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ants of the per- or issue, of the person last seised, the inheritance shall deson last seised, the inheritance scend to his collateral (25) relations, being of the blood of the blood of the the first purchasor; subject to the three preceding rules. first purchasor.

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 purchasor of this family (k) (26). The first purchasor, 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. Origin of this 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 farther 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 (1) agrees with our law in this




(k) Co. Litt. 12.

(1) Gr. Coustum, c. 25.

(25) The custom of gavelkind ex- of the blood (that is, whole blood) of tends to collaterals ; so that, if one each other, who are descended from brother die without issue, all his other the same two ancestors. brothers shall succeed equally. (Ro- “ The heir and ancestor must not bins. on Gavelk. book i. ch. 6.) But, only have two common ancestors with the custom of borough English does the original purchasor of the estate, not extend to collaterals; and there- but must have two common ancestors fore, on the death of one brother, with each other; and therefore, if the lands of that tenure shall not go to the son purchases lands, and dies without youngest brother, without a special issue, and it descends to any heir on custom. (Ibid.) It is probable, how- the part of the father, if the line of the ever, that tenures in gavelkind and father should afterwards become exin borough English will be abolished tinct, it cannot pass to the line of the during the present session (1836). mother. (Hale's Hist. C. L. 246 ; A bill has been introduced into the 49 E. 3, 12.) And, for the same reaHouse of Commons, the object of


if it should descend to the line of which is to enact, that all freehold any female, it can never afterwards, lands now held subject to customary upon failure of that line, be transmitmodes of descent, shall, hereafter, be ted to the line of any other female ; held in free and common socage. for, according to the next rule, viz.

(26) Mr. Christian observes, that the sixth, the heir of the person last " to be of the blood of Geoffrey, is seised must be a collateral kinsman of either to be immediately descended the whole blood." from him, or to be descended from the [But now, as to this last point, see same couple of common ancestors. the statute cited ante, in the note to Two persons are consanguinei, or are p. 200.-Ed.]

requisite that


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 Formerly, it was necessary qualification of the heir, who would succeed to a the party sucfeud, that he should be of the blood of, that is, lineally de- feud should be

lineally de*scended from, the first feudatory or purchasor. In conse-scended from quence whereof, if a vassal died seised of a feud of his own tory; acquiring, or feudum novum, it could not descend to any. [ * 221 ] 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 be

neficio 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 but, in process in part abated, a method was invented to let in the colla- ral relations teral relations of the grantee to the inheritance, by granting him a feudum novum to hold ut feudum antiquum ;

of time, collate.

were admitted.

(m) 1 Feud. 1, s. 2.

(n) Crag. I. 1, t. 9, s. 36.

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 [ * 222 ] first imaginary purchasor. For, *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 purchasor: 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.
The nature of Of this nature are all the grants of fee-simple estates of
all grants of
fee-simple es- this kingdom; for there is now in the law of England no
kingdom. such thing as a grant of a feudum novum, to be held ut no-

vum (27); 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 purchasor) 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 gran-
tee, or descendants from any of his lineal ancestors, by

tates in this


: (27) Mr. Preston, (in his Treat. on when it is purchased by one whom the
Est. Vol. I. p. 469,) qualifies the dic- law holds to be nullius filius ?
tum in the text. Mr. Preston puts Since this note was first published,
the case of a conveyance to a man who the statute of 3 & 4 Gul. IV. c. 106,
is a bastard, and who cannot, accord. has been passed, for the amendment
ing to our law, be supposed to have of the law of inheritance. By the se-
any blood of inheritance in him : (see cond section of that statute it is en-
post, p. 247 :) yet he may purchase a acted, that the person last entitled to
fee ; and is he to hold it ut feudum any lands shall be considered to have
antiquum ? He can have no collateral been the purchaser thereof, unless the
kindred, (recognized as such by law,) contrary be proved : and if such proof
nor any descendants from any lineal is given, then the last person from
ancestors, to be benefited by the fic- whom the land shall be proved to have
tion. (See the next note, and post, p. been inherited shall be considered to
249.) Can a feud be presumed to have have been the purchaser. This puts
descended paternally (which is the an end to the fiction of feuda nova
presumption as to every feud taken ut to be holden ut antiqua.
antiquum, see Watk. on Desc. 168,)

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whom the lands might have possibly been purchased, are capable of being called to the inheritance.

Yet, when an estate hath really descended in a course of When an estate inheritance to the person last seised, the strict rule of the a course of in feodal law is still observed; and none are admitted, but the person last

seised, the strict heirs of those through whom the inheritance hath passed: for rule of the feodal all others have demonstrably none of the blood of the first served. purchasor in them, and therefore shall never succeed. 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 versâ, 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 *his father's mother, Cecilia Kempe, shall for the same [ * 223 ] reason never be admitted, but only those of his father's father (28). This is also the rule of the French law (0), which is derived from the same feodal fountain. Here we may observe, that so far as the feud is really When the feud

is really antiantiquum, the law traces it back, and will not suffer any quum, none can to inherit but the blood of those ancestors, from whom blood of the anthe feud was conveyed to the late proprietor. But when, whom it was

conveyed to the through length of time, it can trace it no farther; as, if it be late proprietor. 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


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inherit the

cestors from

(6) Domat, part 2, pr.

(28) Mr. Christian observes, that ferent persons : so also, if his two “ hence the expression heir at law, grandfathers and two grandmothers must always be used with a reference had each an estate, which descended to a specific estate ; for, if an only to his father or mother, whom I supchild has taken by descent an estate pose also to be only children, then, as from his father, and another from his before, these four estates will descend mother, upon his death without issue, to four different heirs." these estates will descend to two difVOL. II.


collateral inhe. ritances de

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. The general

This then is the great and general principle, upon which principle upon which the law of the law of collateral inheritances depends; that, upon failure

of issue in the last proprietor, the estate shall descend to pends.

the blood of the first purchasor; 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 (9), 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 evi

dence, calculated to investigate who the purchasing ancestor [ *224 ] was; which *in 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 person last seised heir of the person last seised must be his next collateral collateral kins- kinsman, of the whole blood (29). whole blood; (P) M. 12 Edw. IV. 14.

(n) Ibid. 38. (9) Abr. t. Discent, 2.

(8) H. C. L. 243.


VI. The collateral heir of the

man, of the

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(29) There is obvious injustice in pends altogether upon one of the consequences deduced from spun and subtle nicety,'' and that, “ in that legal fiction, by which lands held some instances, the practice is carried in fee-simple, however notorious their further than even the principle upon recent purchase, are considered as a which it goes will warrant.” It is so, feud of which the antiquity is indefi- indeed ; for, if it be true, that “it is nite. The exclusion, in every case, a misapprehension to consider the exindiscriminately, of the half blood of clusion of the half blood in the light the party last seised, by the adoption of a rule of descent, when it is rather of this doctrine, is a barbarous griev- a rule of evidence ;' what must we ance; its most anxious apologists, (at think of that rule, as a rule of evithe head of whom, in point of ability, dence, forsooth, which frequently opeour author may be ranked,) are com- rates in direct opposition to certain pelled to admit, that the doctrine de- and notorious fact, and to actual de


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