escheat, the estate of the tenant is first of all lost by the natural or legal extinction of all his hereditary blood: where a man gains an interest by occupancy, the former owner has previously relinquished his right of possession: where one man claims by prescription or immemorial usage, another man has either parted with his right by an ancient and now forgotten grant, or has forfeited it by the supineness or neglect of himself and his ancestors for ages: and so, in case of forfeiture, the tenant by his own misbehaviour or neglect has renounced his interest in the estate; whereupon it devolves to that person who by law may take advantage of such default: and, in alienation by common assurances, *[*201the two considerations of loss and acquisition are so interwoven, and so constantly contemplated together, that we never hear of a conveyance, without at once receiving the ideas as well of the grantor as the grantee.
The methods therefore of acquiring on the one hand, and of losing on the other, a title to estates in things real, are reduced by our law to two: descent, where the title is vested in a man by the single operation of law; and purchase, where the title is vested in him by his own act or agreement.(a)1
Descent, or hereditary succession, is the title whereby a man on the death of his ancestor acquires his estate by right of representation, as his heir at law. An heir therefore is he upon whom the law casts the estate immediately on the death of the ancestor:2 and an estate, so descending to the heir, is in law called the inheritance.
The doctrine of descents, or law of inheritances in fee-simple, is a point of the highest importance; and is indeed the principal object of the laws of real property in England. All the rules relating to purchases, whereby the legal course of descents is broken and altered, perpetually refer to this settled law of inheritance, as a datum or first principle universally known, and upon which their subsequent limitations are to work. Thus a gift in tail, or to a man and the heirs of his body, is a limitation that cannot be perfectly understood without a previous knowledge of the law of descents in fee-simple. One may well perceive that this is an estate confined in its descent to such heirs only of the donee as have sprung or shall spring from his body; but who those heirs are, whether all his children both male and female, or the male only, and (among the males) whether the eldest, youngest, or other son alone, or all the sons together, shall be his heirs; this is a point that we must result back to the standing law of descents in fee-simple to be informed of.
**202]In order therefore to treat a matter of this universal consequence the more clearly, I shall endeavour to lay aside such matters as will only tend to breed embarrassment and confusion in our inquiries, and shall confine myself entirely to this one object. I shall therefore decline considering at present who are, and who are not, capable of being heirs; reserving that for the chapter of escheats. I shall also pass over the frequent division of descents into those by custom, statute, and common law: for descents by particular custom, as to all the sons in gavelkind, and to the youngest in borough English, have already been often(b) hinted at, and may also be incidentally touched upon again, but will not make a separate consideration by themselves, in a system so general as the present: and descents by statute, or fees-tail per formam doni, in pursuance of the statute of Westminster the second, have also been already(c) copiously handled; and it has been seen that the descent in tail is restrained and regulated according to the words of the original donation, and does not entirely pursue the common-law doctrine of inheritance; which, and which only, it will now be our business to explain.
And, as this depends not a little on the nature of kindred, and the several degrees of consanguinity, it will be previously necessary to state, as briefly as possible, the true notion of this kindred or alliance in blood.(d)
Consanguinity, or kindred, is defined by the writers on these subjects to be “vinculum personarum ab eodem stipite descendentium:” the connection or relation of persons descended from the same stock or common ancestor. This consanguinity is either lineal or collateral.
**203]Lineal consanguinity is that which subsists between persons, of whom one is descended in a direct line from the other, as between John Stiles (the propositus in the table of consanguinity) and his father, grandfather, great-grandfather, and so upwards in the direct ascending line; or between John Stiles and his son, grandson, great-grandson, and so downwards in the direct descending line. Every generation, in this lineal direct consanguinity, constitutes a different degree, reckoning either upwards or downwards: the father of John Stiles is related to him in the first degree, and so likewise is his son; his grandsire and grandson in the second; his great-grandsire and great-grandson in the third. This is the only natural way of reckoning the degrees in the direct line, and therefore universally obtains, as well in the civil(e) and canon(f) as in the common law.(g)
The doctrine of lineal consanguinity is sufficiently plain and obvious; but it is at the first view astonishing to consider the number of lineal ancestors which every man has, within no very great number of degrees; and so many different bloods(h) is a man said to contain in his veins as he hath lineal ancestors. Of these he hath two in the first ascending degree, his own parents; he hath four in the second, the parents of his father and the parents of his mother; he hatl. eight in the third, the parents of his two grandfathers and two grandmothers, and, by the same rule of progression, he hath an hundred and twenty-eight in the seventh; a thousand and twenty-four in the tenth: and at the twentieth degree, or the distance of twenty generations, every man hath above a million of ancestors, as common arithmetic will demonstrate.(i) This lineal consanguinity, we may observe, falls strictly within the definition of vinculum *[*204personarum ab eodem stipite descendentium; since lineal relations are such as descend one from the other, and both of course from the same common ancestor.
Collateral kindred answers to the same description: collateral relations agreeing with the lineal in this, that they descend from the same stock or ancestor; but differing in this, that they do not descend one from the other. Collateral kinsmen are such then as lineally spring from one and the same ancestor, who is the stirps, or root, the stipes, trunk, or common stock, from whence these relations are branched out. As if John Stiles hath two sons, who have *[*205each a numerous issue; both these issues are lineally descended from John Stiles as their common ancestor; and they are collateral kinsmen to each other, because they are all descended from this common ancestor, and all have a portion of his blood in their veins, which denominates them consanguineos.
We must be careful to remember, that the very being of collateral consanguinity consists in this descent from one and the same common ancestor. Thus Titius and his brother are related; why? because both are derived from one father: Titius and his first cousin are related; why? because both descend from the same grandfather; and his second cousin’s claim to consanguinity is this, that they are both derived from one and the same great-grandfather. In short, as many ancestors as a man has, so many common stocks he has, from which collateral kinsmen may be derived. And as we are taught by holy writ, that there is one couple of ancestors belonging to us all, from whom the whole race of mankind is descended, the obvious and undeniable consequence is, that all men are in some degree related to each other. For indeed, if we only suppose each couple of our ancestors to have left, one with another, two children; and each of those children on an average to have left two more, (and, without such a supposition, the human species must be daily diminishing;) we shall find that all of us have now subsisting near two hundred and seventy millions of kindred in the fifteenth degree, at the same distance from the several common ancestors as ourselves are; besides those that are one or two descents nearer to or farther from the common stock, who may amount to as many more.(k) And if this calculation should appear incompatible with the number of inhabitants on the earth, it is because, by intermarriages among the several descendants from the same ancestor, a hundred or a thousand modes of consanguinity may be consolidated in one person, or he may be related to us a hundred or a thousand different ways.
**206]The method of computing these degrees in the canon law,(l) which our law has adopted,(m) is as follows: we begin at the common ancestor and reckon downwards: and in whatsoever degree the two persons, or the most remote of them, is distant from the common ancestor, that is the degree in which they are related to each other. Thus, Titius and his brother are related in the first **207]degree; for from the father to each of them is counted only one; Titius and his nephew are related in the second degree; for the nephew is two degrees removed from the common ancestor; viz., his own grandfather, the father of Titius. Or, (to give a more illustrious instance from our English annals,) king Henry the Seventh, who slew Richard the Third in the battle of Bosworth, was related to that prince in the fifth degree. Let the propositus therefore in the table of consanguinity represent king Richard the Third, and the class marked (e) king Henry the Seventh. Now, their common stock or ancestor was king Edward the Third, the abavus in the same table: from him to Edmond duke of York, the proavus, is one degree; to Richard earl of Cambridge, the avus, two; to Richard duke of York, the pater, three; to king Richard the Third, the propositus, four; and from king Edward the Third to John of Gant (a) is one degree; to John earl of Somerset, (b) two; to John duke of Somerset, (c) three; to Margaret countess of Richmond, (d) four; to king Henry the Seventh, (e) five. Which last-mentioned prince, being the farthest removed from the common stock, gives the denomination to the degree of kindred in the canon and municipal law. Though, according to the computation of the civilians, (who count upwards, from either of the persons related, to the common stock, and then downwards again to the other, reckoning a degree for each person both ascending and descending,) these two princes were related in the ninth degree, for from Richard the Third to Richard duke of York is one degree; to Richard earl of Cambridge, two; to Edmond duke of York, three; to king Edward the Third, the common ancestor, four; to John of Gant, five; to John earl of Somerset, six; to John duke of Somerset, seven; to Margaret countess of Richmond, eight; to king Henry the Seventh, nine.(n)4
*[*208The nature and degrees of kindred being thus in some measure explained, I shall next proceed to lay down a series of rules or canons of inheritance, according to which, estates are transmitted from the ancestor to the heir; together with an explanatory comment, remarking their original and progress, the reasons upon which they are founded, and in some cases their agreement with the laws of other nations.
I. The first rule is, that inheritances shall lineally descend to the issue of the person who last died actually seised in infinitum; but shall never lineally ascend.
To explain the more clearly both this and the subsequent rules, it must first be observed, that by law no inheritance can vest nor can any person be the actual complete heir of another, till the ancestor is previously dead. Nemo est hæres viventis.5 Before that time the person who is next in the line of succession is called an heir apparent, or heir presumptive. Heirs apparent are such whose right of inheritance is indefeasible, provided they outlive the ancestor; as the eldest son or his issue, who must by the course of the common law be heir to the father whenever he happens to die. Heirs presumptive are such who, if the ancestor should die immediately, would in the present circumstances of things be his heirs; but whose right of inheritance may be defeated by the contingency of some nearer heir being born; as a brother, or nephew, whose presumptive succession may be destroyed by the birth of a child; or a daughter, whose present hopes may be hereafter cut off by the birth of a son. Nay, even if the estate hath descended, by the death of the owner, to such brother, or nephew, or daughter, in the former cases, the estate shall be devested and taken away by the birth of a posthumous child; and, in the latter, it shall also be totally devested by the birth of a posthumous son.(o)6
**209]We must also remember, that no person can be properly such an ancestor, as that an inheritance of lands or tenements can be derived from him, unless he hath had actual seisin of such lands, either by his own entry, or by the possession of his own or his ancestor’s lessee for years, or by receiving rent from a lessee of a freehold:(p)7 or unless he hath had what is equivalent to corporal seisin in hereditaments that are incorporeal; such as the receipt of rent, a presentation to the church in case of an advowson,(q) and the like. But he shall not be accounted an ancestor, who hath had only a bare right or title to enter or be otherwise seised. And therefore all the cases which will be mentioned in the present chapter are upon the supposition that the deceased (whose inheritance is now claimed) was the last person actually seised thereof. For the law requires this notoriety of possession, as evidence that the ancestor had that property in himself, which is now to be transmitted to his heir.8 Which notoriety had succeeded in the place of the ancient feodal investiture, whereby, while feuds were precarious, the vassal on the descent of lands was formerly admitted in the lord’s court, (as is still the practice in Scotland,) and there received his seisin, in the nature of a renewal of his ancestor’s grant, in the presence of the feodal peers; till at length, when the right of succession became indefeasible, an entry on any part of the lands within the county, (which if disputed was afterwards to be tried by those peers,) or other notorious possession, was admitted as equivalent to the formal grant of seisin, and made the tenant capable of transmitting his estate by descent. The seisin therefore of any person, thus understood, makes him the root or stock, from which all future inheritance by right of blood must be derived: which is very briefly expressed in this maxim, seisina facit stipitem.(r)
**210]When therefore a person dies so seised, the inheritance first goes to his issue: as if there be Geoffrey, John, and Matthew, grandfather, father, and son; and John purchases lands, and dies; his son Matthew shall succeed him as heir, and not the grandfather Geoffrey; to whom the land shall never ascend, but shall rather escheat to the lord.(s)9
This rule, so far as it is affirmative and relates to lineal descents, is almost universally adopted by all nations; and it seems founded on a principle of natural reason, that (whenever a right of property transmissible to representatives is admitted) the possessions of the parents should go, upon their decease, in the first place to their children, as those to whom they have given being, and for whom they are therefore bound to provide. But the negative branch, or total exclusion of parents and all lineal ancestors from succeeding to the inheritance of their offspring, is peculiar to our own laws, and such as have been deduced from the same original. For, by the Jewish law, on failure of issue, the father succeeded to the son in exclusion of brethren, unless one of them married the widow and raised up seed to his brother.(t) And by the laws of Rome, in the first place, the children or lineal descendants were preferred; and on failure of these, the father and mother or lineal ascendants succeeded together with the brethren and sisters;(u) though by the law of the twelve tables the mother was originally, on account of her sex, excluded.(v) Hence this rule of our laws has been censured and declaimed against as absurd, and derogating from the maxims of equity and natural justice.(w) Yet that there is nothing unjust or absurd in it, but that on the contrary it is founded upon very good legal reason, may appear from considering as well the nature of the rule itself, as the occasion of introducing it into our laws.
**211]We are to reflect, in the first place, that all rules of succession to estates are creatures of the civil polity, and juris positivi merely. The right of property, which is gained by occupancy, extends naturally no further than the life of the present possessor: after which the land by the law of nature would again become common, and liable to be seised by the next occupant; but society, to prevent the mischiefs that might ensue from a doctrine so productive of contention, has established conveyances, wills, and successions; whereby the property originally gained by possession is continued and transmitted from one man to another, according to the rules which each state has respectively thought proper to prescribe. There is certainly therefore no injustice done to individuals, whatever be the path of descent marked out by the municipal law.
