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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 (8), (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

(8) The mode of calculating degrees of proximity in the collateral line, for the purpose of determining what parties are entitled, under the statute of distributions, (22 & 23 Car. II. c. 10,) to shares of the personal estate of an intestate, is not the mode of the canonists adopted by the common law in the descent of real estates; (Cowper v. Cowper, 2 P. Wms. 735 ;) but (with one qualification noticed infra,) conforms to that of the civilians, as stated in the text; or, in other words, the rule is, to take the sum of the degrees, in both lines, to the common ancestor. (Mentney v. Petty, Prec. in Cha. 593. And see post, chap. 32, p. 504, 515.)

The instance of exception noticed above, is this. According to the civil law, the brother and the grandmother of an intestate stand in equal degrees

of affinity to him; and the grandmother, as being in the lineal ascending line, was, by that law, preferred to the brother or any other in the collateral line: but, according to the construction put by our courts upon the statute of distributions, (in this instance conforming to the canon law,) the brother, as making title immediately from his deceased brother, is preferred to the grandmother, who could only claim mediately through the father of the deceased. (Earl of Winchelsea v. Norcliff, 2 Freem. 95; Davis v. Blackborough, 1 P. Wms. 45; Evelyn v. Evelyn, Ambl. 191; Collingwood v. Pace, 1 Ventr. 423.) The reason above assigned for the preference of a brother to a grandmother does not now hold; see ante, the note to p. 200.

*208 ] The rules of in

heritance.

ascending and descending,) these two princes were related in the ninth degree: for from king 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).

*The 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, but never seised, in infinitum; but shall never lineally ascend (9).

I. Estates shall lineally descend to the issue of the person last

ascend;

and the ancestor must be dead.

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. Before that time the person who is next in the line of succession is called an heir apparent, or heir Heirs apparent. presumptive. Heirs apparent are such, whose right of in

(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

(9) In conformity with this canon, if a son purchased land, and died without issue, and his father and mother were then living, his father or mother could not (as such) inherit such lands immediately from the son. But, if the father or mother were also cousins to the son, they may (as such) succeed to the inheritance. (Eastwood v. Vincke, 2 P. Wms. 416; and see ante, the note to p. 13.)

So, if there were father and two sons, and one of the sons purchased land and died, his brother took the inheritance as heir to him, although the father was living. For, though the father

civilians and the seventh of the canonists inclusive; the former being distinguished by the numeral letters, the latter by the common cyphers.

seems the source of inheritable blood,
yet the feud was supposed to have al-
ready passed him; and therefore, the
descent between brother and brother
was considered as immediate; and in
making out the title of one from the
other, their common father needed not
be named; and if he was living, the
descent between the brothers was ex-
actly the same as though he was de-
ceased. (Collingwood v. Pace, 1 Ventr.
423;
and see post, p. 226.) [But
since this note was first published these
legal conceits have been terminated,
by the statute cited ante, in the note
to p. 200.]

tive.

heritance 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 Heirs presumpshould 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) (10) (11).

The ancestor

*We must also remember, that no person can be properly [ *209 ] such an ancestor, as that an inheritance of lands or tene- must have had ments can be derived from him, unless he hath had actual actual seisin. seisin (12) of such lands, either by his own entry, or by the

(0) Bro. tit. Descent, 58.

(10) See ante, the note to p. 169. (11) Mr. Christian, in his note upon the passage in the text, observes, that "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 ás heir to his brother. (Co. Litt. 11; Doct. & Stud. 1 Dial. c. 7.) So the same estate may be frequently devested by the subsequent birth of nearer presumptive heirs, before it fixes upon the nearest 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."

(12) See ante, p. 128, and the note thereto; and quare whether the act VOL. II.

there cited has done away with the
necessity of seisin for the purpose
stated in the text; if not, the rules
laid down in the remainder of this note
and in the next, are still applicable.

Seisin of fee-tail, with fee-simple
expectant, will not be such a seisin as
to transmit the fee-simple to the heir
of the person so seised: (Co. Litt. 14
b; 1 Roll. Abr. 628; Kellow v. Rowden,
1 Show. 245) for he is actually seised
of the fee-tail only, though he has
power to give, or may forfeit, the re-
mainder in fee. (Hargrave, note (4)
to Co. Litt. 14 b; Kellow v. Rowden,
3 Mod. 257.)

An entry into parcel of the lands generally, is a sufficient entry as to all the lands situate in the same county. (Co. Litt. 15 a, 252 b.)

