This is a rule almost peculiar to our own laws, and those of a similar original. For it was entirely unknown among the Jews, Greeks, and Romans: none of whose laws looked any farther than the person himself who died seised 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 Normandy (1) 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 feudal original; and this rule or canon cannot otherwise be accounted for than by recurring to feudal principles.

When feuds first began to be hereditary, it was made a necessary qualifica tion of the heir, who would succeed to a feud, that he should be of the blood of, that is, lineally *descended from, the first feudatory or purchaser. In

consequence whereof, if a vassal died seised of a feud of his own acquir- [*221] ing, 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 feudatory, might succeed to such inheritance. To this purpose speaks the following rule: "frater fratri, sine legitimo hærede defuncto, in beneficio quod eorum patris fuit succedat: sin autem unuse fratribus a domino feudum acceperit, eo defuncto sine legitimo hærede, frater ejus in feudum non succedit." (m) The true feudal reason for which rule was this; that what was given to a man, for his personal service and personal merit, ought not to descend to any but the heirs of his person. And therefore, as in estates-tail (which a proper feud very much resembled), so in the feudal donation, "nomen hæredis, in prima investitura expressum, tantum ad descendentes ex corpore primi vasalli extenditur; et non ad collaterales, nisi ex corpore primi vasalli sive stipitis descendant;" (n) the will of the donor, or original lord (when feuds were turned from life-estates into inheritances), not being to make them absolutely hereditary, like the Roman allodium, but hereditary only sub modo: not hereditary to the collateral relations, or lineal ancestors. or husband, or wife of the feudatory, but to the issue descended from his body only.

However, in process of time, when the feudal rigour was in part abated, a method was invented to let in the collateral relations of the grantee to the inheritance, by granting him a feudum novum to hold ut feudum antiquum; that is, with all the qualities annexed of a feud derived from his ancestors, and then the collateral relations were admitted to succeed even in infinitum, because they might have been of the blood of, that is, descended from, the first imaginary purchaser. For *since it is not ascertained in such general grants, whether this feud shall be held ut feudum paternum or feudum avitum, [ *222) but ut feudum antiquum merely; as a feud of indefinite antiquity; that is, since it is not ascertained from which of the ancestors of the grantee this feud' shall be supposed to have descended; the law will not ascertain it, but will suppose any of his ancestors, pro re nata, to have been the first purchaser: and therefore it admits any of his collateral kindred (who have the other necessary requisites) to the inheritance, because every collateral kinsman must be descended from some one of his lineal ancestors.

Of this nature are all the grants of fee-simple estates of this kingdom, for there is now in the law of England no such thing as a grant of a feudum novum, to be held ut novum: unless in the case of a fee-tail, and there we see that this rule is strictly observed, and none but the lineal descendants of the first donee (or purchaser) are admitted; but every grant of land in fee-simple is with us a feudum novum to be held ut antiquum, as a feud whose antiquity is indefinite:(22)

(1) Gr. Coustum, c. 25.

(m) 1 Feud. 1, § 2.

(n) Craig. l. 1, t. 9, § 36.

(22) [Where a man takes by purchase he must take the estate as a feudum antiquum, and though it be limited to his heirs on the part of his mother, yet the heirs on the paternal side shall be preferred in the descent, for no one is at liberty to create a new kind of inheritance. H. Chit. Desc. 3, 123; 3 Cru. Dig. 359; Watk. D. 222, 223.]

and therefore the collateral kindred of the grantee, or descendants from any of his lineal ancestors, by whom the lands might possibly have been purchased, are capable of being called to the inheritance.

Yet, when an estate hath really descended in a course of inheritance to the person last seized, the strict rule of the feudal law is still observed: and none are admitted but the heirs of 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. (23) 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 Kemps, shall for the same reason never be [*223] admitted, but only those of his father's father. (24) This is also the rule of the French law, (o) which is derived from the same feudal 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 time, it can trace it no farther; 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.

This, then, is the great and general principle, upon which the law of collateral inheritances depends; that, upon failure of issue in the last proprietor, the estate shall descend to the blood 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, (r) and Hale, (8) "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.

(0) Domat. part 2, pr. (r) Ibid. 38.

(P) M. 12 Edw. IV, 14.

(8) H. C. 243.

(q) Abr. t. discent. 2.

(23) [It will sometimes happen that two estates or titles, the one legal and the other equitable, will descend upon the same person, in which case they will become united, and the equitable, shall follow the line of descent through which the legal estate descended. See Goodright d. Alston v. Wells, Dougl. 771. And in the late case of Langley v. Sneyd, 1 Simons and Stu. Rep. 45, where an infant died seised of an equitable estate, descending ex parte materna, the legal estate being rested 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.]

(24) [Hence the expression heir at law 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 other, 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.]

[*224]

The rules of inheritance that remain are only rules of evidence, calculated to investigate who the purchasing ancestor was; which *in feudus vere antiquis has in process of time been forgotten, and is supposed so to be in feuds that are held ut antiquis.

