Sivut kuvina
PDF
ePub

when the inheritance descended a patre, and vice versa : and possibly in England also; as even with us it remained a doubt, in the time of Bracton,a and of Fleta; whether the half blood on the father's side 9 were9 excluded from the inheritance which originally descended from the common father, or only from such as descended from the respective mothers, and from newly purchased lands. And the rule of law, as laid [233] down by our Fortescue,' extends no farther than this; frater fratri uterino non succedet in hæreditate paterna. It is moreover worthy of observation, that by our law, as it now stands, the crown (which is the highest inheritance in the nation) may descend to the half blood of the preceding sovereign, so as it be the blood of the first monarch, purchasor (or in the feodal language), conqueror, of the reigning family. Thus it actually did descend from king Edward the sixth to queen Mary, and from her to queen Elizabeth, who were respectively of the half blood to each other. For, the royal pedigree being always a matter of sufficient notoriety, there is no occasion to call in the aid of this presumptive rule of evidence, to render probable the descent from the royal stock, which was formerly king William the Norman, and is now (by act of parliament1) the princess Sophia of Hanover. Hence also it is, that in estates-tail, where the pedigree from the first donee must be strictly proved, half blood is no impediment to the descent:1 because, when the lineage is clearly made out, there is no need of this auxiliary proof. How far it might be desirable for the legislature to give relief, by amending the law of descents in one or two instances, and ordaining that the half blood might always inherit, where the estate notoriously descended from it's own proper an

d 1. 2. c. 30. 3.

e l. 6. c. 1. 14.

f de laud. LL. Angl. 5.

g Plowd. 245. Co. Litt. 15.

h 12 Will. III. c. 2.

i Litt. 14, 15.

9 Ninth edition reads "was.' 99 9 Ninth edition reads " that.”

cestor, and, in cases of new-purchased lands or uncertain descents, should never be excluded by the whole blood in a remoter degree; or how far a private inconvenience should be submitted to, rather than a long established rule should be shaken, it is not for me to determine.

The rule then, together with it's illustration, amounts to this: that, in order to keep the estate of John Stiles as nearly as possible in the line of his purchasing ancestor, it must descend to the issue of the nearest couple of ancestors that have left descendants behind them; because the descendants of one ancestor only are not so likely to be in the line of that purchasing ancestor, as those who are descended from two.9

[231] But here another difficulty arises. In the second, third, fourth, and every superior degree, every man has many couples of ancestors, increasing according to the distances in a geometrical progression upwards, the descendants of all which respective couples are (representatively) related to him in the same degree. Thus in the second degree, the issue of George and Cecilia Stiles and of Andrew and Esther Baker, the two grandsires and grandmothers of John Stiles, are each in the same degree of propinquity; in the third degree, the respective issues of Walter and Christian Stiles, of Luke and Frances Kempe, of Herbert and Hannah Baker, and of Janies and Emma Thorpe, are (upon the extinction of the two inferior degrees) all equally entitled to call themselves the next kindred of the whole blood to John Stiles. To which therefore of these ancestors must we first resort, in order to find out descendants to be preferably called to the inheritance? In answer to this, and to avoid the conk See pag. 204.

4 Previously, "but not otherwise."

9 Ninth edition reads instead, "both."

3 (Probably misprinted), "distance."

9 Ninth edition reads, "likewise to avoid all other."

fusion and uncertainty that might arise between the several stocks, wherein the purchasing ancestor may be sought for,9

VII. *The seventh and last rule or canon is, that in collateral inheritances the male stock shall be preferred to the female (that is, kindred derived from the blood of the male ancestors9 shall be adınitted before those from the blood of the female 9);- unless where the lands have, in fact, descended from a female.*

Thus the relations on the father's side are admitted in infinitum, before those on the mother's side are admitted at all;1 and the relations of the father's father, before those of the father's mother; and so on. And in this the Enlish law is not singular, but warranted by the examples of the Hebrew and Athenian laws, as stated by Selden, and Petit; though among the Greeks in the time of Hesiod, when a man died without wife or children, all his kindred (without any distinction) [235] divided his estate among them. It is likewise warranted by the example of the Roman laws; wherein the agnati, or relations by the father, were preferred to the cognati, or relations by the mother, till the edict of the emperor Justinian P abolished all distinction between them. It is also conformable to the customary law of Normandy, which indeed in most respects agrees with our English law of inheritance.