If we next consider the time and occasion of introducing this rule into our law, we shall find it to have been grounded upon very substantial reasons. I think there is no doubt to be made, but that it was introduced at the same time with, and in consequence of, the feodal tenures. For it was an express rule of the feodal law,(x) that successionis feudi talis est natura, quod ascendentes non succedunt; and therefore the same maxim obtains also in the French law to this day.(y)10 Our Henry the First indeed, among other restorations of the old Saxon laws, restored the right of succession in the ascending line:(z) but this soon fell again into disuse; for so early as Glanvil’s time, who wrote under Henry the Second, we find it laid down as established law,(a) that hæreditas nunquam ascendit; which has remained an invariable maxim ever since. These circumstances evidently show this rule to be of feodal original; and taken in that light, there are some arguments in its favour, besides those which are drawn *[*212merely from the reason of the thing. For if the feud of which the son died seised was really feudum antiquum, or one descended to him from his ancestors, the father could not possibly succeed to it, because it must have passed him in the course of descent, before it could come to the son; unless it were feudum maternum, or one descended from his mother, and then for other reasons (which will appear hereafter) the father could in no wise inherit it. And if it were feudum novum, or one newly acquired by the son, then only the descendants from the body of the feudatory himself could succeed, by the known maxim of the early feodal constitutions;(b) which was founded as well upon the personal merit of the vassal, which might be transmitted to his children, but could not ascend to his progenitors, as also upon this consideration of military policy, that the decrepit grandsire of a vigorous vassal would be but indifferently qualified to succeed him in his feodal services. Nay, even if this feudum novum were held by the son ut feudum antiquum, or with all the qualities annexed to a feud descended from his ancestors, such feud must in all respects have descended as if it had been really an ancient feud; and therefore could not go to the father because if it had been an ancient feud the father must have been dead before it could have come to the son. Thus whether the feud was strictly novum, or strictly antiquum, or whether it was novum held ut antiquum, in none of these cases the father could possibly succeed. These reasons, drawn from the history of the rule itself, seem to be more satisfactory than that quaint one of Bracton,(c) adopted by Sir Edward Coke,(d) which regulates the descent of lands according to the laws of gravitation.11
II. A second general rule or canon is, that the male issue shall be admitted before the female.
*[*213Thus sons shall be admitted before daughters; or, as our male lawgivers have somewhat uncomplaisantly expressed it, the worthiest of blood shall be preferred.(e) As if John Stiles hath two sons, Matthew and Gilbert, and two daughters, Margaret and Charlotte, and dies; first Matthew, and (in case of his death without issue) then Gilbert shall be admitted to the succession in preference to both the daughters.
This preference of males to females is entirely agreeable to the law of succession among the Jews,(f) and also among the states of Greece, or at least among the Athenians;(g) but was totally unknown to the laws of Rome,(h) (such of them I mean as are at present extant,) wherein brethren and sisters were allowed to succeed to equal portions of the inheritance. I shall not here enter into the comparative merit of the Roman and the other constitutions in this particular, nor examine into the greater dignity of blood in the male or female sex: but shall only observe, that our present preference of males to females seems to have arisen entirely from the feodal law. For though our British ancestors, the Welsh, appear to have given a preference to males,(i) yet our Danish predecessors (who succeeded them) seem to have made no distinction of sexes, but to have admitted all the children at once to the inheritance.(k) But the feodal law of the Saxons on the continent (which was probably brought over higher, and first altered by the law of king Canute) gives an evident preference of the male to the female sex. “Pater aut mater defuncti, filio non filiæ hæreditatem relinquent. . . . . . Qui defunctus non filios sed filias reliquerit, ad eas omnis hæreditas pertineat.”(l) It is possible therefore that this preference might be a branch of that imperfect system of feuds which obtained here before the conquest; especially as it subsists among the customs of gavelkind, and as, in the **214]charter or laws of king Henry the First, it is not (like many Norman innovations) given up, but rather enforced.(m) The true reason of preferring the males must be deduced from feodal principles: for, by the genuine and original policy of that constitution, no female could ever succeed to a proper feud,(n) inasmuch as they were incapable of performing those military services, for the sake of which that system was established. But our law does not extend to a total exclusion of females, as the Salic law, and others, where feuds were most strictly retained: it only postpones them to males; for though daughters are excluded by sons, yet they succeed before any collateral relations; our law, like that of the Saxon feudists before mentioned, thus steering a middle course between the absolute rejection of females and the putting them on a footing with males.
III. A third rule or canon of descent is this: that where there are two or more males, in equal degree, the eldest only shall inherit; but the females all together.12
As if a man hath two sons, Matthew and Gilbert, and two daughters, Margaret and Charlotte, and dies; Matthew his eldest son shall alone succeed to his estate, in exclusion of Gilbert the second son and both the daughters; but, if both the sons die without issue before the father, the daughters Margaret and Charlotte shall both inherit the estate as coparceners.(o)
This right of primogeniture in males seems anciently to have only obtained among the Jews, in whose constitution the eldest son had a double portion of the inheritance;(p) in the same manner as with us, by the laws of king Henry the First,(q) the eldest son had the capital fee or principal feud of his father’s possessions, and no other pre-eminence; and **215]as the eldest daughter had afterwards the principal mansion, when the estate descended in coparcenary.(r) The Greeks, the Romans, the Britons, the Saxons, and even originally the feudists, divided the lands equally; some among all the children at large, some among the males only. This is certainly the most obvious and natural way; and has the appearance, at least in the opinion of younger brothers, of the greatest impartiality and justice. But when the emperors began to create honorary feuds, or titles of nobility, it was found necessary (in order to preserve their dignity) to make them impartible,(s) or (as they styled them) feuda individua, and in consequence descendible to the eldest son alone. This example was further enforced by the inconveniences that attended the splitting of estates; namely, the division of military services, the multitude of infant tenants incapable of performing any duty, the consequential weakening of the strength of the kingdom, and the inducing younger sons to take up with the business and idleness of a country life, instead of being serviceable to themselves and the public, by engaging in mercantile, in military, in civil, or in ecclesiastical employments.(t) These reasons occasioned an almost total change in the method of feodal inheritances abroad; so that the eldest male began universally to succeed to the whole of the lands in all military tenures: and in this condition the feodal constitution was established in England by William the Conqueror.
Yet we find that socage estates frequently descended to all the sons equally, so lately as when Glanvil(u) wrote, in the reign of Henry the Second; and it is mentioned in the Mirror(w) as a part of our ancient constitution, that knights’ fees should descend to the eldest son, and socage fees should be partible among the male children. However, in Henry the Third’s time we find by Bracton(x) that socage lands, in imitation of lands in chivalry, had almost entirely fallen into the right of succession by primogeniture, as the law now stands: *[*216except in Kent, where they gloried in the preservation of their antient gavelkind tenure, of which a principal branch was a joint inheritance of all the sons;(y) and except in some particular manors and townships, where their local customs continued the descent, sometimes to all, sometimes to the youngest son only, or in other more singular methods of succession.
As to the females, they are still left as they were by the antient law: for they were all equally incapable of performing any personal service; and therefore one main reason of preferring the eldest ceasing, such preference would have been injurious to the rest: and the other principal purpose, the prevention of the too minute subdivision of estates, was left to be considered and provided for by the lords, who had the disposal of these female heiresses in marriage. However, the succession by primogeniture, even among females, took place as to the inheritance of the crown;(z) wherein the necessity of a sole and determinate succession is as great in the one sex as the other. And the right of sole succession, though not of primogeniture, was also established with respect to female dignities and titles of honour. For if a man holds an earldom to him and the heirs of his body, and dies, leaving only daughters; the eldest shall not of course be countess, but the dignity is in suspense or abeyance till the king shall declare his pleasure; for he, being the fountain of honour, may confer it on which of them he pleases.(a)13 In which disposition is preserved a strong trace of the antient law of feuds, before the descent by primogeniture even among the males was established; namely, that the lord might bestow them on which of the sons he thought proper,—“progressum est ut ad filios deveniret, in quem scilicet dominus hoc vellet beneficium confirmare.”(b)
IV. A fourth rule, or canon of descents, is this; that the lineal descendants, in infinitum, of any person deceased, **217]shall represent their ancestor; that is, shall stand in the same place as the person himself would have done, had he been living.
Thus the child, grandchild, or great-grandchild (either male or female) of the eldest son succeeds before the younger son, and so in infinitum.(c) And these representatives shall take neither more nor less, but just so much as their principals would have done. As if there be two sisters, Margaret and Charlotte; and Margaret dies, leaving six daughters; and then John Stiles, the father of the two sisters, dies without other issue; these six daughters shall take among them exactly the same as their mother Margaret would have done, had she been living; that is, a moiety of the lands of John Stiles in coparcenary: so that, upon partition made, if the land be divided into twelve parts, thereof Charlotte the surviving sister shall have six, and her six nieces, the daughters of Margaret, one apiece.
This taking by representation is called succession in stirpes, according to the roots; since all the branches inherit the same share that their root, whom they represent, would have done. And in this manner also was the Jewish succession directed;(d) but the Roman somewhat differed from it. In the descending line the right of representation continued in infinitum, and the inheritance still descended in stirpes: as if one of three daughters died, leaving ten children, and then the father died; the two surviving daughters had each one-third of his effects, and the ten grandchildren had the remaining third divided between them. And so among collaterals, if any person of equal degree with the persons represented were still subsisting, (as if the deceased left one brother, and two nephews the sons of another brother,) the succession was still guided by the roots: but, if both of the brethren were dead leaving issue, then (I apprehend) their representatives in equal degree became themselves principals, **218]and shared the inheritance per capita, that is, share and share alike; they being themselves now the next in degree to the ancestor, in their own right, and not by right of representation.(e) So, if the next heirs of Titius be six nieces, three by one sister, two by another, and one by a third; his inheritance by the Roman law was divided into six parts, and one given to each of the nieces: whereas the law of England in this case would still divide it only into three parts, and distribute it per stirpes, thus: one-third to the three children who represent one sister, another third to the two who represent the second, and the remaining third to the one child who is the sole representative of her mother.
This mode of representation is a necessary consequence of the double preference given by our law, first to the male issue, and next to the first-born among the males, to both which the Roman law is a stranger. For if all the children of three sisters were in England to claim per capita, in their own right as next of kin to the ancestor, without any respect to the stocks from whence they sprung, and those children were partly male and partly female; then the eldest male among them would exclude not only his own brethren and sisters, but all the issue of the other two daughters; or else the law in this instance must be inconsistent with itself, and depart from the preference which it constantly gives to the males and the first-born among persons in equal degree. Whereas, by dividing the inheritance according to the roots, or stirpes, the rule of descent is kept uniform and steady: the issue of the eldest son excludes all other pretenders, as the son himself (if living) would have done; but the issue of two daughters divide the inheritance between them, provided their mothers (if living) would have done the same: and among these several issues, or representatives of the respective roots, the same preference to males and the saine right of primogeniture obtain as would have obtained at the first among the roots themselves, the sons or daughters of the deceased. And if a man hath two sons, A. and B., and A. dies leaving two *[*219sons, and then the grandfather dies; now the eldest son of A. shall succeed to the whole of his grandfather’s estate: and if A. had left only two daughters, they should have succeeded also to equal moieties of the whole, in exclusion of B. and his issue. But if a man hath only three daughters, C., D., and E.; and C. dies leaving two sons, D. leaving two daughters, and E. leaving a daughter and a son who is younger than his sister: here, when the grandfather dies, the eldest son of C. shall succeed to one-third, in exclusion of the younger; the two daughters of D. to another third in partnership; and the son of E. to the remaining third, in exclusion of his elder sister. And the same right of representation, guided and restrained by the same rules of descent, prevails downwards in infinitum.14
Yet this right does not appear to have been thoroughly established in the time of Henry the Second, when Glanvil wrote: and therefore, in the title to the crown especially, we find frequent contests between the younger (but surviving) brother and his nephew (being the son and representative of the elder deceased) in regard to the inheritance of their common ancestor: for the uncle is certainly nearer of kin to the common stock, by one degree, than the nephew; though the nephew, by representing his father, has in him the right of primogeniture. The uncle also was usually better able to perform the services of the fief; and besides had frequently superior interest and strength to back his pretensions, and crush the right of his nephew. And even to this day, in the lower Saxony, proximity of blood takes place of representative primogeniture; that is, the younger surviving brother is admitted to the inheritance before the son of an elder deceased: which occasioned the disputes between the two houses of Mecklenburg Schwerin and Strelitz in 1692.(f) Yet Glanvil, with us, even in the twelfth century, seems(g) to declare for the right of the nephew by representation; provided the eldest son had not received a provision in lands from his father, or (as the civil law would call it) had not been *[*220foris-familiated, in his lifetime. King John, however, who kept his nephew Arthur from the throne, by disputing this right of representation, did all in his power to abolish it throughout the realm:(h) but in the time of his son, king Henry the Third, we find the rule indisputably settled in the manner we have here laid it down,(i) and so it has continued ever since. And thus much for lineal descents.15
V. A fifth rule is that on failure of lineal descendants, or issue, of the person last seised, the inheritance shall descend to his collateral relations, being of the blood of the first purchaser;16 subject to the three preceding rules.17
Thus if Geoffrey Stiles purchases land, and it descends to John Stiles his son, and John dies seised thereof without issue; whoever succeeds to this inheritance must be of the blood of Geoffrey, the first purchaser of this family.(k)18 The first purchaser, perquisitor, is he who first acquired the estate to his family, whether the same was transferred to him by sale or by gift, or by any other method, except only that of descent.
This is a rule almost peculiar to our own laws, and those of a similar original. For it was entirely unknown among the Jews, Greeks, and Romans: none of whose laws looked any further than the person himself who died seised of the estate; but assigned him an heir, without considering by what title he gained it, or from what ancestor he derived it. But the law of Normandy(l) agrees with our law in this respect: nor indeed is that agreement to be wondered at, since the law of descents in both is of feodal original; and this rule or canon cannot otherwise be accounted for than by recurring to feodal principles.
