« PreviousContinue »
This I take to be the true reason of the constant preference of the agnatic Lccession, or issue derived from the male ancestors, through all the stages of »llateral inheritance; as the ability for personal service was the reason for referring the males at first in the direct lineal succession. We see clearly, iat if males had been perpetually admitted, in utter exclusion of females, the :acing the inheritance back through the male line of ancestors must at last ave inevitably brought us up to the first purchaser: but as males have not een *perpetually admitted, but only generally preferred; as females have ot been utterly excluded, but only generally postponed to males; the
[*237 racing the inheritance up through the male stocks will not give us absolute emonstration, but only a strong probability, of arriving at the first purchaser; chich, joined with the other probability, of the wholeness of entirety of blood, sill fall little short of a certainty.88
Before we conclude this branch of our inquiries, it may not be amiss to eximplify these rules by a short sketch of the manner in which we must search or the heir of a person, as John Stiles, who dies seised of land which he acquired, and which therefore he held as a feud of indefinite antiquity.(r)
In the first place succeeds the eldest son, Matthew Stiles, or his issue : (n° 1,)—if his line be extinct, then Gilbert Stiles and the other sons, respectively, in order of birth, or their issue : (n° 2,)-in default of these, all the daughters together, Margaret and Charlotte Stiles, or their issue. (no 3.)-On failure of the descendants of John Stiles himself, the issue of Geoffrey and Lucy Stiles, his parents, is called in : viz., first, Francis Stiles, the eldest brother of the whole blood, or his issue : (no 4,)—then Oliver Stiles, and the other whole brothers, respectively, in order of birth, or their issue : (no 5,)—then the sisters of the whole blood all together, Bridget and Alice Stiles, or their issuo. (n° 6.)—In defect of these, the issue of George and Cecilia Stiles, his father's
(*) See the table of descents annexed.
if a man seised ex parte materna make feoffment in fee reserving rent, the rent shall descend to the heirs ex parte paterna. Co. Litt. 12, b.-Cutty.
Very important alterations have been made in the law of descents in England by the statute 3 & 4 Wm. IV. c. 106. From the provisions of this statute the following have been framed as the existing canons of descent in that country:
1. The descent shall be traced from the purchaser, the person last entitled to the land being considered to have been the purchaser, unless he be proved to have inherited it.
This rule it appears is not to be applied unless the circumstances of the case and the nature of the title require it, so that when a person dies leaving issue it need not be inquired whether he or she took by inheritance or by purchase.
2. Inheritances shall descend lineally to the issue of the purchaser.
3. On failure of issue of the purchaser, the inheritance shall go to his nearest lineal ancestor, or the issue of such ancestor,-the ancestor taking in preference to his or her issue. Thus, if the purchaser dies without issue, the father takes before the brothers or sisters of that purchaser, and a grandfather, not before the father or the father's issue, but before the uncles or aunts or their issue.
4. Paternal ancestors and their descendants shall be preferred to maternal ancestors and their descendants, male paternal ancestors and their descendants to female paternal ancestors and their descendants, and male maternal ancestors and their descendants to female maternal ancestors and their descendants, and the mother of a more remote female ancestor on either side and her descendants to the mother of a less ren te female ancestor and her descendants. Thus, the mother of the paternal grandfather and her issue shall be preferred to the father's mother and her issue. 5. The male issue shall be admitted before the female.
6. When there are two or more males in equal degree, the eldest only shall inherit, but the females all together.
7. Relations of the half-blood shall be capable of inheriting,—those who are related ex parte paterna taking next in order to the relations, male and female, of the same degree of the whole blood; those who are related ex parte materna taking next in order after their mother.
8. The lineal descendants, in infinitum, of any person deceased shall represent their ancestor,—that is, shall stand in the same place as the person himself would have done had he been living: the issue of a deceased eldest son, in whatever degree, will precede in order of inheritance the living younger sons.-KERR. Vol. 1-37
parents; respect being still had to their age and sex: (n° 7,)—then the issue of Walter and Christian Stiles, the parents of his paternal grandfather: (n° 8,)then the issue of Richard and Anne Stiles, the parents of his paternal grandfather's father: (n° 9,)—and so on in the paternal grandfather's paternal line, or blood of Walter Stiles, in infinitum. In defect of these, the issue of William and Jane Smith, the parents of his paternal grandfather's mother: (n° 10,)—and so on in the paternal grandfather's maternal line, or blood of Christian Smith, in *238]
infinitum : till both the *immediate bloods of George Stiles, the paternal
grandfather, are spent.-Then we must resort to the issue of Luke and Frances Kempe, the parents of John Stiles's paternal grandmother : (no 11,then to the issue of Thomas and Sarah Kempe, the parents of his paternal grandmother's father : (no 12,)—and so on in the paternal grandmother's paternal line, or blood of Luke Kempe, in infinitum.-In default of which we must call in the issue of Charles and Mary Holland, the parents of his paternal grandmother's mother : (no 13,)—and so on in the paternal grandmother's ma. ternal line, or blood of Frances Holland, in infinitum : till both the immediate bloods of Cecilia Kempe, the paternal grandmother, are also spent.-Whereby the paternal blood of John Stiles entirely failing, recourse must then, and not before, be had to his maternal relations; or the blood of the Bakers, (n° 14, 15, 16,) Willises, (n° 17,) Thorpes, (n° 18, 19,) and Whites, (n° 20,) in the same regular successive order as in the paternal line.
