Richard earl of Cambridge, two; to Edmund duke of York,
three; to king Edward the third, the common ancestor,
four; to John of Gant, five; to John earl of Somerset, six;
to John duke of Somerset, seven; to Margaret countess of
Richmond, eight; to king Henry the seventh, nine (n).
*The nature and degrees of kindred being thus in some
measure explained, I shall next proceed to lay down a series
of rules or canons of inheritance, according to which es-
tates are transmitted from the ancestor to the heir; toge-
ther with an explanatory comment, remarking their origi-
nal and progress, the reasons upon which they are found-
ed, and in some cases their agreement with the laws of other

nations.

I. The first rule is, that inheritances shall lineally descend to the issue of the person who last died actually seised, in infinitum; but shall never lineally ascend (7). To explain the more clearly both this and the subsequent rules, it must first be observed, that by law no inheritance can vest, nor can any person be the actual complete heir of another, till the ancestor is previously dead. Nemo est hæres viventis. Before that time the person who is next in

(n) See the table of consanguinity annexed; wherein all the degrees of collateral kindred to the propositus are computed, so far as the tenth of the

(7) In conformity with this canon, if a son purchase land, and die without issue, and his father and mother be then living, his father or mother shall not (as such) inherit such lands immediately from the son. But, if the father or mother be also cousins to the son, they may (as such) succeed to the inheritance. (Eastwood v. Vincke, 2 P. Wms. 416; and see ante, note (26) to chap. 1).

So, if there be father and two sons, and one of the sons purchases land and dies, his brother shall take the inherit

ance as heir to him, although the fa

civilians and the seventh of the canon-
ists inclusive; the former being dis-
tinguished by the numeral letters, the
latter by the common cyphers.

ther be living. For, though the father
seems the source of inheritable blood,
yet the feud is supposed to have already
passed him; and therefore, the descent
between brother and brother is con-
sidered as immediate; and in making
out the title of one from the other, their
common father need not be named; and
if he be living, the descent between the
brothers shall be exactly the same as
though he were deceased. (Colling-
wood v. Pace, 1 Ventr. 423; and see
post, p. 226).

the line of succession is called an heir apparent, or heir Heirs apparent. presumptive. Heirs apparent are such, whose right of inheritance is indefeasible, provided they outlive the ancestor;

tive.

as the eldest son or his issue, who must by the course of the common law be heir to the father whenever he happens to Heirs presump- die. Heirs presumptive are such who, if the ancestor should die immediately, would in the present circumstances of things be his heirs; but whose right of inheritance may be defeated by the contingency of some nearer heir being born: as a brother, or nephew, whose presumptive succession may be destroyed by the birth of a child; or a daughter, whose present hopes may be hereafter cut off by the birth of a son. Nay, even if the estate hath descended, by the death of the owner, to such brother, or nephew, or daughter; in the former cases, the estate shall be devested and taken away by the birth of a posthumous child; and, in the latter, it shall also be totally devested by the birth of [ *209] a posthumous son (o) (8) †.

The ancestor must have had actual seisin.

*We must also remember, that no person can be properly such an ancestor, as that an inheritance of lands or tenements can be derived from him, unless he hath had actual seisin (9) of such lands, either by his own entry, or by the

(0) Bro. tit. Descent, 58.

(8) See ante, note (8) to chap. 11.
(9) See ante, p. 128.

Seisin of fee-tail, with fee-simple expectant, will not be such a seisin as to

+ Mr. Christian, in his note upon the passage in the text, observes, that "besides the case of a posthumous child, if lands are given to a son, who dies, leaving a sister his heir; if the parents have, at any distance of time afterwards, another son, this son shall devest the descent upon the sister, and take the estate as heir to his brother. (Co Litt. 11. Doct. & Stud. 1 Dial. c. 7). So the same estate may be fre

quently devested by the subsequent birth of nearer presumptive heirs, before it fixes upon the nearest presumptive heir. As if an estate is given to an only child, who dies, it may descend to an aunt, who may be stripped of it by an after-born uncle, on whom a subsequent sister of the deceased may enter, and who will again be deprived of the estate by the birth of a brother."

possession of his own or his ancestor's lessee for years, or by receiving rent from a lessee of the freehold (p): or unless he hath had what is equivalent to corporal seisin in hereditaments that are incorporeal (10); such as the receipt of (p) Co. Litt. 15.

[*210 ]

Where there is none that can

rent, a presentation to the church in case of an advowson (q), and the like. But he shall not be accounted an ancestor, who hath had only a bare right or title to enter or be otherwise seised. And therefore, all the cases which will be mentioned in the present chapter, are upon the supposition that the deceased (whose inheritance is now claimed) was the last person actually seised thereof. For the law requires this notoriety of possession, as evidence that the ancestor had that property in himself, which is now to be transmitted to his heir. Which notoriety had succeeded in the place of the antient feodal investiture (11), whereby, while feuds were precarious, the vassal on the descent of lands was formerly admitted in the lord's court (as is still the practice in Scotland) and there received his seisin, in the nature of a renewal of his ancestor's grant, in the presence of the feodal peers: till at length, when the right of succession became indefeasible, an entry on any part of the lands within the county (which if disputed was afterwards to be tried by those peers), or other notorious possession, was admitted as equivalent to the formal grant of seisin, and made the tenant capable of transmitting his estate by descent. The seisin therefore of any person, thus understood, makes him the root or stock, from which all future inheritance by right of blood must be derived: which is very briefly expressed in this maxim, seisina facit stipitem (r).

*When therefore a person dies so seised, the inheritance first goes to his issue: as if there be Geoffrey, John, and the land escheats Matthew, grandfather, father, and son; and John purchases

take by descent,

to the lord.

(q) Co. Litt. 11.

(r) Flet. 1. 6, c. 2, s. 2.

(6) and (7) to chap. 3). But the law is
different with respect to an advowson,
&c. in gross. (Co. Litt. 15 b). If the
eldest brother dies before a presenta-
tion to an advowson, not appendant to
a manor of which he was seised, it will

descend to his half brother, as heir to the person last seised, and not to his sister of the whole blood. (1 Burn's Eccl. L., 11).

(11) See ante, note (17) to chap. 4.

lands, and dies; his son Matthew shall succeed him as heir, and not the grandfather Geoffrey: to whom the land shall never ascend, but shall rather escheat to the lord (s) (12).

(s) Litt. s. 3.