IV. Lineal descendants IV. A fourth rule, or canon of descent, is this: that the represent lineal descendants, in infinitum, of any person deceased shall their ances represent their ancestor; that is, shall stand in the same tor in infinitum. place as the person himself would have done had he been [217] living.* Which is called suc cession in stirpes; Thus, the child, grandchild, or great-grandchild, either male or female, of the eldest son, succeeds before the younger son, and so in infinitum. And these representatives shall take neither more nor less, but just so much as their principals would have done. As, if there be two sisters, Margaret and Charlotte; and Margaret dies, leaving six daughters; and then John Stiles, the father of the two sisters, dies without other issue : these six daughters shall take among them exactly the same as their mother, Margaret, would have done, had she been living; that is, a moiety of the lands of John Stiles in coparcenary: so that, upon partition made, if the land be divided into twelve parts, thereof Charlotte, the surviving sister, shall have six, and her six nieces, the daughters of Margaret, one apiece. This taking by representation is called succession in stirpes, according to the roots; since all the branches inherit the same share that their root, whom they represent, would have done. And in this manner, also, was the Jewish succession directed ;d but the Roman somewhat differed from it. In the descending line, the right of representation continued in infinitum, and the inheritance still descended in stirpes; as, if one of three daughters died, leaving ten children, and then the father died; the two surviving daughters had each one third of his effects, and the ten grandchildren had the remaining third divided between them. And so among collaterals, if any person of equal degree with the persons represented were still subsisting (as, if the deceased left one brother, and two nephews, the sons of another brother), the succession was still guided by the roots; but if both the brethren were dead, leaving issue, then (I apprehend) [218] their representatives in equal degree became themselves principals, and shared the inheritance per capita, that is, share and share alike; they being themselves now the next in degree to the ancestor, in their own right, and not by right of representation. So, if the next heirs of Titius be six nieces, three by one sister, two by another, and one by a third; his inheritance by the Roman law was divided into six parts, and one given to each of the nieces: whereas the law of England, in this case, would still divide it only into three parts, and distribute it per stirpes, thus: one third to the three children who represent one sister, another third to the two who represent the second, and Hale, H. C. L., 236, 237. e Nov., 110, c. 3. Inst., 3, 1, 6. * See ante, p. 208, n. *. the remaining third to the one child who is the sole representative of her mother.23 sequence of male issue, This mode of representation is a necessary consequence of and is a conthe double preference given by our law, first to the male issue, the preferand next to the first-born among the males, to both which the ence of the Roman law is a stranger. For, if all the children of three and of the sisters were in England to claim per capita, in their own right rule of primogenitura as next of kin to the ancestor, without any respect to the stocks from whence they sprung, and those children were partly male and partly female, then the eldest male among them would exclude not only his own brethren and sisters, but all the issue of the other two daughters; or else the law in this instance must be inconsistent with itself, and depart from the preference which it constantly gives to the males, and the first-born, among persons in equal degree. Whereas, by dividing the inheritance according to the roots, or stirpes, the rule of descent is kept uniform and steady: the issue of the eldest son excludes all other pretenders, as the son himself (if living) would have done; but the issue of two daughters divide the inheritance between them, providing their mothers (if living) would have done the same: and among these several issues, or representatives of the respective roots, the same preference to males and the same right of primogeniture obtain, as would have obtained at the first among the roots themselves, the sons or daughters of the deceased. As, if a man hath two sons, A. and B., and A. dies leaving two sons, and then the grandfather [219] dies; now the eldest son of A. shall succeed to the whole of his grandfather's estate: and if A. had left only two daughters, they should have succeeded, also, to equal moieties of the whole, in exclusion of B. and his issue. But, if a man hath only three daughters, C., D., and E.; and C. dies leaving two sons, D. leaving two daughters, and E. leaving a daughter and a son who is younger than his sister: here, when the grandfather dies, the eldest son of C. shall succeed to one third, in exclusion of the younger; the two daughters of D. to another third in partnership; and the son of E. to the remaining third, in exclusion of his elder sister. And the same right of representation, guided and restrained by the same rules of descent, prevails downward in infinitum." (23) Representation is admitted in descents according to the custom of gavelkind or Borough-English, as well as in common-law descents; and generally, the