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If Geoffrey Stiles hath two sons, John and Francis, Francis may claim as heir to John, without naming their father Geoffrey; 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 But, secondly, the heir need not be the nearest kinsman abhalf blood.

solutely, 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.87 Who are of A kinsman of the whole blood is he that is derived, not only the whole blood.

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 composiconsidered to inherit immediately from allowing descents to be traced through his or her brother or sister, but every alien parents, provided the person claimdescent from a brother or sister shall be ing through them was in existence, and traced through the parent.”.

capable of taking at the death of the The doctrine of immediate descent person last seized; which proviso does between brothers and sisters was for- not prevent the devesting of an estate merly important, on account of the rule out of the daughter of an alien, on the that, as an alien had no inheritable birth of a brother or sister. (Infra, p. blood in him, descent could not be 251.) The rule that a descent can not traced through him; it being held, in be traced through a person attainted the case of Collingwood v. Pace (Orl. has also been abolished. (Stat. 3 & 4 Bridgm., 410; 1 Vent., 413), that broth- Will. IV., c. 106, s. 10.) ers, natural-born subjects, born of alien parents, might inherit to each other, as (37) It is always intended, or prenot needing to trace their descent sumed, that a person is of the whole through their parents. (See Co. Litt., blood until the contrary be shown. 8, a.) This difficulty was removed in (Kitch., 225, a; Plowd., 77, a; Trin. 19 other cases by the statutes 11 & 12 H. VIII., pl. 6, p. 11, b; Watk., Desc., Will. III., c. 6, and 25 Geo. III., c. 39, 75, n. (u).)-[CHITTY.]

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a.

tion of his blood that the other hath. Thus, the blood of John Stiles being composed of those of Geoffrey Stiles, his father, and Lucy Baker, his mother, therefore his brother, Francis, being descended from both the same parents, hath entirely the same blood with John Stiles; or he is his brother of the whole blood. But if, after the death of Geoffrey, Lucy Baker, the mother, marries a second husband, Lewis Gay, and hath issue by him; the blood of this issue, being compounded of the blood of Lucy Baker (it is true) on the one part, but that of Lewis Gay instead of Geoffrey Stiles) on the other part, it hath, therefore, only half the same ingredients with that of John Stiles ; so that he is only his brother of the half blood, and for that reason they shall never inherit to each other. So, also, if the father has two sons, A. and B., by different venters or wives; now these two brethren are not brethren of the whole blood, and therefore shall never inherit to each other, but the estate shall rather escheat to the lord. Nay, even if the father dies, and his lands descend to his eldest son A., who enters thereon, and dies seized without issue; still B. shall not be heir to this estate, because he is only of the half blood to A., the person last seized; but it shall descend to a sister (if any) of the whole blood to A.; for, in such cases, the maxim is, that the seizin or possessio fratris facit sororem esse hæredem. Yet, had [ 2281 A. died without entry, then B. might have inherited; not as heir to A., his half brother, but as heir to their common father, who was the person last actually seized.y38 This total exclusion of the half blood from the inheritance, Half blood,

why exbeing almost peculiar to our own law, is looked upon as a claded. strange hardship by such as are unacquainted with the reasons on which it is grounded. But these censures arise from a misapprehension of the rule, which is not so much to be considered in the light of a rule of descent as of a rule of evidence; an auxiliary rule to carry a former into execution. And here we must again remember, that the great and most universal principle of collateral inheritances being this, that the heir to a

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y Hale, H. C. L., 238.

(38) The meaning of the maxim is, ed or granted to A. and his heirs, he that the possession of a brother will who is heir to A. when they come into make his sister of the whole blood his possession is entitled to them by de heir in preference to a brother of the scent; that is, that person who would half blood. (Litt., s. 58.)

have been heir to A., if A. had lived so Of some inheritances there can not long, and had then died actually seized. be a seizin, or a possessio fratris ; as, if (2 Wood., 256; Fearne, 448; 2 Wils., the eldest brother dies before a pre- 29.)-[CHRISTIAN.] It may also be sentation to an advowson, it will de observed, that if the father die without scend to the half brother as heir to the heirs male, his daughters by different person lagt seized, and not to the sister venters may inherit together to the fa. of the whole blood. (1 Burn, Ec., 11.) ther, although they can not inherit itu So of reversions, remainders, and exec- each other. (Bro. Abr., Descent, pl. utory devises, there can be no seizin, or 20; 1 Roll. Abr., 627.)-[Chitty.] possessio fratris; and if they are reserv

feudum antiquum must be of the blood of the first feudatory or purchaser, that is, derived in a lineal descent from him ; it was originally requisite, as upon gifts in tail it still is, to make out the pedigree of the heir from the first donee or purchaser, and to show that such heir was his lineal representative. But when, by length of time and a long course of descents, it came (in those rude and unlettered ages) to be forgotten who was really the first feudatory or purchaser, and thereby the proof of an actual descent from him became impossible; then the law substituted what Sir Martin Wrightz calls a reasonable, in the stead of an impossible, proof; for it remits the proof of an actual descent from the first purchaser; and only requires, in lieu of it, that the claimant be next of the whole blood to the person last in possession (or derived from the same couple of ancestors), which will probably answer the same end as if he could trace his pedigree in a direct line from the first purchaser. For he who is my kinsman of the whole blood can have no ancestors beyond or higher than the common stock, but what are equally my ancestors also; and mine are, vice verså, his: he, therefore, is very likely to be derived from that unknown ancestor of mine from whom the inheritance descended. But a kinsman of the half blood has but one half of his ancestors above the common stock the same as mine; and therefore there is not the same probability of that standing requisite in the

law, that he be derived from the blood of the first purchaser. [229] To illustrate this by example. Let there be John Stiles and Rule exem: Francis, brothers by the same father and mother, and another plified.

