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The half-blood succeeds for want of the whole blood, regularly and uniformly, in the manner of the whole blood. And because the halfblood is called into the succession in failure of the whole, it will follow, that a nephew of the half-blood shall exclude an uncle of the whole. Because the uncle's right only commences, when representation ceases. In a concurrence of half-blood, viz. when brothers, etc. by the father's side succeed along with brothers by the mother's side, the rule of law is, that they succeed separately into the goods of the separate sides: and into the common goods in common. If none of these are given, then the next relation indifferently, sueceeds in order of proximity. For the jus Repraesentationis is specific, mot general : it is extended to brother's children, but goes no farther. Thus the uncle of the intestate would be excluded by the nephew, because the nephew by this right of representation is, as it were, in the entail: But the uncle of the intestate would net be excluded by a son of that nephew. For the right of representation being now stopt, the uncle is nearer in degree, than the brother's grandson. If there be two next kindred of equal degree, they are equally entitled to the succession, whether on the father's side, or on the mother's and succeed in capita. These are the general principles of justinian's last regulation upon this head. But in many of these distributions which stand so far removed from natural right: where the stream of blood must run but cool, and languid: where it is impossible to balance the affection towards one relation, with the affection towards another, by principles of nature; there, human invention has insinuated its assistance, and that is one great reason of what I observed above, viz. that no two nations can ever be found that agree in these delicate circumstances. In the English law again, a great deal depends upon the distinction into real and personal estates, which the Roman law knew nothing of. This was agreeable to the genius of our ancestors, who distributed their lands in fee, and expected some emolument in return. As the Saxons therefore were perpetually loading descents with services, and of consequence were led to direct those descents where those services were likely to be maintained with the greatest vigor and advantage; * This, I say, is the fairest reason, and looks likely to be the true one, why the father cannot succeed (in this kingdom) into the landed estate of his son. Because he cannot be supposed in a condition to perform the service that is expected from it. It was one reason given in the feudal law, for the exclusion of daughters, Quia Filiae" servitia praestare non possunt.
I have here exhibited what I professed, viz. an account how this distribution stood by civil law: I am sensible it deserves a fuller consideration, and it might be useful, to bring it into comparison with the distribution of other states, who have laid themselves out upon the equity of assigning the order of successions: In which some have been pretty successful. But of this hereafter; if that hereafter should ever come, when I shall be called upon to improve these elements into a system, and these institutes into a digest. Taylor. NOVEL 118th.
PREF Act: Declaring the provisions of former laws on this subject, consolidated and re-enacted in the present Novel, under the heads of the succession of relations in the descending line ; the succession of relations in the ascending line; and the succession of collateral relations.
CHAP. 1. Of the succession of descendants.
Every relation of a deceased person in the (right) line descending, of whatever sex or degree, whether related by the father's or by the mother's side, whether under power or free, is preferred to every relation in the ascending line, or collateral. Although the deceased were himself under power, yet his children, of whatever sex or degree, shall be preferred to the parent under whose power the deceased was, in respect of that property which, by our laws, . was not acquired for the parent. For the usufruct of such property we reserve to the parent; but with this proviso, that if any such descendant should die leaving children, such children or other descendant shall succeed in place of their proper parent, whether they be under power of the deceased at the time of his death, or not; taking in such case, that portion of the property of the deceased intestate, which their own parent would have been entitled to, had he been living; which succession our predecessors have denominated per stirpes, or by stock. (56. Inst. de heredit, ab intestato. 2 Gaius 8. § 7. Cod. de suis. l. 2.) In this order of succession we make no enquiry as to the degree, but call up grand-children generally to the succession concurrently with the sons and daughters of a soft or a daughter previously deceased; and this without consideration of sex, or whether they sprang from the paternal or maternal side, whether they be free (sui juris) or still under power. Thus we have enacted as to descendants, and we now proceed to ascendants. (N. B. By throwing aside all considerations whether the claimants in succession sprang from the male or female side, the old law was changed. Nov. 18.4. ult—Cod. de suis. 9. 13. which is thus repealed. Inst. de heredit. ab intest. §4.— Cod. Theod. de legit. hered.
CIIAP. 2. Of the succession of ascendants: If the deceased hath left no descendants, his father or mother, or any other surviving relatives, in the right line ascending, shall succeed in preference to all collaterals, except brothers of the whole blood, as shall be noted presently. If there be many ascendants, let the nearest in degree be preferred, whether male or female, whether descended from the paternal or maternal line. If there be many in the same degree, let the inheritance be equally divided between them, so as that the heirs on the paternal side, however numerous, shall receive the one half, and those on the maternal side the other half. Should there be brothers and sisters of the deceased living, connected with him by descent from both parents,” as well as ascendant relations, let them be concurrently called to the succession. If the ascendants, should be father or mother, let the inheritance be divided between them and brothers (and sisters) that each shall have an equal part. Nor shall the parent claim an usufruct of the portion assigned to the brothers and sisters, for in lieu thereof we have by the present law assigned him his own share of the succession in full property. No distinction is to be made between persons thus called to the inheritance, whether they be male or female, or connected with the deceased by the father’s or the mother's side ; or whether the deceased were sui juris or under power when he died. We proceed therefore to the consideration of collateral succession, which relates either to agnates or cognates. CHAP. 3. On the succession of collaterals. If therefore the deceased hath left neither descendant or ascendant relations, we first call to the inheritance brothers and sisters born of the same father and the same mother, (i.e. of the whole blood,) whom we before called in concurrence with the parent. If brothers and sisters of the whole blood be wanting, we call in brothers (and sisters) of the half blood, whether on the father's side or the mother's side. But if the deceased left brothers, and also the children of a deceas•ed brother or sister, these last will be called to the inheritance concurrently with their uncle or aunt of the whole blood, and will be entitled
* ****** **pot brothers of the whole blood: germani. euerzreiss by the same father; consanguinei (and sometimes improperly germani.) eteorete by the same mother, uterini.
