Rule 3. Difference between the to the collateral line. 2 Inst. 683. 25 H. 8. * 24 a. (Plowd. 444.) It is to be noted, that in every line the person must be reckoned from whom the computation is made. And there is no difference between the canon and civil law in the ascending and descending line (1); for those whom the civilians do reckon in the second degree, the canonists do reckon in the first (2); and those whom they place in the fourth, these place in the second. Therefore if we will know in what degree two of kindred do stand according to the civil law, we must begin our reckoning from one, by ascending to the person from whom both are branched, and then by descending to the other to whom we do count, and it will appear in what degree they are. For example, in brothers and sisters sons, take one of them and ascend to his father, there is one degree; from the father to the grandfather, that is the second degree; then descend from the grandfather to his son, that is the third degree; then from his son to his son, that is the fourth. But by the canon law there is another computation, for the canonists do ever begin from the stock, namely, from the person of whom they do descend; of whose distance the question is. For example, if the question be, in what degree the sons of two brothers stand by the canon law, we must begin from the grandfather and descend to one son, that is one degree; then descend to his son, that is another degree; then descend again from the grandfather to his other son, that is one degree; then descend to his son, that is a second de tot sunt gradus inter eas. II. Pro collateralibus. Collateralium in li neà æquali quoto gradu quis distat à stipite communi, toto distant inter se vel sibi attinent. Collateralium in lineâ inæquali quoto gradu remotior distat à communi stipite, toto inter se distant.-Juxta” jus civile.-I. In lineâ rectâ ascendentium et descendentium quot sunt persanæ, de quibus quæritur, computatis intermediis, unâ demptâ, tot sunt gradus inter eas. II. Collateralium. 1. In lineâ æquali, quoto gradu qui distat à communi stipite, toto duplicato distant inter se, vel sibi attinent; nam quælibet persona facit gradum. 2. In lineâ inæquali, quot sunt personæ, stipite dempto, tot sunt gradus.-Nota in contrac tibus matrimonialibus computatio canonica est recepta, et hoc per decretalem Innocentis tertii in concilio generali. Hal. MSS.-[Hargr. n. 3. 23 b. (142).] gree; so in what degree either of them are distant from the common stock, in the same degree they are distant between themselves: and if they be not equally distant, then we must observe another rule. In what degree the most remote is distant from the common stock, in the same degree they are distant between themselves; and so the most remote maketh the degree. Gradus dicitur à gradiendo, quia gradiendo ascenditur et descenditur. And thus much of the civil and canon law is necessary to the knowledge of the common law in this point (3). [Sect. 2. 10a.] Rules of descent. 1. To the next of blood. (c) AND if a man purchase land in fee-simple and die LITTLETON. without issue, he which is his next cousin collateral of the whole blood, how fur soever he be (4) from him in de gree, may inherit and have the land as heir to him. (3) See further as to consanguinity and the manner of computing its degrees by the civil and canon law, Bl. Law Tracts, 8vo. ed. v. 1. p. 14. and 173; and the annotations in the edit. of the Corp. Jur. Canon. by the Pithai, on that part of Gratian's Decretum cited by (4) de lui, L. and M. Roh. Red. (G) All possible hereditary successions, says Sir Matthew Hale, may be distinguished into three kinds, viz. First, in the descending line, as from father to son or daughter, nephew or niece, i. e. grandson or granddaughter. Secondly, in the collateral line, as from brother to brother or sister, and so to brother and sister's children. Thirdly, in an ascending line, either direct, as from son to father, or grandfather (which is not admitted by the law of England); or in the transversal line, as to the uncle or aunt, great-uncle or great-aunt, &c. And because this line is again divided into the line of the father, or the line of the mother, this tranverse ascending succession is either in the line of the father, grandfather, &c. on the blood of the father; or in the line of the mother, grandmother, &c. on the blood of the mother. The former are called agnati, the latter cognati. 2 Hal. H. C. L. c. 11. p. 113, 114. See Gradus Parentelæ. The rules which govern the law of descents in England, will be considered, in this chapter, under two general heads, 1st. To the next in blood; ander which division will be stated, the preference of the lineal line over the collateral line; the doctrine of representation; and the exclusion of lineal ascent. 