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The heir must
kinsman of the whole blood
But, secondly, the heir need not be the nearest kinsman be the nearest absolutely, but only sub modo; that is, he must be the nearest kinsman of the whole blood; for if there be a much nearer kinsman of the half blood, a distant kinsman of the whole blood shall be admitted, and the other entirely excluded; nay, the estate shall escheat to the lord, sooner than the half blood shall inherit.
that is, one descended from
the same couple of ancestors:
A kinsman of the whole blood is he that is derived, not only from the same ancestor, but from the same couple of ancestors. For, as every man's own blood is compounded of the bloods of his respective ancestors, he only is properly of the whole or entire blood with another, who hath, so far as the distance of degrees will permit, all the same ingredients in the composition of his blood that the other hath. Thus, the blood of John Stiles being composed of those of Geoffrey Stiles his father, and Lucy Baker his mother, therefore his brother Francis, being descended from both the same parents, hath entirely the same blood with John Stiles; or he but kinsmen of is his brother of the whole blood. But if, after the death
the half blood cannot inherit
to each other.
of Geoffrey, Lucy Baker the mother marries a second husband, Lewis Gay, and hath issue by him; the blood of this issue, being compounded of the blood of Lucy Baker, (it is true), on the one part, but that of Lewis Gay, (instead of Geoffrey Stiles), on the other part, it hath therefore only half the same ingredients with that of John Stiles; so that he is only his brother of the half blood, and for that reason they shall never inherit to each other. So also, if the father has two sons, A. and B., by different venters or wives; now these two brethren are not brethren of the whole blood, and therefore shall never inherit to each other, but the estate shall rather escheat to the lord. Nay, even if the father dies, and his lands descend to his eldest son A., who enters thereon, and dies seised (25) without issue; still B. shall
(25) It is a standing rule of law, that non jus, sed seisina, facit stipitem: in other words, that no one can be heir to any land of his ancestor's, of which
land the ancestor was not actually seised: (see ante, p. 128): nor can any incorporeal hereditaments be derived from any ancestor, who had not
not be heir to this estate, because he is only of the half blood to A., the person last seised: but it shall descend to a sister (if any) of the whole blood to A.: for, in such cases, the maxim is, that the seisin or possessio fratris facit sororem esse hæredem. Yet, had A. died without entry, then B.
might have inherited; not as heir to A. his half brother, but [ 228 ] as heir to their common father, who was the person tually seised (y) (26)†.
This total exclusion of the half blood from the inheritance, being almost peculiar to our own law, is looked upon as a strange hardship by such as are unacquainted with the reasons on which it is grounded. But these censures arise from a misapprehension of the rule, which is not so much to be considered in the light of a rule of descent, as of a rule of evidence (27); an auxiliary rule, to carry a former into execution. And here we must again remember, that the great and most universal principle of collateral inheritances being this, that the heir to a feudum antiquum must be of the blood of the first feudatory or purchasor, that is, derived in a lineal descent from him; it was originally requisite, as upon gifts in tail it still is, to make out the pedigree of the heir from the first donee or purchasor, and to shew that such heir was his lineal representative. But when, by length of time and a long course of descents, it came (in those rude and unlettered ages) to be forgotten who was really the first feudatory (y) Hale, H. C. L. 238.
Reasons of this exclusion of the
obtained therein what as to such subjects is deemed equivalent to corporal seisin. (See ante, p. 209, with the notes thereto).
(26) And the descent (in the case put in the text,) will be considered as
Mr. Christian observes, that "of reversions, remainders, and executory devises, there can be no seisin or possessio fratris." [This is very clear: of an estate which is not an estate in pos
immediate from the father to B. the
(27) See ante, note (22) to this
session, there cannot possibly be a pos-
or purchasor, and thereby the proof of an actual descent from him became impossible; then the law substituted what Sir Martin Wright (2) calls a reasonable, in the stead of an impossible, proof: for it remits the proof of an actual descent from the first purchasor; and only requires in lieu of it, that the claimant be next of the whole blood to the person last in possession, (or derived from the same couple of ancestors), which will probably answer the same end as if he could trace his pedigree in a direct line from the first purchasor. For he who is my kinsman of the whole blood can have no ancestors beyond or higher than the common stock, but what are equally my ancestors also; and mine are vice versa his: he therefore is very likely to be derived from that unknown ancestor of mine, from whom the inhe.. ritance descended. But a kinsman of the half blood has but one half of his ancestors above the common stock the same as mine; and therefore there is not the same probability (28) of that standing requisite in the law, that he be derived from the blood of the first purchasor.
*To illustrate this by example. Let there be John Stiles, (z) Tenures, 186.
