4. Because the pofition itself destroys the otherwise entire and regular fymmetry 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° 48, which is analogous to n° 11, upon the authority of the eighth rule laid down by Hale himself: and it destroys also that conftant preference of the male stocks in the law of inheritance, for which an additional reason is before * given, besides the mere dignity of blood. 5. Because it introduces all that uncertainty and contradiction, which is pointed out by an ingenious author; and establishes a collateral doctrine, (viz. the preference of n° 11 to n° 10) feemingly, though perhaps not strictly, incompatible with the principal point refolved in the case of Clere and Brooke, viz. the preference of n° 11 to no 14. And, though that learned writer proposes to refcind the principal point then resolved, in order to clear this difficulty; it is apprehended, that the difficulty may be better cleared, by rejecting the collateral doctrine, which was never yet refolved at all. 6. Because the reafon 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 inftances given by Plowden and Hale, and every other writer on the law of defcents. 7. Because this pofition feems to contradict the allowed doctrine of fir Edward Coke; who lays it down (under different names) that the blood of the Kempes (alias Sandies) fhall not inherit till the blood of the Stiles's (alias Fairfields) fail. Now the blood of the Stiles's 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 cafe, Mich. 12 Edw. IV. 14. (much relied on in that of Clere and Brooke) it is laid down as a rule, that "cefluy, que doit “inheriter al pere, doit inheriter al fits" And fo fir Matthew Hale fays, "that though the law excludes the father * Pag. 235, 6, 7. y Law of inheritances. 24 edit. pag. 20. 38. 61, 62. 66. # Co. Litt. 12. Hawk. abr. in loc. a Fitzh. Abr. tit. difcent. 2. Bro. Abr. t. difcent. 3. b See pag. 223. e Hift. C. L. 243. ❝ from 239 "from inheriting, yet it fubftitutes and directs the defcent, "as it fhould have been, had the father inherited." Now it is fettled, by the refolution in Clere and Brooke, that no 10 should have inherited before n°11 to Geoffrey Stiles, the father, [ 240 ] had he been the perfon laft feifed; and therefore n°10 ought alfo to be preferred in inheriting to John Stiles, the fon. IN cafe John Stiles was not himself the purchafor, but the eftate in fact came to him by defcent from his father, mother, or any higher anceftor, there is this difference; that the blood of that line of ancestors, from which it did not defcend, can never inherit: as was formerly fully explained". And the like rule, as is there exemplified, will hold upon defcents from any other ancestors. THE ftudent fhould also bear in mind, that, during this whole procefs, John Stiles is the perfon supposed to have been laft actually seised of the estate. For if ever it comes to vest in any other perfon, as heir to John Stiles, a new order of fucceffion must be observed upon the death of fuch heir; fince he, by his own feifin, now becomes himself an ancestor or ftipes, and must be put in the place of John Stiles. The figures therefore denote the order, in which the several claffes would fucceed to John Stiles, and not to each other and before we fearch for an heir in any of the higher figures, (as n° 8.) we must be first assured that all the lower classes (from n I to no 7.) were extinct, at John Stiles's decease (17). d See page 236. : (17) Some profeffional gentlemen have not been fatisfied with the learned Judge's arguments for his preference of no 10 to n° 11; and an ingenious and able defence of the contrary doctrine has been published in answer to the learned Commentator by Mr. Ofgood. The late learned Vinerian Profeffor has alfo declared, that he can " by no means accede to this opinion of Sir "William Blackstone." 2 Woodd. 262. But from the confideration which I have beftowed upon the fubject, I entirely concur with the learned Judge in giving a preference to no 10 before T3 fore no 11. I am ready to admit, that fome of the reasons adduced to maintain this doctrine, cannot be supported; but it does not follow that a doctrine is erroneous, because, out of a number of arguments in its favour, fome of them are not unanswerable. But the principal grounds, which the Editor relies upon, are the following, viz. that the rule laid down by the learned Judge, is part of a confiftent and certain system, by which we can immediately discover the heir to any inheritance; if we deviate from it, we are foon bewildered amidst uncertainty, inconfistency, and confufion; and when the law of defcents is not called in to make a provifion for a man's family and his near relations, in which both our reafon and feelings, however we may wish to divide the inheritance into different portions, correfpond with the law, it is then entirely juris pofitivi, and its only object is certainty, by which anxiety and litigation among a number of claimants of an intertate's eftaté, may be fuppreffed. But the law of defcents is eftablished beyond all poffibility of controverfy, till we search for an heir among great uncles, and fecond and third coufins. And between thefe, and ftill more remote relations, it is of infinitely greater concern to the public to fix a rule, which can instantly inform us who is the heir, than to attend to any petty confiderations of propriety, who ought to be the heir. It is fully fettled, in the cafe of Clere and Brooke, Plord. 