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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 alto*gether 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 Descent Act.)
2. The heir, when devisee or grantee, takes by purchase and not descent. (23.)
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. (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. (2 5.) 5. Lineal ancestors may take in preference to collatterals who trace descent through them. (26.)
6. Kinsman of the half blood may inherit. (2 6.) 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 descendCants stand next in the order of succession, every prior male stock must always be exhausted before recourse is 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. (? 7.)
8. When the descent can no longer be traced along
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. (2 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. (28.) 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
descended from him or to be descended from the same couple of common ancestors. Two persons are consanguinei who are descended from the same two ancestors. The heir and ancestor must not only have two common ancestors with the original purchasers of the estate, but must have two common ancestors with each other; and therefore if the son purchases lands, and dies without issue, and it descends to any heir on the part of the father, if the line of the father should afterwards become extinct, it cannot pass to the line of the mother." (Christian, citing Hale's History of C. L. p. 246; Y. B. 49 Ed. III. 12.)
Blackstone himself has shown that a kinsman of the whole blood is derived from the same couple of ancestors (text, p. #227); and it seems singular that he should have overlooked the bearing of this on the exclusion of the half-blood, and followed Wright's very inconclusive explanation of it as a mere rule of evidence.
But Blackstone could know nothing of the many illustrations of the true force of that principle in the Germanic law of the continent first made known by recent study; such as the rule requiring a father to divide property with his children by first wife, before proceeding to a second marriage, etc.
CHAPTER THE FIFTEENTH.
OF TITLE BY PURCHASE, AND FIRST BY ESCHEAT.
Purchase, perquisitio, taken in it's largest and most extensive sense, is thus defined by Littleton ; *the possession of lands and tenements, which a man hath by his own act or agreement, and not by descent from any of his ancestors or kindred.* In this sense it is contradistinguished from acquisition by right of blood, and includes every other method of coming to an estate, but merely that by inheritance: wherein the title is vested in a person, not by his own act or agreement, but by the single operation of law.b†
Purchase, indeed, in it's vulgar and confined accep tation, is applied only to such acquisitions of land, as are obtained by way of bargain and sale, for money, or some other valuable consideration. But this falls far
short of the legal idea of purchase: for, if I give land freely to another, he is in the eye of the law a purchasor; and falls within Littleton's definition, for he comes to the estate by his own agreement, that is, he consents to the gift. A man who has his father's estate settled upon him in tail, before he was born, is also a purchasor; for he takes quite another estate than the law of descents would have given him. Nay even if the ancestor devises his estate to his heir at law by will, with other limitations or in any other shape than the course of descents would direct, such heir shall take by purchase. But if a man, seised in fee, devises his whole estate to his heir at law, so that the heir takes
b Co. Litt. 18.
d Lord Raym. 728.
8 Previously, "is."
+ Cited, 7 Ind. 609; 46 Miss. 395; 3 Or. 464; 18 Nev. 47.
- Quoted, 68 Ind. 68; first sentence, 96 Ill. 535. Cited, 21 Iowa, 546