ascendit alicui propter defectum hæredum inferius provenientium; so as the lineal ascent is prohibited by law, and not the collateral (8). And in prohibiting the lineal ascent, the common law is assisted with the law of the twelve tables (9). (8) In Ratcliffe's case, 3 Co. 40, the reasons given for excluding lineal ascent are, first, that fathers and mothers are not of the blood of their children; secondly, that the exclusion is agreeable to the Jewish law, as prescribed to Moses by God himself; and thirdly, that it tends to avoid that confusion and diversity of opinions in the case of descents, of which the allowance of lineal ascension by the cicil law is said to be the occasion. Lord Coke himself controverts the first of these reasons, by the words of Littleton in the section here commented upon, and by the case of administration, in which the father or mother is preferred as nearest of blood to their children, and also by the case of a remainder to the son's nearest of blood, under which description the father is entitled to take by purchase. But as to the two other reasons, Lord Coke rather appears to adopt them. However, neither of them seems satisfactory. The inference from God's precept to Moses is unwarranted, unless it can be shewn, that it was promulgated as a law for mankind in general, instead of being, like many other parts of the Mosaical law, a rule for the direction of the Jewish nation only. Besides, by the Jewish law, the father did succeed to the son in exclusion of his brothers, unless one of them married the widow of the deceased, and raised up seed to him. See Bl. Law Tracts, V. 1. p. 132. 8vo. ed. and Seld. de Succes. Ebræor. c. 12. there cited. The argument from the supposed confusion and uncertainty, which might arise, if lineal ascent should be permitted, is not less liable to objection; because lineal ascent might be governed by the same rules as lineal descent; and what is the difference between the two, that should create more confusion and uncertainty in the one case than in the other? Our modern writers account for our law's disallowance of lineal ascent in a very different way; and according to them, it in a great measure originated from the nature of ancient feudal grants, which, like estates tail, being confined to the first feudatory and his descendants, necessarily excluded his father and mother, and all para mount them and also his collateral relations. How this rule in prac tice became extended so as to exclude lineal ascent universally, with out confining it to the cases to which the feudal reason for the rule is applicable, and yet at the same time is so construed, as to let in all collateral relations, and even the father himself collaterally, and by the medium of others, is not now very easy to explain, though this has been attempted. See Wright's Ten. 189. and Bl. Law Tracts, v. 1. p. 183. 8vo. ed. See also a learned note on the subject in Littleton avec Observat. par M. Houard. This edition of Littleton is in 2 vol. 4to. and was published at Rouen in 1766. [Hargr. n. 1. 11 a. (56).] [And see Sulliv. Lect. xiv. 2 BI. Com. 208. Lord Hale, in his History of the Common Law, says, that, by the law of Normandy, the father was postponed to the brother and sister, and their issues, but was preferred before the uncle. According to the Jewish law, the father was preferred before the brother; by the Romian law he succeeded equally with the brother. But by the English law the father cannot take from his son by an immediate descent, but may take as heir to his brother, who was heir to his son, by collateral descent. 2 Hist. c. 11. 5th ed. p. 93. A father or mother may, however, be cousin to their own child, and in that relation may inherit from him, notwithstanding the relation of father or mother. Eastwood v. Vincke, 2 P. Wms. 614][Ed.] (9) See Tub. 5. 1. de successione ab intestato; but neither in this, nor in any other part of the 12 Tables, do I see any thing to exclude lineal ascent; and as I have not met with any book on the Roman law in which such an exclusion is mentioned, I conclude, that Lord Coke is mistaken in his idea of our lan's conforming to the law of the 12 Tables. The mother was indeed excluded; but it was not because the law of the 12 Tables did not permit lineal ascent, but on account of her sex, that law preferring the agnati, or those related through males, and excluding the cognati, or those re⚫lated through females. See Inst. 3. 3 Princ.-[Hargr. n. 2. 11 a. (57).] 11 b. who, to entitle the fa- p. 20. 19 E. 2. Quar. Here our author, for the confirmation of his opinion, draweth a reason and a proof (as you have perceived) from one of the maxims of the common law. "And his uncle enter into the land." For if the uncle in this case doth not enter into the land, then cannot the father inherit the laud: for there is another maxim in law herein implied, (ƒ) that a man, that claimeth as heir in fee-simple to any man by descent, must make himself heir to him that was last seised (K) of the actual freehold and inheritance (10). And if the uncle in this case doth not enter, then had he but a freehold in law, and no actual freehold, but the last that was seised of the actual freehold was the son to whom the father cannot make himself heir; and therefore Littleton saith, and his uncle enter into the land, as by law he ought, to make the father to inherit, as heir to the uncle. "As by law he ought." These words, as a key, do open the secrets of the law; for hereupon it is concluded, that where the uncle cannot get an actual possession by entry or otherwise, there the father in this case cannot inherit. And therefore if an advowson be granted to the son and his heirs, and the son die without issue, and this descend to the uncle, and he die before he doth or can present to the church, the father shall not inherit, because he should make himself heir to the son, which he cannot do (L). And so of a rent and the like. But if the uncle had presented to the church, or (10) "Grandfather, father, and son; grandfather dies; father is bound in an obligation or warranty, and dies before entry. Held, that the son is not liable, because he shall make himself heir to the grandfather. 