450. that the brother of a grandmother, or his reprefentative, fhall be preferred in the defcent of a newly-purchased estate to a brother of a mother, or his representative; and this is a law which is certainly contrary to our natural wishes and fentiments; but it does little violence to our feelings to poftpone the brother of a grandmother to the brother of a great grandmother, and fo in fucceffion. If the grandmother is more worthy than the mother, because related by one male blood, and the mother by none, the great-grandmother, as is well obferved by the editor of Plowden, ought to be still more worthy, being related by two male bloods. And whatever may be the principle, which operates fo powerfully as to carry the eftate paft the mother to the grandmother, ought to preserve its confiftency, and to carry it alfo from the grandmother to the great-grandmother. But certainty is of much greater importance than confiftency and fymmetry; and if we have no other rule among heirs through females beyond the mother than proximity, what have we to afft and guide us, when there are defcendants of a number of female ancestors, or of ancestors through females of equal proximity? For if 10 is not to be preferred to to 11, what principle can we find to determine between 10, 12, and 13 They have all an equal claim by proximity. The fupporters of proximity will not be fo bold as to fay that they shall be coparcenors, or that they fhall run a race, and one shall gain the eftate by occupancy. If we go a step higher, we fhall find the defcendants of the brothers of Anne Godfrey, William Smith, Jane King, Thomas Kempe, Sarah Browne, Charles Holland, and Mary Wilfon, have all the fame pretenfions; and we may eafily fuppofe alfo 15, 31, or any other number of claimants, without any clue whatever to determine the priority of their proximity. But according to the rule laid down by the learned Judge, no two cafes can poffibly be produced, but we can determine inftantly which has the prior right by defcent. Moreover a feudum novum is confidered as a feudum antiquum, or a feud of indefinite antiquity; and if it had actually defcended, which we may fuppofe, from Walter or George Stiles, then the heirs by their wives, and the wives of their defcendants, would all have been entirely cut off; and therefore it is not unreasonable, or, at leaft, inconfiftent with that fuppofition, that an heir on the part of a wife of a more remote ancestor of the Stilefes, should be preferred to the heir on the part of a wife of a nearer ancestor. If then the plan of defcents laid down by the learned Judge be established, it may be explained by the scheme fubjoined, which will determine the heir at law in all cafes that can poffibly be put or devised. In tracing the heir downwards, in the defcending line, no difficulty can ever occur. But in the scheme annexed, I fuppofe the propofitus to die without iffue, and without brothers or fifters, feized of an estate by purchase; and I suppose A, B, C, D, &c. to Z, to be his father, grandfather, &c. his lineal ancestors of the fame name; and a, b, c, d,—z, to be their wives refpectively, who are not neceffarily related to each other. To find then the heir of the propofitus, we muft inquire for the lineal heir or representative of the eldest brother of A the father; then for the representative of the fecond, third, &c. but if A had no brothers, then for his fifters and their representatives; if none can be found, we muft in like manner have recourfe to B, and fo on to C; and if we find a representative of III, the eldest brother of C, he is the heir at law to the inteftate, and will inherit before the representa tives of the brothers of D, E, F, &c. And thus we are to go back through the lineal male ancestors of the inteftate; but if in going up to Z, or to any indefinite diftance, we can find no heir iffuing T4 iffuing from the male ancestors, we must then have recourse to the females; but in this research, we must begin at the other end, and purfue a different direction. We muft inquire first, whether z, the wife of one of the remoteft male ancestors of the propofitus, had a brother or fifter leaving a reprefentative; for if fo, he will be the heir of the propofitus; if we fuppofe 24, 6, 3, to be the respective brothers of the wives, then the defcendants of 24 will inherit before thofe of 6; and for the fame reason, thofe of 6 before thofe of 3. If z had no brother or fifter leaving iffue, but has collateral relations defcended from her ancestors, one of thofe must be preferred to any heir on the part of f, e, d, &c. and to difcover fuch an heir of z, we must put z in the place of the propofitus, and inquire for the reprefentative of the brothers and fifters of her male ancestors, and then of their wives as before, and fuch an heir of z will inherit before the heir of d, e, b, and a; and for the fame reason their heirs refpectively will have a preference as we come down to a. This table, the Editor conceives, is not difficult to be comprehended, and will determine immediately the priority of relations ever fo remote, if their pedigrees can be traced. It must be remembered, that if it is known that the eftate has defcended from E to the propofitus, then none of the heirs of e, d, c, b, a, can ever be admitted; and if it has defcended from one of the wives, viz. f, then, as before, the heirs of e, d, c, b, a, are excluded, and alfo the collaterals of the male ancestors above E; and if no collateral of E, D, &c. f's defcendants can be found, then to find her heir, fhe must be put in the place of the propofitus in the table. The ftudent must also observe, that if an estate, of which the propofitus is the purchafor, fhould descend to a representative of a brother of C from the propofitus, upon failure of that branch, it may afterwards país to a reprefentative of a brother of F, and fo upwards in the male line; but being once in the line of VI, the female branches, f, e, d, &c. are cut off, for they are not related by blood to F; but, upon failure of that line, it is ftill tranfmiffible to the lines of the females above; for their collaterals would be related by blood, or will have a common anceftor with F; and this is another ftrong argument in fupport of the doctrine, that the remoter females fhould be preferred to the nearer; for this may be prefumed to have been the progress of the eftate in its descent from the propofitus. When also it paffes from the male into any female line, it cannot afterwards pafs into any other female line, for they are not related to each other by blood, See n. 9. p. 220. TABLE |