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page 371], 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 [207] in which they are related to each other. Thus Titius and his brother are related in the first 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 cornmon 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 arus, 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 compu tation 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 **Quoted, 12 Ark, 657; 56 Am. Dec. 289. Cited, 20 N. H. 482; 35 N. J. Eq. 66.

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king Richard the third to Richard duke of York is one degree; to Richard carl of Cambridge, two; to Ed. mond duke of York, three; to king Edward the third, the common ancestor, four; to John of Gant, five; to John cari of Somerset, six; to John duke of Somerset, seven; to Margaret countess of Richmond, eight; to king Henry the seventh, nine."

[298] 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 [se note 43, page 372], according to which estates are trans mitted 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 last actually seised, in infinitum; but shall never lineally ascend.*

To explain the more clearly both this and the subsequent rules, it must still 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 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 heirs to the father whenever he happens to die. Heirs presumptive are such who, if the ancestor should die immediately, would in the present circumstances

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.

**Quoted, 7 Wend. 335; 45 Pa. St. 434; 6 Rand, 360, 379, 411. Cited, 9. Wheat. 358; 36 N. J. L. 418.

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.•*

[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 the freehold :P 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, 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. Which noo Bro. tit. descent. 58,

p Co. Litt. 15.

q Ibid. 11.

*Cited, 9 Wheat. 360; Hawks, 325; 8 Ga, 223,

- Quoted, 13 Mon. B. 430. Discussed as to "entry," 5 Serg. & R. 386, +- Quoted, 13 Ga. 240. Cited, 1 Head, 352; 24 Miss. 276.

- Quoted, 8 Leigh, 394, as to use and meaning of word “transmitted.

toriety hath succeeded in the place of the antient 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 ancestors 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 country (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.‡

[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 land, 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."

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 transinissible 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 r Flet. l. 6. c. 2. s Litt. 23.

1- Quoted, 5 Marsh. J. J. 588.

+ Quoted, 8 Leigh, 394, as to use and meaning of word "transmitted."

+- Quoted, 1 Jones (N. C.) 347.

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. 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; though by the law of the twelve tables the mother was originally, on account of her sex, excluded." Hence this rule of our laws has been censured and declaimed against, as absurd and derogating from the maxims of equity and natural justice. Yet that there is nothing unjust or absurd in it, but that on the contrary it is founded upon very good 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 farther 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 t Selden. de success Ebræor. c. 12.

V Ff. 38. 15. 1. Nov. 118. 127.

u Inst. 3. 3. 1.

w Craig. de jur. feud. 1. 2. t. 13. 15. Locke on gov. part. 1. 99. 9 Ninth edition inserts, "legal."

**Quoted, 2 Jones Eq. 93; 143 Mass. 391. Cited, 5 Kan. 392.

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