(28) This reason will be found on examination to be unsatisfactory, and indeed not to be founded in truth. It is not true, that in all, or even in most cases, there is a greater probability that a kinsman of the whole blood is derived from the blood of the first purchaser, than a kinsman of the half blood; or that a kinsman of the half blood has in all, or even in most cases, fewer common ancestors of the person last seised, than a kinsman of the whole blood. My brother of the half blood, (the issue of my father), has one ancestor, (my father), more in common with me, than my uncle of the whole blood; several more than my greatuncle, (see post, page 231); and more,
almost innumerably more, than the de
scendants of my paternal grandmother's maternal grandfather. Yet all these may inherit an estate descended to me from my father, and purchased by him, though my half brother, the son of my father, the original purchaser, cannot inherit. And it is plain, the law does not consider the point as hinging upon greater or less probability: for then it would only postpone the half blood, instead of utterly excluding it, so that land shall rather escheat than devolve upon a kinsman of the half blood. (See ante, note (22).)
This note is partly extracted from the MS. already mentioned, as supposed to be penned by a noble and learned Judge still living.
and Francis, brothers, by the same father and mother, and another son of the same mother by Lewis Gay, a second husband. Now, if John dies seised of lands, but it is uncertain whether they descended to him from his father or mother; in this case his brother Francis, of the whole blood, is qualified to be his heir; for he is sure to be in the line of descent from the first purchasor, whether it were the line of the father or the mother. But, if Francis should die before John, without issue, the mother's son by Lewis Gay (or brother of the half blood) is utterly incapable of being heir; for he cannot prove his descent from the first purchasor, who is unknown, nor has he that fair probability which the law admits as presumptive evidence, since he is to the full as likely not to be descended from the line of the first purchasor, as to be descended; and therefore the inheritance shall go to the nearest relation possessed of this presumptive proof, the whole blood.
And, as this is the case in feudis antiquis, where there really did once exist a purchasing ancestor, who is forgotten; it is also the case in feudis novis held ut antiquis, where the purchasing ancestor is merely ideal, and never existed but only in fiction of law. Of this nature are all grants of lands in fee-simple at this day, which are inheritable as if they descended from some uncertain indefinite ancestor, and therefore any of the collateral kindred of the real modern purchasor (and not his own offspring only) may inherit them, provided they be of the whole blood; for all such are, in judgment of law, likely enough to be derived from this indefinite ancestor: but those of the half blood are excluded, for want of the same probability. Nor should this be thought hard, that a brother of the purchasor, though only of the half blood, must thus be disinherited, and a more remote relation of the whole blood admitted, merely upon a supposition and fiction of law: since it is only upon a like supposition and fiction, that brethren of purchasors (whether of the whole or half blood) are entitled to inherit at all; for we have seen that, in feudis stricte novis, neither brethren nor any other collaterals were admitted. As
The doctrine of whole blood calculated to sup
ply the frequent impossibility of proving a descent from the first purchasor.
therefore in feudis antiquis we have seen the reasonableness of excluding the half blood, if by a fiction of law a feudum novum be made descendible to collaterals as if it was feudum antiquum, it is just and equitable that it should be subject to the same restrictions as well as the same latitude of descent.
Perhaps by this time the exclusion of the half blood does not appear altogether so unreasonable as at first sight it is apt to do. It is certainly a very fine-spun and subtle nicety: but considering the principles upon which our law is founded, it is not an injustice, nor always a hardship; since even the succession of the whole blood was originally a beneficial indulgence, rather than the strict right of collaterals; and though that indulgence is not extended to the demikindred, yet they are rarely abridged of any right which they could possibly have enjoyed before. The doctrine of the whole blood was calculated to supply the frequent impossibility of proving a descent from the first purchasor, without some proof of which (according to our fundamental maxim) there can be no inheritance allowed of. And this purpose it answers, for the most part, effectually enough. I speak with these restrictions, because it does not, neither can any other method answer this purpose entirely. For though all the ancestors of John Stiles, above the common stock, are also the ancestors of his collateral kinsman of the whole blood; yet, unless that common stock be in the first degree, (that is, unless they have the same father and mother,) there will be intermediate ancestors, below the common stock, that belong to either of them respectively, from which the other is not descended, and therefore can have none of their blood. Thus, though John Stiles and his brother of the whole blood can each have no other ancestors than what are in common to them both; yet with regard to his uncle, where the common stock is removed one degree higher, (that is, the grandfather and grandmother,) one half of John's ancestors will not be the ancestors of his uncle: his patruus, or father's brother, derives not his descent from John's maternal ancestors: nor his avunculus, or mother's brother,