2d. To the most worthy of blood; which head will embrace the doctrine of the preference of males to females, and of the paternal line over the maternal line, with the rules as to descents ex parte puterna and er parte materna; the right of primogeniture; and the exclusion of the half blood. And here we may remark, as introductory to the doctrine contained in this chapter, that by law no inheritance can vest, nor can any person be the actual complete heir of another, till the ancestor is previously dead: Nemo est hæres viventis. Before that time, the person who is next in the line of succession, is called an heir apparent, or heir presumptive. Heirs apparent are such whose right of inheritance is indefeasible, provided they outlive their ancestor; as the eldest son or his issue, who must by the course of the common law be heir to the father, whenever he happens to die. Heirs presumptive are such who, if the ancestor should die immediately, would, in the present circumstances of things, be his heirs; but whose right of inheritance may be defeated, by the contingency of some nearer heir being born. 2 Bl. Com. 208. Infra, 11 b.-[Ed.] 10 a. (Plowd. 444.) 10 b. red to the collateral line. Glan. lib. 7. ca. 3. 4. Littleton sheweth here who shall be heir to lands in feesimple; for he intendeth not this case of an estate tail, for that he speaketh of an heir of the whole blood, for that extendeth not to estates in tail, as shall be said hereafter in this chapter, section 6. Neither excludeth he brethren or sisters, because he hath a special case concerning them in this chapter, sect. 5. and in his chapter of Parceners; but this is intended where a man purchaseth lands and dieth without issue, and having neither brother nor sister, then his next cousin collateral shall inThe lineal line prefer herit (5). So as here is implied a division of heirs, viz. lineal (whoever shall first inherit), and collateral (who are to inherit for default of lineal). For in descents it is a maxim in fol. 65. Brit. c. 119. law, quòd linea recta semper præfertur transversali (Ħ). Fleta, lib. 6. cap. 1 & 2. (Plowd. 444.) Lineal descent is conveyed downward in a right line; as from Bract. lib. 2. cap. 30. the grandfather to the father, from the father to the son, &c. Collateral descent is derived from the side of the lineal; as grandfather's brother, father's brother, &c. "Next cousin collateral shall inherit" doth give a certain direction to the next cousin to the son, and therefore the father's brother and his posterity shall inherit before the grandfather's brother and fol. 64. Fleta, lib. 5. cap. 5. & lib. 6. cap. 1. & 2. Brit. ca. 119. Mirror, 11. cap. 1. sect. 3. 30 Ass. p. 47. (3 Co. 40. 42.) (5) In the preceding page, Lord Coke begins his comment on that part of Littleton which describes the course of descent by the common law of England; and this seems to be a proper place for referring the student to some valuable writings published since Lord Coke's time on the same subject, See Hal. Hist. C. L. c. 11. Wright's Ten. 174. Gilb. Ten. 2. Dalrymp. Feud. Prop. 4th ed. c. 5. p. 159; and Bl. Law of Desc. To the first and last of these books it is that we principally call the attention of the student; though it must be confessed, that in all of them the history of the law is so learnedly and critically traced, and the feudal principles, on which it chiefly depends, are so clearly unfolded, that a subject in itself dry and abstruse, be comes not only plain and intelligible, but even agreeable and interesting. Mr. R. Robinson's Discourse concerning the Law of Inheritances in Fee-simple, is another treatise on the same subject, which should not be passed over without notice. Many parts of it are ingeniously written: but unfortunately the author has chiefly exerted his talents in inventing a new calendar of consanguinity, the explanation of which employs a very considerable part of the work; and by always referring to this, and by introducing a number of arbitrary terms, which are only intelligible as he explains them, he involves his subject, before too much embarrassed with difficulties, in still greater perplex< ity.-[Hargr. n. 1. 10 b. (54).] (H) This rule, says Sir William Blackstone, is almost universally adopted by all nations; and it seems founded on a principle of natural reason, that (whenever a right of property transmissible to representatives is admitted) the possession of the parents should go, upon their decease, in the first place, to their children, as those to whom they have given being, and for whom they are therefore bound to provide. 2 Bl. Com. 210.-[Ed.] his posterity. Et sic de cæteris; for propinquior excludit propinquum, et propinquus remotum, et remotus remotiorem. One hath issue 100. Upon this word (next) I put this case. two sons, A. and B., and dieth; B. hath issue two sons, C. and D., and dieth. C. the eldest son hath issue and dieth. A. purchaseth lands in fee-simple, and dieth without issue, D. is the next cousin, and yet shall not inherit, but the issue of C.; for he that is inheritable is accounted in law next of blood. And therefore here is understood a division of next, "Next of blood," intended of the next jure viz. next jure repræsentationis, and next jure propinquitatis; representationis. that is, by right of representation and by right of propinquity. 