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It was argued on the other side that there was no seisin in fact by the eldest sister, but at most a seisin in law, and the court would not incline to extend the operation of the rule excluding the succession of the half blood, beyond the striết letter of it.
Lord Kenyon said, “ Nothing can be clearer, than " that an infant may consider whoever enters on his “ estate, as entering for his use."-Resolved, that the surviving fister did not take by descent, but the lands should go to the heir of the whole blood of the sister who died.
Trulls de scend to the whole Blood. i Inst. 146. Dyer 10b.
$ 79. Before the statute of uses, it was held that there might be a poffeffio fratris of a use. And there. fore where cestui que use had issue a son and a daughter by one venter, and a fon by another venter, and died, the eldest son took the profits, and died without issue; it was held that the use should defcend to the daughter, as fister and heir to her brother; and not to the younger son.
The doctrine of half blood is now applied to trusts as fully as to legal estates.
Advoulons, S 78. Advowsons, tithes, and rents, defcend to the Tithes, &c.
whole blood; but there must be an actual seisin by i luli. 3 Rep. 41 b. presentation to the church, or receit of the tithes or
rents, to make a polelio fratris; so that if the eldest fon dies before the church becomes vacant, or any receit of tithes or rent, his brother of the half blood will inherit, as heir to his father; who was the person lalt feised.
S 79. Thus
S 79. Thus if a man seised of an advowson in gross 1 Roll
628. pl. io. hath issue a son and a daughter by one venter and a son by another and dies, and the eldest son dies before any presentation, the youngest brother shall have the advowson; because the elder never had any feisin thereof.
S 80. But if the eldest had presented, and died Idem pl. 11. without issue, the youngest brother should not have had the advowson, because the presentation put the seifin in him.
S 81. If two daughters by several venters make Idem pl. 19,
13. partition of an advowson in gross to present by turns, and after one dies without issue before any presentation, the other shall have the advowson, because there was no feisin thereof.-But it would have been otherwise if the that died had presented after partition.
$ 82. Lord Coke says, the doctrine of half blood ex- 1 Inft. 156. tends to offices, courts, liberties, franchises, and commons of inheritance.
S 83. A right to an estate in remainder or reversion will not exclude the half blood ; of which an account will be given in the next chapter.
S 84. The seventh and last canon or rule of descent
7th Canon. is,_" That in collateral inheritances the male stocks The Male " shall be preferred to the female (that is, kindred ferred. " derived from the blood of the male ancestors, however remote, shall be admitted before those from
" the blood of the female, however near) unless 66 where the lands have in fact descended from a
2 Comm. 235.
$ 85. Sir William Blackstone obferves 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 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, to the present time, they judged it more likely that the lands should have descended to the last tenant, from his male, than from his female ancestors.
Mode of tracing an Heir at Law.
S 86. After a due consideration of the canons or rules of descent already laid down, it will not be a difficult 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 feised : 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, ist, dignity of blood, and 2d, proximity of blood.
$ 87. Lord
S 87. Lord Coke, in his Commentary on Littleton, i 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 fatisfactory to enumerate 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.
S 88. These classes are,
1. The male stock of the paternal line.
2. The female stock of the paternal line.
3. The male branches of the female stock of the paternal line.
4. The female branches of the female stock of the paternal line.
5. The male stock of the maternal line.
6. The female branches of the male stock of the maternal line.
7. The male branches of the female stock of the maternal line.
8. The female branches of the female stock of the maternal line.
S 89. 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
E e 3
Vide Table of Descents
descending line, must of necessity trace from a person bearing the name of Stiles, whether it be John, 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 con. tributed 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 fame 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, be. fore 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.
S 90. 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