Page images
PDF
EPUB

om whom the feud was conveyed to the late proprietor. But when, through ngth of time, it can trace it no farther; as if it be not known whether his randfather, George Stiles, inherited it from his father Walter Stiles, or his mo ner Christian Smith, or if it appear that his grandfather was the first grantee nd so took it (by the general law) as a feud of indefinite antiquity; in either f these cases the law admits the descendants of any ancestor of George Stiles, ither paternal or maternal, to be in their due order the heirs to John Stiles of his estate ; because in the first case it is really uncertain, and in the second ase it is supposed to be uncertain, whether the grandfather derived his title rom the part of his father or his mother.

This then is the great and general principle upon which the law of collateral aheritances depends; that, upon failure of issue in the last proprietor, the state shall descend to the blood of the first purchaser; or, that it shall result ack to the heirs of the body of that ancestor from whom it either really has, r is supposed by fiction of law to have, originally descended; according to the ule laid down in the year-books,(0) Fitzherbert,(9) Brook,(r) and Hale,(8)

that he who would have been heir to the father of the deceased” (and, of ourse, 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 he case of a brother or sister of the half-blood, which exception (as we shall ee hereafter) depends upon very special grounds.

The rules of inheritance that remain are only rules of evidence, calculated to nvestigate who the purchasing ancestor was; which *in feudis vere intiquis has in process of time been forgotten, and is supposed so to be

[*224 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. 22

First, he must be his next collateral kinsman either personally or jure representationis ;2 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

(P) M. 12 Edw. IV. 14.
(1) Abr. t. descent. 2.

Ibid. 38.
H. C. L. 243.

22 With reference to this and the preceding rule, it is to be observed that, “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 purchasor, 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 purchasor. Per Leach, vice-chancellor, Hawkins vs. Shewen, 1 Sim. & Stu. Rep. 257, which case, and the pedigree annexed to the same, deserve attention. On account of the qualification required for the heir to be of the blood of the first purchasor or acquirer of the estate, it may not unfrequently happen that the person upon whom the inheritance devolves in a regular and legal course of descent or succession is not (as independently of, and laying aside, this qualification) heir or next of kin to the person last seised of it, either in the paternal or maternal line.

It appears that Littleton and his commentator, lord Coke, (Ten. s. 6, fo. 11, b.,) have laid down a different doctrine “ touching the necessity of the person who inherits being always heir, or the worthiest and nearest relative, to the person last seised ;” but it is conceived that the rules must be taken together in a connected view, and as such the rule will stand thus :-“That the person or persons who inherit, and upon whom the law casts the inheritance upon the death of the person seised, must always be the worthiest and nearest of such of the relatives of the whole blood of the person last seised as are of the blood and consanguinity of the purchasor, and such as are not incapacitated by the first rule of descent. Rob. Inh. 46, 47.-Chitty.

23 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 paternd will inherit before the nearest ex parte maternâ. See p. 236, post.-CHRISTIAN.

one hard, and in the canon and common laws on the other. The civil law regarde 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 one-fourth 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 *225]

civil, it may seem as if it ought *to proceed according to the civil com

putation. But as it also respects the purchasing ancestor, from whom the estate was derived, 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

24 It is suggested by Mr. Christian, in his edition of Blackstone, “ that the true and only way of ascertaining an heir at law in any line or branch is by the representation of brothers or sisters in each generation, and that the introduction of the computation of kindred either by the canon or civil law into a treatise upon descents may perplex, and can never assist; for if we refer this sixth rule either to the civil or canon law, it will in many instances be erroneous. It is certain that a great-grandson of the father's brother will inherit before a son of the grandfather's brother; yet the latter is the next collateral kinsman according to both the canon and civil law computation ; for the former is in the fourth degree by the canon and the sixth by the civil law, the latter is in the third by the canon and the fifth by the civil ; but in the descent of real property the former must be preferred.”

The doctrine of consanguinity, as laid down by Blackstone, has, however, been thus vindicated by the author of the recent treatise of descents :

“Mr. Christian asserts that 'this introduction of the computation of kindred into a treatise of descent may perplex, but can never assist.'

“But it may be asked, By what means are we to ascertain and determine who is nearest to a person deceased, -whether his uncle or his brother, or any other of his relations? We have no rule which directs that a brother can inherit before an uncle, but merely that on failure of lineal descendants, or issue of the person last seised, the inheritance shall descend to his collateral relations. Canon 5. And then follows this sixth rule, which designates which of these collateral relations shall be preferred, namely, the next collateral kinsman of the whole blood. And who, it will be asked, is the next collateral kinsman? Unless we can have recourse to the degrees of consanguinity as pointed out by the canon law, in order to ascertain this fact, we have no rule by which we can determine what collateral relative is entitled to the inheritance. But Mr. Christian further asserts that this computation of the sixth rule of descents, if referred either to the civil or canon law, will in many instances be erroneous; for a grandson of the father's brother will inherit before a son of the grandfather's brother, yet the latter is the next collateral kinsman. Mr. C.'s assertion is founded on a mistaken view of the rules of descent, and on a disregard of their connection one with another; for if we refer to the fifth canon, which intimates that the descent in the collateral line is subject to the second, third, and fourth rules of descent, we shall find that the lineal descendants of any person de ceased shall represent their ancestor, and stand in the same place as the person himself would have done had he been living;' and again, by the exposition of lord Coke of the word .next,' we shall find that it must be understood in a double sense, namely, next

.

necessary, else there would have frequently been many claimants in exactly the same degree of kindred, as (for instance) uncles and nephews of the deceased. vhich multiplicity, though no material inconvenience in the Roman law of partible inheritances, yet would have been productive of endless confusion where the right of sole succession, as with us, is established. The issue or lescendants 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 jhose of bis great-uncle 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 failure of issue of the person last seised, Che 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 the failure of brethren, or sisters, and their issue, it shall descend to the urcle 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."0)

*Now here it must be observed, that the lineal ancestors, though (according to the first rule) incapable themselves of succeeding to the

[*226 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 or descent. For the descent

() Selden, de success. Ebr. c. 12.