When feuds first began to be hereditary, it was made a necessary qualification of the heir, who would succeed to a feud, that he should be of the blood of, that is, lineally de *[*221scended from, the first feudatory or purchaser. In consequence whereof, if a vassal died seised of a feud of his own acquiring, or feudum novum, it could not descend to any but his own offspring; no, not even to his brother, because he was not descended, nor derived his blood, from the first acquirer. But if it was feudum antiquum, that is, one descended to the vassal from his ancestors, then his brother, or such other collateral relation as was descended and derived his blood from the first feudatory, might succeed to such inheritance. To this purpose speaks the following rule:—“frater fratri, sine legitimo hærede defuncto, in beneficio quod eorum patris fuit succedat: sin autem unus e fratribus a domino feudum acceperit, eo defuncto sine legitimo hærede, frater ejus in feudum non succedit.”(m) The true feodal reason for which rule was this; that what was given to a man, for his personal service and personal merit, ought not to descend to any but the heirs of his person. And therefore, as in estates-tail, (which a proper feud very much resembled,) so in the feodal donation, “nomen hæredis, in prima investitura expressum, tantum ad descendentes ex corpore primi vasalli extenditur; et non ad collaterales, nisi ex corpore primi vasalli sive stipitis descendant;”(n) the will of the donor, or original lord, (when feuds were turned from life-estates into inheritances,) not being to make them absolutely hereditary, like the Roman allodium, but hereditary only sub modo: not hereditary to the collateral relations, or lineal ancestors, or husband, or wife, of the feudatory, but to the issue descended from his body only.
However, in process of time, when the feodal rigour was in part abated, a method was invented to let in the collateral relations of the grantee to the inheritance, by granting him a feudum novum to hold ut feudum antiquum; that is, with all the qualities annexed of a feud derived from his ancestors; and then the collateral relations were admitted to succeed even in infinitum, because they might have been of the blood of, that is, descended from, the first imaginary purchaser. For **222]since it is not ascertained in such general grants, whether this feud shall be held ut feudum paternum or feudum avitum, but ut feudum antiquum merely; as a feud of indefinite antiquity: that is, since it is not ascertained from which of the ancestors of the grantee this feud shall be supposed to have descended; the law will not ascertain it, but will suppose any of his ancestors, pro re nata, to have been the first purchaser: and therefore it admits any of his collateral kindred (who have the other necessary requisites) to the inheritance, because every collateral kinsman must be descended from some one of his lineal ancestors.
Of this nature are all the grants of fee-simple estates of this kingdom, for there is now in the law of England no such thing as a grant of a feudum novum, to be held ut novum: unless in the case of a fee-tail, and there we see that this rule is strictly observed, and none but the lineal descendants of the first donee (or purchaser) are admitted; but every grant of lands in fee-simple is with us a feudum novum to be held ut antiquum, as a feud whose antiquity is indefinite: and therefore the collateral kindred of the grantee, or descendants from any of his lineal ancestors, by whom the lands might have possibly been purchased, are capable of being called to the inheritance.19
Yet, when an estate hath really descended in a course of inheritance to the person last seised, the strict rule of the feodal law is still observed; and none are admitted but the heirs of those through whom the inheritance hath passed: for all others have demonstrably none of the blood of the first purchaser in them, and therefore shall never succeed.20 As, if lands come to John Stiles by descent from his mother Lucy Baker, no relation of his father (as such) shall ever be his heir of these lands; and vice versa, if they descended from his father Geoffrey Stiles, no relation of his mother (as such) shall ever be admitted thereto, for his father’s kindred have none of his mother’s blood, nor have his mother’s relations any share of his father’s blood. And so, if the estate descended from his father’s father, George Stiles; the relations of **223]his father’s mother, Cecilia Kempe, shall for the same reason never be admitted, but only those of his father’s father.21 This is also the rule of the French law,(o) which is derived from the same feodal fountain:
Here we may observe, that so far as the feud is really antiquum, the law traces it back, and will not suffer any to inherit but the blood of those ancestors from whom the feud was conveyed to the late proprietor. But when, through length of time, it can trace it no farther; as if it be not known whether his grandfather, George Stiles, inherited it from his father Walter Stiles, or his mother Christian Smith, or if it appear that his grandfather was the first grantee, and so took it (by the general law) as a feud of indefinite antiquity; in either of these cases the law admits the descendants of any ancestor of George Stiles, either paternal or maternal, to be in their due order the heirs to John Stiles of this estate; because in the first case it is really uncertain, and in the second case it is supposed to be uncertain, whether the grandfather derived his title from the part of his father or his mother.
This then is the great and general principle upon which the law of collateral inheritances depends; that, upon failure of issue in the last proprietor, the estate shall descend to the blood of the first purchaser; or, that it shall result back to the heirs of the body of that ancestor from whom it either really has, or is supposed by fiction of law to have, originally descended; according to the rule laid down in the year-books,(p) Fitzherbert,(q) Brook,(r) and Hale,(s) “that he who would have been heir to the father of the deceased” (and, of course, to the mother, or any other real or supposed purchasing ancestor) “shall also be heir to the son;” a maxim that will hold universally, except in the case of a brother or sister of the half-blood, which exception (as we shall see hereafter) depends upon very special grounds.
The rules of inheritance that remain are only rules of evidence, calculated to investigate who the purchasing ancestor was; which *[*224in feudis vere antiquis has in process of time been forgotten, and is supposed so to be in feuds that are held ut antiquis.
VI. A sixth rule or canon therefore is, that the collateral heir of the person last seised must be his next collateral kinsman of the whole blood.22
First, he must be his next collateral kinsman either personally or jure representationis;23 which proximity is reckoned according to the canonical degrees of consanguinity before mentioned. Therefore, the brother being in the first degree, he and his descendants shall exclude the uncle and his issue, who is only in the second. And herein consists the true reason of the different methods of computing the degrees of consanguinity, in the civil law on the one hand, and in the canon and common laws on the other. The civil law regards consanguinity principally with respect to successions, and therein very naturally considers only the person deceased, to whom the relation is claimed: it therefore counts the degrees of kindred according to the number of persons through whom the claim must be derived from him; and makes not only his great-nephew but also his first-cousin to be both related to him in the fourth degree; because there are three persons between him and each of them. The canon law regards consanguinity principally with a view to prevent incestuous marriages between those who have a large portion of the same blood running in their respective veins; and therefore looks up to the author of that blood, or the common ancestor, reckoning the degrees from him: so that the great-nephew is related in the third canonical degree to the person proposed, and the first-cousin in the second: the former being distant three degrees from the common ancestor, (the father of the propositus,) and therefore deriving only one-fourth of his blood from the same fountain; the latter, and also the propositus himself, being each of them distant only two degrees from the common ancestor, (the grandfather of each,) and therefore having one-half of each of their bloods the same. The common law regards consanguinity principally with respect to descents; and having therein the same object in view as the civil, it may seem as if it ought **225]to proceed according to the civil computation. But as it also respects the purchasing ancestor, from whom the estate was derived, it therein resembles the canon law, and therefore counts its degrees in the same manner. Indeed, the designation of person, in seeking for the next of kin, will come to exactly the same end, (though the degrees will be differently numbered,) whichever method of computation we suppose the law of England to use; since the right of representation of the parent by the issue is allowed to prevail in infinitum.24 This allowance was absolutely necessary, else there would have frequently been many claimants in exactly the same degree of kindred, as (for instance) uncles and nephews of the deceased: which multiplicity, though no material inconvenience in the Roman law of partible inheritances, yet would have been productive of endless confusion where the right of sole succession, as with us, is established. The issue or descendants therefore of John Stiles’s brother are all of them in the first degree of kindred with respect to inheritances, those of his uncle in the second, and those of his great-uncle in the third; as their respective ancestors, if living, would have been; and are severally called to the succession in right of such their representative proximity.
The right of representation being thus established, the former part of the present rule amounts to this; that on failure of issue of the person last seised, the inheritance shall descend to the other subsisting issue of his next immediate ancestor. Thus, if John Stiles dies without issue, his estate shall descend to Francis his brother, or his representatives, he being lineally descended from Geoffrey Stiles, John’s next immediate ancestor, or father. On the failure of brethren, or sisters, and their issue, it shall descend to the uncle of John Stiles, the lineal descendant of his grandfather George, and so on in infinitum. Very similar to which was the law of inheritance among the ancient Germans, our progenitors:—“hæredes successoresque, sui cuique liberi, et nullum testamentum: si liberi, non sunt, proximus gradus in possessione, fratres, patrui, avunculi.”(t)
*[*226Now here it must be observed, that the lineal ancestors, though (according to the first rule) incapable themselves of succeeding to the estate, because it is supposed to have already passed them, are yet the common stocks from which the next successor must spring. And therefore in the Jewish law, which in this respect entirely corresponds with ours,(u) the father or other lineal ancestor is himself said to be the heir, though long since dead, as being represented by the persons of his issue; who are held to succeed, not in their own rights, as brethren, uncles, &c., but in right of representation, as the offspring of the father, grandfather, &c. of the deceased.(w) But, though the common ancestor be thus the root of the inheritance, yet with us it is not necessary to name him in making out the pedigree or descent. For the descent between two brothers is held to be an immediate descent; and therefore title may be made by one brother or his representatives to or through another without mentioning their common father.(x) If Geoffrey Stiles hath two sons, John and Francis, Francis may claim as heir to John, without naming their father Geoffrey; and so the son of Francis may claim as cousin and heir to Matthew the son of John, without naming the grandfather; viz., as son of Francis, who was the brother of John, who was the father of Matthew. But though the common ancestors are not named in deducing the pedigree, yet the law still respects them as the fountains of inheritable blood; and therefore, in order to ascertain the collateral heir of John Stiles, it is first necessary to recur to his ancestors in the first degree; and if they have left any other issue besides John, that issue will be his heir. On default of such, we must ascend one step higher, to the ancestors in the second degree, and then to those in the third and fourth, and so upwards in infinitum, till some couple of ancestors be found who have other issue descending from them besides the deceased, in a parallel or collateral line. From these ancestors the heir of John Stiles must derive his descent; and in such derivation the same rules must be observed, with regard to the sex, **227]primogeniture, and representation, that have before been laid down with regard to lineal descents from the person of the last proprietor.
But, secondly, the heir need not be the nearest kinsman absolutely, but only sub modo; that is, he must be the nearest kinsman of the whole blood; for if there be a much nearer kinsman of the half-blood, a distant kinsman of the whole blood shall be admitted, and the other entirely excluded; nay, the estate shall escheat to the lord, sooner than the half-blood shall inherit.25
A kinsman of the whole blood is he that is derived, not only from the same ancestor, but from the same couple of ancestors. For as every man’s own blood is compounded of the bloods of his respective ancestors, he only is properly of the whole or entire blood with another, who hath (so far as the distance of degrees will permit) all the same ingredients in the composition of his blood that the other had. Thus, the blood of John Stiles being composed of those of Geoffrey Stiles his father, and Lucy Baker his mother, therefore his brother Francis, being descended from both the same parents, hath entirely the same blood with John Stiles; or he is his brother of the whole blood. But if, after the death of Geoffrey, Lucy Baker the mother marries a second husband, Lewis Gay, and hath issue by him; the blood of this issue, being compounded of the blood of Lucy Baker (it is true) on the one part, but that of Lewis Gay (instead of Geoffrey Stiles) on the other part, it hath therefore only half the same ingredients with that of John Stiles; so that he is only his brother of the half-blood, and for that reason they shall never inherit to each other. So also, if the father has two sons, A. and B., by different venters or wives; now these two brethren are not brethren of the whole blood, and therefore shall never inherit to each other, but the estate shall rather escheat to the lord. Nay, even if the father dies, and his lands descend to his eldest son A., who enters thereon, and dies seised without issue; still B. shall not be heir to this estate, because he is only of the half-blood to A., the person last seised; but it shall descend to a sister (if any) of the whole blood to A.: for in such cases the maxim is, that the seisin or possessio fratris facit sororem esse hæredem. Yet, had A. died without entry, then B. might have inherited; not as **228]heir to A. his half-brother, but as heir to the common father, who was the person last actually seised.(y)26
This total exclusion of the half-blood from the inheritance, being almost peculiar to our own law, is looked upon as a strange hardship by such as are unacquainted with the reasons on which it is grounded. But these censures arise from a misapprehension of the rule, which is not so much to be considered in the light of a rule of descent, as of a rule of evidence: an auxiliary rule, to carry a former into execution. And here we must again remember, that the great and most universal principle of collateral inheritances being this, that the heir to a feudum antiquum must be of the blood of the first feudatory or purchaser, that is, derived in a lineal descent from him; it was originally requisite, as upon gifts in tail it still is, to make out the pedigree of the heir from the first donee or purchaser, and to show that such heir was his lineal representative. But when, by length of time and a long course of descents, it came (in those rude and unlettered ages) to be forgotten who was really the first feudatory or purchaser, and thereby the proof of an actual descent from him became impossible; then the law substituted what Sir Martin Wright(z) calls a reasonable, in the stead of an impossible, proof; for it remits the proof of an actual descent from the first purchaser; and only requires, in lieu of it, that the claimant be next of the whole blood to the person last in possession, (or derived from the same couple of ancestors;) which will probably answer the same end as if he could trace his pedigree in a direct line from the first purchaser. For he who is my kinsman of the whole blood can have no ancestors beyond or higher than the common stock, but what are equally my ancestors also; and mine are vice versa his: he therefore is very likely to be derived from that un known ancestor of mine from whom the inheritance descended. But a kinsman of the half-blood has but one-half of his ancestors above the common stock the same as mine; and therefore there is not the same probability27 of that standing requisite in the law, that he be derived from the blood of the first purchaser.
**229]To illustrate this by example. Let there be John Stiles, and Francis, brothers, by the same father and mother, and another son of the same mother by Lewis Gay, a second husband. Now, if John dies seised of lands, but it is uncertain whether they descended to him from his father or mother; in this case his brother Francis, of the whole blood, is qualified to be his heir; for he is sure to be in the line of descent from the first purchaser, whether it were the line of the father or the mother. But if Francis should die before John without issue, the mother’s son by Lewis Gay (or brother of the half-blood) is utterly incapable of being heir; for he cannot prove his descent from the first purchaser, who is unknown, nor has he that fair probability which the law admits as presumptive evidence, since he is to the full as likely not to be descended from the line of the first purchaser, as to be descended; and therefore the inheritance shall go to the nearest relation possessed of this presumptive proof, the whole blood.
