of the antient law of feuds, before the descent by primogeniture even among the males was established; namely, that the lord might bestow them on which of the sons he thought proper,-"progressum est ut ad filios deveniret, in quem scilica dominus hoc vellet beneficium confirmare." (b) IV. A fourth rule, or canon of descents, is this; that the lineal descendants, in infinitum, of any person deceased, *shall represent their ancestor; that *217] is, shall stand in the same place as the person himself would have done, had he been living. Thus the child, grandchild, or great-grandchild (either male or female) of the eldest son succeeds before the younger son, and so in infinitum.(c) 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 of the brethren were dead leaving issue, then (I apprehend) their representatives in equal degree became themselves principals, *and shared the inheritance per capita, that is, share and share alike; *218] they being themselves now the next in degree to the ancestor, in their own right, and not by right of representation. (e) So, if the next heirs of Tinus 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 the remaining third to the one child who is the sole representative of her mother. This mode of representation is a necessary consequence of the double preference given by our law, first to the male issue, and next to the first-born among the males, to both which the Roman law is a stranger. For if all the children of three sisters were in England to claim per capita, in their own right 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 pre (b) 1 Feud. 1. (c) Hale, H. C. L. 236, 237. (4) Selden, de success. Ebr. c. 1. of the eldest is not of right entitled to execute it; and that both sisters may execute it by deputy to be approved of by them, such deputy not being of a degree inferior to a knight, and to be approved of by the king." Ib. et Jour. Dom. Proc. May 25, 1781. CHRISTIAN. E tenders, as the son himself (if living) would have done; but the issue of two daughters divide the inheritance between them, provided 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 satne right of primogeniture obtain as would have obtained at the first among the roots themselves, the sons or daughters of the deceased. And if a man hath two sons, A. and B., and A. dies leaving two sons, and then the grandfather dies; now the eldest son of A. shall succeed to the whole of his grandfather's [*219 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 downwards in infinitum." Yet this right does not appear to have been thoroughly established 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 Mecklenburg Schwerin and Strelitz in 1692. (f) Yet Glanvil, with us, even in the twelfth century, seems (g) 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 (as the civil law would call it) had not been *foris-familiated, [*220 in his lifetime. King John, however, who kept his nephew Arthur from the throne, by disputing this right of representation, did all in his power to abolish it throughout the realm:(h) 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,(i) and so it has continued ever since. And thus much for lineal descents.15 () Mod. Un. Hist. xlii. 334. (*) Hale, H. C. L. 217, 229. 14 This right transferred by representation 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 downwards 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 fol lows that the nearest relation is not always the heir at law; as the next cousin jure representationis is preferred to the next cousin jure propinquitatis. Co. Litt. 10, b. Proximity of blood, therefore, is twofold, either positive or representative. It is positive when the parties claim in their own individual right, as between the second and third son, or be tween the uncle and grand-uncle. It is representative when either of the parties claim as being lineally descended from another, in which case he is entitled to the degree of proximity of his ancestor. Thus, the grandson of the elder son of any person proposed is entitled before the second son of such person, though in common acceptation nearer by two degrees; and this principle of representative proximity is by the law of England so peremptory that a female may avail herself thereof to the total exclusion of a male claiming in his own right; for in descents in fee-simple the daughter of the eldest son shall, as claiming by representation of her father, succeed in preference to the second or younger son. See 3 Cru. Dig. 378, 379.-CHITTY. 15 The following historical observations and legal deductions relating to the doctrine of representations are extracted from Dalrymple on Feuds : "The right of representation was more slowly introduced into the collateral than inte the descending line. V. A fifth rule is that on failure of lineal descendants, or issue, of the person last seised, the inheritance shall descend to his collateral relations, being of the blood of the first purchaser; subject to the three preceding rules." "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. Afterwards, 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 beggary. "These considerations introduced the right of representation in the descending line; but the same considerations did not occur in the collateral line. The children of a brother or cousin have not the prospect of succeeding to their uncles' or cousins' estates, because it is always to be supposed every man is to have children of his own. It is therefore no hardship upon them to be removed 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 amongst 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 doubtful 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. "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 accounted for. In England, at that time, representation in collateral succession was beginning to take place; and this advance of their own nation the English made the measure of their opinion. The Scotch, on the other hand, at the same period, had not arrived at the same length: this species of representation was unknown to them; and therefore they disapproved of the judgment. "Solemn as this decision was, yet even in England, a century afterwards, 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. "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 repre sentation, 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 favour of representation, will probably prevent it from being ever made again the subject of dispute." See Dalrymple on Feuds, ch. 5, s. 2, p. 178. H. Chit. Desc. 98, n.—CHITTY. 16 The custom of gavelkind extends to collaterals; so that, if one brother die without Issue, all his other brothers shall succeed equally. Robins. on Gavelk. book I. ch. 6. But the custom of borough English does not extend to collaterals; and therefore, on the death of one brother, lands of that tenure shall not go to the youngest brother without A special custom. Ibid.-CHITTY. It should here be noticed, that though it is necessary that a person who would suc Thus if Geoffrey Stiles purchases land, and it descends to John Stiles his son, and John dies seised 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. 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 further 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 feodal original; and this rule or canon cannot otherwise be accounted for than by recurring to feodal principles. 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 descended from, the first feudatory or purchaser. In conse[*221 quence whereof, if a vassal died seised 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 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 unus e fratribus a domino feudum acceperit, eo defuncto sine legitimo hærede, frater ejus in feudum non succedit.”(m) The true feodal 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 feodal 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 feodal rigour was in part abated, a ceed must show himself to be of the blood of the first purchasor, yet, where the per sons who inherit succeed or derive title to the inheritance by virtue of remote and in termediate descents from the purchasor, it will be sufficient if they are related by halfblood only to the purchasor, or to such other remote and intermediate ancestors who were formerly and intermediately seised of the inheritance in the regular course of descent from the purchasor, provided, according to the rule which follows, they are the worthiest legal relatives of the whole blood to the person last seised. Rob. Inh. 45. For example, see post, p. 228.-CHITTY. 18 To be of the blood of Geoffrey is either to be immediately descended from him, cr to be descended from the same couple of common ancestors. Two persons are consanguinei, or are of the blood (that is, whole blood) of each other, who are descended from the same two ancestors. 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 should afterwards become extinct, it cannot 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 afterwards, 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 seised must be a collateral kinsman of the whole blood.-CHRISTIAN. 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 *222] shall be held ut feudum paternum or feudum avitum, 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 lands in fee-simple is with us a feudum novum to be held ut antiquum, as a feud whose antiquity is indefinite: and therefore the collateral kindred of the grantee, or descendants from any of his lineal ancestors, by whom the lands might have possibly been purchased, are capable of being called to the inheritance.19 Yet, when an estate hath really descended in a course of inheritance to the person last seised, the strict rule of the feodal 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.20 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 *223] his father's father, George Stiles; the relations of *his father's mother, Cecilia Kempe, shall for the same reason never be admitted, but only those of his father's father." This is also the rule of the French law,(0) which is derived from the same feodal 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 () Domat, part 2, pr. 19 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. Desc. 222, 223.—CHitty. 20 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 de scended. See Goodright d. Alston vs. Wells, Doug. 771. And in the late case of Langley vs. Sneyd, (1 Simons & Stu. Rep. 45,) where an infant died seised of an equitable estate descending ex parte materna, the legal estate being vested 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 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.-CHITTY. 21 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 mother, 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.-CHRISTIAN. |