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*To illustrate this by example. Let there be John Stiles, and Francis,
brothers, by the same father and mother, and another son of the same mother by Lewis Gay, a second husband. Now, if John dies seised of lands, but it is uncertain whether they descended to him from his father or mother; in this case his brother Francis, of the whole blood, is qualified to be his heir; for he is sure to be in the line of descent from the first purchaser, whether it were the line of the father or the mother. But if Francis should die before John without issue, the mother's son by Lewis Gay (or brother of the half-blood) is utterly incapable of being heir; for he cannot prove his descent from the first purchaser, who is unknown, nor has he that fair probability which the law admits as presumptive evidence, since he is to the full as likely not to be descended from the line of the first purchaser, as to be descended; and therefore the inheritance shall go to the nearest relation possessed of this presumptive proof, the whole blood.
And, as this is the case in feudis antiquis, where there really did once exist a purchasing ancestor, who is forgotten; it is also the case in feudis novis held ut antiquis, where the purchasing ancestor is merely ideal, and never existed but only in fiction of law. Of this nature are all grants of lands in fee-simple at this day, which are inheritable as if they descended from some uncertain indefinite ancestor, and therefore any of the collateral kindred of the real modern purchaser (and not his own offspring only) may inherit them, provided they be of the whole blood; for all such are, in judgment of law, likely enough to be derived from this indefinite ancestor: but those of the half-blood are excluded, for want of the same probability. Nor should this be thought hard, that a brother of the purchaser, though only of the half-blood, must thus be disinherited, and a more remote relation of the whole blood admitted, merely upon a supposition and fiction of law: since it is only upon a like supposition and fiction that brethren of purchasers (whether of the whole or half blood) are entitled to inherit at all; for we have seen that in feudis stricte novis neither *230]
brethren nor any other collaterals were admitted. As *therefore in feudis
antiquis we have seen the reasonableness of excluding the half-blood, if by a fiction of law a feudum novum be made descendible to collaterals as if it was feudum antiquum, it is just and equitable that it should be subject to the same restrictions as well as the same latitude of descent.
Perhaps by this time the exclusion of the half-blood does not appear altogether 80 unreasonable as at first sight it is apt to do. It is certainly a very fine-spun and subtle nicety; but considering the principles upon which our law is founded, it is not an injustice, nor always a hardship; since even the succession of the whole blood was originally a beneficial indulgence, rather than the strict right of collaterals; and though that indulgence is not extended to the demi-kindred, yet they are rarely abridged of any right which they could possibly have enjoyed before. The doctrine of the whole blood was calculated to supply the frequent impossibility of proving a descent from the first purchaser, without some proof of which (according to our fundamental maxim) there can be no inheritance allowed of. And this purpose it answers, for the most part, effectually enough I speak with these restrictions, because it does not, neither can any other method, answer this purpose entirely. For though all the ancestors of John Stiles, abore the common stock, are also the ancestors of his collateral kinsman of the whole blood; yet, unless that common stock be in the first degree, (that is, unless they have the same father and mother,) there will be intermediate ancestors, belor the common stock, that belong to either of them respectively, from which the other is not descended, and therefore can have none of their blood. Thus, though John Stiles and his brother of the whole blood can each have no other ancestors than what are in common to them both; yet with regard to his uncle where the common stock is removed one degree higher, (that is, the grandfather and grandmother,) one-half of John's ancestors will not be the ancestors of his uncle : his patruus, or father's brother, derives not his descent from John's ma*231)
ternal ancestors: nor his avunculus, or mother's brother, *from those in the paternal line. Here then the supply of proof is deficient, and by no
means amounts to a certainty: and the higher the common stock is removed, the more will even the probability decrease. But it must be observed, that (upon the same principles of calculation) the half-blood have always a much less chance to be descended from an unknown indefinite ancestor of the deceased, than the whole blood in the same degree. As, in the first degree, the whole brother of John Stiles is sure to be descended from that unknown ancestor; his half-brother has only an even chance, for half John's ancestors are not his. So, in the second degree, John's uncle of the whole blood has an even chance; but the chances are three to one against his uncle of the half-blood, for three-fourths of John's ancestors are not his. In like manner, in the third degree, the chances are only three to one against John's great-uncle of the whole blood, but they are seven to one against his great-uncle of the half-blood, for seven-eighths of John's ancestors have no connection in blood with him. Therefore the much less
probability of the half-blood's descent from the first purchaser, compared with that of the whole blood, in the several degrees, has occasioned a general exclusion of the half-blood in all.