And, as this is the case in feudis antiquis, where there really did once exist a purchasing ancestor, who is forgotten; it is also the case in feudis novis held ut antiquis, where the purchasing ancestor is merely ideal, and never existed but only in fiction of law. Of this nature are all grants of lands in fee-simple at this day, which are inheritable as if they descended from some uncertain indefinite ancestor, and therefore any of the collateral kindred of the real modern purchaser (and not his own offspring only) may inherit them, provided they be of the whole blood; for all such are, in judgment of law, likely enough to be derived from this indefinite ancestor: but those of the half-blood are excluded, for want of the same probability. Nor should this be thought hard, that a brother of the purchaser, though only of the half-blood, must thus be disinherited, and a more remote relation of the whole blood admitted, merely upon a supposition and fiction of law: since it is only upon a like supposition and fiction that brethren of purchasers (whether of the whole or half blood) are entitled to inherit at all; for we have seen that in feudis stricte novis neither brethren nor any other collaterals were admitted. As **230]therefore in feudis antiquis we have seen the reasonableness of excluding the half-blood, if by a fiction of law a feudum novum be made descendible to collaterals as if it was feudum antiquum, it is just and equitable that it should be subject to the same restrictions as well as the same latitude of descent.
Perhaps by this time the exclusion of the half-blood does not appear altogether so unreasonable as at first sight it is apt to do. It is certainly a very fine-spun and subtle nicety; but considering the principles upon which our law is founded, it is not an injustice, nor always a hardship; since even the succession of the whole blood was originally a beneficial indulgence, rather than the strict right of collaterals; and though that indulgence is not extended to the demi-kindred, yet they are rarely abridged of any right which they could possibly have enjoyed before. The doctrine of the whole blood was calculated to supply the frequent impossibility of proving a descent from the first purchaser, without some proof of which (according to our fundamental maxim) there can be no inheritance allowed of. And this purpose it answers, for the most part, effectually enough. I speak with these restrictions, because it does not, neither can any other method, answer this purpose entirely. For though all the ancestors of John Stiles, above the common stock, are also the ancestors of his collateral kinsman of the whole blood; yet, unless that common stock be in the first degree, (that is, unless they have the same father and mother,) there will be intermediate ancestors, below the common stock, that belong to either of them respectively, from which the other is not descended, and therefore can have none of their blood. Thus, though John Stiles and his brother of the whole blood can each have no other ancestors than what are in common to them both; yet with regard to his uncle where the common stock is removed one degree higher, (that is, the grandfather and grandmother,) one-half of John’s ancestors will not be the ancestors of his uncle: his patruus, or father’s brother, derives not his descent from John’s maternal ancestors: nor his avunculus, or mother’s brother, **231]from those in the paternal line. Here then the supply of proof is deficient, and by no means amounts to a certainty: and the higher the common stock is removed, the more will even the probability decrease. But it must be observed, that (upon the same principles of calculation) the half-blood have always a much less chance to be descended from an unknown indefinite ancestor of the deceased, than the whole blood in the same degree. As, in the first degree, the whole brother of John Stiles is sure to be descended from that unknown ancestor; his half-brother has only an even chance, for half John’s ancestors are not his. So, in the second degree, John’s uncle of the whole blood has an even chance; but the chances are three to one against his uncle of the half-blood, for three-fourths of John’s ancestors are not his. In like manner, in the third degree, the chances are only three to one against John’s great-uncle of the whole blood, but they are seven to one against his great-uncle of the half-blood, for seven-eighths of John’s ancestors have no connection in blood with him. Therefore the much less probability of the half-blood’s descent from the first purchaser, compared with that of the whole blood, in the several degrees, has occasioned a general exclusion of the half-blood in all.
But, while I thus illustrate the reason of excluding the half-blood in general I must be impartial enough to own, that, in some instances, the practice is carried further than the principle upon which it goes will warrant. Particularly when a kinsman of the whole blood in a remoter degree, as the uncle or great-uncle, is preferred to one of the half-blood in a nearer degree, as the brother; for the half-brother hath the same chance of being descended from the purchasing ancestor as the uncle; and a thrice28 better chance than the great-uncle or kinsman in the third degree. It is also more especially overstrained, when a man has two sons by different venters, and the estate on his death descends from him to the eldest, who enters and dies without issue; in which case the younger son cannot inherit this estate, because he is not of the whole blood to the last proprietor.(a) This, it must be *[*232owned, carries a hardship with it, even upon feodal principles: for the rule was introduced only to supply the proof of a descent from the first purchaser; but here, as this estate notoriously descended from the father, and as both the brothers confessedly sprung from him, it is demonstrable that the half-brother must be of the blood of the first purchaser, who was either the father or some of the father’s ancestors. When, therefore, there is actual demonstration of the thing to be proved, it is hard to exclude a man by a rule substituted to supply that proof when deficient. So far as the inheritance can be evidently traced back, there seems no need of calling in this presumptive proof, this rule of probability, to investigate what is already certain. Had the elder brother, indeed, been a purchaser, there would have been no hardship at all, for the reasons already given; or had the frater uterinus only, or brother by the mother’s side, been excluded from an inheritance which descended from the father, it had been highly reasonable.
Indeed, it is this very instance, of excluding a frater consanguineus, or brother by the father’s side, from an inheritance which descended a patre, that Craig(b) has singled out on which to ground his strictures on the English law of half-blood. And, really, it should seem as if originally the custom of excluding the half-blood in Normandy,(c) extended only to exclude a frater uterinus, when the inheritance descended a patre, and vice versa, and possibly in England also; as even with us it remained a doubt, in the time of Bracton,(d) and of Fleta,(e) whether the half-blood on the father’s side was excluded from the inheritance which originally descended from the common father, or only from such as descended from the respective mothers, and from newly-purchased lands. So also the rule of law, as laid **233]down by our Fortescue,(f) extends no further than this: frater fratri uterino non succedet in hæreditate paterna. It is moreover worthy of observation, that by our law, as it now stands, the crown (which is the highest inheritance in the nation) may descend to the half-blood of the preceding sovereign,(g) so that it be the blood of the first monarch purchaser, or (in the feodal language) conqueror of the reigning family. Thus it actually did descend from king Edward the Sixth to queen Mary, and from her to queen Elizabeth, who were respectively of the half-blood to each other. For the royal pedigree being always a matter of sufficient notoriety, there is no occasion to call in the aid of this presumptive rule of evidence, to render probable the descent from the royal stock, which was formerly king William the Norman, and is now (by act of parliament)(h) the princess Sophia of Hanover. Hence also it is that in estates-tail, where the pedigree from the first donee must be strictly proved, half-blood is no impediment to the descent:(i) because, when the lineage is clearly made out, there is no need of this auxiliary proof.29 How far it might be desirable for the legislature to give relief, by amending the law of descents in one or two instances, and ordaining that the half-blood might always inherit, where the estate notoriously descended from its own proper ancestor, and in cases of new-purchased lands, or uncertain descents, should never be excluded by the whole blood in a remoter degree; or how far a private inconvenience should be still submitted to, rather than a long-established rule should be shaken, is not for me to determine.30
The rule then, together with its illustration, amounts to this: that, in order to keep the estate of John Stiles as nearly as possible in the line of his purchasing ancestor, it must descend to the issue of the nearest couple of ancestors that have left descendants behind them; because the descendants of one ancestor only are not so likely to be in the line of that purchasing ancestor, as those who are descended from both.
*[*234But here another difficulty arises. In the second, third, fourth, and every superior degree, every man has many couples of ancestors, increasing according to the distances in a geometrical progression upwards,(k) the descendants of all which respective couples are (representatively) related to him in the same degree. Thus, in the second degree, the issue of George and Cecilia Stiles and of Andrew and Esther Baker, the two grandsires and grandmothers of John Stiles, are each in the same degree of propinquity; in the third degree, the respective issues of Walter and Christian Stiles, of Luke and Frances Kempe, of Herbert and Hannah Baker, and of James and Emma Thorpe, are (upon the extinction of the two inferior degrees) all equally entitled to call themselves the next kindred of the whole blood to John Stiles. To which therefore of these ancestors must we first resort, in order to find out descendants to be preferably called to the inheritance? In answer to this, and likewise to avoid all other confusion and uncertainty that might arise between the several stocks wherein the purchasing ancestor may be sought for, another qualification is requisite, besides the proximity and entirety, which is that of dignity or worthiness of blood. For,
VII. The seventh and last rule or canon is, that in collateral inheritances the male stocks shall be preferred to the female, (that is, kindred derived from the blood of the male ancestors, however remote, shall be admitted before those from the blood of the female, however near;) unless where the lands have, in fact, descended from a female.
Thus the relations on the father’s side are admitted in infinitum, before those on the mother’s side are admitted at all;(l) and the relations of the father’s father, before those of the father’s mother; and so on.31 And in this the English law is not singular, but warranted by the examples of the Hebrew and Athenian laws, as stated by Selden,(m) and Petit;(n) though among the Greeks in the time of Hesiod,(o) when a man died without wife or children, all his kindred (without any **235]distinction) divided his estate among them. It is likewise warranted by the example of the Roman laws; wherein the agnati, or relations by the father, were preferred to the cognati, or relations by the mother, till the edict of the emperor Justinian(p) abolished all distinction between them. It is also conformable to the customary law of Normandy,(q) which indeed in most respects agrees with our English law of inheritance.
However, I am inclined to think that this rule of our law does not owe its immediate original to any view of conformity to those which I have just now mentioned; but was established in order to effectuate and carry into execution the fifth rule, or principal canon of collateral inheritance, before laid down; that every heir must be of the blood of the first purchaser. For, when such first purchaser was not easily to be discovered after a long course of descents, the lawyers not only endeavoured to investigate him by taking the next relation of the whole blood to the person last in possession, but also, considering that a preference had been given to males (by virtue of the second canon) through the whole course of lineal descent from the first purchaser to the present time, they judged it more likely that the lands should have descended to the last tenant from his male than from his female ancestors; from the father (for instance) rather than from the mother; from the father’s father rather than from the father’s mother: and therefore they hunted back the inheritance (if I may be allowed the expression) through the male line; and gave it to the next relations on the side of the father, the father’s father, and so upwards; imagining with reason that this was the most probable way of continuing it in the line of the first purchaser. A conduct much more rational than the preference of the agnati, by the Roman laws: which, as they gave no advantage to the males in the first instance or direct lineal succession, had no reason for preferring them in the transverse collateral one: upon which account this preference was very wisely abolished by Justinian.
**236]That this was the true foundation of the preference of the agnati, or male stocks, in our law, will further appear, if we consider that, whenever the lands have notoriously descended to a man from his mother’s side, this rule is totally reversed; and no relation of his by the father’s side, as such, can ever be admitted to them; because he cannot possibly be of the blood of the first purchaser. And so, e converso, if the lands descended from the father’s side, no relation of the mother, as such, shall ever inherit. So also, if they in fact descended to John Stiles from his father’s mother Cecilia Kempe; here not only the blood of Lucy Baker his mother, but also of George Stiles his father’s father, is perpetually excluded. And, in like manner, if they be known to have descended from Frances Holland the mother of Cecilia Kempe, the line not only of Lucy Baker and of George Stiles, but also of Luke Kempe, the father of Cecilia, is excluded. Whereas, when the side from which they descended is forgotten, or never known, (as in the case of an estate newly purchased to be holden ut feudum antiquum,) here the right of inheritance first runs up all the father’s side, with a preference to the male stocks in every instance; and, if it finds no heirs there, it then, and then only, resorts to the mother’s side; leaving no place untried, in order to find heirs that may by possibility be derived from the original purchaser. The greatest probability of finding such was among those descended from the male ancestors; but, upon failure of issue there, they may possibly be found among those derived from the females.32
This I take to be the true reason of the constant preference of the agnatic succession, or issue derived from the male ancestors, through all the stages of collateral inheritance; as the ability for personal service was the reason for preferring the males at first in the direct lineal succession. We see clearly, that if males had been perpetually admitted, in utter exclusion of females, the tracing the inheritance back through the male line of ancestors must at last have inevitably brought us up to the first purchaser: but as males have not been *[*237perpetually admitted, but only generally preferred; as females have not been utterly excluded, but only generally postponed to males; the tracing the inheritance up through the male stocks will not give us absolute demonstration, but only a strong probability, of arriving at the first purchaser; which, joined with the other probability, of the wholeness of entirety of blood, will fall little short of a certainty.33
Before we conclude this branch of our inquiries, it may not be amiss to exemplify these rules by a short sketch of the manner in which we must search for the heir of a person, as John Stiles, who dies seised of land which he acquired, and which therefore he held as a feud of indefinite antiquity.(r)
In the first place succeeds the eldest son, Matthew Stiles, or his issue: (n° 1,)—if his line be extinct, then Gilbert Stiles and the other sons, respectively, in order of birth, or their issue: (n° 2,)—in default of these, all the daughters together, Margaret and Charlotte Stiles, or their issue. (n° 3.)—On failure of the descendants of John Stiles himself, the issue of Geoffrey and Lucy Stiles, his parents, is called in: viz., first, Francis Stiles, the eldest brother of the whole blood, or his issue: (n° 4,)—then Oliver Stiles, and the other whole brothers, respectively, in order of birth, or their issue: (n° 5,)—then the sisters of the whole blood all together, Bridget and Alice Stiles, or their issue. (n° 6.)—In defect of these, the issue of George and Cecilia Stiles, his father’s parents; respect being still had to their age and sex: (n° 7,)—then the issue of Walter and Christian Stiles, the parents of his paternal grandfather: (n° 8,)—then the issue of Richard and Anne Stiles, the parents of his paternal grandfather’s father: (n° 9,)—and so on in the paternal grandfather’s paternal line, or blood of Walter Stiles, in infinitum. In defect of these, the issue of William and Jane Smith, the parents of his paternal grandfather’s mother: (n° 10,)—and so on in the paternal grandfather’s maternal line, or blood of Christian Smith, in infinitum: till both the **238]immediate bloods of George Stiles, the paternal grandfather, are spent.—Then we must resort to the issue of Luke and Frances Kempe, the parents of John Stiles’s paternal grandmother: (n° 11,)—then to the issue of Thomas and Sarah Kempe, the parents of his paternal grandmother’s father: (n° 12,)—and so on in the paternal grandmother’s paternal line, or blood of Luke Kempe, in infinitum.—In default of which we must call in the issue of Charles and Mary Holland, the parents of his paternal grandmother’s mother: (n° 13,)—and so on in the paternal grandmother’s maternal line, or blood of Frances Holland, in infinitum: till both the immediate bloods of Cecilia Kempe, the paternal grandmother, are also spent.—Whereby the paternal blood of John Stiles entirely failing, recourse must then, and not before, be had to his maternal relations; or the blood of the Bakers, (n° 14, 15, 16,) Willises, (n° 17,) Thorpes, (n° 18, 19,) and Whites, (n° 20,) in the same regular successive order as in the paternal line.
