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degree to the person proposed, and the first cousin in the second; the former being distant three degrees from the common ancestor, and therefore deriving only one fourth of his blood from the same fountain 9 with the propositus, the latter, and also the propositus being each of them distant only two degrees from the common ancestor, 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 purchas ing ancestor, from whom the estate was derived, it therein resembles the canon law, and therefore counts it's 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 dif ferently numbered), whichever method of computation we suppose the law of England to use; since the right of representation 9 (of the father by the son, etc.)9 is allowed to prevail in infinitum. This allowance was absolutely necessary, else there would have frequentiy been many claimants in exactly the same degree of kindred, as (for instance) uncles and nephews of the deceased; which multiplicity though no 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, as their father also, when living, was:

9 Ninth edition inserts, " (the father of the propositus).”

9 Ninth edition omits.

9 Ninth edition inserts, "himself."

9 Ninth edition inserts, "the grandfather of each)."

9 Ninth edition reads, "of the parent by the issue."
9 Ninth edition inserts, "material."

9 Ninth edition omits.

those of his uncle in the second, and so on, 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 issue of his next immediate ancestor. Thus if John Stiles dies without issue, his estate shall descend to Francis his brother, who is 9 lineally descended from Geoffrey Stiles his next immediate ancestor, or father. On 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 antient Germans, our progenitors: "hæredes successoresque, sui cuique liberi, et nullum testamentum: si liberi non sunt, proximus gradus in possessione, fratres, patrui avunculi.”t

[226] Now 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," 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, etc., but in right

t Tacitus de mor. Germ. 21.

u Numb. c. 27.

9 Ninth edition reads, "those of his great uncle in the third; as their respective ancestors, if living, would have been."

9 Ninth edition inserts, "subsisting."

9 Ninth edition reads, "or his representatives; he being.'

9 Ninth edition reads, "John's."

* Quoted, 3 Stewt. & P. 32. Cited, 29 Ala. 78.

† Cited, 24 N. J. Eq. 550.

of representation, as the 'offspring of the father, grandfather, etc., of the deceased. 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. 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 thein as the fountains of inheritable blood: and therefore in order to ascertain the collateral heir of John Stiles, it is in the first place 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 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 sex, [227] primogeniture,

w Selden. de succ. Ebr. c. 12.

x 1 Sid. 196. 1 Ventr. 423. 1 Lev. 60. 12 Mod. 619.

4 Previously, "sons."

9 Ninth edition reads "first."

9 Ninth edition inserts, "couple of."

**Quoted, 3 N. Y. 413.

- Quoted, 8 Gill & J. 26. Ref. 5 N. Y. 277.

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 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.9*

† 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 hath. 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

4 Previously, "first."

9 Ninth edition adds, ": nay, the estate shall escheat to the lord sooner than the half blood shall inherit."

*Cited, 43 Wis. 174.

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, had A died without entry, then B might have inherited; not as [228] heir to A his half-brother, but as heir to their common father, who was the person last actually seised. †

This total exclusion of the half blood from the inheritance, being almost peculiar to our own law, is looked upon as a strange hardship [see note 44, page 374] 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 an heir to a feudum antiquum must be of the blood of the first feudatory or purchasor, 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 purchasor, and to shew 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 purchasor, and thereby the proof of an actual descent from him became impossiy Hale. H. C. L. 238.

9 Ninth edition inserts, "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."

9 Ninth edition reads instead, "the."

- Quoted, 40 Ind. 331, 332. Cited, 14 N. Y. 241.

‡ Cited, 1 Jones (N. C.) 348,

2-2 Quoted, Pen. (N. J.) 226

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