19 R. 2. tit. Garr. And Littleton meaneth of the right of representation, for legally in course of descents he is next of blood inheritable (1). And the issue of C. doth represent the person of C.; and if C. had lived, he had been legally the next of blood. And whensoever the father, if he had lived, should have inherited, his lineal heir by right of representation shall inherit before any other, though another be, jure propinquitatis, nearer of blood. And therefore Littleton intendeth this case of next cousin of blood immediately inheritable. So as this pro-` duceth another division of next blood, viz. immediately inheritable, as the issue of C.; and mediately inheritable, as D., if the issue of C. die without issue; for the issue of C., and all that line, be they never so remote, shall inherit before D. or his line; and therefore Littleton saith well, how far so ever he be from him in degree. And here ariseth a Diversity herein in the case of purchase. diversity in law between next of blood inheritable by descent, and next of blood capable by purchase. And therefore in the case before mentioned, if a lease for life were made to A., the remainder to his next of blood in fee; in this case, as hath been said, D. shall take the remainder, because he is next of blood and capable by purchase, though he be not legally next to take as heir by descent (6). (6) "Harpur having a son and four daughters, viz. Ẩ. B. C. and D. devises to the son in tail, re- (I) And these representatives take neither more nor less, but just so much as their principals would have done. This taking by representation is called succession in stirpes, according to the roots; since all the branches inherit the same share that their root, whom they represent, would have done. 2 Bl. Com. 217. The Jewish succession was after the same manner, Seld. de Sacc. Ebr. c. 1.; but the Roman somewhat differed. See Nov. 110. c. 3. Inst. 3. 1. 6. 2 Bl. Com. 218.-[Ed.] M VOL. II. (2 Inst. 7.) 30 Ass. p. 47. LITTLETON. Exclusion of lineal ascent-the father, not inheritable to his son's estate; BUT if there be father and son, and the father hath a [Sect. 3. 10b.] brother that is uncle to the son, and the son purchase land in fee-simple, and die without issue, living his father, the uncle though next of blood, shall have the land as heir to the son, and not the father, yet the father is nearer of blood; because it is a maxim in law, that inheritance may lineally descend, but not (7) ascend. unless he claim by col. Yet if the son in this case die without issue, and his uncle enter into the land as heir to the son (as by law he ought), and after the uncle dieth without issue, living the father, the father shall have the land as heir to the uncle, and not as heir to his son, for that he cometh to the land by collateral descent, and not by lineal ascent. Lateral descent, as heir to his son's uncle: Ila. (c) Pl. Com. 293 b. Osborne's case. (c)" It is a maxim in law, that inheritance may lineally descend, but not ascend." I never read any opinion in any book old or new against this maxim, but only in lib. rub. (d) Lib. Rub. ca. 70. where it is said, (d) si quis sine liberis decesserit, pater aut mater ejus in hæreditatem succedat, vel frater et soror si pater et mater desint; si nec hos habeat, soror patris cel matris, et deinceps qui propinquiores in parentelâ fuerint hæreditariò succedant; et dum virilis serus extiterit, et hæreditas abinde sit, fæmina non hæreditat. But all our ancient authors and the constant opinion ever since do affirm the maxim. (e) Brit. cap. 119. Fleta, lib. 6. ca. 1. Numb. ca. 27. Rat By this maxim in the conclusion of his case, only lineal ascension in the right line is prohibited, and not in the collateral. (e) Qualibet hæreditas naturaliter quidem ad haredes hæreditabiliter descendit, nunquam quidem naturaliter cliff's case, ubi supra. ascendit. Descendit itaque jus quasi ponderosum, quod cadens (3 Co. 40.) deorsum recta lineâ vel transversali, et nunquam reascendit eâ viâ quâ descendit post mortem antecessorum, à latere tamen mainder proximo consanguinitalis et citing from Ratcliffe's case, 3 Co. 40. that on the stat. 21 H. 8. the father or mother shall be preferred in administration to the son, as next of blood before the brother, he adds, "Nota, ruled that in administration, the sister of the half blood should be preferred in administration before the son of the sister of the whole blood; but when they are in @quali gradu, the sister of the whole blood shall be preferred before the sister of the half blood. M. 23 Ch. & M. 1650. B. R. Brown's case." Hal. MSS. See further as to prorimus de sanguine in Dy. 333 b.[Hargr. n. 2. 10 b. (55).] (7) linealment-P. and Red. |