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the right of primogeniture. The uncle also was usually better able to perform the services of the fief; and besides had frequently superior interest and strength, to back his pretensions and crush the right of his nephew. And even to this day, in the lower Saxony, proximity of blood takes place of representative primogeniture; that is, the younger surviving brother is admitted to the inheritance before the son of an elder deceased: which occasioned the disputes between the two houses of Mecklenburg Schwerin and Strelitz, in 1692 (ƒ). Yet Glanvil, with us, even in the twelfth century, seems (g) to declare for the right of the nephew by representation; provided the eldest son had not received a provision in lands from his father, (or as the civil law would [220] call it) had not been *foris-familiated, in his lifetime. King

V. On failure of lineal descend

ants of the per

John, however, who kept his nephew Arthur from the throne, by disputing this right of representation, did all in his power to abolish it throughout the realm (h): but in the time of his son, king Henry the third, we find the rule indisputably settled in the manner we have here laid it down (i), and so it has continued ever since. And thus much for lineal descents.

V. A fifth rule is, that on failure of lineal descendants, or issue, of the person last seised, the inheritance shall deson last seised, scend to his collateral (20) relations, being of the blood of the first purchasor; subject to the three preceding rules.

the inheritance

shall descend to

the blood of the

Thus, if Geoffrey Stiles purchases land, and it descends first purchasor. to John Stiles his son, and John dies seised thereof without issue; whoever succeeds to this inheritance must be of the

(f) Mod. Un. Hist. xlii. 334.
(g) L. 7, c. 3.

(h) Hale, H. C. L. 217, 229.
(i) Bracton, 1. 2, c. 30, s. 2.

(20) The custom of gavelkind extends to collaterals; so that, if one brother die without issue, all his other brothers shall succeed equally. (Robins. on Gavelk. book I. ch. 6). But,

the custom of borough English does not

extend to collaterals; and therefore, on the death of one brother, lands of that tenure shall not go to the youngest brother, without a special custom. (Ibid).

blood of Geoffrey the first purchasor of this family (k) †. The first purchasor, perquisitor, is he who first acquired the estate to his family, whether the same was transferred to him by sale or by gift, or by any other method, except only that of descent.


This is a rule almost peculiar to our own laws, and those Origin of this of a similar original. For it was entirely unknown among the Jews, Greeks, and Romans: none of whose laws looked any farther than the person himself who died seised of the estate; but assigned him an heir, without considering by what title he gained it, or from what ancestor he derived it. But the law of Normandy (1) agrees with our law in this respect: nor indeed is that agreement to be wondered at, since the law of descents in both is of feodal original; and this rule or canon cannot otherwise be accounted for than by recurring to feodal principles.

When feuds first began to be hereditary, it was made a necessary qualification of the heir, who would succeed to a feud, that he should be of the blood of, that is, lineally de*scended from, the first feudatory or purchasor. In consequence whereof, if a vassal died seised of a feud of his own acquiring, or feudum novum, it could not descend to any but his own offspring; no, not even to his brother, because (1) Gr. Coustom, c. 25.

(k) Co. Litt. 12.

† Mr. Christian observes, that " to be of the blood of Geoffrey, is either to be immediately descended from him, or to be descended from the same couple of common ancestors. Two persons are consanguinei, or are of the blood (that is, whole blood) of each other, who are descended from the same two ancestors.

"The heir and ancestor must not only have two common ancestors with the original purchasor 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.
(Hale's Hist. C. L. 246. 49 E. 3, 12).
And, for the same reason, if it should
descend to the line of any female, it
can never afterwards, upon failure of
that line, be transmitted to the line of
any other female; for, according to the
next rule, viz. the sixth, the heir of the
person last seised must be a collateral
kinsman of the whole blood."

Formerly, it was requ

requisite that the party suc

ceeding to a

feud should be

lineally descended from

the first feuda


[ *221 ]

but, in process

ral relations

were admitted.




he was not descended, nor derived his blood, from the first acquirer. But if it was feudum antiquum, that is, one descended to the vassal from his ancestors, then his brother, or such other collateral relation as was descended and derived his blood from the first feudatory, might succeed to such inheritance. To this purpose speaks the following rule: "frater fratri, sine legitimo hærede defuncto, in beneficio quod eorum patris fuit, succedat: sin autem unus e fratribus a domino feudum acceperit, eo defuncto sine legitimo hærede, frater ejus in feudum non succedit (m).” The true feodal reason for which rule was this: that what was given to a man, for his personal service and personal merit, ought not to descend to any but the heirs of his person. And therefore, as in estates-tail, (which a proper feud very much resembled), so in the feodal donation, "nomen "hæredis, in prima investitura expressum, tantum ad de"scendentes ex corpore primi vasalli extenditur; et non "ad collaterales, nisi ex corpore primi vasalli sive stipitis "descendant (n):" the will of the donor, or original lord, (when feuds were turned from life estates into inheritances), not being to make them absolutely hereditary, like the Roman allodium, but hereditary only sub modo; not hereditary to the collateral relations, or lineal ancestors, or husband, or wife of the feudatory, but to the issue descended from his body only.