But, while I thus illustrate the reason of excluding the half-blood in general, I must be impartial enough to own, that, in some instances, the practice is carried further than the principle upon which it goes will warrant. Particularly when a kinsman of the whole blood in a remoter degree, as the uncle or greatuncle, is preferred to one of the half-blood in a nearer degree, as the brother; for the half-brother hath the same chance of being descended from the purchasing ancestor as the uncle; and a thrice28 better chance than the great-uncle or kinsman in the third degree. It is also more especially overstrained, when a man has two sons by different venters, and the estate on his death descende from him to the eldest, who enters and dies without issue; in which case the younger son cannot inherit this estate, because he is not of the whole blood to the last proprietor.(a) This, it must be *owned, carries a hard
[*232 ship with it, even upon feodal principles : for the rule was introduced only to supply the proof of a descent from the first purchaser; but here, as this estate notoriously descended from the father, and as both the brothers confessedly sprung from him, it demonstrable that the half-brother must be of the blood of the first purchaser, who was either the father or some of the father's ancestors. When, therefore, there is actual demonstration of the thing to be proved, it is hard to exclude a man by a rule substituted to supply that proof when deficient. So far as the inheritance can be evidently traced back, there seems no need of calling in this presumptive proof, this rule of probability, to investigate what is already certain. Had the elder brother, indeed, been a purchaser, there would have been no hardship at all, for the reasons already given; or had the frater uterinus only, or brother by the mother's side, been excluded from an inheritance which descended from the father, it had been highly reasonable.
Indeed, it is this very instance, of excluding a frater consanguineus, or brother by the father's side, from an inheritance which descended a patre, that Craig(6) has singled out on which to ground his strictures on the English law of halfblood. And, really, it should seem as if originally the custom of excluding the half-blood in Normandy,(c) extended only to exclude a frater uterinus, when the inheritance descended a patre, and vice versa, and possibly in England also; as even with us it remained a doubt, in the time of Bracton,(d) and of Fleta, (e) whether the half-blood on the father's side was excluded from the inheritance
(a) A still harder case than this happened, M. 10 Edw. 19 Edw. II., that where lands had descended to two sisters Mì. On the donth of a man who had three daughters by a of the half-blood, as coparceners, each might be heir of those first wife and a fourth by another, his lands descended lands to the other. Mayn. Edw. II. 628. Fitzh. Abr. tit. equally to all four as coparceners. Afterwards the eldest
quare impedit, 177. two died without issue; and it was held that the third (O) L. 2, t. 16, 2 14. danghter alone should inherit their shares, as being their (©) Gr. Coustum. c. 25. heir of the whole blood, and that the youngest daughter 1) L. 2, c. 30, 23. should retain only her original fourth part of their common L. 6, c. 1, 11. father's lands. 10 Ass. 27. And yet it was clear law, in M.
28 This ought to be twice; for the half-brother has one chance in two, the great-uncle one in four. The chance of the half-brother is therefore twice better than that of the great-uncle.-CHRISTIAN.
which originally descended from the common father, or only from such as descended from the respective mothers, and from newly-purchased lands. *233]
also the rule of law, as laid *down by our Fortescue,(J) extends no fur
ther than this : frater fratri uterino non succedet in hæreditate paterna. It is moreover worthy of observation, that by our law, as it now stands, the crown (which is the highest inheritance in the nation) may descend to the halfblood of the preceding sovereign,(9) so that it be the blood of the first monarch purchaser, or (in the feodal language) conqueror of the reigning family. Thus it actually did descend from king Edward the Sixth to queen Mary, and from her to queen Elizabeth, who were respectively of the half-blood to each other. For the royal pedigree being always a matter of sufficient notoriety, there is no occasion to call in the aid of this presumptive rule of evidence, to render probable the descent from the royal stock, which was formerly king William the Norman, and is now (by act of parliament)(h) the princess Sophia of Hanover. Hence also it is that in estates-tail, where the pedigree from the first donee inust be strictly proved, half-blood is no impediment to the descent :(i) because, when the lineage is clearly made out, there is no need of this auxiliary proof How far it might be desirable for the legislature to give relief, by amending the law of descents in one or two instances, and ordaining that the half-blood might always inherit, where the estate notoriously descended from its own proper ancestor, and in cases of new-purchased lands, or uncertain descents, should never be excluded by the whole blood in a remoter degree ; or how far a private inconvenience should be still submitted to, rather than a longestablished rule should be shaken, is not for me to determine. 30 The rule then, together with its illustration, amounts to this: that, in order ) De laud. LL. Angl. 5.
(%) 12 Wm. III. c. 2. Plowd. 245. Co. Litt. 15.