The student should however be informed, that the class n° 10 would be postponed to n° 11, in consequence of the doctrine laid down, arguendo, by justice Manwoode, in the case of Clere and Brooke ;(8) from whence it is adopted by lord Bacon,(t) and Sir Matthew Hale :(u) because, it is said, that all the female ancestors on the part of the father are equally worthy of blood; and in that case proximity shall prevail. And yet, notwithstanding these respectable authorities, the compiler of this table hath ventured (in point of theory, for the case never yet occurred in practice)s to give the preference to n° 10 before no 11; for the following reasons : 1. Because this point was not the principal question in the case of Clere and Brooke : but the law concerning it is delivered obiter only, and in the course of argument by justice Manwoode; though afterwards said to be confirmed by the three other justices in separate, extrajudicial conferences with the reporter. 2. Because the chief justice, Sir James Dyer, in reporting the resolution of the court in what seems to be the same case,(r) takes no notice of this doctrine. 3. Because it appears from Plowden's report
very many gentlemen of the law were dissatisfied *with this posi
tion of justice Manwoode; since the blood of n° 10 was derived to the purchaser through a greater number of males than the blood of no 11, and was therefore in their opinion the more worthy of the two. 4. Because the position itself destroys the otherwise entire and regular symmetry of our legal course of descents, as is manifest by inspecting the table; wherein n° 16, which is analogous in the maternal line to no 10 in the paternal, is preferred to n° 18, which is analogous to n° 11, upon the authority of the eighth rule laid down by Hale himself: and it destroys also that constant preference of the male stocks in the law of inheritance, for which an additional reason is before(x) given, besides the mere dignity of blood. 5. Because it introduces all that uncertainty and con. tradiction, which is pointed out by that ingenious author ;(y) and establishes a collateral doctrine (viz., the preference of no 11 to n° 10) seemingly, though perhaps not strictly, incompatible with the principal point resolved in the case of Clere and Brooke, viz., the preference of no 11 to no 14. And, though that learned writer proposes to rescind the principal point then resolved, in order to
(**) Dyer, 314,
() Law of Inheritances, 2d edit. pp. 30, 31, 61, 62, 66. 34 Mr. Cruise states that a case exactly in point arose in the Midland circuit in 1805, And was intended to have been argued in Westminster Hall, but was compromised. "Several eminent counsel were, however, consulted, among whom was serjeant Williams; and they were all of opinion that Sir W. Blackstone's doctrine was wrong." 3 Cru. Dig. ? ed, 411, n.-CHITTY.
(•) Plowd. 450.
lear this difficulty; it is apprehended that the difficulty may be better cleared py rejecting the collateral doctrine, which was never yet resolved at all. 6.. Because the reason that is given for this doctrine by lord Bacon (viz., that in any degree, paramount the first, the law respecteth proximity, and not dignity of blood) is directly contrary to many instances given by Plowden and Hale, and every other writer on th aw of descents. Because this position seems to contradict the allowed doctrine of Sir Edward Coke;(2) who lays it down (under different names) that the blood of the Kempes (alias Sandies) shall not inherit till the blood of the Stileses (alias Fairfields) fail. Now the blood of the Stileses does certainly not fail till both no 9 and no 10 are extinct. Wherefore n° 11 (being the blood of the Kempes) ought not to inherit till then. 8. Because in the case Mich. 12 Edw. IV. 14(a) (much relied on in that of Clere and Brooke) it is laid down as a rule, that “cestuy, que doit inheriter al pere, doit inheriter al fils."(6) And so Sir Matthew Hale(c) says, " that though the law excludes the father from inheriting, yet it substitutes and directs the descent as it should have been had the father inherited.”36 Now, it is settled, by the resolution of Clere *and Brooke, that no 10 should have inherited before no 11 to Geoffrey Stiles, the father, had he been the person last seised;
[*240 and therefore n° 10 ought also to be preferred in inheriting to John Stiles, the son.
In case John Stiles was not himself the purchaser, but the estate in fact came to him by descent from his father, mother, or any higher ancestor, there is this difference: that the blood of that line of ancestors, from which it did not descend, can never inherit: as was formerly fully explained.(d) And the like rule, as there exemplified, will hold upon
descents from any other ancestors.
The student should also bear in mind, that during this whole process, John Stiles is the person supposed to have been last actually seised of the estate. For if ever it comes to vest in any other person, as heir to John Stiles, a new order of succession must be observed upon the death of such heir; since he, by his own seisin, now becomes himself an ancestor or stipes, and must be put in the place of John Stiles. The figures therefore denote the order in which the several classes would succeed to John Stiles, and not to each other: and before we search for an heir in any of the higher figures, (as n° 8,) we must be first assured that all the lower classes (from no i to no 7) were extinct at John · Stiles's decease.36
() Hist. C. L. 243.
Co. Litt. 12. Hawk. abr. in loc.
(d) See page 236.
38 This rule, however, does not apply in all cases; for a brother of the half-blood would succeed to the father, though he could not to the son.-Chitty.
36 The preference bestowed upon no 10 to n° 11 in the accompanying table of descente has given rise to a legal controversy, in which much learning and ability have been employed. On the side of Mr. Justice Blackstone, Mr. Christian and Mr. Watkins have ranged themselves; opposed to him are Mr. Wooddesson, Mr. Cruise, and Mr. Osgoode. It has been intimated, however, by more than one authority, that the point in dispute is scarcely worth the labour of an adjustment; for up to the present time no case of the kind has come before the courts for discussion. See ante, 238, note 36. Nor is it probable that one will arise to render the determination of practical utility. See H. Chitty on Descents, 127, 128. See Cruise, Dig. vol. 3, p. 430.–Chitty.