i This repeals Cod. de legitim, heredit. l. 13, and Cod. com success. 1. ult, in fin.
to the same portion whatever it be, that their parent would have been entitled to if alive. ... Hence, if a brother be dead, leaving children, and he was of the whole blood, while the living brothers may be of the half blood only, those children are preferred to their uncles, although they are in the third degree; and this whether the surviving uncles (or aunts) be connected in relationship with the deceased, by the father's side, or the mother's side; in like manner as their parent if living would have been ... preferred. Contrariwise, if the living brother be of the whole blood to the deceased, and the dead brother be a half brother only, the children of the latter are excluded, as their parent also would have been if alive. For the privilege of representation thus given, is conceded only to this class of relations, and extended no farther, than that the children of the deceased brothers or sisters, may succeed to that which their parent if living would have been entitled to. We confer this benefit on the children of brothers, when brought into consideration with their own uncles and aunts, whether of the paternal or maternal side. , If surviving relations in the ascending line should be called to the inheritance conjointly with brothers and sisters of the deceased, in that case we do not permit the children of a deceased brother or sister to be called in, even although their parent was of the whole blood. ' Whenever, therefore this privilege of representation is given to the children of a (deceased) brother or sister, that they should succeed in the place of their parent, and being in the third degree should be called concurrently with those who are in the second degree, it is manifestly for this reason, because they are preferred to uncles or aunts of the deceased, whether paternal or maternal, who also count no higher than the third degree. If the deceased hath left neither brothers, nor the children of a brother, collaterals are called to the inheritance according to the respective degrees they occupy, the nearest in degree being preferred to the more remote. If many persons be found related in the same degree, let the inheritance be divided equally between them according to their number, which our laws denominate, a division per capita. CHAP. 4. Takes away the distinction between agnates and cognates. CHAP. 5. Relates to the legitimate tutelage of children. CHAP. 6. On the authority of this law. Alterations made by the 127th Novel. We never regret any alteration in our laws, that may be of benefit to our subjects. We remember to have enacted (by the 118th Novel) that if a deceased person left brothers alive, and also children of a brother who died before him, those children should be called to the inheritance equally with their uncles, filling the place of their father, and entitled to his portion. But that if the deceased left any relations in the (right or direct) ascending line, together with brothers of the whole blood, and also children of a brother previously deceased, we directed the brothers of the deceased to be called to the inheritance concurrently with the surviving relations in the (right) line ascending, and excluded the dead brother’s children. CHAP. 1st, For the purpose of correcting this, we enact, that if a deceased person shall leave a living relation in the (right) ascending line, and brothers also who maybe called concurrently with such relation, and children also of a brother previously deceased, the latter shall be called in, concurrently with the rest, and succeed to the portion that their own parent, if alive, would have been entitled to. This we decree in respect of the children of a previously deceased brother of the whole blood: directing that they shall occupy the same rank, whether called concurrently with their uncles only, or with their uncles concurrently with a parent of the deceased in the ascending line. The rest of the Novel does not relate to this subject. Lib. III. Titul. 1. Definitio intestati, p. 191. Heirship is the succession to the universal right of the deceased. Dig. 50.62. A testamentary heirship takes effect presently on the death of the testator: a legitimate or lawful heirship, (cast by operation of law) takes place so soon as it is ascertained that the deceased died intestate. An heir under the Roman law, is properly likened to an executor under our law, but executors separate from heirs were also known under the later periods of the civil law, and their history is slightly but well touched by Dr. Brown. 1 Civ. Law. 310. § 1. Primus ordo succedentium, &c. p. 191. This law of the twelve tables is not extant. § 2. Qui sunt sui ha-redes, p. 191. Naturalis sint. Natural children, do not, in the expressions of the Roman law, mean bastards, but the actual children by procreation of the person spoken of, in contradistinction to adopted children. Cod. de natur. lib. l. l. 10. 11. Natural or illegitimate children, in the English sense of the word, could not be proper heirs, 7uia pater eorum incertus est, and pater est quem justa miptice demonstrant. Illegitimate children, born of a concubine, not of promiscuous copulation, or of adulterous or incestuous commerce, might, under the twelve tables, be instituted heirs by the will of the father to whatever portion he thought fit: this was afterwards restrained to cases where