) Litt. 14, 15. 29 In titles of honour also half-blood is no impediment to the descent; but a title can only be transmitted to those who are descended from the first person ennobled. Co. Litt. 15. Half-blood is no obstruction in the succession to personal property. Page 505, past
30 The learned judge has exerted great ability and ingenuity in apologizing for the exclusion of the half-blood. But whatever ingenuity may have been exerted in its farour, I conceive nothing more in effect can be said for it than this, viz., that if the half-blood were universally admitted to inherit, an estate might pass out of one family into another, between whom there was no union of blood. As where a son inherits an estate from his father, and his mother marries again and has a child by her second husband ; if this child could inherit from his half-brother it would acquire the estate of the first husband, to whom it is not related by blood ; and in order to avoid this inconvenience, the halfblood is universally excluded. But surely nothing can be more cruel or contrary to our notions of propriety and consistency than to give the estate to a distant relation, or to the lord, in preference to a half-brother, either when it has descended from the common parent or when the half-brother has himself acquired it. A case was determined in the Common Pleas a few years ago under the following circumstances :-A father died intestate, leaving two daughters by his first wife, and his second wife pregnant, who was delivered of a son: this infant lived only a few weeks; and it was held that as the mother had resided upon one of the father's estates, and had received rent for others after the father's death, she being the guardian in socage of the infant, this amounted to a legal seisin in him, and of consequence his two sisters could not inherit, and the estate descended perhaps to a remote relation. 3 Wils, 516. And in a late case, where a father died leaving two daughters by different mothers, the mother of the youngest entered upon the premises, and the eldest daughter died; it was held, that the mother being guardian in socage to the youngest, and having a right to enter for her own daughter, the entry of the mother was also an entry for the coparcener the half-sister, which created a seisin in her; and therefore, upon her death, her moiety descended to some of her relations of the whole blood. And lord Kenyon held generally that an infant inay consider whoever enters on his estate as entering for his use. And he referred to the distinction laid down by lord Coke, (Co. Litt. 15, a.,) viz., that if the father die, his estate being out on a freehold lease, that is not such a possession as to induce a possessin fratris, unless the elder son live to receive rent after the expiration of the lease; but if the father die leaving his estate out on a lease for years, the possession of the tenant is so far the possession of the eldest son as to constitute the possessio fratris. 7 T. R. 390.CHRISTIAN.
to keep the estate of John Stiles as nearly as possible in the line of his purchasing ancestor, it must descend to the issue of the nearest couple of ancestors that have left descendants behind them; because the descendants of one ancestor only are not so likely to be in the line of that purchasing ancestor, as those who are descended from both. *But here another difficulty arises. In the second, third, fourth, and
[*234 every superior degree, every man has many couples of ancestors, increasing according to the distances in a geometrical progression upwards,(k) the descendants of all which respective couples are (representatively) related to him in the same degree. Thus, in the second degree, the issue of George and Cecilia Stiles and of Andrew and Esther Baker, the two grandsires and grandmothers of John Stiles, are each in the same degree of propinquity; in the third degree, the respective issues of Walter and Christian Stiles, of Luke and Frances Kempe, of Herbert and Hannah Baker, and of James and Emma Thorpe, are (upon the extinction of the two inferior degrees) all equally entitled to call themselves the next kindred of the whole blood to John Stiles. To which therefore of these ancestors must we first resort, in order to find out descendants to be preferably called to the inheritance? In answer to this, and likewise to avoid all other confusion and uncertainty that might arise between the several stocks wherein the purchasing ancestor may be sought for, another qualification is requisite, besides the proximity and entirety, which is that of dignity or worthiness of blood. For,
VII. The seventh and last rule or canon is, that in collateral inheritances the male stocks shall be preferred to the female, (that is, kindred derived from the blood of the male ancestors, however remote, shall be admitted before those from the blood of the female, however near ;) unless where the lands have, in fact, descended from a female.
Thus the relations on the father's side are admitted in infinitum, before those on the mother's side are admitted at all;(1) and the relations of the father's father, before those of the father's mother; and so on.31 And in this the English law is not singular, but warranted by the examples of the Hebrew and (b) See page 20.