However, in process of time, when the feodal rigour was of time, collate- in part abated, a method was invented to let in the collateral relations of the grantee to the inheritance, by granting him a feudum novum to hold ut feudum antiquum; that is, with all the qualities annexed of a feud derived from his ancestors; and then the collateral relations were admitted to succeed even in infinitum, because they might have been of the blood of, that is descended from, the [222] first imaginary purchasor. For, *since it is not ascertained in such general grants, whether this feud shall be held

(m) 1 Feud. 1, s. 2.

(n) Crag. 1. 1, t. 9, s. 36.

ut feudum paternum, or feudum avitum, but ut feudum antiquum merely; as a feud of indefinite antiquity; that is, since it is not ascertained from which of the ancestors of the grantee this feud shall be supposed to have descended; the law will not ascertain it, but will suppose any of his ancestors, pro re nata, to have been the first purchasor: and therefore it admits any of his collateral kindred (who have the other necessary requisites) to the inheritance, because every collateral kinsman must be descended from some one of his lineal ancestors.

all grants of

tates in this kingdom.

Of this nature are all the grants of fee-simple estates of The nature of this kingdom; for there is now in the law of England no fee-simple essuch thing as a grant of a feudum novum, to be held ut novum (21); unless in the case of a fee-tail, and there we see that this rule is strictly observed, and none but the lineal descendants of the first donee (or purchasor) are admitted; but every grant of lands in fee-simple is with us a feudum novum to be held ut antiquum, as a feud whose antiquity is indefinite: and therefore the collateral kindred of the grantee, or descendants from any of his lineal ancestors, by whom the lands might have possibly been purchased, are capable of being called to the inheritance.

has descended in heritance to the person last

a course of in

Yet, when an estate hath really descended in a course of When an estate inheritance to the person last seised, the strict rule of the feodal law is still observed; and none are admitted, but the heirs of those through whom the inheritance hath passed: for all others have demonstrably none of the blood of the purchasor in them, and therefore shall never succeed.

(21) Mr. Preston, (in his Treat. on Est. vol. 1, p. 469) qualifies the dictum in the text. Mr. Preston puts the case of a conveyance to a man who is a bastard, and who cannot, according to our law, be supposed to have any blood of inheritance in him: (see post, p. 247): yet he may purchase a fee; and is he to hold it ut feudum antiquum? He can have no collateral kindred,



(recognized as such by law), nor any
descendants from any lineal ancestors,
to be benefited by the fiction. (See the
next note, and post, p. 249). Can a
feud be presumed to have descended
paternally (which is the presumption
as to every feud taken ut antiquum,
see Watk. on Desc. 168), when it is
purchased by one whom the law holds
to be nullius filius?

seised, the strict rule of the feodal

law is still ob


if lands come to John Stiles by descent from his mother Lucy Baker, no relation of his father (as such) shall ever be his heir of these lands; and, vice versa, if they descended from his father Geoffrey Stiles, no relation of his mother (as such) shall ever be admitted thereto; for his father's kindred have none of his mother's blood, nor have his mother's relations any share of his father's blood. And so, if the estate descended from his father's father, George Stiles, the rela[ *223] tions of his father's mother, Cecilia Kemp, shall for the same reason never be admitted, but only those of his father's fathert. This is also the rule of the French law (0), which is derived from the same feodal fountain.

Where the feud is really anti

quum, none can inherit but the

blood of the ancestors from whom it was conveyed to the

Here we may observe, that so far as the feud is really antiquum, the law traces it back, and will not suffer any to inherit but the blood of those ancestors, from whom the feud was conveyed to the late proprietor. But when, through length of time, it can trace it no farther; as, if it be not late proprietor. known whether his grandfather, George Stiles, inherited it from his father, Walter Stiles, or his mother, Christian Smith; or, if it appear that his grandfather was the first grantee, and so took it (by the general law) as a feud of indefinite antiquity; in either of these cases the law admits the descendants of any ancestor of George Stiles, either paternal or ma-ternal, to be in their due order the heirs to John Stiles of this estate: because, in the first case, it is really uncertain, and, in the second case, it is supposed to be uncertain, whether the grandfather derived his title from the part of his father or his mother.

(0) Domat. part 2, pr.

+ Mr. Christian observes, that "hence the expression heir at law, must always be used with a reference to a specific estate; for, if an only child has taken by descent an estate from his father, and another from his mother, upon his death without issue, these estates will descend to two different persons: so

also, if his two grandfathers and two grandmothers had each an estate, which descended to his father or mother, whom I suppose also to be only children, then, as before, these four estates will descend to four different heirs."

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