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law (1), which our law has adopted (m) (5), is as follows: computing the We begin at the common ancestor, and reckon downwards; degrees of con
sanguinity. and in whatsoever degree the two persons, or the most remote of them, is distant from the common ancestor, that is the *degree in which they are related to each other. Thus
[ * 207 ] Titius and his brother are related in the first degree; for from the father to each of them is counted only one; Titius and his nephew are related in the second degree; for the nephew is two degrees removed from the common ancestor, viz. his own grandfather, the father of Titius. Or, (to give a more illustrious instance from our English annals), king Henry the seventh, who slew Richard the third in the battle of Bosworth, was related to that prince in the fifth (1) Decretal. 4. 14. 3 & 9.
(m) Co. Litt. 23.
(5) As to the descent of real estates, this is the method of computation: but see the next note.
the families might be perpetuated with. This calculation may also be formed by out any incestuous connexion.
a more compendious process, vix. by
squaring the couples, or half the numCollateral Degrees. Number of Kindred. ber of ancestors, at any given degree; 1
1 which will furnish us with the number 2
4 of kindred we have in the same degree, 3
16 at equal distance with ourselves from the 4
64 common stock, besides those at unequal 5
256 distances. Thus, in the tenth lineal de6
1024 gree, the number of ancestors is 1024; 7
4096 its half, or the couples, amount to 8
16384 512; the number of kindred in the 9
65536 tenth collateral degree amounts there10
262144 fore to 262144, or the square of 512. 11
1048576 And if we will be at the trouble to re12
4194304 collect the state of the several families 13
16777216 within our own knowledge, and observe 14
67108864 how far they agree with this account; 15
268435456 that is, whether, on an average, every 16
1073741824 man has not one brother or sister, four 17
4294967296 first cousins, sixteen second cousins, and 18
17179869184 so on; we shall find that the present 19
68719476736 calculation is very far from being over20 ....... 274877906944
charged. в в 2
degree. Let the propositus therefore in the table of consanguinity represent king Richard the third, and the class marked (e) king Henry the seventh. Now their common stock or ancestor was king Edward the third, the abavus in the same table: from him to Edmond duke of York, the proavus, is one degree; to Richard earl of Cambridge, the avus, two; to Richard duke of York, the pater, three; to king Richard the third, the propositus, four; and from king Edward the third to John of Gant (a) is one degree; to John earl of Somerset (b), two; to John duke of Somerset (c), three; to Margaret countess of Richmond (d), four; to king Henry the seventh (e), five. Which last-mentioned prince, being the farthest removed from the common stock, gives the denomination to the degree of kindred in the canon and municipal law. Though, according to the computation of the civilians (6), (who count upwards, from either of the persons related, to the common stock, and then downwards again to the other; reckoning a degree for each person both ascending and descending), these two princes were related in the ninth degree: for from king Richard the third to Richard duke of York is one degree; to
(6) The mode of calculating de- law, the brother and the grandmother grees of proximity in the collateral of an intestate stand in equal degrees line, for the purpose of determining of affinity to him; and the grandmowhat parties are entitled, under the ther, as being in the lineal ascending statute of distributions, (22 & 23 Car. line, was, by that law, preferred to 2, c. 10), to shares of the personal es- the brother or any other in the collatate of an intestate, is not the mode of teral line: but, according to the conthe canonists adopted by the common struction put by our courts upon the law in the descent of real estates; statute of distributions, (in this in(Cowper v. Cowper, 2 P. Wms. 735); but stance conforming to the canon law), (with one qualification noticed infra,) the brother, as making title immediateconforms to that of the civilians, as stat. ly from his deceased brother, is preed in the text; or, in other words, the ferred to the grandmother, who could rule is, to take the sum of the degrees, only claim mediately through the fain both lines, to the common ancestor. ther of the deceased. (Earl of Win(Mentney v. Petty, Prec. in Cha. 593). chelsea v. Norcliff, 2 Freem. 95. Davis And see post, chap. 32, p. 504, 515). v. Blackborough, 1 P. Wms. 45. Eve
The instance of exception noticed lyn v. Evelyn, Ambl. 191. Collingat ove, is this. According to the civil wood v. Pace, 1 Ventr. 423).
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 The rules of in
[ * 208 ] measure explained, I shall next proceed to lay down a series heritance. of rules or canons of inheritance, according to which estates are transmitted from the ancestor to the heir; together with an explanatory comment, remarking their original and progress, the reasons upon which they are founded, and in some cases their agreement with the laws of other nations.
I. The first rule is, that inheritances shall lineally de- l. Estates shall scend to the issue of the person who last died actually seis- lineally descend
to the issue of ed, in infinitum; but shall never lineally ascend (7).
the person last To explain the more clearly both this and the subsequent seised, but never
ascend; rules, it must first be observed, that by law no inheritance and the ancestor can vest, nor can any person be the actual complete heir of must be dead. 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
civilians and the seventh of the canonannexed; wherein all the degrees of ists inclusive; the former being discollateral kindred to the propositus are tinguished by the numeral letters, the computed, so far as the tenth of the latter by the common cyphers.
