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Section 5 Fee Simple - Sir Edward Coke, Selected Writings of Sir Edward Coke, vol. II [1606]

Edition used:

The Selected Writings and Speeches of Sir Edward Coke, ed. Steve Sheppard (Indianapolis: Liberty Fund, 2003). Vol. 2.

Part of: Selected Writings of Sir Edward Coke, 3 vols.

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


Section 5
Fee Simple

Also if there bee three brethren, and the middle brother purchaseth lands in Fee simple, and dye without issue, the elder brother shall have the Land by descent, and not the younger, &c. And also if there be three brethren, and the youngest purchase lands in Fee simple, & die without issue, the eldest brother shall have the land by descent & not the middle, for that the eldest is most worthy of bloud.

Now commeth our Author to the descent between brethren, which hee purposely omitted before. Discent, descensus commeth of the Latine word descendo, and, in the legall sense, it signifieth, when lands doe by right of bloud fall unto any after the death of his Ancestors: or a descent is a meanes whereby one doth derive him title to certaine lands, as heire to some of his Ancestors. And of this, and of that which hath beene spoken doth arise another division of estates in fee simple, viz. every man that hath a lawful estate in fee simple, hath it either by descent, or purchase.

| “The eldest is most worthy of bloud.”

It is a maxime in Law that the next of the worthiest bloud shall ever inherit, as the male and all descendant from him before the female, and the female of the part of the father before the male or female of the part of the mother, &c. because the female of the part of the father is of the worthiest bloud. (c)1 And therefore among the males the eldest brother and his posteritie shall inherit lands in Fee simple, as heire before any younger brother, or any descending from him, because (as Littleton saith) hee is pluis digne de sanke. Quod prius est dignius est, and qui prior est tempore prior est jure. Si quis plures filios habuerit, jus proprietatis primo descendit ad primogenitum, eò quòd inventus est primo in rerum naturâ.2 In King Alfreds time Knights fees descended to the eldest sonne, for that by division of them between males the defence of the Realme might be weakened, but in those dayes Socage fee was divided betweene the heires males, and there with agreeth Glanvill.3Cùm quis haerēditatem habens moriatur, &c. si plures reliquerit filios, tunc distinguitur utrùm ille fuerit miles, sive per feodum militare tenens, aut liber Sockmannus, quia si miles fuerit aut per militiam tenens, tunc secundum jus regni Angliae primogenitus filius patri succedit in toto, &c. si verò fuerit liber Sockmannus, tunc quidem dividetur haereditas inter omnes filios, &c.4 But hereof more shall be said hereafter in his proper place.

Section 6
Fee Simple

Also it is to bee understood, that none shall have land of Fee simple by descent as heire to any man, unlesse hee be his heire of the whole bloud, for if a man hath issue two sonnes by divers venters, and the elder purchase lands in Fee simple, and dye without issue, the younger brother shall not have the land, but the uncle of the elder brother, of some other his next cosin shall have the same, because the younger brother is but of halfe bloud to the elder.

No man can be heire to a Fee simple by the Common Law, (d)1 but hee that hath sanguinem duplicatum, the whole bloud, that is, both of the father and of the mother, so as the halfe bloud is no bloud inheritable by descent, because that hee that is but of the halfe bloud cannot be a compleat heire, for that hee hath not the whole and compleat bloud, and the Law in descents in Fee simple doth respect that which is compleat and perfect. And this maxime doth not onely hold where lands (whereof Littleton here speaketh) are claimed or demanded as heire, (e)2 but also in case of appeale of death: for if one brother be slaine, the other brother of the halfe bloud shall never have an appeale (albeit hee shall recover nothing therein either in the realtie or personaltie) because in the eye of the Law hee is not heire to him.3 Also this rule extends to a warrantie, as our Author himselfe elsewhere holdeth.

[1. ](c) Britton cap. 119. Bract. lib. 2. cap. 30. 277. 279. 2. E. 3. 26. 3. Eliz. Dyer 138 Stanford praer. 52. 58. 3. E. 1. tit. avowrie. 235. 28 E. 3. discent. &c. Bra. lib. 4. 211. Fleta lib. 6. cap. 2. Glanvill lib. 7. cap. 1. Mirror cap. 1. sect. 3.

[2. ][Ed.: That which is earlier is more worthy, [and] he who is first in time is stronger in law. If someone has several children, the right of property descends to the firstborn, because he is the first in being.]

[3. ]Glanvill lib. 7. cap. 3. & ca. 1. Vide Pl. Com. 2 29b.

[4. ][Ed.: When someone who has an inheritance dies etc., if he leaves several children, then a distinction is to be made as to whether he was a knight, or held by a knight’s fee, or a free sokeman, because if he was a knight or a tenant in chivalry then according to the law and custom of England the firstborn son succeeds the father in everything, etc., whereas if he was a free sokeman then the inheritance is divided amongst all the sons, etc.]

[1. ](d) Bract. lib. 4. 279b idem lib. 2. fo. 65. Britton cap. 119. I. E. 3. 19 John Giffords case. 31. E. 3 Conterpl. de voucher 88. 40. As.6. 4.2. Formd. 49. Vid. Ratcliffes case, lib. 31 fol. 40. 41.

[2. ](e) 7. E. 4. 15.

[3. ]Sect. 737.