The student should however be informed, that the class n° 10 would be postponed to n° 11, in consequence of the doctrine laid down, arguendo, by justice Manwoode, in the case of Clere and Brooke;(s) from whence it is adopted by lord Bacon,(t) and Sir Matthew Hale:(u) because, it is said, that all the female ancestors on the part of the father are equally worthy of blood; and in that case proximity shall prevail. And yet, notwithstanding these respectable authorities, the compiler of this table hath ventured (in point of theory, for the case never yet occurred in practice)34 to give the preference to n° 10 before n° 11; for the following reasons: 1. Because this point was not the principal question in the case of Clere and Brooke: but the law concerning it is delivered obiter only, and in the course of argument by justice Manwoode; though afterwards said to be confirmed by the three other justices in separate, extrajudicial conferences with the reporter. 2. Because the chief justice, Sir James Dyer, in reporting the resolution of the court in what seems to be the same case,(w) takes no notice of this doctrine. 3. Because it appears from Plowden’s report that very many gentlemen of the law were dissatisfied **239]with this position of justice Manwoode; since the blood of n° 10 was derived to the purchaser through a greater number of males than the blood of n° 11, and was therefore in their opinion the more worthy of the two. 4. Because the position itself destroys the otherwise entire and regular symmetry of our legal course of descents, as is manifest by inspecting the table; wherein n° 17, which is analogous in the maternal line to n° 10 in the paternal, is preferred to n° 18, which is analogous to n° 11, upon the authority of the eighth rule laid down by Hale himself: and it destroys also that constant preference of the male stocks in the law of inheritance, for which an additional reason is before(x) given, besides the mere dignity of blood. 5. Because it introduces all that uncertainty and contradiction, which is pointed out by that ingenious author;(y) and establishes a collateral doctrine (viz., the preference of n° 11 to n° 10) seemingly, though perhaps not strictly, incompatible with the principal point resolved in the case of Clere and Brooke, viz., the preference of n° 11 to n° 14. And, though that learned writer proposes to rescind the principal point then resolved, in order to clear this difficulty; it is apprehended that the difficulty may be better cleared by rejecting the collateral doctrine, which was never yet resolved at all. 6. Because the reason that is given for this doctrine by lord Bacon (viz., that in any degree, paramount the first, the law respecteth proximity, and not dignity of blood) is directly contrary to many instances given by Plowden and Hale, and every other writer on the law of descents. 7. Because this position seems to contradict the allowed doctrine of Sir Edward Coke;(z) who lays it down (under different names) that the blood of the Kempes (alias Sandies) shall not inherit till the blood of the Stileses (alias Fairfields) fail. Now the blood of the Stileses does certainly not fail till both n° 9 and n° 10 are extinct. Wherefore n° 11 (being the blood of the Kempes) ought not to inherit till then. 8. Because in the case Mich. 12 Edw. IV. 14(a) (much relied on in that of Clere and Brooke) it is laid down as a rule, that “cestuy, que doit inheriter al pere, doit inheriter al fils.”(b) And so Sir Matthew Hale(c) says, “that though the law excludes the father from inheriting, yet it substitutes and directs the descent as it should have been had the father inherited.”35 Now, it is settled, by the resolution of Clere *[*240and Brooke, that n° 10 should have inherited before n° 11 to Geoffrey Stiles, the father, had he been the person last seised; and therefore n° 10 ought also to be preferred in inheriting to John Stiles, the son.
In case John Stiles was not himself the purchaser, but the estate in fact came to him by descent from his father, mother, or any higher ancestor, there is this difference: that the blood of that line of ancestors, from which it did not descend, can never inherit: as was formerly fully explained.(d) And the like rule, as there exemplified, will hold upon descents from any other ancestors.
The student should also bear in mind, that during this whole process, John Stiles is the person supposed to have been last actually seised of the estate. For if ever it comes to vest in any other person, as heir to John Stiles, a new order of succession must be observed upon the death of such heir; since he, by his own seisin, now becomes himself an ancestor or stipes, and must be put in the place of John Stiles. The figures therefore denote the order in which the several classes would succeed to John Stiles, and not to each other: and before we search for an heir in any of the higher figures, (as n° 8,) we must be first assured that all the lower classes (from n° 1 to n° 7) were extinct at John Stiles’s decease.36
[(a) ] Co. Litt. 18.
[1 ] Purchase in law is used in contradistinction to descent, and is any other mode of acquiring real property, viz., by a man’s own act and agreement, by devise, and by every species of gift or grant; and, as the land taken by purchase has very different inheritable qualities from that taken by descent, the distinction is important. See post, pages 241, 243.—Christian.
The principal distinctions between these modes of acquiring estates are these:—1. That by purchase the estate acquires a new inheritable quality, and is rendered descendible to the blood in general of the person to whom it is limited as a feud of indefinite antiquity. 2. That an estate acquired by purchase will not, like a title by descent, render the owner answerable for the acts of his ancestors. Cru. Dig. title xxx. s. 4. H. Chit. Desc. 4. Com. Dig. Descent, A. B. Bac. Abr. Descent, E.
It is a rule, that where the heir takes any thing which might have vested in the ancestor, the heir shall be in by descent, (1 Co. 98. a., Moore, 140. H. Chit. Desc. 51;) but where a person takes an estate which never vested or attached, or might have vested or attached, in the ancestor, he shall take by purchase: as if a son buys an estate and takes a conveyance to him and his heirs; or if a remainder be limited by a stranger to the right heirs of A., who has no estate in the premises, (for the remainder might otherwise have been attracted to the particular estate of A. under the rule in Shelley’s case, 1 Co. 104,) this will be an estate by purchase. Id. 4. The instances of persons taking by descent may be classed under the following heads:—1. Where an estate devolves in a regular course of descent from father to son, or from any other ancestor to his heir at law. 2. Where the ancestor by any gift or conveyance takes an estate of freehold, and in the same conveyance an estate is limited, either mediately or immediately, to his heirs in fee or in tail, (the estates becoming both united in the ancestor under the rule in Shelley’s case.) 1 Coke, 93. 1 Preston, 263. 3. Where an ancestor devises his estate to his heir at law, (the heir then taking by his preferable title, viz., by descent.) Saund. 8, note 4. 4. Where an ancestor by deed, or his will, limits a particular estate to a stranger, and either limits over the remainder (or, more properly speaking, the reversion) to his right heirs, or leaves the same undisposed of. See H. Chit. Desc. 5-10. See further as to when an heir takes by descent or purchase, post, 241, and the notes.
Mr. Hargrave (in his second note to Co. Litt. 18, b.) observes that, instead of distributing all the several titles to land under the heads of purchase or descent, it would be more accurate to say that the title to land is either by purchase, to which the act or agreement of the party is essential, or by mere act of law, and under the latter to consider, first descent, and then escheat, and such other titles not being by descent as yet, like titles by descent, accrue by mere act of law.
So we learn from lord Coke (1 Inst. 2, b.) that if an alien purchases lands he cannot hold them; the king is entitled to them: though in such case the king plainly takes neither by purchase (according to Mr. Hargrave’s explanation) nor by descent. Again, (1 Inst. 3, b.,) lord Coke says, “A purchase is when one cometh to lands by conveyance or title; and disseisins, abatements, intrusions, usurpations, and such like estates gained by wrong, are not purchases;” and it is equally clear they are not acquisitions by descent. And (in 1 Inst. 18, b.) lord Coke gives other instances of titles which, in strictness, if we admit Mr. Hargrave’s explanation, can be referred neither to purchase nor descent, as escheats and tenancy by the curtesy or in dower.
The division made by Blackstone seems the clearest when we are considering the law of descents alone.—Chitty.
[2 ] Yet, though the lands are cast on the heir by the law itself, the heir has not plenum dominium, or full and complete ownership, till he has made an actual corporal entry into the lands; for if he dies before entry made, his heir shall not be entitled to take the possession, but the heir of the person who was last actually seised. It is not therefore only a mere right to enter, but the actual entry, that makes a man complete owner, so as to transmit the inheritance to his own heirs, non jus sed seisina facit stipitem; what a sufficient entry and seisin, and what not; Com. Dig. Descent, C. 8, 9, 10; and see post, p. 312, 209, 227, 228.—Chitty.
[(b) ] See book i. pp. 74, 75. Book ii. pp. 83, 85.
[(c) ] See page 112, &c.
[(d) ] For a fuller explanation of the doctrine of consanguinity and the consequences resulting from a right apprehension of its nature, see An Essay on Collateral Consanguinity. Law Tracts, Oxon. 1762, 8vo, or 1771, 4to.
[(e) ]Ff. 38, 10, 10.
[(f) ]Decretal. l. tit. 14.
[(g) ] Co. Litt. 23.
[(h) ] Ibid. 12.
[(i) ] This will seem surprising to those who are unacquainted with the increasing power of progressive numbers, but is palpably evident from the following table of a geometrical progression, in which the first term is 2, and the denominator also 2; or, to speak more intelligibly, it is evident, for that each of us has two ancestors in the first degree, the number of whom is doubled at every remove, because each of our ancestors has also two immediate ancestors of his own.
A shorter method of finding the number of ancestors at any even degree is by squaring the number of ancestors at half that number of degrees. Thus, 16 (the number of ancestors at four degrees) is the square of 4,—the number of ancestors at two; 256 is the square of 16; 65536, of 256; and the number of ancestors at forty degrees would be the square of 1048576, or upwards of a million millions.
This calculation is right in numbers, but is founded on a false supposition, as is evident from the results, one of which is to give a man a greater number of ancestors all living at one time than the whole population of the earth; another would be, that each man now living, instead of being descended from Noah and his wife alone, might claim to have had at that time an almost indefinite number of relatives. Intermarriages among relatives are one check on this incredible increase of relatives. This is noticed afterwards by Blackstone, as to collateral relatives.
[(k) ] This will swell more considerably than the former calculation; for here, though the first term is but I, the denominator is 4; that is, there is one kinsman (a brother) in the first degree, who makes, together with the propositus, the two descendants from the first couple of ancestors; and in every other degree the number of kindred must be the quadruple of those in the degree which immediately precedes it. For, since each couple of ancestors has two descendants, who increase in a duplicate ratio, it will follow that the ratio in which all the descendants increase downwards must be double to that in which the ancestors increase upwards; but we have seen that the ancestors increase upwards in a duplicate ratio; therefore the descendants must increase downwards in a double duplicate; that is, in a quadruple ratio.3
This calculation may also be formed by a more compendious process,—viz., by squaring the couples, or half the number of ancestors, at any given degree; which will furnish us with the number of kindred we have in the same degree at equal distance with ourselves from the common stock, besides those at unequal distances. Thus, in the tenth lineal degree the number of ancestors is 1024; its half, or the couples, amount to 512: the number of kindred in the tenth collateral degree amounts therefore to 262144, or the square of 512. And if we will be at the trouble to recollect the state of the several families within our own knowledge, and observe how far they agree with this account,—that is, whether on an average every man has not one brother or sister, four first cousins, sixteen second cousins, and so on,—we shall find that the present calculation is very far from being overcharged.
[3 ] The learned judge’s reasoning is just and correct; and that the collateral relations are quadrupled in each generation may be thus demonstrated. As we are supposed, upon an average, to have one brother or sister, the two children by the father’s brother or sister will make two cousins, and the mother’s brother or sister will produce two more,—in all, four. For the same reason, my father and mother must each have had four cousins, and their children are my second cousins: so I have eight second cousins by my father, and eight by my mother,—together, sixteen. And thus, again, I shall have thirty-two third cousins on my father’s side, and thirty-two on my mother’s,—in all, sixty-four. Hence it follows that each preceding number in the series must be multiplied by twice two, or four.
This immense increase of the numbers depends upon the supposition that no one marries a relation; but to avoid such a connection it will very soon be necessary to leave the kingdom. How these two tables of consanguinity may be reduced by the intermarriage of relations will appear from the following simple case. If two men and two women were put upon an uninhabited island, and became two married couple, if they had only two children each, a male and female, who respectively intermarried and in like manner produced two children, who are thus continued ad infinitum, it is clear that there would never be more than four persons in each generation; and if the parents lived to see their great-grandchildren, the whole number would never be more than sixteen; and thus the families might be perpetuated without any incestuous connection.—Christian.
[(l) ]Decretal. 4, 14, 3 and 9.
[(m) ] Co. Litt. 23.
[(n) ] See the table of consanguinity annexed, wherein all the degrees of collateral kindred to the propositus are computed so far as the tenth of the civilians and the seventh of the canonists inclusive,—the former being distinguished by the numeral letters, the latter by the common cyphers.
