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from those in the paternal line. Here then the supply of proof is deficient, and by no means amounts to a certainty: and the higher the common stock is removed, the more will even the probability decrease. But it must be observed, that (upon the same principles of calculation) the half blood have always a much less chance to be descended from an unknown indefinite ancestor of the deceased, than the whole blood in the same degree. As, in the first degree, the whole brother of John Stiles is sure to be descended from that unknown ancestor; his half brother has only an even chance, for half John's ancestors are not his. So, in the second degree, John's uncle of the whole blood has an even chance; but the chances are three to one against his uncle of the half-blood, for three-fourths of John's ancestors are not his. In like manner, in the third degree, the chances are only three to one against John's great uncle of the whole blood, but they are seven to one against his great uncle of the half blood, for seven-eighths of John's ancestors have no connection in blood with him. Therefore, the much less probability (29) of the half blood's descent from the first purchasor, compared with that of the whole blood, in the several degrees, has occasioned a general exclusion of the half blood in all.

But, while I thus illustrate the reason of excluding the half blood in general, I must be impartial enough to own, that, in some instances, the practice is carried farther than the principle upon which it goes will warrant. Particularly when a kinsman of the whole blood in a remoter degree, as the uncle or great uncle, is preferred to one of the half blood in a nearer degree, as the brother; for the half brother hath the same chance of being descended from the purchasing ancestor as the uncle; and a thrice + better chance than the

(29) But see the last note.

Hardship of excluding the half father's side.

brother by the

+ Mr. Christian says,

"this ought in four; the chance of the half brother to be twice; for the half brother has is therefore twice better than that of one chance in two, the great uncle one the great uncle."

great uncle or kinsman in the third degree. It is also more especially overstrained, when a man has two sons by different venters, and the estate on his death descends from him to the eldest, who enters and dies without issue; in which case the younger son cannot inherit this estate, because he is not of the whole blood to the last proprietor (a). This, [232] it must be *owned, carries a hardship with it, even upon feodal principles: for the rule was introduced only to supply the proof of a descent from the first purchasor; but here, as this estate notoriously descended from the father, and as both the brothers confessedly sprung from him, it is demonstrable that the half brother must be of the blood of the first purchasor, who was either the father or some of the father's ancestors. When, therefore, there is actual demonstration of the thing to be proved, it is hard to exclude a man by a rule substituted to supply that proof when deficient. So far as the inheritance can be evidently traced back, there seems no need of calling in this presumptive proof, this rule of probability, to investigate what is already certain. Had the elder brother, indeed, been a purchasor, there would have been no hardship at all, for the reasons already given: or had the frater uterinus only, or brother by the mother's side, been excluded from an inheritance which descended from the father, it had been highly reasonable.

In the descent of the crown,

and in estatestail, half-blood is no impedi


Indeed, it is this very instance of excluding a frater consanguineus, or brother by the father's side, from an inheritance which descended a patre, that Craig (b) has singled out on which to ground his strictures on the English law of

(a) A still harder case than this hap. pened, M. 10 Edw. III. On the death of a man, who had three daughters by a first wife, and a fourth by another, his lands descended equally to all four as coparceners. Afterwards, the two eldest died without issue; and it was held that the third daughter alone should inherit their shares, as being their heir of the whole blood; and that the youngest daughter should re

tain only her original fourth part of their common father's lands. (10 Ass. 27). And yet it was clear law in M. 19 Edw. II. that where lands had descended to two sisters of the half blood, as coparceners, each might be heir of those lands to the other. (Mayn. Edw. II. 628. Fitz. Abr. tit. Quare impedit, 177).

(b) L. 2, t. 15, s. 14.

half-blood. And, really, it should seem as if originally the custom of excluding the half-blood in Normandy (c) extended only to exclude a frater uterinus, when the inheritance descended a patre, and vice versa, and possibly in England also; as even with us it remained a doubt, in the time of Bracton (d), and of Fleta (e), whether the half blood on the father's side was excluded from the inheritance which originally descended from the common father, or only from such as descended from the respective mothers, and from newly-purchased lands. So also the rule of law, as laid *down by our Fortescue (f), extends no farther than this: [ *233] frater fratri uterino non succedet in hæreditate paterna. It is, moreover, worthy of observation, that by our law, as it now stands, the crown (which is the highest inheritance in the nation) may descend to the half-blood of the preceding sovereign (g), so that it be the blood of the first monarch purchasor, or (in the feodal language) conqueror of the reigning family. Thus it actually did descend from king Edward the Sixth to queen Mary, and from her to queen Elizabeth, who were respectively of the half-blood to each other. For, the royal pedigree being always a matter of sufficient notoriety, there is no occasion to call in the aid of this presumptive rule of evidence, to render probable the descent from the royal stock, which was formerly king William the Norman, and is now (by act of Parliament (h)) the princess Sophia of Hanover. Hence also it is that in estates-tail, where the pedigree from the first donee must be strictly proved, half-blood is no impediment to the descent (i): because, when the lineage is clearly made out, there is no need of this auxiliary prooft. How far it might

(c) Gr. Coustum, c. 25.
(d) L. 2, c. 30, s. 3.
(e) L. 6, c. 1, s. 14.

