the surviving sister did not take by descent; but the lands should go to the heir of the whole blood of the sister who died. 66. Before the statute of uses, it was held that Trust Estates are within the there might be a possessio fratris of a use: therefore Rule. where a cestui que use had issue a son and a daughter 1 Inst. 14 b. Dyer, 10 b. by one venter, and a son by another venter, and died; the eldest son took the profits, and died without issue; it was held that the use should descend to the daughter, as sister and heir to her brother, and not to the younger son. 67. Since the doctrine of trusts has been established by the Court of Chancery, the rule of possessio fratris is applied to trust estates, as fully as to legal ones. 68. Advowsons, tithes, and rents descend to the And Advowwhole blood: but there must be an actual seisin, by sons, Tithes, presentation to the church, or receipt of the tithes or 1 Inst. 15 b. rents, to make a possessio fratris. So that if the eldest 3 Rep. 41 b. son dies before the church becomes vacant, or any receipt of tithes, or rent, his brother of the half blood will inherit as heir to his father, who was the person last seised. 69. Thus if a person seised of an advowson in gross, 1 Roll. Ab. has issue a son and a daughter by one venter, and a 628. pl. 10. son by another venter, and dies; the eldest son dies before any presentation; the younger brother shall have the advowson, because the elder never had any seisin thereof. But if the elder had presented, and Id. pl. 11. died without issue, the younger should not have had the advowson, because the presentation put the seisin in the eldest. 70. If two daughters by several venters make par- Id. 12 & 13. tition of an advowson in gross, to present by turns; and after one dies without issue, before any presen tation; the other shall have the advowson; because 1 Inst. 15 b. 7th Canon. The Male Stocks preferred. there was no seisin thereof. It would have been otherwise if she that died had presented after partition. 71. Lord Coke says, the doctrine of half blood extends to offices, courts, liberties, franchises, and commons of inheritance. 72. The seventh and last canon or rule of descent is," That in collateral inheritances, the male stocks shall be preferred to the female; that is, kindred derived from the blood of the male ancestor, 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." 73. Thus the relations on the father's side are admitted in infinitum, before those on the mother's side are admitted at all; and the relations of the father's father, before those of the father's mother, 2 Comm.235. and so on. Sir W. Blackstone observes that this rule was established in order to effectuate and carry into execution the fifth rule or principal canon of collateral inheritance, 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, they judged it more likely that the lands should have descended to the last tenant, from his male, than from his female ancestors. The right of inheritance therefore 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. Heir at Law. 74. After a due consideration of the canons or rules Mode of of descent already laid down, it will not be a difficult tracing an matter to ascertain the party on whom the law casts the inheritance, whenever a comprehensive genealogy shall be made out, of the persons connected in blood with the propositus, or party last seised: for there is no title in the English law reducible to a more technical system than the title of descent in fee simple. One or the other of two principles only will determine every case of competition on the subject of inheritance at common law; these principles are, 1st. dignity of blood, and 2d, proximity of blood. 12 a. 75. Lord Coke, in his commentary on Littleton, 1 Inst. 10 a. has partly explained in what order the attribute of dignity of blood is applied by legal intendment. But as the whole subject is susceptible of a compendious. arrangement, perhaps it may be satisfactory to emumerate the several classes which by physical necessity must comprehend every description of kindred; and to state the degree of dignity in which they stand to the propositus. 76. These classes are, 1o. The male stock of the paternal line. 2o. The female stock of the paternal line. 3o. The male branches of the female stock of the paternal line. 4°. The female branches of the female stock of the paternal line. 5o. The male stock of the maternal line. 6o. The female branches of the male stock of the maternal line. 7. The male branches of the female stock of the maternal line. Vide Table 8. The female branches of the female stock of the maternal line. 77. The reason and progress of this series will, on a little consideration, appear intelligible. They who trace from the male stock, either in the ascending or descending line, must of necessity trace from a person bearing the name of Stiles, whether it be John, of Descents. Geoffry, George, Walter, or Richard; and Stiles being the family name, they are all entitled to the first rank of dignity. When these are exhausted, recourse is to be had to those female stocks who have intermarried with the males of the name of Stiles, and have contributed to the blood of the paternal line; such as Cecilia Kempe, Christian Smith, and Ann Godfrey, who constitute the second class. Every female having so intermarried, at how remote soever a period, is deemed to be a stock of the same class, and all those of the same class are held to be equal in point of dignity. It is further to be observed that each stock in the ascending line is successively to be exhausted, first in its male, and then in its female branches, before we proceed to the next immediate female stock, for reasons hereafter to be assigned; and this doctrine gives rise to the third and fourth classes, namely, the male branches of the female stock of the paternal, and the female branches of the female stock of the paternal line. The same gradation takes place in the maternal line, and gives rise to the subsequent, or 5, 6, 7, and 8, classes, on the same ground as in the paternal line; and therefore it is unnecessary to repeat them. Thus far in explanation of the first principle. 78... The second principle, or that of proximity of blood, is twofold; it is either positive, or representative. It is positive when parties claim in their own individual right; as between the second and third son, or between the uncle and grand uncle. It is representative when either of the parties claims as being lineally descended from another; in which case he is entitled to the degree of proximity of his ancestor. Thus the grandson of the eldest son of the propositus is entitled before the second son of the propositus, though, in common acceptation, nearer by two degrees; and the principle of representative proximity is by the law of England so peremptory, that a female may avail herself thereof to the exclusion of a male claiming in his own right; for in descents in fee simple the daughter of the eldest son shall succeed in preference to the second son. 79. Having thus explained the nature of these two principles, we proceed to observe, that the first principle, namely, that of dignity of blood, is positive, and operates on all occasions, without reference to any other principle, where it can be shown that the claimants are unequal in point of dignity of blood, and that they range under different classes of the series as above stated. In all such cases the inheritance will vest, by act of law, in the worthiest of blood. Thus if, according to the table of descents annexed, a competition should arise between the issue of Andrew and Esther Baker, and the issue of Richard and Ann Stiles, although the former represent an uncle, and the latter a great great uncle, the latter shall prevail, because he is of the first class of dignity, whereas the former falls under the fifth. 80. But when the claimants range under the same class of dignity, the first principle is inert; recourse must then be had to the second, namely, that of proximity; and the claimant shall be preferred in respect of the proximity of the stock through which he claims to the propositus. |