[4 ] The difference of the computation by the civil and canon laws may be expressed shortly thus; the civilians take the sum of the degrees in both lines to the common ancestor; the canonists take only the number of degrees in the longest line. Hence, when the canon law prohibits all marriages between persons related to each other within the seventh degree, this would restrain all marriages within the fourteenth degree of the civil law. In the 1st book, 425, n., it is observed that all marriages are prohibited between persons who are related to each other within the third degree, according to the computation of the civil law. This affords a solution to the vulgar paradox, that first cousins may marry and second cousins cannot. For first cousins and all cousins may marry by the civil law; and neither first nor second cousins can marry by the canon law. But all the prohibitions of the canon law might have been dispensed with. It is said that the canon-law computation has been adopted by the law of England; yet I do not know a single instance in which we have occasion to refer to it. But the civil-law computation is of great importance in ascertaining who are entitled to the administration, and to the distributive shares, of intestate personal property. See post, 504, 515.—Christian.
[5 ] In a devise, however, if lands be left to the heir of M., it may be good as designatio personæ, and he may take in the lifetime of M. Goodright d. Brooking vs. White, 2 Bla. 1010. There is also an exception to this rule in the case of the duchy of Cornwall, which vests in the king’s first-born son by hereditary right in the lifetime of his father. 3 Bac. Abr. 449. 8 Rep. 1. Seld. Tit. Hon. ii. 5. The title of duke of Cornwall and the inheritance of the duchy were first created and vested in Edward the Black Prince, (who was the first duke in England after the duke of Normandy,) by a grant in the eleventh year of the reign of Edward III., (ad 1337.) This grant has been held to be an act of the legislature, or a charter confirmed by parliament, and is consequently good, though it alter the established course of descent, which the king’s grant could not do. The Prince’s case, 8 Rep. 1. It follows that the king’s eldest son, being heir-apparent, is always by inheritance duke of Cornwall, without a new creation. Id. ib. On the death of the eldest son, the second or eldest surviving son takes the inheritance,—a peculiar descent, founded on the legislative grant. 1 Ves. 294. Collins’s Bar. 148. 1 Bla. Com. 224, n. 10, by Mr. Christian. But it seems that as the duke of Cornwall must be not only the eldest son, but the heir-apparent, the second surviving son would not succeed to the dukedom if his eldest brother left issue, who would be heir-apparent; but it would in that case revert to the crown. Id. n. 10. It appears that the disabilities of minority do not hold against a duke of Cornwall with respect to the duchy rights and possessions. Id. Chitty, Jr. Prerog. 404 and 376, and n. (h) Bro. Abr. Prerog. p. 132. The general rule is, that till a prince is born the king is seised of all the possessions, (Com. Dig. Roy. 9;) but when born, the prince is immediately seised in fee; and leases, &c. made by the king may be determined by the prince, and he may have a scire facias for that purpose. See Chitty, Jr.’s Prerog. of the Crown, p. 404. H. Chit. Desc. 15, n.—Chitty.
[(o) ] Bro. tit. Descent. 58.
[6 ] But, besides the case of a posthumous child, if lands are given to a son who dies, leaving a sister his heir, if the parents have at any distance of time afterwards another son, this son shall devest the descent upon the sister and take the estate as heir to his brother. Co. Litt. 11. Doct. and Stud., 1 Dial. c. 7. So the same estate may be frequently devested by the subsequent birth of a nearer presumptive heir. As if an estate is given to an only child, who dies, it may descend to an aunt, who may be stripped of it by an after-born uncle, on whom a subsequent sister of the deceased may enter, and who will again be deprived of the estate by the birth of a brother. But every one has a right to retain the rents and profits which accured whilst he was thus legally possessed of the inheritance. Harg. Co. Litt. 11. 3 Wils. 526.—Christian.
This is in the case of a descent, (see H. Chit. Desc. 294;) but where a posthumous child takes by purchase, he is entitled not only to the estate itself, but to the intermediate profits of the estate also. Id. 296, 297, 298.—Chitty.
[(p) ] Co. Litt. 15.
[7 ] It seems doubtful whether receiving rent reserved on a freehold lease is equivalent to corporal seisin of the lands. Upon comparing the passage in lord Coke cited as an authority with Co. Litt. 32, a. and 3 Rep. 42, a., it would seem that his opinion was in the negative. The same point was ruled in cases cited from Hale’s MSS. and Mr. J. Glyn’s MS. Rep. by Mr. Hargrave, Co. Litt. 15, a., n. 83; and in Doe vs. Keen, 7 T. R. 390, lord Kenyon certainly understands him so to have thought, and adopts it as a rule that, to give such seisin, rent must have been received after the expiration of the freehold lease. In Doe vs. Wichelo, 8 T. R. 213. I understand him to lay down the same rule, though there is some little ambiguity of expression.—Coleridge.
[(q) ] Ibid. 11.
[8 ] The nature of the seisin which a person acquires, and which will render such person an ancestor, to whom the next claimant must make himself heir, depends materially on the question whether the estate was obtained by purchase or by descent.
Where any person acquires hereditaments by purchase, and such hereditaments are of a corporeal nature, he generally at the same time also acquires or receives the corporal seisin or possession. Watk. Desc. 3. Where the deed of purchase or instrument by which such hereditaments are conveyed to the ancestor is founded upon feudal principles, it is always attended with actual livery of seisin, which is exactly similar to the investiture of the feudal law, and without which such instrument was in no instance sufficient to transfer an estate of freehold. Co. Litt. 48, a. post p. 314. Where the instrument derives its essence from the statute of uses, (27 Hen. VIII. c. 10,) the cestui que use is clothed with the actual possession of the lands by the operation of the act. And in case of a devise by will of lands to a man in fee, who dies after the devisor, the freehold or interest in law is in the devisee before entry; and, on his death, his heir may and will take by descent. Co. Litt. 111, a. 1 Show. 71. As to incorporeal hereditaments, and as to reversions and remainders, of which, when expectant on an estate of freehold, there can be no corporal seisin, the property, whether vested in possession, or only in interest, or merely contingent, is fixed or settled in the purchaser at the time of the purchase, so as to render them transmissible to his heirs. Watk. Desc. 9, 10. Whether, however, the hereditaments be of a corporeal or incorporeal nature, or in possession or expectancy, the purchaser, on the purchase being completed and the property in them being transferred, becomes immediately the root or stock of descent, and the hereditaments become descendible to his heirs. Watk. D. 4. In the instance therefore of a purchase, the question is whether such property was legally vested or fixed in the purchaser, so as that, had he lived, he might have had the actual possession or enjoyment of it; and he may in many instances transmit it to his heirs, though he never had an actual seisin of it himself, and even where he never had any kind of seisin whatever; for it is a rule that where the heir takes any thing which might have vested in the ancestor, the heir shall be in by descent. 1 Co. 98, a. Moore, 140. Thus, in the case of a fine levied, or recovery suffered, though the party die before execution, yet the execution afterwards shall have relation to the act of the ancestor, and the heir be in by descent. Shelley’s case, 1 Co. 93, b., 106, b. Co. Litt. 361, b. 7 Co. 38, a. Burr. 2786. The execution of the writ consists in the delivery of seisin by the sheriff to the demandant; but it is now only returned, and never in fact executed. 5 T. R. 179, 180. And in the instance of an exchange, if both parties to the exchange die before either enters, the exchange is altogether void; but if either of the parties enters, and the other dies before entry, his heir may enter, and will be in by descent. 1 Co. 98, a.
But where a person takes an estate by descent, he thereby acquires only a seisin in law of the estate descending, unless the estate were, on the death of the ancestor, held by any person under a lease for years, (though otherwise if leased for an estate of freehold,) for then the heir has not merely a seisin in law, but, by the possession of such lessee for years, acquires a seisin or possession in deed. Co. Litt. 15, a. 3 Atk. 469. Moore, 126, Case 272. Watk. 65, n. g. This seisin in law alone is not sufficient to make him an ancestor, but in order to make himself the stock or root of descent, the fountain from which the hereditary blood of future claimants must be derived, and so enable him to turn the descept and render the hereditary possessions descendible to his own heirs, it is requisite that such heir who thus succeeds to the estate by descent should gain an actual seisin or possession, or what is equivalent thereto, according to the nature and quality of the estate descending. Watk. D. 36, 37, 57. Ratcliffe’s case, 3 Co. 37.
This actual seisin may be acquired by entry into the lands descended, if of an estate in possession,—which is the usual and direct mode of acquiring it,—which may be made by the heir himself, or by his guardian, (if he is under age,) or by his attorney, or even a stranger entering on his behalf. So also the heir may acquire an actual seisin by granting a lease for years or at will, and the entry of such his lessee under the lease, and the seisin in law cast upon him by the law, will be sufficient to enable him to grant such lease. Plowd. 87, 137, 142. 6 Com. Dig. “Seisin,” (A. 2.) Bac. Abr. “Lease,” I. 5. 2 Stra. 1086.—Chitty.
[(r) ] Flet. l. 6, c. 2, 2.
[(s) ] Litt. 3.
[9 ] That is, the father shall not take the estate as heir to his son in that capacity; yet, as a father or mother may be cousin to his or her child, he or she may inherit to him as such, notwithstanding the relation of parent. Eastwood vs. Winke, 2 P. Wms. 613. So if a son purchase lands and dies without issue, his uncle shall have the land as heir, and not the father, though the father is nearer of blood, (Litt. 3;) but if in this case the uncle acquires actual seisin and dies without issue while the father is alive, the latter may then by this circuity have the land as heir to the uncle, though not as heir to the son, for that he cometh to the land by collateral descent, and not by lineal ascent. Craig de Jur. Feud. 234. Wright’s Ten. 182, n. (Z.) So under a limitation to “the next of blood of A.,” the father would on the death of the son without issue take in exclusion both of the brothers and uncle of A. who would have first succeeded under the usual course of descent as heirs of A.; for a father is nearer in proximity of blood than a brother or an uncle, (Litt. 3. Co. Litt. 10, b. 11, a. 3 Rep. 40, b. 1 Ventr. 414. Hale, C. L. 323;) and this is the reason why the father is preferred in the administration of the goods of the son before any other relation, except his wife and children.—Chitty.
[(t) ] Seld. de success. Ebræor. c. 12.
[(u) ]Ff. 38, 15, 1. Nov. 118, 127.
[(v) ] Inst. 3, 3, 1.
[(w) ] Craig. de jur. feud. l. 2, t. 13, 15. Locke on Govt. part 1, 90.
[(x) ]Feud. 50.
[(y) ] Domat, p. 2, l. 2, t. 2. Montesq. L. l. 3, 1, c. 33.
[10 ] This is now altered; and where a party dies leaving no lineal descendants, nor brothers or sisters or lineal descendants from them, the inheritance is equally divided between the two ascending lines. The nearest in degree in each takes one-half; and if there are more than one in the same degree the moiety of that line is divided per capita. Code Civil, l. 3, tit. i. 746.—Coleridge.
[(z) ]LL. Hen. I. c. 70.
[(a) ]L. 7, c. 1.
[(b) ] 1 Feud. 20.
[(c) ]Descendit itaque jus, quasi ponderosum quid cadens deorsum recta linea, et nunquam reascendit. L. 3, c. 29.
[(d) ] 1 Inst. 11.
[11 ] However ingenious and satisfactory these reasons may appear, there is little consistency in the application of them; for if the father does not succeed to the estate because it must be presumed that it has passed him in the course of descent, the same reason would prevent an elder brother from taking an estate by descent from the younger. And if it does not pass to the father, lest the lord should have been attended by an aged, decrepit feudatory, the same principle would be still stronger to exclude the father’s eldest brother from the inheritance, who is now permitted to succeed to his nephew.—Christian.
[(e) ] Hal. H. C. L. 235.
[(f) ] Numb c. xxvii.
[(g) ] Petit. LL. Attic. l. 6, t. 6.
[(h) ] Inst. 3, 1, 6.
[(i) ] Stat. Wall. 12 Edw. I.
[(k) ]LL. Canut. c. 68.
[(l) ] Tit. 7, 1, 4.
[(m) ] C. 70.
[(n) ] 1 Feud. 8.
[12 ] Daughters by different venters may inherit together as one heir to their common parent, though half-blood is an impediment to the succession by descent from one to the other. Thus, lord Hale says, (Com. L. c. 11,) “all the daughters, whether by the same or divers venters, do inherit together to the father.” Therefore, if A. marries B., who dies leaving issue a daughter, and A. afterwards has issue one or more daughters by C. his second wife, and dies, all these daughters shall take his estate in equal shares among them in coparcenary, being equally his children. So, Robinson says, all the daughters by different wives succeed to the inheritance of which their father was either seised in his own right, or to which their father would have been heir had he survived the person last seised. And the daughters by several husbands succeed in the same manner to the inheritance of their mother. Rob. Inh. 37, 38. See also Watk. D. 159, n. (b.) Bro. Abr. Desc. pl. 20. 1 Roll. Abr. 627. Hale C. L. c. 11, post, p. 231. H. Chit. Desc. 78, 79.—Chitty.
[(o) ] Litt. 5. Hale, H. C. L. 238.
[(p) ] Selden, de success. Ebr. c. 5.
[(q) ] C. 70.
[(r) ] Glanvil, l. 7, c. 3.
[(s) ] 2 Feud. 55
[(t) ] Hale, H. C. L. 221.
[(u) ]L. 7, c. 3.
[(w) ] C. 1, 3.
[(x) ]L. 3, c. 30, 31.
[(y) ] Somner, Gavelk. 7.
[(z) ] Co. Litt. 165.
[(a) ] Ibid.
[13 ] The king, in the case of coparceners of a title of honour, may direct which one of them and her issue shall bear it; and if the issue of that one become extinct, it will again be in abeyance if there are descendants of more than one sister remaining. But upon the failure of the issue of all except one, the descendant of that one, being the sole heir, will have a right to claim and to assume the dignity. There are instances of a title, on account of a descent to females, being dormant or in abeyance for many centuries. Harg. Co. Litt. 165. Lord Coke says there is a difference in an office of honour which shall be executed by the husband or deputy of the eldest. Ib. Yet when the office of great chamberlain had descended to two sisters, coheiresses of the duke of Ancaster, one of whom was married to Peter Burrell, Esq., the judges gave it as their opinion in the house of lords “that the office belongs to both sisters; that the husband of the eldest is not of right entitled to execute it; and that both sisters may execute it by deputy to be approved of by them, such deputy not being of a degree inferior to a knight, and to be approved of by the king.” Ib. et Jour. Dom. Proc. May 25, 1781.—Christian.