(1) Litt. & 4. 31 So lord Hale says, “If a son purchases land in fee-simple, and dies without issue, those of the male line shall be preferred in the descent,” (Hale, Hist. Com. L. 326, rule 7, div. 1;) and the line of the part of the mother shall never inherit as long as there are any, though never so remote, of the line of the part of the father; and, consequently, though the mother had a brother, yet if the great-great-great-grandfather or grandmother has a brother or sister, or any descended from them, they shall be preferred to and exclude the mother's brother, though he is much nearer. Id. ib. div. 2. Clere vs. Brooke, Plowd. 442. And so great is the preference shown to the male line, that if a son dies, having purchased lands which descend to his heir on the part of his father, (not being his own brother or sister, see H. Chit. Desc. 123,) and the line of the father should afterwards fail, yet the descent shall never return to the line of the mother, though in the first instance, or first descent from the son, it might have descended to the heir of the part of the mother; for by this descent and seisin it is lodged in the father's line, to whom the heir of the part of the mother can never derive a title as heir, but it shall rather escheat. See Harg. note 5. Co. Litt. 13, a.
“This preference of male stocks is continued throughout all manner of successions ; for if on default of heirs of the part of the father the lands descend to the line of the mother, the heirs of the mother of the part of her father's side shall be preferred in the succession before her heirs of the part of her mother's side, because they are the more worthy." Hale, C. L. 330.
The several classes which can comprehend every description of kindred are thus enumerated by Mr. Cruise, Dig. vol. iii. p. 377:
1. The male stock of the paternal line.
Athenian laws, as stated by Selden,(m) and Petit;(n) though among the Greeks in the time of Hesiod, O) when a man died without wife or children, all his *235]
kindred (without any *distinction) divided his estate among them. It
is likewise warranted by the example of the Roman laws; wherein the agnati, or relations by the father, were preferred to the cognati, or relations by the mother, till the edict of the emperor Justinian(p) abolished all dis. tinction between them. It is also conformable to the customary law of Nor mandy,(q) which indeed in most respects agrees with our English law of inheritance.
However, I am inclined to think that this rule of our law does not owe its immediate original to any view of conformity to those which I have just now mentioned; but was established in order to effectuate and carry into execution the fifth rule, or principal canon of collateral inheritance, before laid down; that every heir must be of the blood of the first purchaser. For, when such first purchaser was not easily to be discovered after a long course of descents, the lawyers not only endeavoured to investigate him by taking the next relation of the whole blood to the person last in possession, but also, considering that a preference had been given to males (by virtue of the second canon) through the whole course of lineal descent from the first purchaser to the present time, they judged it more likely that the lands should have descended to the last tenant from his male than from his female ancestors; from the father (for instance) rather than from the mother; from the father's father rather than from the father's mother: and therefore they hunted back the inheritance (if I may be allowed the expression) through the male line; and gave it to the next relations on the side of the father, the father's father, and so upwards; imagining with reason that this was the most probable way of continuing it in the line of the first purchaser. A conduct much more rational than the preference of the agnati, by the Roman laws: which, as they gave no advantage to the males in the first instance or direct lineal succession, had no reason for preferring them in the transverse collateral one: upon which account this preference was very wisely abolished by Justinian. *236]
*That this was the true foundation of the preference of the agnati,
or male stocks, in our law, will further appear, if we consider that, whenever the lands have notoriously descended to a man from his mother's side, this rule is totally reversed; and no relation of his by the father's side, as such, can ever be admitted to them; because he cannot possibly be of the blood of the first purchaser. And so, e converso, if the lands descended from the father's side, no relation of the mother, as such, shall ever inherit. So also, if they in fact descended to John Stiles from his father's mother Cecilia Kempe; here not only the blood of Lucy Baker his mother, but also of George Stiles his father's father, is perpetually excluded. And, in like manner, if they be known to have descended from Frances Holland the mother of Cecilia Kempe, the line not only of Lucy Baker and of George Stiles, but also of Luke Kempe, the father of Cecilia, is excluded. Whereas, when the side from which they descended is forgotten, or never known, (as in the case of an estate newly purchased to be holden ut feudum antiquum,) here the right of inheritance first runs up all the father's side, with a preference to the male stocks in every instance; and, if it finds no heirs there, it then, and then only, resorts to the mother's side; leaving no place untried, in order to find heirs that may by possibility be derived from the original purchaser. The greatest probability of finding such was among those descended from the male ancestors; but, upon failure of issue there, they may possibly be found among those derived from the females.32 (m) De success. Ebraenr, c. 12.
(P) Nov. 118. in) LL. Attic. l. 1, t. 6.
() Gr. Coustum. c. 25. () Ocoyov, 606. 82 If a man seised in fee ex parte materna levy a fine sur grant et render, granting to A. and bis heirs, the estate taken by the conusor under the render will now be descendible to his heirs ex parte paterna. 1 Prest. Conv. 210, 318. Co. Litt. 316. Dyer, 237, b. Price vs. Tangford, 1 Salk. 92. And the same in the case of feoffment and re-infeoffment, or even