principle upon collateral inhe

which the law of

ritances de

pends.

This then is the great and general principle, upon which The general the law of collateral inheritances depends; that, upon failure of issue in the last proprietor, the estate shall descend to the blood of the first purchasor; or, that it shall result back to the heirs of the body of that ancestor from whom it either really has, or is supposed by fiction of law to have originally descended: according to the rule laid down in the year books (p), Fitzherbert (q), Brook (r), and Hale (s), "that he who would have been heir to the father of the deceased" (and, of course, to the mother, or any other real or supposed purchasing ancestor) "shall also be heir to the son;" a maxim, that will hold universally, except in the case of a brother or sister of the half blood, which exception (as we shall see hereafter) depends upon very special grounds.

The rules of inheritance that remain are only rules of evidence, calculated to investigate who the purchasing ancestor

was; which *in feudis vere antiquis has in process of time [224] been forgotten, and is supposed so to be in feuds that are

held ut antiquis.

VI. A sixth rule or canon therefore is, that the collateral VI. The collaheir of the person last seised must be his next collateral kinsman, of the whole blood (22).

(p) M. 12 Edw. IV. 14. (q) Abr. t. Discent, 2.

(22) There is obvious injustice in one of the consequences deduced from that legal fiction, by which lands held in fee-simple, however notorious their recent purchase, are considered as a feud of which the antiquity is indefinite. The exclusion, in every case, indiscriminately, of the half blood of the party last seised, by the adoption of this doctrine, is a barbarous grievance; its most anxious apologists, (at the head of whom, in point of ability, our author may be ranked), are com

(r) Ibid. 38.

(s) H. C. L. 243.

pelled to admit, that the doctrine de-
pends altogether upon "a very fine
spun and subtle nicety," and that, "in
some instances, the practice is carried
further than even the principle upon
which it goes will warrant." It is so,
indeed; for, if it be true that, "it is a
misapprehension to consider the exclu-
sion of the half-blood in the light of a rule
of descent, when it is rather a rule of
evidence;" what must we think of that
rule, as a rule of evidence, forsooth,
which frequently operates in direct op-

teral heir of the person last seised must be his next collateral kinsman, of the whole blood;

First, he must be his next collateral kinsman, either personally or jure representationis†; which proximity is reckoned according to the canonical degrees of consanguinity before mentioned. Therefore, the brother being in the first degree, he and his descendants shall exclude the uncle and his issue, who is only in the second. And herein consists the true reason of the different methods of computing the degrees of consanguinity (23), in the civil law on the one hand, and in the canon and common laws on the other. The civil law regards consanguinity principally with respect to successions, and therein very naturally considers only the person deceased, to whom the relation is claimed: it therefore counts the degrees of kindred according to the number of persons through whom the claim must be derived from him; and makes not only his great nephew but also his first cousin to be both related to him in the fourth degree; because there

position to certain and notorious fact,
and to actual demonstration of the
thing to be proved? An absurdity so
gross, and which so often produces re-
sults of the most distressing kind, is
an opprobrium that ought, surely, to
be removed; even if, in adherence to
feudal principles, and in order to keep
estates in a line of descent from the
first purchaser, a rule of probability
should still be held sufficient to exclude
the half-blood, whenever that probabi-
lity is not refuted. But it may be
safely contended, the exclusion of the
half-blood from the right of inheritance,
and the preference of a remote kinsman
of the whole blood, is, at the present
day, altogether a wanton hardship:

it had a meaning when applied to effect feudal purposes; but its advantages, such as they were, ceased when the feudal system was overthrown: continued adherence to a collateral rule framed in support of that system, and only applicable with propriety thereto, is, in the present state of society, a discredit to our legal code. (See post, note (28) ).

The present writer has submitted this question to the consideration of the commission sitting for the investigation of the law of real property. (See ante, note (12)).

(23) See ante, notes (5) and (6), to this chapter.

+ Mr. Christian says, "this is only true in the paternal line; for, when the paternal and maternal lines are

both admitted to the inheritance, the

most remote collateral kinsman ex parte paterna, will inherit before the nearest ex parte materná. See p. 236, post."

are three persons between him and each of them. The canon law regards consanguinity principally with a view to prevent incestuous marriages, between those who have a large portion of the same blood running in their respective veins; and therefore looks up to the author of that blood, or the common ancestor, reckoning the degrees from him: so that the great nephew is related in the third canonical degree to the person proposed, and the first-cousin in the second; the former being distant three degrees from the common ancestor, (the father of the propositus), and therefore deriving only one fourth of his blood from the same fountain; the latter, and also the propositus himself, being each of them distant only two degrees from the common ancestor (the grandfather of each), 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 to proceed [225] according to the civil computation. But, as it also respects the purchasing ancestor, from whom the estate was derived, it therein resembles the canon law, and therefore counts its 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 differently numbered), whichever method of computation we suppose the law of England to use; since the right of representation, of the parent by the issue, is allowed to prevail in infinitum†.

† Mr. Christian conceives, that "the true and only way of ascertaining an heir-at-law in any line or branch, is by the representation of brothers or sisters in each generation, and that the introduction of the computation of kindred, either by the canon or civil law, into a treatise upon descents, may perplex and can never assist; for if we refer this sixth rule either to the civil or canon law, it will in many instances be erroneous. It is certain that a great

grandson of the father's brother will
inherit before a son of the grandfather's
brother; yet the latter is the next col-
lateral kinsman according to both the
canon and civil computation; for the
former is in the fourth degree by the
canon, and the sixth by the civil law;
the latter is in the third by the canon,
and the fifth by the civil; but in the
descent of real property the former
must be preferred."

On failure of

issue of the per

son last seised,

the inheritance

shall descend to the issue of his

ancestor.

This allowance was absolutely necessary, else there would have frequently been many claimants in exactly the same degree of kindred; as, for instance, uncles and nephews of the deceased; which multiplicity, though no material 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, those of his uncle in the second, and those of his great uncle in the third; as their respective ancestors, if living, would have been; 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 other subsisting issue of his next imnext immediate mediate ancestor. Thus, if John Stiles dies without issue, his estate shall descend to Francis his brother, or his representatives; he being lineally descended from Geoffrey Stiles, John's 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)

The lineal ancestors, though

incapable them

selves of inheriting, are yet the common stock

from which the next ancestor

must spring.

[ *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

(1) Tacitus, de mor. Germ. 21.

ours (u), the father or other lineal ancestor is himself said
to be the heir, though long since dead, as being represent-
ed by the persons of his issue; who are held to succeed
not in their own rights, as brethren, uncles, &c., but in
right of representation, as the offspring of the father, grand-
father, &c. of the deceased (w). 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 (x) (24). 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 re-
spects them as the fountains of inheritable blood; and
therefore, in order to ascertain the collateral heir of John
Stiles, it is first 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 couple of 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, *primogeniture, and representation, [ *227]
that have before been laid down with regard to lineal de-
scents from the person of the last proprietor.

(u) Numb. c. 27.
(w) Selden de succ. Ebr. c. 12.
(x) 1 Sid. 196. 1 Ventr. 423. 1 Lev. 60. 12 Mod. 619.

(24) See ante, note (7) to this chapter.