[(b) ] 1 Feud. 1.
[(c) ] Hale, H. C. L. 236, 237.
[(d) ] Selden, de success. Ebr. c. 1.
[(e) ] Nov. 110, c. 3. Inst. 3, 1, 6.
[14 ] This right transferred by representation is infinite and unlimited in the degrees of those that descend from the represented; for the son, the grandson, the great-grandson, and so all downwards in infinitum, enjoy the same privilege of representation as those from whom they derive their pedigree had. Hale, C. L. c. 11. And from hence it follows that the nearest relation is not always the heir at law; as the next cousin jure representationis is preferred to the next cousin jure propinquitatis. Co. Litt. 10, b. Proximity of blood, therefore, is twofold, either positive or representative. It is positive when the parties claim in their own individual right, as between the second and third son, or between the uncle and grand-uncle. It is representative when either of the parties claim as being lineally descended from another, in which case he is entitled to the degree of proximity of his ancestor. Thus, the grandson of the elder son of any person proposed is entitled before the second son of such person, though in common acceptation nearer by two degrees; and this principle of representative proximity is by the law of England so peremptory that a female may avail herself thereof to the total exclusion of a male claiming in his own right; for in descents in fee-simple the daughter of the eldest son shall, as claiming by representation of her father, succeed in preference to the second or younger son. See 3 Cru. Dig. 378, 379.—Chitty.
[(f) ] Mod. Un. Hist. xlii. 334.
[(g) ]L. 7, c. 3.
[(h) ] Hale, H. C. L. 217, 229.
[(i) ] Bracton, l. 2, c. 30, 2.
[15 ] The following historical observations and legal deductions relating to the doctrine of representations are extracted from Dalrymple on Feuds:—
“The right of representation was more slowly introduced into the collateral than into the descending line.
“In the original law of nature, representation must be unknown: those who are nearest in blood to a man will be conceived to be nearest connected with him. Afterwards, it is observed to be a hardship that children bred up in a suitable rank to that of their father, and with a prospect of succeeding to his rights, should be cut off at once from that rank and that prospect. It comes to be observed as a further hardship, that a woman who has married one seemingly her equal should, by his untimely death, lose not only her husband, but see her children reduced to beggary.
“These considerations introduced the right of representation in the descending line; but the same considerations did not occur in the collateral line. The children of a brother or cousin have not the prospect of succeeding to their uncles’ or cousins’ estates, because it is always to be supposed every man is to have children of his own. It is therefore no hardship upon them to be removed by another uncle or another cousin from a succession which they could have no reasonable expectation of enjoying.
“The steps by which the right of representation in private successions came into the collateral line in Great Britain, or even in any other country in Europe, are extremely difficult to be traced, and perhaps are not very certain when they are traced. Therefore we must supply them by the progress of the same representation in public successions.
“In these last successions it is plain that representation was originally unknown. From the histories of modern Europe, it appears that when succession was permitted amongst collaterals the nearest of blood took to the exclusion of representation.
“In the time of Edward I., though representation in the descending line was tolerably well established throughout Europe, yet the point was so doubtful in the collateral line that, upon the death of Margaret of Norway and the dispute for her succession between her cousins Bruce and Baliol, not only the eighty Scotch commissioners named by the candidates, and the twenty-four English named by king Edward, were long doubtful, but all Europe was doubtful, which side ought to prevail. The precise question in the end put by the king to the commissioners was, Whether the more remote by one degree in succession, coming from the elder sister, ought to exclude the nearer by a degree, coming from the second sister? And, on the answer importing that representation should take place, judgment was given for Baliol.
“The Scotch writers of those days were positive this judgment was wrong; the English writers of the same period were as positive that it was right. These different opinions may be accounted for. In England, at that time, representation in collateral succession was beginning to take place; and this advance of their own nation the English made the measure of their opinion. The Scotch, on the other hand, at the same period, had not arrived at the same length: this species of representation was unknown to them; and therefore they disapproved of the judgment.
“Solemn as this decision was, yet even in England, a century afterwards, the right of representation in this line was so far from being complete that it was the same doubt that gave rise to the disputes between the houses of York and Lancaster and involved the kingdom in civil war. On the abdication of Richard the Second, the two persons claiming the right to the crown were his two cousins, the duke of Lancaster, son of John of Gaunt, who was fourth son to Edward the Third, and the earl of March, grandson to Lionel, duke of Clarence, who was third son of the same prince. And the discussions related to the rights of these persons, and whether representation in collateral successions ought to prevail.
“Even in later times, and when the law was better understood, it was on the same ground that, upon the death of Henry the Third, of France, the League set up the cardinal of Bourbon as heir to the crown, in opposition to his nephew, the king of Navarre. This last prince was son of the elder branch to the cardinal; but, the cardinal being one step nearer to the common stock, it was asserted that nearness of blood, and not representation, took place in collateral succession.
“For many ages it has now been fixed in private successions that representation in the collateral line shall take place; and, although of late in Europe there has scarce been any such dispute in public successions as to give room for either example to prevail, yet the example of those private successions, and the now riveted notions of mankind in favour of representation, will probably prevent it from being ever made again the subject of dispute.” See Dalrymple on Feuds, ch. 5, s. 2, p. 178. H. Chit. Desc. 98, n.—Chitty.
[16 ] The custom of gavelkind extends to collaterals; so that, if one brother die without issue, all his other brothers shall succeed equally. Robins. on Gavelk. book I. ch. 6. But the custom of borough English does not extend to collaterals; and therefore, on the death of one brother, lands of that tenure shall not go to the youngest brother without a special custom. Ibid.—Chitty.
[17 ] It should here be noticed, that though it is necessary that a person who would succeed must show himself to be of the blood of the first purchasor, yet, where the persons who inherit succeed or derive title to the inheritance by virtue of remote and intermediate descents from the purchasor, it will be sufficient if they are related by half-blood only to the purchasor, or to such other remote and intermediate ancestors who were formerly and intermediately seised of the inheritance in the regular course of descent from the purchasor, provided, according to the rule which follows, they are the worthiest legal relatives of the whole blood to the person last seised. Rob. Inh. 45. For example, see post, p. 228.—Chitty.
[(k) ] Co. Litt. 12.
[18 ] To be of the blood of Geoffrey is either to be immediately descended from him, or to be descended from the same couple of common ancestors. Two persons are consanguinei, or are of the blood (that is, whole blood) of each other, who are descended from the same two ancestors.
The heir and ancestor must not only have two common ancestors with the original purchaser of the estate, but must have two common ancestors with each other; and therefore, if the son purchases lands and dies without issue, and it descends to any heir on the part of the father, if the line of the father should afterwards become extinct, it cannot pass to the line of the mother. Hale’s Hist. C. L. 246. 49 E. III. 12. And for the same reason, if it should descend to the line of any female, it can never afterwards, upon failure of that line, be transmitted to the line of any other female; for, according to the next rule,—viz. the sixth,—the heir of the person last seised must be a collateral kinsman of the whole blood.—Christian.
[(l) ]Gr. Coustum. c. 25.
[(m) ] 1 Feud. 1, 2.
[(n) ] Craig. l. 1, t. 9, 36.
[19 ] Where a man takes by purchase, he must take the estate as a feudum antiquum, and though it be limited to his heirs on the part of his mother, yet the heirs on the paternal side shall be preferred in the descent; for no one is at liberty to create a new kind of inheritance. H. Chit. Desc. 3, 123. 3 Cru. Dig. 359. Watk. Desc. 222, 223.—Chitty.
[20 ] It will sometimes happen that two estates or titles, the one legal and the other equitable, will descend upon the same person, in which case they will become united, and the equitable shall follow the line of descent through which the legal estate descended. See Goodright d. Alston vs. Wells, Doug. 771. And in the late case of Langley vs. Sneyd, (1 Simons & Stu. Rep. 45,) where an infant died seised of an equitable estate descending ex parte maternâ, the legal estate being vested in trustees, his incapacity to call for a conveyance of the legal estate (by which the course of descent might have been broken) was held to be a sufficient reason to induce a court of equity to consider the case as if such a conveyance had actually been made, it not being, according to the terms of the trust, any part of the express duty of the trustees to execute such conveyance.—Chitty.
[21 ] Hence the expression heir at law must always be used with a reference to a specific estate; for if an only child has taken by descent an estate from his father and another from his mother, upon his death without issue these estates will descend to two different persons: so also, if his two grandfathers and two grandmothers had each an estate, which descended to his father and mother, whom I suppose also to be only children, then, as before, these four estates will descend to four different heirs.—Christian.
[(o) ] Domat, part 2, pr.
[(p) ] M. 12 Edw. IV. 14.
[(q) ] Abr. t. descent. 2.
[(r) ] Ibid. 38.
[(s) ] H. C. L. 243.
[22 ] With reference to this and the preceding rule, it is to be observed that, “in order to constitute a good title, the party must be the nearest collateral heir of the whole blood of the person last seised on the part of the ancestor through whom the estate descended.” When lord Hale speaks of the nearest collateral relation of the whole blood of the person last seised, and of the blood of the first purchasor, he means the latter branch of the expression as a qualification, and not an addition, to the first branch, that the collateral heir of the whole blood must claim through the ancestor from whom the estate descended, and thus be of the blood of the first purchasor. Per Leach, vice-chancellor, Hawkins vs. Shewen, 1 Sim. & Stu. Rep. 257, which case, and the pedigree annexed to the same, deserve attention. On account of the qualification required for the heir to be of the blood of the first purchasor or acquirer of the estate, it may not unfrequently happen that the person upon whom the inheritance devolves in a regular and legal course of descent or succession is not (as independently of, and laying aside, this qualification) heir or next of kin to the person last seised of it, either in the paternal or maternal line.
It appears that Littleton and his commentator, lord Coke, (Ten. s. 6, fo. 11, b.,) have laid down a different doctrine “touching the necessity of the person who inherits being always heir, or the worthiest and nearest relative, to the person last seised;” but it is conceived that the rules must be taken together in a connected view, and as such the rule will stand thus:—“That the person or persons who inherit, and upon whom the law casts the inheritance upon the death of the person seised, must always be the worthiest and nearest of such of the relatives of the whole blood of the person last seised as are of the blood and consanguinity of the purchasor, and such as are not incapacitated by the first rule of descent.” Rob. Inh. 46, 47.—Chitty.
[23 ] This is only true in the paternal line; for when the paternal and maternal lines are both admitted to the inheritance, the most remote collateral kinsman ex parte paternô will inherit before the nearest ex parte maternâ. See p. 236, post.—Christian.
[24 ] It is suggested by Mr. Christian, in his edition of Blackstone, “that the true and only way of ascertaining an heir at law in any line or branch is by the representation of brothers or sisters in each generation, and that the introduction of the computation of kindred either by the canon or civil law into a treatise upon descents may perplex, and can never assist; for if we refer this sixth rule either to the civil or canon law, it will in many instances be erroneous. It is certain that a great-grandson of the father’s brother will inherit before a son of the grandfather’s brother; yet the latter is the next collateral kinsman according to both the canon and civil law computation; for the former is in the fourth degree by the canon and the sixth by the civil law, the latter is in the third by the canon and the fifth by the civil; but in the descent of real property the former must be preferred.”
The doctrine of consanguinity, as laid down by Blackstone, has, however, been thus vindicated by the author of the recent treatise of descents:—
“Mr. Christian asserts that ‘this introduction of the computation of kindred into a treatise of descent may perplex, but can never assist.’
“But it may be asked, By what means are we to ascertain and determine who is nearest to a person deceased,—whether his uncle or his brother, or any other of his relations? We have no rule which directs that a brother can inherit before an uncle, but merely that on failure of lineal descendants, or issue of the person last seised, the inheritance shall descend to his collateral relations. Canon 5. And then follows this sixth rule, which designates which of these collateral relations shall be preferred, namely, the next collateral kinsman of the whole blood. And who, it will be asked, is the next collateral kinsman? Unless we can have recourse to the degrees of consanguinity as pointed out by the canon law, in order to ascertain this fact, we have no rule by which we can determine what collateral relative is entitled to the inheritance. But Mr. Christian further asserts that this computation of the sixth rule of descents, if referred either to the civil or canon law, will in many instances be erroneous; for a grandson of the father’s brother will inherit before a son of the grandfather’s brother, yet the latter is the next collateral kinsman. Mr. C.’s assertion is founded on a mistaken view of the rules of descent, and on a disregard of their connection one with another; for if we refer to the fifth canon, which intimates that the descent in the collateral line is subject to the second, third, and fourth rules of descent, we shall find that ‘the lineal descendants of any person deceased shall represent their ancestor, and stand in the same place as the person himself would have done had he been living;’ and again, by the exposition of lord Coke of the word ‘next,’ we shall find that it must be understood in a double sense, namely, next jure representationis and next jure propinquitatis, that is, by right of representation and by right of propinquity, and that Littleton, in his position that the ‘next collateral cousin shall inherit,’ meaneth of the right of representation; for legally, in course of descents, he is next of blood inheritable. Co. Litt. 10, b. And therefore, though on the face of the table of consanguinity the great-grandson of the father’s brother does appear to be more degrees removed than the son of the grandfather’s brother, yet inasmuch as he represents his lineal ancestor, the uncle of the deceased, he is one degree nearer than the son of the grandfather’s brother, who represents only the great-uncle of the deceased. But again, Mr. C. disavows this doctrine of representation of blood, and proposes that the rule is only true in the paternal line; for when the paternal and maternal lines are both admitted to the inheritance, that is, when the deceased was the purchaser of the estate, and it therefore is a feudum novum, to be held ut antiquum, the most remote collateral kinsman ex parte paternâ will inherit before the nearest ex parte maternâ. Mr. C. again falls into the same error, and seems to disregard the subsequent rules of descent by which the kindred derived from the blood of the male ancestors, however remote, are admitted before those from the blood of the female, however near. The rule therefore may stand good and unexceptionable in this form,—that the collateral kinsman, who is either by representation or in his own personal right nearest to the deceased, shall be admitted and succeed to the inheritance on failure of his lineal descendants. The rules of descent must be taken together in a connected view; nor can we in many instances state any one of the canons of descent as a positive rule without such connection the one with another. Thus, for instance, as in the direct descending line by the first canon, taken by itself, all the children, so by the fifth rule all the collateral relatives, of any person deceased would be entitled to an equal share of the inheritance; but these are subsequently explained, the one to mean the male issue, and of them the eldest, in preference to the females; and the latter, the next collateral, either in his own right, or by representation in the male line, in preference to the female.” See H. Chit. Desc. 110-113.—Chitty.