The possession of a freehold estate by a tenant is the possession of the freeholder. (De Grey v. Richardson, 3 Atk. 470.) Whether the same rule

possession of his own or his ancestor's lessee for years, or by receiving rent from a lessee of the freehold (p): or unless he hath had what is equivalent to corporal seisin in hereditaments that are incorporeal (13); 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

:

(p) Co. Litt. 15.

applies to copyholds is less clear; in the Anonymous case in Moor, (p. 125, pl. 272; and see Brown's case, 4 Rep. 22,) it appears to have been so determined but, in the Anonymous case in 3 Leon. (p. 69, pl. 106,) and in 4 Leon. (p. 38, pl. 103,) a contrary doctrine was held; and it was said, that as the possession of a copyholder must be customary, and the possession of his tenant by demise according to the order and course of common law, the possession of the one shall not be said to be the possession of the other.

The entry of a guardian in socage is the actual possession and seisin of the infant who is in wardship: (Goodtitle v. Newman, 3 Wils. 528; Ratcliff's case, 3 Rep. 42 :) but guardianship in socage only applies to cases of legal estates. To such it is one of the incidents; but it is not so to equitable estates. (The King v. The Inhabitants of Toddington, 1 Barn. & Ald. 564.)

It seems, that, if a father had made a lease for life, or gift in tail, and died, and his eldest son died in the life of the tenant for life, or tenant in tail, his younger brother, though of the half blood, would even before the statute of 3 & 4 Gul. IV. c. 106, have inherited, because the tenant for life, or tenant in tail, was seised of the freehold, and the eldest son had nothing but the reversion expectant. Therefore, the youngest son would inherit

(g) Co. Litt. 11.

the land, as heir to his father, who was last seised of the actual freehold. And albeit a rent had been reserved upon the lease for life, and the eldest son had received the rent, yet the younger brother would have inherited; because the seisin of the rent is no actual seisin of the freehold of the land. (Co. Litt. 15 a, and Mr. Hargrave's note 5 thereto; Amys v. Cowley, Aleyne, 89.) This must be borne in mind, in qualification of one of the instances of seisin mentioned in the text.

(13) See ante, pp. 17, 20, 41, with the notes thereto. Of a dignity there can be no seisin, nor any possession but such as descends; and therefore there cannot be any possession to affect the descent. (Ratcliff's case,3 Rep. 42; Lord Grey's case, Cro. Car. 601.)

Seisin of a manor is good seisin of an advowson, common, &c. appendant or appurtenant thereto. (Hargrave's note 1 to Co. Litt. 15 b; and ante, p. 22, notes.)

But the law has been construed differently with respect to an advowson, &c. in gross. (Co. Litt. 15 b.) If the eldest brother dies before a presentation to an advowson, not appendant to a manor of which he was seised, it has been held that it will descend to his half brother, as heir to the person last seised, and not to his sister of the whole blood. (1 Burn's E. L. 11; but see the commencement of the last note.)

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. Which notoriety had succeeded in the place of the ancient feodal investiture (14), 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).

none that can

the land escheats

*When therefore a person dies so seised, the inheritance [210] first goes to his issue: as if there be Geoffrey, John, and Where there is Matthew, grandfather, father, and son; and John purchases take by descent, lands, and dies; his son Matthew shall succeed him as heir, to the lord. and not the grandfather Geoffrey: to whom the land shall never ascend, but shall rather escheat to the lord (s) (15).

(r) Flet. 1. 6, c. 2, s. 2.

(14) See ante, p. 54, note. (15) Our author tells us, that the negative part of this canon is "founded on good legal reason;" but, it is conceived, that hardships equally repugnant to common feeling and to common sense may flow from it. By its operation, if any one dies intestate, without issue, (or kinsmen of the whole blood,) but leaving a father, (and, perhaps, a numerous family of brothers and sisters by the same father, but by a different mother,) his lands must escheat. If the same person had left an uncle him surviving, that uncle might have succeeded to the inheritance, and then the father might, eventually, as heir to the uncle, by a

(s) Litt. s. 3.

precious involution, have taken that
which he could not derive from his
own son. (See ante, the note to p. 13.)
Ought such a canon to be retained?
Even if it were admitted, (and see ante,
p. 11, note, that it is a dictum which
may at least be questioned,) that "all
rules of succession to estates are crea-
tures of civil polity and juris positivi
merely;" still it should seem sophis-
tical thence to argue, that rules esta-
lished in support of one system of civil
polity ought to be held sacred, when
that system has given way to another,
under which, whatever convenience
(real or supposed) there may once
have been in those rules, that has
ceased; but the harsh and painful con-

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