ancestors, by whom the lands might have possibly been purchased, are capable of being called to the inheritance." The previ- Yet, when an estate hath really descended in a course of inous descent heritance to the person last seized, the strict rule of the feodal regarded when it can law is still observed; and none are admitted but the heirs of be traced. those through whom the inheritance hath passed; for all others have demonstrably none of the blood of the first purchaser in them, and therefore shall never succeed." As, if lands come to John Stiles by descent from his mother, Lucy Baker, no relation of his father (as such) shall ever be his heir of these lands; and, vice versa, if they descended from his father, Geoffrey Stiles, no relation of his mother (as such) shall ever be admitted thereto; for his father's kindred have none of his mother's blood, nor have his mother's relations any share of his father's blood. And so, if the estate descended from his father's father, George Stiles, the relations of his father's mother, Cecilia Kempe, shall for the same reason never be admitted, but only [223] those of his father's father." This is also the rule of the French law, which is derived from the same feodal fountain." Here we may observe, that, so far as the feud is really antiquum, the law traces it back, and will not suffer any to inherit but the blood of those ancestors from whom the feud was conveyed to the late proprietor. But when, through length of • Domat., part 2, pr. (29) An estate is purchased by a younger brother, and on his death without issue descends to his elder brother, because the estate is supposed to have always been in the family, and therefore the elder brother is the heir. This offer of the supposition that that happened which could never by any possibility have happened, namely, a descent to a younger brother, as a reason why the elder brother should be his heir, is no pleasantry of the commentator's, but a fair specimen of that kind of reasoning with which, in other places, he endeavors to put off his readers from examining the grounds of more important matters than canons of inheritance. (30) It happens that two estates or titles, the one legal, and the other equitable, descend upon the same person, in which case they become united, and the equitable follows the line of descent through which the legal estate descended. (Dougl., 771.) And in the case of Langley v. Sneyd (1 Sim. & St., 45), where an infant died seized of an equitable estate, descending ex parte materná, the legal estate being vested in trustees, his incapacity to call for a conveyance of the legal estate (by which the course of descent might have been broken) was held not to be a sufficient reason to induce a court of equity to consider the case as if such a conveyance had actually been made; it not being, according to the terms of the trust, any part of the express duty of the trustees to execute such conveyance. (31) Hence the expression "heir-atlaw" must always be used with a reference to a specific estate; for if an only child has taken by descent an estate from his father, and another from his mother, upon his death without issue, these estates will descend to two different persons: so, also, if his two grandfathers and two grandmothers had each an estate which descended to his father and mother, whom I suppose also to be only children, then, as before, these four estates will descend to four different heirs.-[CHRISTIAN.] (32) The Code Civil has abolished this rule: "La loi ne considère ni la nature ni l'origine des biens, pour en regler la succession." (L. 3, tit. 1, s. 732.) time, it can trace it no further; as, if it be not known whether his grandfather, George Stiles, inherited it from his father, Walter Stiles, or his mother, Christian Smith; or, if it appear that his grandfather was the first grantee, and so took it (by the general law) as a feud of indefinite antiquity; in either of these cases the law admits the descendants of any ancestor of George Stiles, either paternal or maternal, to be in their due order the heirs to John Stiles of this estate; because, in the first case, it is really uncertain, and, in the second case, it is supposed to be uncertain whether the grandfather derived his title from the part of his father or his mother. rule of col This, then, is the great and general principle upon which the Principal law of collateral inheritances depends; that, upon failure of lateral deissue in the last proprietor, the estate shall descend to the blood scent. of the first purchaser; 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, 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 been forgotten, and is supposed so to be in feuds that are held ut [224] antiquis. al heir to be VI. A sixth rule or canon, therefore, is, that the collateral VI. Collater heir of the person last seized must be his next collateral kins- next collatman of the whole blood.33 eral kius man of First, he must be his next collateral kinsman, either person- whole ally or jure representationis; which proximity is reckoned ac- blood, cording to the canonical degrees of consanguinity before men- own right, tioned. Therefore, the brother being in the first degree, he or by right 34 P M. 12 Edw. IV., 14. Abr., t. Descent, 38. (33) “In order to constitute a good pression as a qualification, and not an title, the party must be the nearest addition to the first branch, that the collateral heir of the whole blood of collateral heir of the whole blood must the person last seized on the part of claim through the ancestor from whom the ancestor through whom the estate the estate descended, and thus be of descended. When Lord Hale speaks the blood of the first purchaser." (Per of the nearest collateral relation of the Sir John Leach, V. Ĉ., 1 Sim. & St., whole blood of the person last seized, 257.) and of the blood of the first purchaser, he means the latter branch of the ex (34) This is only true in the pater. *See ante, p. 208, n. *. either in his of representation. ty. and his descendants shall exclude the uncle and his issue, who Nature of is only in the second. And herein consists the true reason of consanguinithe different methods of computing the degrees of consanguinity, 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 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 [225] ought to proceed 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." This nal line; for when the paternal and ma- (35) The editor conceives that the 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 greatgrandson of the father's brother will inherit before a son of the grandfather's brother; yet the latter is the next collateral kinsman, according to both the canon and civil-law 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 law; but in the descent of real property, the former must be preferred.-[CHRISTIAN.] 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. of rule. The right of representation being thus established, the for- Statement mer part of the present rule amounts to this: that, on failure of issue of the person last seized, the inheritance shall descend to the other subsisting issue of his next immediate 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 ancient Germans, our progenitors: "hæredes successoresque, sui cuique liberi, et nullum testamentum; si liberi non sunt, proximus gradus in possessione, fratres, patrui, avunculi.”t the common whence col Now here it must be observed, that the lineal ancestors, [226] though (according to the first rule) incapable themselves of Lineal ansucceeding to the estate, because it is supposed to have already cestors are passed them, are yet the common stocks from which the next stocks from successor must spring. And, therefore, in the Jewish law, teal heir which in this respect entirely corresponds with ours," the to be found. father or other lineal ancestor is himself said to be the heir, though long since dead, as being represented 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, grandfather, &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 * 1 Sid., 196. 1 Ventr., 423. 1 Lev., 60. 12 Mod., 619. by the stat. 3 & 4 Will. IV., c. 106, s. If Geoffrey Stiles hath two sons, John and Francis, Francis may claim as heir to John, without naming their father Geof frey; 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 respects 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 upward, 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 ob[227] served, with regard to sex, primogeniture, and representation, that have before been laid down with regard to lineal descents from the person of the last proprietor. Exclusion of half blood. Who are of the whole blood. But, secondly, the heir need not be the nearest kinsman 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." 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 composi considered to inherit immediately from The doctrine of immediate descent allowing descents to be traced through alien parents, provided the person claiming through them was in existence, and capable of taking at the death of the person last seized; which proviso does not prevent the devesting of an estate out of the daughter of an alien, on the birth of a brother or sister. (Infra, p. 251.) The rule that a descent can not be traced through a person attainted has also been abolished. (Stat. 3 & 4 Will. IV., c. 106, s. 10.) (37) It is always intended, or presumed, that a person is of the whole blood until the contrary be shown. (Kitch., 225, a; Plowd., 77, a; Trin. 19 H. VIII., pl. 6, p. 11, b; Watk., Desc., 75, n. (u).)-[CHITTY.] |