24 E. 3." Hal. MSS. [Hargr. n. 3. 11 b. (58).] [See 2 Saund. 8. h. n. 4. 2 Cru. Dig. 490.]-[Ed.] (K) The last actual seisin in any ancestor, says Sir Matthew Hale, makes him, as it were, the root of the descent, equally to many intents, as if he had been a purchaser; and therefore he that cannot, according to the rules of descents, derive his succession from him that was last actually seised, though he might have derived it from some precedent ancestor, shall not inherit. 2 Hal. Hist. c. 11. p. 120. The law requires this notoriety of possession as evidence that the ancestor had that property in himself, which is to be transmitted to his heir. The seisin therefore of any person makes him the root or stock from which all future inheritance by right of blood must be derived, which is briefly expressed in the maxim of Fleta, Seisina facit stipitem. See 2 Bl. Com. 208. 212. 227, 228. 1 Bl. Law Tr. 180. 8 Co. 36.-[Ed.] (L) But if the advowson be appendant to a manor, there actual seisin of the manor will give an actual seisin of the advowson. Post, 15 b. n. 1. (85). Watk. Desc. 60, 61.-[Ed.] had seisin of the rent, there the father should have inherited. For Littleton putteth his case of an entry into land but for an example. If the son make a lease for life, and die without issue, and the reversion descend to the uncle, and he die, the reversion shall not descend to the father, because in that case he must make himself heir to the son. A. infeoffs the *12 a. son with warranty to him and his heirs, the son dies, the uncle enters into the land and dies, the father if he be impleaded shall not take the advantage of this warranty, *for then he must vouch A. as heir to his son, which he cannot do(11); for albeit the warranty descended to the uncle, yet the uncle leaveth it as he found it, and then the father by Littleton's (ought) cannot take advantage of it. For Littleton, sect. 603. Vid. sect. 603. 718. (Ante, 329.) saith that warranties shall descend to him that is heir by the common law; and sect. 718. he saith that every warranty which descends, doth descend to him that is heir to him which made the warranty by the common law; which proveth that the father shall not be bound by the warranty made by the son, for that the father cannot be heir to the son, that made the warranty. And a warranty shall not go with tene- Vid. sect. 735. 736. ments, whereunto it is annexed, to any special heir, but always to the heir at the common law (12). And therefore if the uncle be seised of certain lands, and is disseised, the son release to the disseisor, with warranty, and die without issue, this shall bind the uncle; but if the uncle die without issue, the father may enter, for the warranty cannot descend upon him. So if the son concludeth himself by pleading con- 35 H. 6. 33. John Crook's case. (5 Co. cerning the tenure and services of certain lands, this shall 79.) bind the uncle; but if the uncle die without issue, this shall not bind the father, because he cannot be heir to the son, and consequently not to the estoppel in that case; but if it (11) "Quære of this case of warranty; for though the lien of warranty descends from him who makes the warranty, to the heir at common law, and it cannot descend to the special heir, because it is a thing in gross, yet the benefit of a warranty, being once annexed to land, shall go in divers cases as incident to the land to the special heir or assignee. Thus a gift of boroughenglish, with a warranty, shall go to the youngest son with the land." Hal. MSS.-See acc. 2 Rol. Abr. 743, where it is said, that the father (12) See acc. both as to estop- 787. 10b. case of purchase. 5 E. 6. tit. Administr. Br. 47. Ratcliffe's case, ubi supra. See be such an estoppel as runneth with the land, then it is otherwise (13). "Yet the father is nearer of blood." And therefore some Diversity herein in the do hold upon these words of Littleton, that if a lease for life were made to the son, the remainder to his next of blood, that the father should take the remainder by purchase, and not the uncle, for that Littleton saith the father is next of blood, and yet the uncle is heir. As if a man hath issue two sons, and the eldest son hath issue a son and die, a remainder is limited to the next of his blood, the younger son shall take it, yet the other is his heir. in the Chapter of Socage. (Hob. 33.) (3 Co. 40.) (g) Note, that true it is that the uncle in this case is heir, but not absolutely heir; for if after the descent to him the father hath issue a son or daughter, that issue shall enter upon the uncle (14). (h) And so it is, if a man hath issue a son and a daughter, the son purchaseth land in fee and dieth without issue, the daughter shall inherit the land; but if the father hath afterward issue a son, this son shall enter into the land as heir to his brother, and if he hath issue a daughter and no son, she shall be coparcener with her sister. AND in case where the son purchaseth land in fee-simple, and dies without issue, they of his blood on the father's side shall inherit as heirs to him, before any of the blood on the (13) "The son makes lease for life, and dies; the uncle releases to the lessee for life in tail on condition, and dies. Quare, who shall enter for the condition broken, as the reversion in fee doth not descend to the father?" Hal. MSS. [Hargr. n. 3. 