son of the same mother by Lewis Gay, a second husband. Now, if John dies seized of lands, but it is uncertain whether they descended to him from his father or mother, in this case his brother Francis, of the whole blood, is qualified to be his heir ; for he is sure to be in the line of descent from the first purchaser, whether it were the line of the father or the mother. But, if Francis should die before John, without issue, the mother's son by Lewis Gay (or brother of the half blood) is utterly incapable of being heir ; for he can not prove his descent from the first purchaser, who is unknown, nor has he that fair probability which the law admits as presumptive evidence ; since he is to the full as likely not to be descended from the line of the first purchaser, as to be descended; and therefore the inheritance shall go to the nearest relation possessed of this presumptive proof, the whole blood.

And as this is the case in feudis antiquis, where there really did once exist a purchasing ancestor, who is forgotten; it is also the case in feudis novis held ut antiquis, where the purchasing ancestor is merely ideal, and never existed but only in fiction of law. Of this nature are all grants of lands in fee simple at this day, which are inheritable as if they descended from some uncertain indefinite ancestor, and therefore any of the collateral kindred of the real modern purchaser (and not his own offspring only) may inherit them, provided they be of the whole blood; for all such are, in judgment of law, likely enough to be derived from this indefinite ancestor; but those of the half blood are excluded, for want of the same probability. Nor should this be thought hard, that a brother of the purchaser, though only of the half blood, must thus be disinherited, and a more remote relation of the whole blood admitted, merely upon a supposition and fiction of law: since it is only upon a like supposition and fiction that brethren of purchasers (whether of the whole or half blood) are entitled to inherit at all; for we have seen that, in feudis stricte novis, neither brethren nor any other collaterals were admitted. As, [230] therefore, in feudis antiquis, we have seen the reasonableness of excluding the half blood, if, by a fiction of law, a feudum novum be made descendible to collaterals as if it was feudum antiquum, it is just and equitable that it should be subject to the same restrictions as well as the same latitude of descent.

z Tenures, 185.

illustrated.

Perhaps by this time the exclusion of the half blood does not Rule further appear altogether so unreasonable as at first sight it is apt to do. It is certainly a very fine-spun and subtle nicety; but, considering the principles upon which our law is founded, it is not an injustice, nor always a hardship; since even the succession of the whole blood was originally a beneficial indulgence, rather than the strict right of collaterals; and though that indulgence is not extended to the demi-kindred, yet they are rarely abridged of any right which they could possibly have enjoyed before. The doctrine of the whole blood was calculated to supply the frequent impossibility of proving a descent from the first purchaser, without some proof of which (according to our fundamental maxim) there can be no inheritance allowed of. And this purpose it answers, for the most part, effectually enough. I speak with these restrictions, because it does not, neither can any other method, answer this purpose entirely. For though all the ancestors of John Stiles, above the common stock, are also the ancestors of his collateral kinsman of the whole blood; yet, unless that common stock be in the first degree (that is, unless they have the same father and mother), there will be intermediate ancestors, below the common stock, that belong to either of them respectively, from which the other is not descended, and therefore can have none of their blood. Thus, though John Stiles and his brother of the whole blood can each have no other ancestors than what are in common to them both; yet with regard to his uncle, where the common stock is removed one degree higher (that is, the grandfather and grandmother), one half of John's ancestors will not be the ancestors of his uncle: his patruus, or father's brother, derives not his descent from John's maternal ances

crease.

tors; nor his avunculus, or mother's brother, from those in the [ 231 ] 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 de

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 of the half blood's descent from the first purchaser, compared with that of the whole blood, in the several degrees, has

occasioned a general exclusion of the half blood in all. Unjust ex But, while I thus illustrate the reason of excluding the half tension of the rule,

blood in general, I must be impartial enough to own that, in some instances, the practice is carried further 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 great-uncle or kinsmen 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

can not inherit this estate, because he is not of the whole blood [232] to the last proprietor. This, it must be owned, carries a

a A still harder case than this hap- the youngest daughter should retain pened (M. 10 Edw. III.). On the only her original fourth part of their death of a man who had three daugh- common father's lands. (10 Ass., 27.) ters by a first wife, and a fourth by an. And yet it was clear law in M. 19 Edw. other, his lands descended equally to all II., that where lands had descended to four as coparceners. Afterward, the two sisters of the half blood, as copartwo eldest died without issue; and it ceners, each might be heir of those was held that the third daughter alone lands to the other. (Mayn. Edw. II., should inherit their shares, as being 628; Fitzh. Abr., tit. Quare Impedit, their heir of the whole blood, and that 177.)

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(39) This ought to be twice; for the the half brother is therefore twice better half brother has one chance in two, the than that of the great-uncle.-[CHRISTgreat-uncle one in four; the chance of inn.]

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