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VII. In collateral inheritances the male stocks

shall be prefer

ed to the female;

unless the lands descended from

a female.

The relations on the father's side admitted in infinitum, before those on the mother's side

VII. The seventh and last rule or canon is, that in collateral inheritances the male stocks shall be preferred to the female, (that is, kindred derived from the blood of the male ancestors, however remote, shall be admitted before those from the blood of the female, however near,)-unless where the lands have, in fact, descended from a female (31).

Thus the relations on the father's side are admitted in infinitum, before those on the mother's side are admitted at all (); and the relations of the father's father, before those of the father's mother; and so on. And in this the English are admitted at law is not singular, but warranted by the examples of the Hebrew and Athenian laws, as stated by Selden (m), and Petit (n); though among the Greeks in the time of Hesiod (0), when a man died without wife or children, all his [235] kindred (without any distinction) divided his estate among

all; and so on.

Origin and intent of this rule.

them. It is likewise warranted by the example of the Roman laws; wherein the agnati, or relations by the father, were preferred to the cognati or relations by the mother, till the edict of the emperor Justinian (p) abolished all distinction between them. It is also conformable to the customary law of Normandy (q), which indeed in most respects agrees with our English law of inheritance.

However, I am inclined to think, that this rule of our law does not owe its immediate original to any view of conformity to those which I have just now mentioned; but was established in order to effectuate and carry into execution the fifth rule, or principal canon of collateral inheritance, before laid down; that every heir must be of the blood of the first purchasor. For, when such first purchasor was not easily to be discovered after a long course of descents, the lawyers not only endeavoured to investigate him by taking the next relation of the whole blood to the person last in possession, but also, considering that a preference had been

(2) Litt. s. 4.

(m) De succ. Ebræor. c. 12.

(n) LL. Attic. l. 1, t. 6.

(ο) Θεογον. 606.

(p) Nov. 118.

(q) Gr. Coustum, c. 25.

(31) See ante, p. 224, and the note at foot thereof.

given to males (by virtue of the second canon) through the whole course of lineal descent from the first purchasor to the present time, they judged it more likely that the lands should have descended to the last tenant from his male than from his female ancestors; from the father (for instance) rather than from the mother; from the father's father, rather than from the father's mother; and therefore they hunted back the inheritance (if I may be allowed the expression) through the male line; and gave it to the next relations on the side of the father, the father's father, and so upwards; imagining with reason that this was the most probable way of continuing it in the line of the first purchasor. A conduct much more rational than the preference of the agnati, by the Roman laws: which, as they gave no advantage to the males in the first instance or direct lineal succession, had no reason for preferring them in the transverse collateral one: upon which account this preference was very wisely abolished by Justinian.

*That this was the true foundation of the preference of the agnati or male stocks, in our law, will farther appear, if we consider, that, whenever the lands have notoriously descended to a man from his mother's side, this rule is totally reversed; and no relation of his by the father's side, as such, can ever be admitted to them; because he cannot possibly be of the blood of the first purchasor. And so, e converso, if the lands descended from the father's side, no relation of the mother, as such, shall ever inherit. So also, if they in fact descended to John Stiles from his father's mother Cecilia Kempe; here not only the blood of Lucy Baker his mother, but also of George Stiles his father's father, is perpetually excluded. And, in like manner, if they be known to have descended from Frances Holland the mother of Cecilia Kempe, the line not only of Lucy Baker, and of George Stiles, but also of Luke Kempe the father of Cecilia, is excluded. Whereas, when the side from which they descended is forgotten, or never known, (as in the case of an estate newly purchased to be holden ut feudum antiquum,)

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The greatest probability of finding heirs being among

the descendants

of the male an

cestor, was the

true reason of their preference

in collateral inheritances.

here the right of inheritance first runs up all the father's side, with a preference to the male stocks in every instance; and, if it finds no heirs there, it then, and then only, resorts to the mother's side; leaving no place untried, in order to find heirs that may by possibility be derived from the original purchasor. The greatest probability of finding such was among those descended from the male ancestors; but upon failure of issue there, they may possibly be found among those derived from the females.

This I take to be the true reason of the constant preference of the agnatic succession, or issue derived from the male ancestors, through all the stages of collateral inheritance; as the ability for personal service was the reason for preferring the males at first in the direct lineal succession. We see clearly, that if males had been perpetually admitted, in utter exclusion of females, the tracing the inheritance back through the male line of ancestors must at last have inevitably brought us up to the first purchasor: but as males. [ *237 ] have not been *perpetually admitted, but only generally preferred; as females have not been utterly excluded, but only generally postponed to males; the tracing the inheritance up through the male stocks will not give us absolute demonstration, but only a strong probability, of arriving at the first purchasor; which, joined with the other probability, of the wholeness or entirety of blood, will fall little short of a certainty.

Exemplification of these rules.