4

4

However, I am inclined to think, that this rule of our laws does not owe it's immediate original to any view of conformity to those which I have just now men

[blocks in formation]

9 Ninth edition adds, "another qualification is requisite, besides the proximity and entirety, which is that of dignity or worthiness, of blood. For."

9 Ninth edition inserts, "however remote."

9 Ninth edition inserts," however near."

**Quoted, 61 Ind. 178.

tioned; but was established in order to effectuate and carry into execution the fifth rule or canon before laid down; that every heir must be of the blood of the first purchasor. For, when such first purchasor was not easily to be discovered after a long course of descents, the lawyers not only endeavoured to investigate him by taking the next relation of the whole blood to the person last in possession; but also considering that a preference had been given to males (by virtue of the second canon) through the whole course of lineal descent from the first purchasor to the present time, they judged it more likely that the lands should have descended to the last tenant from his male than from his female ancestors; from the father (for instance) rather than from the mother; from the father's father, rather than the father's mother: and therefore they hunted back the inheritance (if I may be allowed the expression) through the male line; and gave it to the next relations on the side of the father, the father's father, and so upwards; imagining with reason that this was the most probable way of continuing it in the line of the first purchasor. A conduct much more rational than the preference of the agnati, by the Roman laws: which, as they gave no advantage to the males in the first instance or direct lineal succession, had no reason for preferring them in the transverse collateral one: upon which account this preference was very wisely abolished by Justinian.

[238] That this was the true foundation of the preference of the agnati or male stocks, in our law, will 3farther3 appear, if we consider, that, whenever the lands have notoriously descended to a man from his mother's side, this rule is totally reversed, and no relation of his by the father's side, as such, can ever be

9 Ninth edition reads, "or principal canon of collateral inheritance.

3 Third edition only spelt "further."

admitted to them; because he cannot possibly be of the blood of the first purchasor. And so, e converso, if the lands descended from the father's side, no relation of the mother, as such, shall ever inherit. So also, if they in fact descended to John Stiles from his father's mother Cecilia Kempe; here not only the blood of Lucy Baker his mother, but also of George Stiles his father's father, is perpetually excluded. And, in like manner, if they be known to have descended from Frances Holland the mother of Cecilia Kempe, the line not only of Lucy Baker, and of George Stiles, but also of Luke Kempe the father of Cecilia, is excluded. Whereas when the side from which they descended is forgotten, or never known (as in the case of an estate newly purchased to be holden ut feudum antiquum), here the right of inheritance first runs up all the father's side, with a preference to the male stocks in every instance; and, if it finds no heirs there, it then, and then only, resorts to the mother's side; leaving no place untried, in order to find heirs that may by possibility be derived from the original purchasor. The greatest possibility of finding such was among those descended from the male ancestors; but, upon failure of issue there, they may possibly be found among those derived from the females.

This I take to be the true reason of the constant preference of the agnatic succession, or issue derived from the male ancestors, through all the stages of collateral inheritance; as the ability for personal service was the reason for preferring the males at first in the direct lineal succession. We see clearly, that, if males had been perpetually admitted, in utter exclusion of females, the tracing the inheritance back through the male line of ancestors must at last have inevitably brought us up to the first purchasor: but, as males have not been perpetually [237] admitted, but only generally preferred; as females have not been utterly excluded, but only generally postponed to males; the

« EdellinenJatka »