canons of descent at the common law are applicable to all customary descents, so far as the peculiar incidents of the latter will allow. (2 Lord Raym., 1024; 1 Mod., 102; 1 P. Wms., 65.) sentation, is infinite and unlimited in the degrees of those that descend from the represented; for the son, the grandson, the great-grandson, and so all downward in infinitum, enjoy the same privilege of representation as those from whom they derive their pedigree had. (Hale, C. L., c. 11.) And from hence it follows that the nearest relation is not always the heir at law, as the next cousin jure representationis is preferred (24) This right, transferred by repre- to the next cousin jure propinquitatis. Not estab lished in II., nor Yet this right does not appear to have been thoroughly estime of Hen. tablished in the time of Henry the Second, when Glanvil wrote; and, therefore, in the title to the crown especially, we find frequent contests between the younger (but surviving) brother and his nephew (being the son and representative of the elder deceased) in regard to the inheritance of their common ancestor; for the uncle is certainly nearer of kin to the common stock, by one degree, than the nephew; though the nephew, by representing his father, has in him the right of primogeniture. The uncle, also, was usually better able to perform the services of the fief; and, besides, had frequently superior interest and strength, to back his pretensions and crush the right of his nephew. And even to this day, in the Lower Saxony, proximity of blood takes place of representative primogeniture; that is, the younger surviving brother is admitted to the inheritance before the son of an elder deceased: which occasioned the disputes between the two houses of Mecklenburgh Schwerin and Strelitz, in 1692. Yet Glanvil, with us, even in the twelfth century, seemsg to declare for the right of the nephew by representation; provided the eldest son had not received a provision in lands from his father, or [220] (as the civil law would call it) had not been forisfamiliated, in his lifetime. King John, however, who kept his nephew Arthur from the throne, by disputing his right of representation, did all in his power to abolish it throughout the realm;b antil that of but in the time of his son, King Henry the Third, we find the rule indisputably settled in the manner we have here laid it down, and so it has continued ever since. And thus much for lineal descents.25 Hen. III. f Mod. Un. Hist., xlii., 334. (Co. Litt., 10, b.) Proximity of blocd, b Hale, H. C. L., 217, 229. i Bracton, 1. 2, c. 30, § 2. preference to the second or younger son. (See 3 Cru. Dig., 378, 379.)[CHITTY.] (25) "The right of representation was more slowly introduced into the collateral than into the descending line. "In the original law of nature, representation must be unknown; those who are nearest in blood to a man will be conceived to be nearest connected with him. Afterward, it is observed to be a hardship that children bred up in a suitable rank to that of their father, and with a prospect of succeeding to his rights, should be cut off at once from that rank and that prospect. It comes to be observed as a further hardship, that a woman who has married one seemingly her equal should, by his untimely death, lose not only her husband, but see her children reduced to beg gary. al descent V. A fifth rule is, that on failure of lineal descendants, or V. Collater issue, of the person last seized, the inheritance shall descend shall be to to his collateral relations, being of the blood of the first pur- blood of chaser, subject to the three preceding rules.*** first purchaser (subject to three “These considerations introduced the counted for. In England, at that time, preceding right of representation in the descending representation in collateral succession rules). line; but the same considerations did was beginning to take place, and this not occur in the collateral line. The advance of their own nation the Enchildren of a brother or cousin have not glish made the measure of their opinthe prospect of succeeding to their un- ion. The Scotch, on the other hand, at cle's or cousin's estates, because, it is al- the same period, had not arrived at the ways to be supposed, every man is to same length; this species of representahave children of his own; it is, there- tion was unknown to them; and therefore, no hardship upon them to be re- fore they disapproved of the judgment. moved by another uncle, or another cousin, from a succession which they could have no reasonable expectation of enjoying. "The steps by which the right of representation in private successions came into the collateral line in Great Britain, or even in any other country in Europe, are extremely difficult to be traced, and perhaps are not very certain when they are traced; therefore we must supply them by the progress of the same representation in public successions. 