Before we conclude this branch of our inquiries, it may not be amiss to exemplify these rules by a short sketch of the manner in which we must search for the heir of a person, as John Stiles, who dies seised of land which he acquired, and which therefore he held as a feud of indefinite antiquity (r).

In the first place succeeds the eldest son, Matthew Stiles, or his issue: (No. 1.)-if his line be extinct, then Gilbert Stiles and the other sons, respectively, in order of birth, or

(r) See the table of descents annexed.

their issue: (No. 2.)-in default of these all the daughters together, Margaret and Charlotte Stiles, or their issue: (No. 3.)-On failure of the descendants of John Stiles himself, the issue of Geoffrey and Lucy Stiles, his parents, is called in: viz. first, Francis Stiles, the eldest brother of the whole blood, or his issue: (No. 4.)—then Oliver Stiles, and the other whole brothers, respectively, in order of birth, or their issue: (No. 5.)—then the sisters of the whole blood all together, Bridget and Alice Stiles, or their issue: (No. 6.) -In defect of these, the issue of George and Cecilia Stiles, his father's parents; respect being still had to their age and sex: (No. 7.)-then the issue of Walter and Christian Stiles, the parents of his paternal grandfather: (No. 8.)—then the issue of Richard and Anne Stiles, the parents of his paternal grandfather's father, (No. 9.)-and so on in the paternal grandfather's paternal line, or blood of Walter Stiles, in infinitum. In defect of these, the issue of William and Jane Smith, the parents of his paternal grandfather's mother: (No. 10.)—and so on in the paternal grandfather's maternal line, or blood of Christian Smith, in infi

nitum: till both the *immediate bloods of George Stiles, the [238] paternal grandfather, are spent.-Then we must resort to the issue of Luke and Frances Kempe, the parents of John Stiles's paternal grandmother: (No. 11.)—then to the issue of Thomas and Sarah Kempe, the parents of his paternal grandmother's father: (No. 12.)-and so on in the paternal grandmother's paternal line, or blood of Luke Kempe, in infinitum.—In default of which we must call in the issue of Charles and Mary Holland, the parents of his paternal grandmother's mother: (No. 13.)—and so on in the paternal grandmother's maternal line, or blood of Frances Holland, in infinitum; till both the immediate bloods of Cecilia Kempe, the paternal grandmother, are also spent.— Whereby the paternal blood of John Stiles entirely failing, recourse must then, and not before, be had to his maternal relations; or the blood of the Bakers, (Nos. 14, 15, 16.) Willis's, (No. 17.) Thorpe's, (Nos. 18, 19.) and White's,

The case of
Clere and
Brooke, con-

(No. 20.) in the same regular successive order as in the paternal line.

The student should however be informed, that the class, No. 10, would be postponed to No. 11, in consequence of the doctrine laid down, arguendo, by justice Manwoode, in the case of Clere and Brooke ($); from whence it is adopted by Lord Bacon (t), and Sir Matthew Hale (u): because, it is said, that all the female ancestors on the part of the father are equally worthy of blood; and in that case proximity shall prevail. And yet, notwithstanding these respectable authorities, the compiler of this table hath ventured (in point of theory, for the case never yet occurred in practice) to give the preference to No. 10 before No. 11; for the following reasons: 1. Because this point was not the principal question in the case of Clere and Brooke: but the law concerning it is delivered obiter only, and in the course of argument, by Justice Manwoode (32); though afterwards said (s) Plowd. 450. (t) Elem. c. 1. (u) H. C. L. 240.244.

(32) The disputed doctrine was thus laid down by Mr. Justice Manwoode in the case of Clere v. Brook, (Plowd. 450)-"The brother or sister of the purchaser's grandmother, viz. the mother of the purchaser's father, shall be preferred before the brother or sister of the purchaser's great grandmother, viz. the mother of the purchaser's father's father; because they are equally worthy in blood, (for, such heirs come from the blood of the female sex, from which the purchaser's father issued,) and where they are all equally worthy, the next of blood shall always be preferred as heir."

Mr. Watkins devotes the 3rd section of the 3rd chapter of his Essay on the Law of Descents, to a refutal of this doctrine, and a support of that maintained by our author. On the other hand the question is ably discussed by

Mr. Osgoode in his "Remarks on the Law of Descents," (from which copious extracts are given in 3 Cruise's Digest, 384-411, and also in a long note to Hale's Hist. of the Com. Law, p. 128, 5th edition, where our author's reasoning is temperately examined and controverted.

The result appears to be, that, if the proximity which is the object of the law be an absolute proximity, the doctrine of Justice Manwoode ought to prevail; but that there may be some grounds for qualifying the rule of proximity, and receiving it only sub modo, if that should ever be necessary to make it accordant with the following three other admitted rules: 1st, that, in the case of a purchase, the paternal line shall always be preferred to the maternal, and the heirs on the part of the mother shall never succeed till those

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