S § 3. The doctrine of defcents, or law of inheritance Of Confanin fee-fimple, depends on the nature of kindred, and guinity. the feveral degrees of confanguinity. It will, therefore, be first neceffary to state the true notion of this kindred or alliance in blood. § 4. Confanguinity or kindred is defined to be vinculum perfonarum ab eodem ftipite defcendentium-the connection or relation of perfons defcended from the fame stock. This confanguinity is either lineal or collateral. Lineal confanguinity is that which fubfifts between perfons of whom one is defcended in a right line from the other, as between father, grandfather, and greatgrandfather, or between father, son, and grandson. Every generation in this direct lineal confanguinity constitutes a degree, reckoning either upwards or downwards. § 5. Collateral confanguinity is that which fubfifts between perfons who lineally defcend from the fame ancestor, who is the ftirps or root, the tipes, trunk, or common stock; but who do not defcend the one from the other. § 6. The method of computing the degrees of confanguinity by the canon law, which our law has adopted, is as follows: We begin at the common anceftor and reckon downwards, and, in whatsoever degree the two perfons, or the most remote of them, is distant from the common ancestor, that is the degree in which they are faid to be related. 1 Iuft. 236. Who may be They must be Legitimate. Inft. 7 b. 244 b. n. 2. 245 a. u. 1. I Inft. 126 a. 2.2. Pendrill v. 2 Stra. 945. v Saul, 1 Inft. 123 b. 2. 1. § 7. With respect to the persons who are capable of claiming any inheritance as the heirs of a person who died feifed of fuch inheritance, they muft, 1ft, be legitimate; 2d, they must be natural-born fubjects or denizens; and, 3d, they must not be attainted of treafon or felony, nor claim through any ancestor or rela tion who has been attainted of treafon or felony. § 8. No perfon can fucceed to an estate as heir who is not born in lawful matrimony, for, it is a maxim of law, that hæres legitimus eft quem nuptiæ demonftrant ; and a baftard, being filius nullius, can neither inherit from its father nor mother, and, confequently, can have no heirs but his own children, § 9. By the old law, if the husband was within the four feas, that is, within the jurifdiction of the king, and his wife had iffue, no evidence could be admitted to prove fuch iffue a bastard, unless the husband was apparently incapable of procreation. But this doctrine iş now altered; and evidence of the hufband's nonaccess, and also evidence of any other kind, is admis fible. $ 10. With refpect to pofthumous children, the rule formerly was, that they must be born within nine months, or forty weeks, after the death of the hufband. But, now, the courts confider nine months merely as the ufual time, and do not decline exercifing the difcretion of allowing a longer space, where the opinion of phyficians, or circumstances of the cafe, Cook, 3 Bro. have required it. And, in a modern cafe, upon an Fofter v. R. 347. iffue iffue directed out of Chancery, a child born forty-three weeks, except one day, after the husband's death, was found to be legitimate. § 11. Where a widow is fufpected of feigning herfelf pregnant, with a view to produce a fuppofititious child, the prefumptive heir may have a writ de ventre infpiciendo, to examine whether the be pregnant or not, and, if the be pregnant, to keep her under a proper restraint, until she is delivered. § 12. No perfon is capable of inheriting lands, unless he is a natural-born fubject; and, by the common law, every perfon born out of the king's dominions or allegiance was deemed an alien. But, to encourage foreign commerce, it was enacted by the ftatute 25 Edward 3. that all children born abroad, whose fathers and mothers were, at the time of their birth, in allegiance to the king, and the mother had passed the seas with her husband's confent, might inherit, as if born in England. S 13. By the ftatute 7 Ann c. 5. it is enacted, that the children of all natural-born subjects, born out of the allegiance of her Majefty, her heirs or fucceffors, shall be deemed to be natural-born fubjects. And by the statute 4 Geo. 2. c. 21. reciting, that doubts had arisen respecting the construction of the statute 7 Ann. it is enacted, that all children born out of the ligeance of the crown of England, or which should be born out of fuch ligeance, whofe fathers were or fhould be natural-born subjects, at the time of the birth of fuch children, Bb 4 Bacon v. children, fhould, by virtue of the faid act of 7 Ann and of this act, be adjudged to be natural-born fubjects. § 14. By the ftatute 13 Geo. 2. c. 21. it is enacted, that all perfons born out of the ligeance of the crown of England, whose fathers were or should be, by virtue of the statutes 7 Ann and 4 Geo. 2. entitled to the rights and privileges of natural-born fubjects, should be deemed natural-born fubjects. § 15. In confequence of thefe ftatutes, all perfons born out of the king's allegiance, whofe fathers or grandfathers were natural-born fubjects, are held to be natural-born fubjects, and are capable of inheriting. § 16. It was held in the reign of Charles 1. that, under the statute 25 Edw. 3. the child of an English merchant, born abroad, whofe mother was an alien, fhould inherit. This determination was founded upon Lit. Rep. 29. the principle, that the words of the ftatute 25 Edw. 3. whofe fathers, and mothers, fhould be construed in the disjunctive. 1 inft. 12 a. Doe v. Jones, 4 'Term R. 300. But this conftruction has been contradicted in the following modern cafe. S17. Henrietta Knight, a natural-born fubject, quitted the kingdom, and married Count Duroure, an alien, by whom fhe had a fon, born abroad; and the question was, whether this fon was capable of inheriting lands in England, as heir to his mother. Lord Lord Kenyon faid, that, fuppofing there existed any doubts respecting the meaning of the statute 25 Edw. 3. yet the fubfequent ftatutes which had been paffed relating to this fubject, operated as a parliamentary expofition of it; particularly the ftatute 4 Geo. 2. c. 21. which had clofed the question, by enacting, that all children born out of the ligeance of the crown of Great Britain, whofe fathers were natural-born subjects; and also the statute 13 Geo. 2. c. 21. which extended the fame privileges to grandchildren, but ftill confined them to the paternal line. From which, it clearly followed, that a perfon born in foreign parts, and of a foreign father, did not derive inheritable blood in this kingdom. 5 18. At common law, no title could be derived through an alien. But now, by the ftatute 11 and 12 Will. 3. c. 6. it is enacted, that all perfons being natural-born fubjects may inherit, and make their. titles by descent from any of their ancestors, lineal or collateral, although their father or mother, or their ancestor through whom they derive their pedigree, were born out of the king's allegiance. But, by a fubfequent statute, 25 Geo. 2. c. 39., it is enacted, that no right of inheritance shall accrue, by virtue of the former statute, to any perfons whatsoever, unless they are in being and capable to take as heirs at the death of the person last seised. A Title may be derived through an Alien. § 19. If an alien be made a denizen by the king's letters patent, and then purchases lands, his fon, born before his denization, cannot, by the common law, 1 Inft. Sa. inherit 129 a. |