12 a. (61).] (14) Here Lord Coke is silent as to the right to the intermediate profits from the death of the father. In the case of Basset and Basset, Lord Ch. Hardwicke held, that a posthumous son, claiming under a remainder in a settlement, was, by construction of the 10 & 11 W. 3. c. 16. which preserves remainders for posthumous children, where no estate is limited to trustees for that purpose, intitled to the mean profits. See 3 Atk. 203. But in the same case, Lord Hardwicke seems to have taken it for granted, that on a descent the mean profits belong to the uncle; for he directed, that the profits of the estate descended should be accounted for by the unele, only from the birth of the posthumous son. See ant. 55 b. (vol. 1. p. 610.) where Lord Coke puts the case of a daughter's being intitled against a posthumous brother to corn sowed before his birth; which seems to shew, that Lord Coke did not consider the posthumous child as intitled to any mean profits on a descent. See also Wils. Rep. vol. 2. p. 526. where Lord C. J. De Grey, in delivering the opinion of the court of C. P. on a question whether a posthumous son was actually seised, denies that the posthumous son in the case of a descent, can be intitled to any profits received before his birth, and cites 9 H. 6. 25. as an authority in point.→ [Hargr. n. 4. 11 b. (59).] [See Goodtitle, d. Newman v. Newman, 3 Wils. 516. 528. 3d edit, Aut. p. 136, 137. n. (I).]—[Ed.] mother's side: but if he hath no heir on the part of his fa- Preference of male heirs over heirs female ; ther, then the land shall descend to the heirs on the part of heirs on the part of the the mother (15). father shall inherit before heirs on the part of the mother. 12 a. Vid. sect. 354. an ex By this it appeareth, that our author divideth heirs into heirs of the part of the father, and into heirs of the part of cellent point. the mother. Here (1) Bracton, lib. 2. imme (i)" They of his blood on the father's side." it is to be understood, that the father hath two diate bloods in him, viz. the blood of his father, and the blood of his mother (16). Both these bloods are of the part of the father. (k) And this made ancient authors say, that if a man be seised of lands in the right of his wife, and is attainted of felony, and after hath issue, this issue should not inherit his mother, for that he could derive no blood inheritable from the father. And both these bloods of the (15) Et cest l'oppinion de toutes les justices M. 12 E. 4. Mes la fuit tenus si terre descende a un home de part son pere, qui deria sans issue, que son prochein heire de part son pere enheritera a luy cest assavoir le prochein que est del sunk le pere de part layel. Et pur defaute de tiel heire, ceux que sont de sank le pere del part le mere le pere, S. lailesse doient enheriter. Et s'il ny ad tiel haire de purt le pere donques le seignour avera le terre par eschete. Red. But this passage is not in any edition prior to Redman's, and seems an addition to Littleton by another hand, and to be an opinion extracted from 12 E. 4. 14. pl. 12. which is indeed cited in the margin of Redman.-[Hargr. n. 4. 12 a.] (16) But sometimes a man can only have immediate inheritable blood from one parent, as where his father or mother is an alien or person attainted; and this it seems suffices to enable children to inherit from the parent, who confers the inheritable blood, and also to inherit to each other. See acc. ante 8 a. n. 2. (vol. 1. p. 90. n. 6.) and the following note by Lord Hale on Lord Coke's next passage, where he mentions, that according to ancient au. thors the issue of an attainted father cannot inherit to the mother. "This seems not to be law. A female heretrix takes an alien to husband, and they have issue: the issue shall inherit to the mother. Post, Sect. 114. and fol. 33 a. for dower of wife being alien or attainted.” Hal. MSS. To the same purpose is what follows, being a note on fol. 8 a. post, where Lord Coke asserts, that the children of an alien cannot inherit to each other, though he allows that the children of one attainted, if born before the attainder, may. "Quare of this; for it seems the blood of the mother suffices to make them inheritable one to the other, and this was the principal reason in Hobby's case." Hal. MSS. Also Lord Hale, in another note in fol. 8 a. post, abridges the case of Bacon and Bacon from Cro. Cha, and eites Stephens's case in the dutchy as another case of the same kind, and then there is the note following. "Yet note that he cannot be heir to his mother, because she is an alien. Husband denizen takes wife an alien, or wife takes husband an alien, and they have issue. It seems the issue shall inherit to the father in the first case, to the mother in the second. Ergo videtur, that if alien hath issue by denizen two sons, one son shall inherit to the other, because the mother is a denizen; and so in the case of a person attainted, having issue after attainder; and this was one of the reasons of Hobby's case." Hal. MSS. This doctrine is agreeable to Lord Hale's argument when he gave judgment in Collingwood and Pace, cited ante fol. 8 a. n. 2. (vol. 1. p. 90. n. 6) and also confirms the observation hazarded in n. 5. fol. 8 a, post.[Hargr. n. 7. 12 a. (62).] Fleta, lib. 6. ca. 1, 2, &c. Britton, ca. 118. fol. 65. 67, 68, 69, &c. 119. Pl. Com. 444. Clere's case. Tr. 19 E. 1. in Banco Rot. 25. Lincoln. Will. (k) Britton, fol. 15. Fleta, lib. 1. ca. 18. Scel's case. Pl. Com. 445, 146, &c. Clere's case. (1 Sid. 200.) |