the first, the law respecteth proximity, and not dignity of blood), no 18 ought also to be preferred to no 16; which is directly contrary to the eighth rule laid down by Hale himself.w9 7. Because this position seems to contradict the allowed doctrine of sir Edward Coke; * who lays it down (under different names) that the blood of the Kempes (alias Sandies) shall not inherit till the blood of the Stiles's (alias Fairfields) fail. Now the blood of the Stiles's does certainly not fail, till both no 9 and no 10 are extinct. Wherefore no 11 (being the blood of the Kempes) ought not to inherit till then. 8. Because in the case, Mich. 12 Edw. IV. 147 (much relied on in that of Clere and Brooke), it is laid down as a rule, that "cestuy, que doit inheriter al pere, doit inheriter al fits." And so sir Matthew Hale' says "that though the law excludes the father from inheriting, yet it substitutes and directs the descent, as it should have been, had the father inherited." Now it is settled, by the resolution in Clere [240] and Brooke, that no 10 should have inherited to Geoffrey Stiles, the father, before no 11; and therefore no 10 ought also to be preferred in inheriting to John Stiles, the son. In case John Stiles was not himself the purchasor, but the estate in fact came to him by descent from his father, mother, or any higher ancestor, there is this difference; that the blood of that line of ancestors, from w Hist. C. L. 247. x Co. Litt. 12. Hawk. abr. in loc. y Fitzh. Abr. tit. discent. 2. Bro. Abr. t. discent. 3. z Hist. C. L. 243. 9 Ninth edition reads, "the reason that is given for this doctrine, by lord Bacon (viz. that in any degree, paramount the first, the law respecteth proximity, and not dignity of blood), is directly contrary to many instances given by Plowden and Hale, and every other writer on the law of descents." 9 Ninth edition inserts note, "a see pag. 223," 9 Ninth edition reads "be." 9 Ninth edition inserts, "before no 11." 9 Ninth edition reads, "had been the person last seised." Thus, if which it did not descend, can never inherit." it descended from Geoffrey Stiles, the father, the blood of Lucy Baker, the mother, is perpetually excluded: and so, vice versa, if it descended from Lucy Baker, it cannot descend to the blood of Geoffrey Stiles. This, in either case, cuts off one half of the table from any possible succession. And farther, if it can be shewn to have descended from George Stiles, this cuts off three fourths; for now the blood, not only of Lucy Baker, but also of Cecilia Kempe, is excluded. If, lastly, it descended from Walter Stiles, this narrows the succession still more, and cuts off seven eighths of the table; for now, neither the blood of Lucy Baker, nor of Cecilia Kempe, nor of Christian Smith, can ever succeed to the inheritance. And the like rule will hold upon descents from any other ancestors. The student should bear in mind, that, during this whole process, John Stiles is the person supposed to have been last actually seised of the estate. For if ever it comes to vest in any other person, as heir to John Stiles, a new order of succession must be observed upon the death of such heir; since he, by his own seisin, now becomes himself an ancestor, or, stipes, and must be put in the place of John Stiles. The figures therefore denote the order, in which the several classes would succeed to John Stiles, and not to each other: and before we search for an heir in any of the higher figures (as no 8.), we must be first assured that all the lower classes (from no 1 to no 7.) were extinct, at John Stiles's decease. NOTES OF THE AMERICAN EDITOR TO CHAPTER XIV. (42) The method of computing these degrees in the canon law, which our law has adopted, page 206. The difference of the computation by the civil and 9 Ninth edition inserts, ": as was formerly fully explained.4" [d See page 236.] 9 Ninth edition omits. 9 Ninth edition inserts, "as is there exemplified." canon laws may be expressed shortly thus: the civilians take the sum of the degrees in both lines to the common ancestor; the canonists take only the number of degrees in the longer line. Hence, when the canon law prohibits all marriages between persons related to each other within the seventh degree, this would restrain all marriages within the fourteenth degree of the civil law. In the first book, page 425, note, it is observed that all marriages are prohibited between persons who are related to each other within the third degree, according to the computation of the civil law. This affords a solution to the vulgar paradox, that first cousins may marry, and second cousins cannot. For first cousins and all cousins may marry by the civil law; and neither first nor second cousins can