[(t) ] Tacitus de Mor. Germ. 21.
[(u) ] Numb. c. xxvii.
[(w) ] Selden, de success. Ebr. c. 12.
[(x) ] Sid. 196. 1 Ventr. 423. 1 Lev. 60. 12 Mod. 619.
[25 ] It may be observed that it is always intended or presumed that a person is of the whole blood until the contrary be shown. Kitch. 225, a. Plowd. 77, a. Trin. 19, H. 8, pl. 6, p. 11, b. Watk. Desc. 75, n. (u.)—Chitty.
[(y) ] Hale, H. C. L. 238.
[26 ] The meaning of the maxim is, that the possession of a brother will make his sister of the whole blood his heir in preference to a brother of the half-blood. Litt. 58.
Of some inheritances there cannot be a seisin, or a possessio fratris: as if the eldest brother dies before a presentation to an advowson, it will descend to the half-brother as heir to the person last seised, and not to the sister of the whole blood. 1 Burn, Ec. L. 11. So of reversions, remainders, and executory devises, there can be no seisin, or possessio fratris; and if they are reserved or granted to A. and his heirs, he who is heir to A. when they come into possession is entitled to them by descent: that is, that person who would have been heir to A. if A. had lived so long and had then died actually seised 2 Woodd. 256. Fearne, 448. 2 Wils. 29.—Christian.
It may from the above passage in the text be perceived that the rule depends entirely on the question whether the elder son had obtained a seisin of the estate; for if he has obtained such a seisin, though not by actual entry, as will be sufficient to make him an ancestor, so as to transmit the estate descending to his own right heirs, his sister of the whole blood will be entitled in preference to the brother of the half-blood; but if he has not obtained such a seisin, his brother of the half-blood will succeed as heir to his father, who was the person last seised.
It may also be observed that if the father die without heirs-male, his daughters by different venters may inherit together to the father, although they cannot inherit to each other. Bro. Abr. Descent, pl. 20. 1 Roll. Abr. 627.—Chitty.
[(z) ] Tenures, 186.
[27 ] This reason will be found on examination to be unsatisfactory, and, indeed, not to be founded in truth. It is not true that in all, or even in most, cases, there is a greater probability that a kinsman of the whole blood is derived from the blood of the first purchasor than a kinsman of the half-blood, or that a kinsman of the half-blood has in all, or even in most, cases, fewer common ancestors of the person last seised than a kinsman of the whole blood. My brother of the half-blood (the issue of my father) has one ancestor (my father) more in common with me than my uncle of the whole blood; several more than my great-uncle, (see post, p. 231;) and more—almost innumerably more—than the descendants of my paternal grandmother’s maternal grandfather. Yet all these may inherit an estate descended to me from my father, and purchased by him, though my half-brother (the son of my father, the original purchasor) cannot inherit. And it is plain the law does not consider the point as hinging upon greater or less probability; for then it would only postpone the half-blood, instead of utterly excluding it, so that land shall rather escheat than devolve upon a kinsman of the half-blood.
This note is partly extracted from the MS. supposed to be penned by a noble and learned judge still living.—Chitty.
[28 ] This ought to be twice; for the half-brother has one chance in two, the great-uncle one in four. The chance of the half-brother is therefore twice better than that of the great-uncle.—Christian.
[(a) ] A still harder case than this happened, M. 10 Edw. III. On the death of a man who had three daughters by a first wife and a fourth by another, his lands descended equally to all four as coparceners. Afterwards the eldest two died without issue; and it was held that the third daughter alone should inherit their shares, as being their heir of the whole blood, and that the youngest daughter should retain only her original fourth part of their common father’s lands. 10 Ass. 27. And yet it was clear law, in M. 19 Edw. II., that where lands had descended to two sisters of the half-blood, as coparceners, each might be heir of those lands to the other. Mayn. Edw. II. 628. Fitzh. Abr. tit. quare impedit, 177.
[(b) ]L. 2, t. 15, 14.
[(c) ]Gr. Coustum. c. 25.
[(d) ]L. 2, c. 30, 3.
[(e) ]L. 6, c. 1, 14.
[(f) ]De laud. LL. Angl. 5.
[(g) ] Plowd. 245. Co. Litt. 15.
[(h) ] 12 Wm. III. c. 2.
[(i) ] Litt. 14, 15.
[29 ] In titles of honour also half-blood is no impediment to the descent; but a title can only be transmitted to those who are descended from the first person ennobled. Co. Litt. 15. Half-blood is no obstruction in the succession to personal property. Page 505, post.—Christian.
[30 ] The learned judge has exerted great ability and ingenuity in apologizing for the exclusion of the half-blood. But whatever ingenuity may have been exerted in its favour, I conceive nothing more in effect can be said for it than this, viz., that if the half-blood were universally admitted to inherit, an estate might pass out of one family into another, between whom there was no union of blood. As where a son inherits an estate from his father, and his mother marries again and has a child by her second husband; if this child could inherit from his half-brother it would acquire the estate of the first husband, to whom it is not related by blood; and in order to avoid this inconvenience, the half-blood is universally excluded. But surely nothing can be more cruel or contrary to our notions of propriety and consistency than to give the estate to a distant relation, or to the lord, in preference to a half-brother, either when it has descended from the common parent or when the half-brother has himself acquired it. A case was determined in the Common Pleas a few years ago under the following circumstances:—A father died intestate, leaving two daughters by his first wife, and his second wife pregnant, who was delivered of a son: this infant lived only a few weeks; and it was held that as the mother had resided upon one of the father’s estates, and had received rent for others after the father’s death, she being the guardian in socage of the infant, this amounted to a legal seisin in him, and of consequence his two sisters could not inherit, and the estate descended perhaps to a remote relation. 3 Wils. 516. And in a late case, where a father died leaving two daughters by different mothers, the mother of the youngest entered upon the premises, and the eldest daughter died; it was held, that the mother being guardian in socage to the youngest, and having a right to enter for her own daughter, the entry of the mother was also an entry for the coparcener the half-sister, which created a seisin in her; and therefore, upon her death, her moiety descended to some of her relations of the whole blood. And lord Kenyon held generally that an infant may consider whoever enters on his estate as entering for his use. And he referred to the distinction laid down by lord Coke, (Co. Litt. 15, a.,) viz., that if the father die, his estate being out on a freehold lease, that is not such a possession as to induce a possessio fratris, unless the elder son live to receive rent after the expiration of the lease; but if the father die leaving his estate out on a lease for years, the possession of the tenant is so far the possession of the eldest son as to constitute the possessio fratris. 7 T. R. 390.—Christian.
[(k) ] See page 20.
[(l) ] Litt. 4.
[31 ] So lord Hale says, “If a son purchases land in fee-simple, and dies without issue, those of the male line shall be preferred in the descent,” (Hale, Hist. Com. L. 326, rule 7, div. 1;) and the line of the part of the mother shall never inherit as long as there are any, though never so remote, of the line of the part of the father; and, consequently, though the mother had a brother, yet if the great-great-great-grandfather or grandmother has a brother or sister, or any descended from them, they shall be preferred to and exclude the mother’s brother, though he is much nearer. Id. ib. div. 2. Clere vs. Brooke, Plowd. 442. And so great is the preference shown to the male line, that if a son dies, having purchased lands which descend to his heir on the part of his father, (not being his own brother or sister, see H. Chit. Desc. 123,) and the line of the father should afterwards fail, yet the descent shall never return to the line of the mother, though in the first instance, or first descent from the son, it might have descended to the heir of the part of the mother; for by this descent and seisin it is lodged in the father’s line, to whom the heir of the part of the mother can never derive a title as heir, but it shall rather escheat. See Harg. note 5. Co. Litt. 13, a.
“This preference of male stocks is continued throughout all manner of successions; for if on default of heirs of the part of the father the lands descend to the line of the mother, the heirs of the mother of the part of her father’s side shall be preferred in the succession before her heirs of the part of her mother’s side, because they are the more worthy.” Hale, C. L. 330.
The several classes which can comprehend every description of kindred are thus enumerated by Mr. Cruise, Dig. vol. iii. p. 377:—
1. The male stock of the paternal line.
2. The female stock of the paternal line.
3. The male branches of the female stock of the paternal line.
4. The female branches of the female stock of the paternal line.
5. The male stock of the maternal line.
6. The female branches of the male stock of the maternal line.
7. The male branches of the female stock of the maternal line.
8. The female branches of the female stock of the maternal line.—Chitty.
[(m) ]De success. Ebræor. c. 12.
[(n) ]LL. Attic. l. 1, t. 6.
[(o) ] Θεογον, 606.
[(p) ] Nov. 118.
[(q) ]Gr. Coustum. c. 25.
[32 ] If a man seised in fee ex parte materna levy a fine sur grant et render, granting to A. and his heirs, the estate taken by the conusor under the render will now be descendible to his heirs ex parte paterna. 1 Prest. Conv. 210, 318. Co. Litt. 316. Dyer, 237, b. Price vs. Langford, 1 Salk. 92. And the same in the case of feoffment and re-infeoffment, or even if a man seised ex parte materna make feoffment in fee reserving rent, the rent shall descend to the heirs ex parte paterna. Co. Litt. 12, b.—Chitty.
[33 ] Very important alterations have been made in the law of descents in England by the statute 3 & 4 Wm. IV. c. 106. From the provisions of this statute the following have been framed as the existing canons of descent in that country:—
1. The descent shall be traced from the purchaser, the person last entitled to the land being considered to have been the purchaser, unless he be proved to have inherited it.
This rule it appears is not to be applied unless the circumstances of the case and the nature of the title require it, so that when a person dies leaving issue it need not be inquired whether he or she took by inheritance or by purchase.
2. Inheritances shall descend lineally to the issue of the purchaser.
3. On failure of issue of the purchaser, the inheritance shall go to his nearest lineal ancestor, or the issue of such ancestor,—the ancestor taking in preference to his or her issue. Thus, if the purchaser dies without issue, the father takes before the brothers or sisters of that purchaser, and a grandfather, not before the father or the father’s issue, but before the uncles or aunts or their issue.
4. Paternal ancestors and their descendants shall be preferred to maternal ancestors and their descendants, male paternal ancestors and their descendants to female paternal ancestors and their descendants, and male maternal ancestors and their descendants to female maternal ancestors and their descendants, and the mother of a more remote female ancestor on either side and her descendants to the mother of a less remote female ancestor and her descendants. Thus, the mother of the paternal grandfather and her issue shall be preferred to the father’s mother and her issue.
5. The male issue shall be admitted before the female.
6. When there are two or more males in equal degree, the eldest only shall inherit, but the females all together.
7. Relations of the half-blood shall be capable of inheriting,—those who are related ex parte paterna taking next in order to the relations, male and female, of the same degree of the whole blood; those who are related ex parte materna taking next in order after their mother.
8. The lineal descendants, in infinitum, of any person deceased shall represent their ancestor,—that is, shall stand in the same place as the person himself would have done had he been living. Thus, the issue of a deceased eldest son, in whatever degree, will precede in order of inheritance the living younger sons.—Kerr.
[(r) ] See the table of descents annexed.
[(s) ] Plowd. 450.
[(t) ] Elem. c. 1.
[(u) ] H. C. L. 240, 244.
[34 ] Mr. Cruise states that a case exactly in point arose in the Midland circuit in 1805, and was intended to have been argued in Westminster Hall, but was compromised. “Several eminent counsel were, however, consulted, among whom was serjeant Williams; and they were all of opinion that Sir W. Blackstone’s doctrine was wrong.” 3 Cru. Dig. 2 ed. 411, n.—Chitty.
[(w) ] Dyer, 314.
[(x) ] Pages 235, 236, 237.
[(y) ] Law of Inheritances, 2d edit. pp. 30, 31, 61, 62, 66.
[(z) ] Co. Litt. 12. Hawk. abr. in loc.
[(a) ] Fitzh. Abr. tit. discent. 2. Bro. Abr. tit. discent. 3.
[(b) ] See page 223.
[(c) ] Hist. C. L. 243.
[35 ] This rule, however, does not apply in all cases; for a brother of the half-blood would succeed to the father, though he could not the son.—Chitty.
[(d) ] See page 236.
[36 ] The preference bestowed upon n° 10 to n° 11 in the accompanying table of descents has given rise to a legal controversy, in which much learning and ability have been employed. On the side of Mr. Justice Blackstone, Mr. Christian and Mr. Watkins have ranged themselves; opposed to him are Mr. Wooddesson, Mr. Cruise, and Mr. Osgoode. It has been intimated, however, by more than one authority, that the point in dispute is scarcely worth the labour of an adjustment; for up to the present time no case of the kind has come before the courts for discussion. See ante, 238, note 36. Nor is it probable that one will arise to render the determination of practical utility. See H. Chitty on Descents, 127, 128. See Cruise, Dig. vol. 3, p. 430.—Chitty.