Collateral $ 35. The fifth canon or rule of defcent is 5th Canon. "That on failure of lineal defcendants or iffue of the "perfon last seised, the inheritance fhall defcend to "his collateral relations, being of the blood of the "first purchaser, fubject to the three preceding "rules." § 36. It is a maxim of the common law that no person can inherit an eftate, unless he is defcended from the first purchafer, or original acquirer of it. This rule is to be found in the Grand Couftumier of Normandy, ch. 25. from whence it was introduced here, and is plainly derived from the feudal law; for when feuds firft became hereditary, no perfon could fucceed to a feudum novum but the lineal defcendants of the person who first acquired it, who was called the perquifitor. So that if a perfon died feised of a feud of his own acquiring, without leaving iffue, it did not go to his brothers, but reverted to the donor. If it was a feudum antiquum, that is, if it had descended to the vaffal from his ancestors, then his brothers, or fuch other collateral relations as were defcended from the person who firft acquired it, might fucceed. $ 37. Thus Lord Hale fays, if the fon purchases Hift. c. 11. land and dies without iffue, it shall defcend to the heirs of the part of the father; and if he has none, then to the heirs on the part of the mother; because though the fon has both the blood of the father and of the mother in him, yet he is of the whole blood of the mother; and the confanguinity of the mother are confanguinei confanguinei cognati of the fon; and of the other fide, if the father had purchafed lands, and it had defcended to the son, and the fon had died without iffue, and without any heir of the part of the father,-it should never have descended in the line of the mother, but efcheated. For, though the confanguinei of the mother were the confanguinei of the fon, yet they were not of confanguinity to the father, who was the purchafer. But if there had been none of the blood of the grandfather, yet it might have reforted to the line of the grandmother; because her confanguinei were as well of the blood of the father, as the mother's confanguinity is of the blood of the fon. Confequently alfo, if the grandfather had purchased lands, and they had defcended to the father, and from him. to the fon; if the fon had entered and died without iffue, his father's brothers or fifters, or their defcendants; or, for want of them, his great-grandfather's brothers or fifters, or their defcendants; or, for want of them, any of the confanguinity of the great-grandfather, or brothers or fifters of the great-grandmother, or their defcendants, might have inherited. For the confanguinity of the great-grandmother was the confanguinity of the grandfather. But none of the line of the mother or grandmother, viz. the grandfather's wife, fhould have inherited, for that they were not of. the blood of the first purchaser. And the fame rule, è converfo, holds in purchases in the line of the mother or grandmother. They fhall always keep in the fame line that the first purchaser settled them in. § 38. When § 38. When the feudal rigor was in part abated, a 2 Comm. 221. method was invented to let in the collateral relations of the first purchaser to the inheritance by granting á feudum novum, to hold ut feudum antiquum, that is, with all the qualities annexed, of a feud derived from his ancestors: and then the collateral relations were admitted to fucceed even in infinitum, because they might have been of the blood of the first imaginary purchaser. § 39. In imitation of this rule, it has long been 2 Comm.222. established, that every acquifiton of an eftate in fee fimple by purchase, is confidered by the English law as a feudum antiquum, or feud of indefinite antiquity; and therefore the collateral kindred of the grantee, or defcendants from any of his lineal ancestors, by whom the lands might have poffibly been purchased, are capable of being called to the inheritance. § 40. But Sir William Blackftone obferves, that Idem. when an eftate hath really defcended in a course of inheritance to the perfon laft feifed, the ftrict rule of the feudal law is still obferved; and none are admitted but the heirs of thofe through whom the inheritance hath paffed; for all others have demonftrably none of the blood of the first purchaser in them, and therefore fhall never fucceed. $ 41. Thus where lands defcend to a perfon on the part of the father, none of his relations on the part of his mother can inherit them; and vice verfa, where lands 1 Inft. 13 6. Doug. R. 773-1 What A&ts will alter the Defcent. * Inft. 126. 57. 2. lands defcend to a perfon from his mother, no relation on the part of his father can inherit them. $ 42. Inheritances of this kind cannot be created by any act of the parties; for if a perfon 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 fhall inherit. For no man can create a new kind of inheritance not allowed by the law; and therefore the words " On the part of his mother," are void. § 43. Where a perfon is feifed in fee by defcent ex parte paterna, or ex parte materna, there are many acts which may be done by fuch a person that will operate fo as to make him a new purchafer of the eftate, by which means it will be confidered as a feud of indefinite antiquity; and will by that means be come defcendible to his heirs general, whether of the paternal or maternal line. § 44. Thus Lord Coke fays, if a man be seised of lands as heir of the part of his mother, and maketh a feoffment in fee, and taketh back an estate to him and to his heirs, this is a new purchase; and if he dieth without issue, the heirs of the part of the father fhall inherit. Mr. Hargrave has obferved on this passage that Lord Coke must be understood to fpeak of two distinct conveyances in fee. The first paffing the use as well as the poffeffion to the feoffee, and fo compleatly divesting the feoffor of all interest in the land; and the second regranting the estate to him. $ 45. If § 45. If a perfon seised ex parte materna makes a feoffment in fee, referving 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 difpofition of the land; and the rent was acquired by purchase. § 46. The renewal of a leafe being confidered as a new acquifition, the perfon renewing becomes a purchafer, and the defcent is thereby altered. 1 Inft. 12 b. Prec. in Cha. § 47. Elizabeth Mafon having purchased a leafe for Mafonv. Day, three lives, died leaving Mary her daughter and heir, an infant. Two of the lives being dead, the guardians of the infant, out of the profits of the estate, took a new lease, to the infant and her heirs, during three new lives, and afterwards the infant died without iffue. The question was, whether this leafe fhould defcend to the heirs of the infant ex parte paterna or materna. It was contended that it fhould go to the heirs ex parte materna, being a renewal only of the old lease, and under the old truft. And if the infant heir had died without iffue, before the renewal, living the furviving cestui que vie, there had been no queftion of it; and so ought this new leafe, being renewed out of the profits of the old leafe. But it was answered and refolved by the Master of the Rolls, that this new leafe was a new acquifition, and vested in the daughter, as a purchafer, and there fore |