VI. A sixth rule or canon therefore is, that the collateral heir of the person last seised must be his next collateral kinsman of the whole blood. (25)

First, he must be his next collateral kinsman, either personally or jure representationis; (26) which proximity is reckoned according to the canonical degrees of consanguinity before mentioned. Therefore, the brother being in the first degree, he and his descendants shall exclude the uncle and his issue, who is only in the second. And herein consists the true reason of the 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 greatnephew 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 onefourth 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 ought to proceed according to the civil computation. But as it

also respects the purchasing ancestor, from whom the estate was derived, [ *225] 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 allowance was absolutely necessary, else there would have frequently been many claimants in exactly the same degree of

(25) [In order to constitute a good title, the party must be the nearest collateral heir of the whole blood of the person last seised on the part of the ancestor through whom the estate descended. When Lord Hale speaks of the nearest collateral relation of the whole blood of the person last seised, and of the blood of the first purchaser, he means the latter branch of the expression, as a qualification, and not an addition to the first branch, that the collateral heir of the whole blood must claim through the ancestor from whom the estate descended, and thus be of the blood of the first purchaser. Per Leach, vice-chancellor, Hawkins v. Shewen, 1 Sim. and Stu. Rep. 257.]

By statute 3 and 4 Wm. IV., c. 106, the rule here stated is modified. The half blood are to succeed to the inheritance next after any relation of the whole blood in the same degree, and his issue, where the common ancestor is a male; and next after the common ancestor, where such ancestor is a female. And no brother or sister, shall be considered to inherit immediately from his or her brother or sister, but every descent from a brother or sister shall be traced through the parent.

In many of the United States no distinction is made between the whole and the half blood in the statutes of descent; in others the half blood is postponed or its share diminished; but it is excluded in none. 4 Kent, 404.

(26) [This is only true in the paternal line; for when the paternal and maternal lines are both admitted to the inheritance, the most remote collateral kinsman ex parte paterna will inherit before the nearest ex parte materna. See p. 236, post.]

kindred, as (for instance) uncles and nephews of the deceased; which multiplicity, though no material inconvenience in the Roman law or 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 greatuncle 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.

The right of representation being thus established, the former part of the present rule amounts to this; that on the failure of issue of the person last seised, 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)

*Now here it must be observed, that the lineal ancestors, though

[*226 ] (according to the first rule) incapable themselves of succeeding to the estate, because it is supposed to have already passed them, are yet the common stocks from which the next successor must spring. And therefore in the Jewish law, which in this respect entirely corresponds with ours, (u) the 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 of 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) (27) 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,

(t) Tacitus de mor. Germ. 21.

(u) Numb. c. 27.

(x) Sid. 196. 1 Vent. 423. 1 Lev. 60. 12 Mod. 619.

(w) Selden, de succ. Ebr. c. 12.

(27) [The law is now different, the statute 3 and 4 Wm. IV, c. 106, s. 5. enacting that no brother or sister shall be considered to inherit immediately from his or her brother or sister, but every descent from a brother or sister shall be traced through the parent.

The doctrine of immediate descent between brothers and sisters was formerly important, on account of the rule, that as an alien had no inheritable blood in him, descent could not be traced through him; it being held in Collingwood v. Pace, Orl. Bridgm. 410; 1 Vent. 413, that brothers, natural born subjects, born of alien parents, might inherit from each other as not needing to trace their descent through their parents. See Co. Litt. 8, a. This difficulty was removed in other cases by the statutes 11 and 12 Wm. III, c. 6, and 25 Geo. III, c. 39, 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 seised; 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. The rule that a descent cannot be traced through a person attainted has also been abolished. Stat. 3 and 4 Wm. IV, c. 106, s. 10.]

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 upwards 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 observed, with regard to the sex, *primogeniture, and representation, that have before been laid down with regard to lineal descents from the person of the last proprietor.

[ *227] 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. (28)

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 composition of his blood that the other had. 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 seisin or possessio fratis facit sororem esse hæredum. Yet, had 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. (y) (29)

[*228]

This total exclusion of the half blood from the inheritance, being almost peculiar to our own law, is looked upon as a 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

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

(29) [It may be observed, that it is always intended, or presumed, that a person is of the whole blood, until the contrary is shown. Kitch. 225, a; Plowd. 77, a; Trin. 10 H. 8, pl. 6, p. 11, b; Watk. Desc. 75, n. (u).]

(29) [The meaning of the maxim is, that the possession of a brother will make his sister of the whole blood his heir in preference to a brother of the half blood. Litt. 58.

Of some inheritances there cannot be a seisin, or a possessio fratris; as if the eldest brother dies before a presentation to an advowson, it will descend to the half-brother as heir to the person last seized, and not to the sister of the whole blood. 1 Burn Ec. 11. So of reversions, remainders, and executory devises, there can be no seisin or possessio fratris; and if they are reserved or granted to A and his heirs, he who is heir to A when they come into possession, is entitled to them by descent; that is, that person who would have been heir to A if A had lived so long, and had then died actually seized. 2 Wood. 256; Fearne, 448; 2 Wils. 29. It may also be observed, that if the father die without heirs male, his daughters by different venters may inherit together to the father, although they cannot inherit to each other. Bro. Abr. Descent, pl. 20; 1 Roll. Abr. 627.]

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