Tacitus de Mor. Germ. 21.
Numb. c. xxvii.

jure representationis and next jure propinquitatis, that is, by right of representation and by right of propinquity, and that Littleton, in his position that the next collateral cousin shall inherit,' meaneth of the right of representation; for legally, in course of descents, he is next of blood inheritable.Co. Litt. 10, b. And therefore, though on the face of the table of consanguinity the great-grandson of the father's brother does appear to be more degrees removed than the son of the grandfather's brother, yet inasmuch as he represents his lineal ancestor, the uncle of the deceased, he is one degree nearer than the son of the grandfather's brother, who represents only the great-uncle of the deceased. But again, Mr. C. disavows this doctrine of representation of blood, and proposes that the rule is only true in the paternal line; for when the paternal and maternal lines are both admitted to the inheritance, that is, when the deceased was the purchaser of the estate, and it therefore is a feudum novum, to be held ut antiquum, the most remote collateral kinsman ex parte paternâ will inherit before the nearest ex parte maternâ. Mr. C. again falls into the same error, and seems to disregard the subsequent rules of descent by which the kindred derived from the blood of the male ancestors, however remote, are admitted before those from the blood of the female, however near. The rule therefore may stand good and unexceptionable in this form, -that the collateral kinsman, who is either by representation or in his own personal right nearest to the deceased, shall be admitted and succeed to the inheritance on failure of his lineal descendants. The rules of descent must be taken together in a connected view ; nor can we in many instances state any one of the canons of descent as a positive rule without such connection the one with another. Thus, for instance, as in the direct descending line by the first canon, taken by itself, all the children, so by the fifth rule all the collateral relatives, of any person deceased would be entitled to an equal share of the inheritance; but these are subsequently explained, the one to mean the male issue, and of them the eldest, in pre ference to the females; and the latter, the next collateral, either in his own right, or by representation in the male line, in preference to the female.” See H. Chit. Desc. 110–113. CHITTY.

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) If Geoffrey Stiles bath 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 upwards in infinitunt, 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 derire his descent; and in such derivation the same rules must be observed, with regani *227]

to the sex, *primogeniture, and representation, that have before been

laid down with regard to lineal descents from the person of the last proprietor.

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.25

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 halfblood, 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 seised without issue; still B. shall not be heir to this estate, because he is only of the half-blood to A., the person last seised; 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 fratris facit sororem esse hæredem. Yet, had A. died with*228]

out entry, then B. might have inherited ; not as *heir to A. his half

brother, but as heir to the common father, who was the person last actually seised.(y)28 (2) Sid. 196. 1 Ventr. 423. 1 Lov. 60. 12 Mod. 619.

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

25 It may be observed that it is always intended or presumed that a person is of the whole blood until the contrary be shown. Kitch. 225, a. Plowd. 77, a. Trin. 19, H. 8, pl. 6, p. 11, b. Watk. Desc. 75, n. (u.)-Chitty.

28 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.

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 anacquainted 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 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 Wright(z) 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 ho 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 versa 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.

(*) Tenures, 186. 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 seised, and not to the sister of the whole blood. 1 Burn, Ec. L. 11. So of reversions, remainders, and executory devises, there can be no seisin, or posscasio

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 seised. 2 Woodd. 256. Fearne, 448. 2 Wils. 29.-CHRISTIAN.

It may from the above passage in the text be perceived that the rule depends entirely on the question whether the elder son had obtained a seisin of the estate; for if he has obtained such a seisin, though not by actual entry, as will be sufficient to make him an ancestor, so as to transmit the estate descending to his own right heirs, his sister of the whole blood will be entitled in preference to the brother of the half-blood; but if he has not obtained such a seisin, his brother of the half-blood will succeed as heir to his father, who was the person last seised.

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.-Cutty.

This reason will be found on examination to be unsatisfactory, and, indeed, not to be founded in truth. It is not true that in all, or even in most, cases, there is a greater probability that a kinsman of the whole blood is derived from the blood of the first purchasor than a kinsman of the half-blood, or that a kinsman of the half-blood has in all, or even in most cases, fewer common ancestors of the person last seised than a kinsmar, of the whole blood. My brother of the half-blood (the issue of my father) has one arcestor (my father) more in common with me than my uncle of the whole blood ; severa! taore than my great-uncle, (see post, p. 231;) and more-almost innumerably more than the descendants of my paternal grandmother's maternal grandfather. Yet all these may inherit an estate descended to me from my father, and purchased by him, though my half-brother (the son of my father, the original purchasor) cannot inherit. And it is plain the law does not consider the point as hinging upon greater or less probability; for then it would only postpone the half-blood, instead of utterly excluding it, so that land shall rather escheat than devolve upon a kinsman of the half-blood.

This note is partly extracted from the MS. supposed to be penned by a noble and learned judge still living.-Cutty.

« PreviousContinue »