'In these last successions, it is plain that representation was originally unknown. From the histories of modern Europe, it appears that when succession was permitted among collaterals, the nearest of blood took, to the exclusion of representation. "In the time of Edward I., though representation in the descending line was tolerably well established throughout Europe, yet the point was so doubt ful in the collateral line, that upon the death of Margaret of Norway, and the dispute for her succession between her cousins Bruce and Baliol, not only the eighty Scotch commissioners named by the candidates, and the twenty-four English named by King Edward, were long doubtful, but all Europe was doubtful which side ought to prevail. The precise question, in the end, put by the king to the commissioners was, Whether the more remote by one degree in succession, coming from the elder sister, ought to exclude the nearer by a degree, coming from the second sister? And on the answer importing that representation should take place, judgment was given for Baliol. "Solemn as this decision was, yet even in England, a century afterward, the right of representation in this line was so far from being complete, that it was the same doubt that gave rise to the disputes between the houses of York and Lancaster, and involved the kingdom in civil war. On the abdication of Richard the Second, the two persons claiming the right to the crown were his two cousins, the Duke of Lancaster, son of John of Gaunt, who was fourth son to Edward the Third, and the Earl of March, grandson to Lionel, duke of Clarence, who was third son of the same prince. And the discussions related to the rights of these persons, and whether representation in collateral successions ought to prevail. 66 'Even in later times, and when the law was better understood, it was on the same ground that, upon the death of Henry the Third of France, the League set up the Cardinal of Bourbon as heir to the crown, in opposition to his nephew, the King of Navarre. This last prince was son of the elder branch to the cardinal; but the cardinal being one step nearer to the common stock, it was asserted that nearness of blood, and not representation, took place in collateral succession. "For many ages it has now been fixed, in private successions, that representation in the collateral line shall take place; and although of late, in Europe, there has scarce been any such dispute in public successions as to give room for either example to prevail, yet the example of those private successions, and the now riveted notions of mankind in favor of representation, will probably prevent it from being ever made again the subject of dispute." (Dalrymple on Feuds, ch. 5, s. 2, p. 178.) "The Scotch writers of those days were positive this judgment was wrong; the English writers of the same period were as positive that it was right. These different opinions may be ac- (26) The purchaser here spoken of is * See ante, p. 208, n. *. Rule pecul 'ar to our own laws. Origin of he rule. Thus, if Geoffrey Stiles purchases land, and it descends to John Stiles, his son, and John dies seized thereof without issue, whoever succeeds to this inheritance must be of the blood of Geoffrey, the first purchaser of this family.k" The first purchaser, perquisitor, is he who first acquired the estate to his family, whether the same was transferred to him by sale or by gift, or by any other method, except only that of descent. 28 This is a rule almost peculiar to our own laws, and those of a similar origin; for it was entirely unknown among the Jews, Greeks, and Romans, none of whose laws looked any further than the person himself who died seized of the estate; but assigned him an heir, without considering by what title he gained it, or from what ancestor he derived it. But the law of Normandy1 agrees with our law in this respect: nor, indeed, is that agreement to be wondered at, since the law of descents in both is of feodal original; and this rule or canon can not otherwise be accounted for than by recurring to feodal prin-, ciples. When feuds first began to be hereditary, it was made a necessary qualification of the heir, who would succeed to a feud, that he should be of the blood of, that is, lineally de[221] scended from, the first feudatory or purchaser. In consequence whereof, if a vassal died seized of a feud of his own acquiring, or feudum novum, it could not descend to any but his own offspring; no, not even to his brother, because he was not descended, nor derived his blood, from the first acquirer. But if it was feudum antiquum, that is, one descended to the vassal from his ancestors, then his brother, or such other collateral relation as was descended and derived his blood from the first text. * Co. Litt., 12. frequently an imaginary person, as may (27) To be of the blood of Geoffrey, The heir and ancestor must not only have two common ancestors with the original purchaser of the estate, but must have two common ancestors with each other; and therefore, if the son purchases lands and dies without issue, and it descends to any heir on the part of the father, if the line of the father 1 Gr. Coustum., c. 25. should afterward become extinct, it can not pass to the line of the mother. (Hale's Hist. C. L., 246; 49 E. III., 12.) And for the same reason, if it should descend to the line of any female, it can never afterward, upon failure of that line, be transmitted to the line of any other female; for, according to the next rule, viz., the sixth, the heir of the person last seized must be a collateral kinsman of the whole blood. [CHRISTIAN.] (28) The custom of Borough-English is most commonly confined to lineal descents; and on failure of issue of the owner of the fee, his eldest brother will take. But the partible descent of gavelkind land extends to collaterals. (Rob., Gav., b. 1, c. 6.) Descents according to the custom of gavelkind are regulated by the special custom of each place. (Vide ante, p. 85, n. (8).) |