marry by the canon law. The church originally reckoned degrees by the former as the only system known to it while confined to countries of the Roman Empire; but adopted the German (common law) computation, because it included nearly twice as many relatives within a certain degree, such as the fourth or sixth, etc. One might consider this the sneer of some enemy, if it were not stated by approved Catholic writers, who explain it by saying that it increased the number of the prohibitions of the canon law which might be dispensed with. It is said, adds Professor Christian, that the canon-law computation has been adopted by the law of England; yet I do not know a single instance in which we have occasion to refer to it. But the civil-law computation is of great importance in ascertaining who are entitled to the administration and to the distributive shares of intestate personal property. (See post, 504, 515.) And now this civilian computation has been adopted by statute in most of the United States. (43) A series of rules or canons of inheritance, page 208. Very important changes have been made in the canons of descent since Blackstone wrote, especially by the Descent Act (3 & 4 Will. IV. c. 106) of 1833, and by 22 & 23 Vict. c. 35, of 1860. These are generally in the same direction with the numerous statutory changes made in the several states of the Union, which are altogether too various to be stated here. But they may be compared in the statute books with the following brief summary of the English changes, made by Mr. Challis. (Law of Real Property, pp. 169–176.) 1. The purchaser is the root of descent. (2 of De(scent Act.) 2. The heir, when devisee or grantee, takes by purchase and not descent. ( 3.) 3. The heir, taking by purchase in a limitation to heirs eo nomine, is not a purchaser for the purpose of making a new root of descent. (2 4.) N. B. This was a moot point at common law. > 4. Brothers trace descent through their parent, instead of inheriting immediately one to another. (? 5.) 5. Lineal ancestors may take in preference to collat⚫erals who trace descent through them. (? 6.) 6. Kinsman of the half blood may inherit. (26.) ) 7. In tracing descent to and through ancestors, whether for the purpose of ascertaining which ancestor is the heir, or of ascertaining which ancestor's descendants stand next in the order of succession, every prior male stock must always be exhausted before recourse is I had to any subsequent female stock. Thus: (1) Paternal ancestors and their descendants must be exhausted before any maternal ancestor, or her descendants, can inherit; (2) male paternal ancestors and their descendants must be exhausted before any female paternal ancestor, or her descendants, can inherit; and (3) male - maternal ancestors and their descendants must be exhausted before any female maternal ancestor, or her descendants, can inherit. (37.) 8. When the descent can no longer be traced along 2 BLACKST.-32. the male paternal line, the mother of a more remote paternal ancestor and her descendants are preferred to the mother of a less remote paternal ancestor and her descendants. (8.) When the tracing of the descent has entered upon the female line, the same rule applies so often as it becomes necessary to change from male ancestors to female. (2 8.) N. B. This rule declares the law, which had once been much in controversy, in accordance with the opinion expressed by Blackstone. (2 Blackst. Com. 237, 238.) For an account of the controversy and an acute vindication of Blackstone's view, see Watk. Desc. 171198. The following rule is due to 22 & 23 Vict. c. 35, 19, and is entirely novel: 9. If there should be a total failure of heirs of the purchaser, the descent will thenceforth be traced from the person last entitled to the land, as if he had been the purchaser. The same rule applies, where land is descendible as if an ancestor had been the purchaser, upon a total failure of heirs of such ancestor. -- (44) This total exclusion of the half blood from the inheritance is looked upon as a strange hardship, page 228. The exclusion of the half blood seems to rest upon a notion of relationship quite different from any we now entertain, but which is by no means unreasonable, if we rightly comprehend it. It is that all inheritance must be traced to the same marriage to the same pair of ancestors, not merely to a single common ancestor. In the direct line this, of course, has no meaning: descent can never be of the half blood. But in collateral lines it makes a broad distinction. Each couple have a separate progeny, and the connection between them is not legally significant: it is only an accident, so to speak, "To be of the blood of G. is either to be immediately |