(7) In conformity with this canon, ther be living. For, though the father if a son purchase land, and die without seems the source of inheritable blood, issue, and his father and mother be then yet the feud is supposed to have already living, his father or mother shall not passed him; and therefore, the descent (as such) inherit such lands immediate between brother and brother is conly from the son. But, if the father or sidered as immediate ; and in making, mother be also cousins to the son, they out the title of one from the other, their may (as such) succeed to the inherit- common father need not be named; and ance. (Eastwood v. Vincke, 2 P. Wms. if he be living, the descent between the 416; and see ante, note (26) to chap. 1). brothers shall be exactly the same as
So, if there be father and two sons, though he were deceased. (Collingand one of the sons purchases land and wood v. Pace, 1 Ventr. 423; and see dies, his brother shall take the inherit- post, p. 226). ance as heir to him, although the fa.
the line of succession is called an heir apparent, or heir Heirs apparent. presumptive. Heirs apparent are such, whose right of in
heritance is indefeasible, provided they outlive the ancestor; 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 (0) (8) +. The ancestor *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
must have had actual seisin.
(0) Bro. tit. Descent, 58.
(8) See ante, note (8) to chap. 11.
Seisin of fee-tail, with fee-simple expectant, will not be such a seisin as to
+ Mr. Christian, in his note upon the quently devested by the subsequent passage in the text, observes, that“ be birth of nearer presumptive heirs, besides the case of a posthumous child, fore it fixes upon the nearest presumpif lands are given to a son, who dies, tive heir. As if an estate is given to leaving a sister his heir; if the parents an only child, who dies, it may descend have, at any distance of time after- to an aunt, who may be stripped of it wards, another son, this son shall de- by an after-born uncle, on whom a vest the descent upon the sister, and subsequent sister of the deceased may take the estate as heir to his brother. enter, and who will again be deprived (Co Litt. 11. Doct. & Stud. 1 Dial. c. of the estate by the birth of a brother.” 7). So the same estate may be fre
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.
transmit the fee-simple to the heir of incidents; but it is not so to equitable the person so seised: (Co. Litt. 14 b. estates. (The King v. The Inhabitants 1 Roll. Abr. 628. Kellow v. Rowden, of Toddington, 1 Barn. & Ald. 564). 1 Show. 245): for he is actually seised It seems, that, if a father maketh a of the fee-tail only, though he has pow- lease for life, or gift in tail, and dieth, er to give, or may forfeit, the remain- and his eldest son dieth in the life of der in fee. (Hargrave, note (4) to Co. the tenant for life, or tenant in tail, his Litt. 14 b. Kellow v. Rowden, 3 Mod. younger brother, though of the half 257).
blood, shall inherit; because the tenant An entry into parcel of the lands ge- for life, or tenant in tail, is seised of nerally, is a sufficient entry as to all the the freehold, and the eldest son hath lands situate in the same county. (Co. nothing but the reversion expectant. Litt. 15 a, 252 b).
Therefore, the youngest son shall inThe possession of a freehold estate herit the land, as heir to his father, who by a tenant is the possession of the free- was last seised of the actual freehold. holder. (De Grey v. Richardson, 3 Atk. And albeit a rent had been reserved 470). Whether the same rule applies upon the lease for life, and the eldest to copyholds is less clear; in the Ano- son had received the rent, yet the nymous case in Moor, (p. 125, pl. 272; younger brother shall inherit; because and see Brown's case, 4 Rep. 22), it ap- the seisin of the rent is no actual seisin pears to have been so determined: but, of the freehold of the land. (Co. Litt. in the Anonymous case in 3 Leon. (p. 15 a, and Mr. Hargrave's note 5 there69, pl. 106), and in 4 Leon. (p. 38, pl. to. Amys v. Cowley, Aleyne, 89). This 103), a contrary doctrine was held; and must be borne in mind, in qualification it was said, that as the possession of a of one of the instances of seisin mencopyholder must be customary, and the tioned in the text. possession of his tenant by demise ac- (10) See ante, note (6) to chapter 2, cording to the order and course of com- and also chap. 3, with the notes thereto. mon law, the possession of the one shall Of a dignity there can be no seisin, not be said to be the possession of the nor any possession but such as descends; other.
and therefore there cannot be any posThe entry of a guardian in socage session to affect the descent. (Ratcliff's is the actual possession and seisin of case, 3 Rep. 42. Lord Grey's case, the infant who is in wardship: (Good- Cro. Car. 601). title v. Newman, 3 Wils. 528. Rat- Seisin of a manor is good seisin of an cliff's
's case, 3 Rep. 42): but guardian- advowson, common, &c. appendant or ship in socage only applies to cases of appurtenant thereto. (Hargrave's note legal estates. To such it is one of the I to Co. Litt. 15 b; and ante, notes