(f) De laud. LL. Angl. 5.

+ Mr. Christian observes, "and also in titles of honour, half-blood is no impediment to the descent: but a title can

(g) Plowd. 245. Co. Litt. 15.
(h) 12 Will. III. c. 2.

(i) Litt. s. 14, 15.

only be transmitted to those who are
descended from the first person enno-
bled. Co. Litt. 15."

be desirable for the legislature to give relief, by amending the law of descents in one or two instances, and ordaining that the half-blood might always inherit, where the estate notoriously descended from its own proper ancestor, and in cases of new purchased lands, or uncertain descents, should never be excluded by the whole blood in a remoter degree; or how far a private inconvenience should be still submitted to, rather than a long established rule should be shaken, it is not for me to determine (30) †.

(30) The MS. noticed ante, in note (28), supplies the following observations upon the passage in the text:

"It is in general dangerous to alter settled rules of law, especially when the alteration may be productive of considerable consequences beyond the immediate object of the legislature. But, in this case, the alteration necessary seems plain and simple; merely wiping out of our law books the idea of half-blood, and then the course of descent will flow in its natural channel without any interruption. The inconvenience arising from the exclusion of

+ Mr. Christian remarks, that" a case was determined in the Common Pleas, under the following circumstances: a father died intestate, leaving two daughters by his first wife, and his second wife pregnant, who was delivered of a son; this infant lived only a few weeks; and it was held, that as the mother had resided upon one of the father's estates, and had received rent for others after the father's death, she being the guardian in socage of the infant, this amounted to a legal seisin in him, and of consequence his two sisters could not inherit, but the estate descended, perhaps, to a remote relation.

the half blood is generally guarded against by settlements and wills; but it may rise to something more than private inconvenience; it may become of public consequence, when the descent of a peerage upon a brother of the half blood is unaccompanied by the estate, which ought to support the peer, and render him that independent member of the legislature, which it is so much the interest of the public he should be: a remote kinsman, or perhaps the crown, obtaining the patrimony of the family, and leaving the heir in a poverty injurious to his country."

3 Wils. 516. And in a late case, where a father died, leaving two daughters by different mothers, the mother of the youngest entered upon the premises, and the eldest daughter died; it was held that, the mother being guardian in socage to the youngest, and having a right to enter for her own daughter, the entry of the mother was also an entry for the coparcener, the half sister, which created a seisin in her; and therefore, upon her death, her moiety descended to some of her relations of the whole blood. And Lord Kenyon held generally, that an infant may consider whoever enters on his estate as

The rule then, together with its illustration, amounts to this: that in order to keep the estate of John Stiles as nearly as possible in the line of his purchasing ancestor, it must descend to the issue of the nearest couple of ancestors that have left descendants behind them; because the descendants of one ancestor only are not so likely to be in the line of that purchasing ancestor, as those who are descended from both.

The estate must issue of the nearest couple

descend to the

of ancestors that

have left de


ing from this


[ *234 ]

*But here another difficulty arises. In the second, third, Difficulty arisfourth, and every superior degree, every man has many couples of ancestors, increasing according to the distances in a geometrical progression upwards (k), the descendants of all which respective couples are (representatively) related to him in the same degree. Thus, in the second degree, the issue of George and Cecilia Stiles and of Andrew and Esther Baker, the two grandsires and grandmothers of John Stiles, are each in the same degree of propinquity; in the third degree, the respective issues of Walter and Christian Stiles, of Luke and Frances Kempe, of Herbert and Hannah Baker, and of James and Emma Thorpe, are (upon the extinction of the two inferior degrees) all equally entitled to call themselves the next kindred of the whole blood to John Stiles. To which, therefore, of these ancestors must we first resort, in order to find out descendants to be preferably called to the inheritance? In answer to this, and likewise to avoid all other confusion and uncertainty that might arise between the several stocks wherein the purchasing ancestor may be sought for, another qualification is requisite, besides the proximity and entirety, which is that of dignity or worthiness, of blood. For,

(k) See



entering for his use. And he referred to the distinction laid down by Lord Coke, (Co. Litt. 15 a), viz. that if the father die, his estate being out on a freehold lease, that is not such a possession as to induce a possessio fratris, unless the elder son live to receive

rent after the expiration of the lease;
but if the father die, leaving his estate
out on a lease for years, the posses-
sion of the tenant is so far the pos-
session of the eldest son as to consti-
tute a possessio fratris. 7 T. R. 390."

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