says-Si quis plures habet filios, jus proprietatis semper descendit ad primogenitum, eo quod ipse inventus ·est primo in rerum natura. equally. 25. As to the females, all being equally incapable But Females of performing any military service, there could be no reason for preferring the eldest; and therefore Little ton states the law to be, that where a man or woman, § 241. seised of lands in fee or in tail, hath issue but daughters, they shall all equally inherit, and make but one Tit. 19. § 1. heir, and are called parceners by descent. 26. The fourth canon or rule of descent is, 4th Canon.. "That the lineal descendants in infinitum of any presentation. Right of Reperson deceased shall represent their ancestor; that is, shall stand in the same place as the person himself would have done, had he been living." "Hence it is (says Lord Hale) that the son or list. c. 11. grandchild, whether son or daughter, of the eldest son, succeeds before the younger son; and the son or grandchild of the eldest brother before the youngest brother. And so through all the degrees of succession, by the right of representation, the right of proximity is transferred from the root to the branches, and gives them the same preference as the next and worthiest of blood." 27. It follows from this rule, that the nearest rela- 1 Inst.10 b. tion is not always the heir at law, as the next cousin jure representationis is preferred to the next cousin jure propinquitatis. And the taking by representation is called succession per stirpes, according to the roots; since each branch inherits the same share that their root or stirps, whom they represent, would have taken." 28. "This right (continues Lord Hale) transferred Hist. c. 11. by representation, is infinite and unlimited, in the degree of those that descend from the represented, Idem. 5th Canon. Collateral Descents. The Heir must be de For the son, the grandson, and the great grandson, and so in infinitum, enjoy the same privilege of representation as those from whom they derive their pedigree had, whether it be in descents lineal or transversal; therefore, the great grandchild of the eldest brother, whether it be a son or a daughter, shall be preferred before the younger brother, because though the female be less worthy than the male, yet she stands in right of representation of the eldest brother, who was more worthy than the younger." 29. So, "if a man have two daughters, and the eldest dies in the life of the father, leaving six daughters, and then the father dies, the youngest daughter shall have an equal share with the other six daughters, because they stand in representation and stead of their mother, who could have but a moiety." 30. The fifth canon or rule of descent is, "That on failure of lineal descendants or issue of the person last seised, the inheritance shall descend to his collateral relations, being of the blood of the first purchaser, subject to the three preceding rules." 31. It is a maxim of the common law, that no scended from person can inherit an estate unless he is descended from the first purchaser or acquirer of it. This rule 1 Inst. 12 a. is to be found in the Grand Coustumier of Normandy, the first Purchaser. c. 25., from whence it was introduced here, and is plainly derived from the feudal law. For when feuds first became hereditary, no person could succeed to a feudum novum but the lineal descendants of the first acquirer, who was called the perquisitor. So that if a person died seised of a feud of his own acquiring, without leaving issue, it did not go to his brothers, but reverted to the donor. If it was feudum antiquum, that is, if it had descended to the proprietor from any of his ancestors, then his brothers, or such other collateral relations as were descended from the person who first acquired it, might succeed. 32. When the feudal rigour was in part abated, a 2Comm.221. method was invented to let in the collateral relations of the first purchaser to the inheritance, by granting a feudum novum, to hold ut feudum antiquum; that is, with all the qualities annexed to a feud derived from his ancestors; and then the collateral relations were admitted to succeed, even in infinitum; because they might have been of the blood of the first imaginary purchaser. 33. In imitation of this rule, it has long been Idem 222. established in England, that every acquisition of an estate in fee simple by purchase, shall be considered as a feudum antiquum, or feud of indefinite antiquity: therefore the collateral kindred of the grantee, or descendants from any of his lineal ancestors, by whom the lands might possibly have been purchased, are capable of being called to the inheritance. 34. But where an estate has really descended, in a course of inheritance, to the person last seised, the strict rule of the feudal law is still observed; and none are admitted but the heirs of those through whom the inheritance has passed; for all others have demonstrably none of the blood of the first purchaser in them. 35. Thus Lord Hale says, if the son purchases Hist. c. 11. land, and dies without issue, it shall descend to the 120. heirs on the part of the father; and if he leaves. none, then to the heirs on the part of the mother : because though the son has both the blood of the father and the mother in him, yet he is of the whole blood of the mother; and the consanguinity of the Descents ex parte paterna et materna. mother are consanguinei cognati of the son. On the other side, if the father had purchased lands, and it had descended to the son, and the son had died without issue, and without any heir on the part of the father; it should never have descended in the line of the mother, but escheated. For though the consanguinei of the mother were the consanguinei of the son, yet they were not of consanguinity to the father, who was the purchaser. But if there had been none of the blood of the grandfather, yet it might have resorted to the line of the grandmother; because her consanguinei were as well of the blood of the father, as the mother's consanguinity is of the blood of the son consequently, also, if the grandfather had purchased lands, and they had descended to the father, and from him to the son, if the son had entered, and died without issue, his fathers, brothers, or sisters, or their descendants; or for want of them, his grandfather's brothers or sisters, or their descendants; or for want of them, his great grandfather's brothers or sisters, or their descendants; or for want of them, any of the consanguinity of the great grandfather, or brothers or sisters of the great grandmother, or their descendants, might have inherited; for the consanguinity of the great grandmother was the consanguinity of the father: but none of the line of the mother or grandmother, viz. the grandfather's wife, should have inherited; for that they were not of the blood of the first purchaser. And the same rule e converso holds in purchases in the line of the mother or grandmother: they shall always keep in the same line that the first purchaser settled them in. 36. It follows, that where lands descend to a person on the part of his father, none of his relations Goodtitle v. White, 283. N. S. 773. on the part of his mother can inherit them. And 1 Inst. 12 a. vice versa where lands descend to a person from his mother, no relation on the part of his father can 2 Bos. & Pull. inherit them. Inheritances of this kind cannot 1 Inst. 13 a. however be created by any act of the parties: for if Doug. R. a person gives lands to another, to hold to him and his heirs, on the part of his mother; yet the heirs on the part of the father shall inherit. For no man can create a new kind of inheritance, not allowed by the law; therefore the words, on the part of his mother, are void. will alter the 37. Where a person is seised in fee simple by What Acts descent ex parte paterna or materna, there are many Descent. acts which may be done by such a person, that will operate so as to make him a new purchaser of the estate; by which means it will become a feud of indefinite antiquity, and descendible to his heirs general, whether of the paternal or maternal line. 罪 38. Thus Lord Coke says, if a person be seised of 1 Inst. 12 b. lands, as heir of the part of his mother, and makes a feoffment in fee, and takes back an estate to him and to his heirs, this is a new purchase: and if he dies without issue, the heirs of the part of the father shall inherit. Mr. Hargrave has observed on this passage, that Lord Coke must be understood to speak of two distinct conveyances in fee. The first passing the use, as well as the possession, to the feoffee, and so completely divesting the feoffor of all interest in the land; and the second regranting the estate to him. So if a person seised ex parte materna makes a feoffment in fee, reserving a rent to himself and his heirs, this rent will go to the heirs ex parte paterna ; because the feoffment in fee was a total disposition of the estate; and the rent was acquired by purchase. Idem. |