cation of the heir, who would succeed to a feud, that he should be of the blood of, that is, lineally descended from, the first feudatory or pur[221] chasor. In consequence whereof, if a vasal died seised of a feud of

his own acquiring, or feudum novum, it could not descend to any but his own offspring; no, not even to his brother, because he was not descended, nor derived his blood, from the first acquirer. But if it was feudum untiquum, that is, one descended to the vasal from his ancestors, then his brother, or such other collateral relation as was descended and derived his blood from the first feudatory, might succeed to such inheritance. To this purpose speaks the following rule; "frater fratri, sine legitimo haerede de"functo, in beneficio quod eorum patris fuit succedat: sin autem unus e fra"tribus a domino feudum acceperit, eo defuncto sine legitimo haerede, frater "ejus in feudum non succedit." (m) The true feodal reason for which rule was this; that what was given to a man, for his personal service and personal merit, ought not to descend to any but the heirs of his person. And therefore, as in estates-tail (which a proper feud very much resembled), so in the feodal donation, "nomen haeredis, in prima investitura expressum, "tantum ad descendentes ex corpore primi vasalli extenditur; et non ad col"laterales, nisi ex corpore primi vasalli sive stipitis descendant;" (n) the will of the donor, or original lord (when feuds were turned from life-estates into inheritances), not being to make them absolutely hereditary, like the Roman allodium, but hereditary only sub modo: not hereditary to the collateral relations, or lineal ancestors, or husband, or wife of the feudatory, but to the issue descended from his body only.

However, in process of time, when the feodal rigour was in part abated, a method was invented to let in the collateral relations of the grantee to the inheritance, by granting him a 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 succeed even in infinitum,

because they might have been of the blood of, that is, descended [222] from, the first imaginary purchasor. For since it is not ascertained

in such general grants, whether this feud shall be held ut feudum paternum or feudum avitum, but ut feudum antiquum merely; as a feud of indefinite antiquity: that is, since it is not ascertained from which of the ancestors of the grantee this feud shall be supposed to have descended ; the law will not ascertain it, but will suppose any of his ancestors, pro re nata, to have been the first purchasor: and therefore it admits any of his collateral kindred (who have the other necessary requisites) to the inheritance, because every collateral kinsman must be descended from some one of his lineal ancestors.

Of this nature are all the grants in fee-simple estates of this kingdom; for there is now in the law of England no such thing as a grant of a feudum novum, to be held ut novum: unless in the case of a fee-tail, and there we see that this rule is strictly observed, and none but the lineal descendants of the first donee (or purchasor) are admitted, but every grant of lands in feesimple is with us a feudum novum to be held ut antiquum, as a feud whose antiquity is indefinite and therefore the collateral kindred of the grantee, or descendants from any of his lineal ancestors, by whom the lands might have possibly been purchased, are capable of being called to the inherit

ance.

27

(27) Where a man takes by purchase he must take the estate as a feudum antiquum, and though it be limited to his heirs on the part of his mother, yet the heirs on the paternal side

Yet, when an estate hath really descended in a course of inheritance to the person last seised, the strict rule of the feodal law is still observed; and none are admitted but the heirs of those through whom the inheritance hath passed for all others have demonstrably none of the blood of the first purchasor in them, and therefore shall never succeed. 28 As, if lands come to John Stiles by descent from his mother Lucy Baker, no relation of his father (as such) shall ever be his heir of these lands; and vice versa, if they descended from his father Geoffrey Stiles, no relation of his mother (as such) shall ever be admitted thereto, for his father's kindred have none of his mother's blood, nor have his mother's relations any share of his father's blood. And so, if the estate descended from his father's father, George Stiles; the relations of his father's mother, Cecilia Kempe, [223] shall for the same reason never be admitted, but only those of his father's father. 29 This is also the rule of the French law, (o) which is derived from the same feodal fountain.

Here we may observe, that so far as the feud is really antiquum, the law traces it back, and will not suffer any to inherit but the blood of those ancestors, from whom the feud was conveyed to the late proprietor. But when, through length of time, it can trace it no farther; as if it be not known whether his grandfather, George Stiles, inherited it from his father Walter Stiles, or his mother Christian Smith, or if it appear that his grandfather was the first grantee, and so took it (by the general law) as a feud of indefinite antiquity; in either of these cases the law admits the descendants of any ancestor of George Stiles, either paternal or maternal, to be in their due order the heirs to John Stiles of this estate; because in the first case it is really uncertain, and in the second case it is supposed to be uncertain, whether the grandfather derived his title from the part of his father or his mother.

This then is the great and general principle, upon which the law of collateral inheritances depends; that, upon failure of issue in the last proprietor, the estate shall descend to the blood of the first purchasor: or, that it shall result back to the heirs of the body of that ancestor, from whom it either really has, or is supposed by fiction of law to have originally descended; according to the rule laid down in the year books, (p) Fitzherbert, (9) Brook, (r) and Hale, (s) "that he who would have been heir to the father of the deceased" (and, of course, to the mother, or any other real or supo Domat. part. 2. pr.

r Abr. t. discent. 38.

p M. 12 Edw. IV. 14,

q Abr. 1. discent. 2. SH. C. L. 243.

shall be preferred in the descent, for no one is at liberty to create a new kind of inheritance. H. Chit. Desc. 3. 123. 3 Cru. Dig. 359. Watk. D. 222, 225.

(28) It will sometimes happen that two estates or titles, the one legal, and the other equitable, will descend upon the same person, in which case they will become united, and the equitable shall follow the line of descent through which the legal estate descended. See Goodright d. Alston v. Wells. (Dougl. 771.) And in the late case of Langley v. Sneyd, (1 Simons & Stu. Rep. 45.) where an infant died seised of an equitable estate, descending ex parte maternâ, the legal estate being vested in trustees, his incapacity to call for a conveyance of the legal estate (by which the course of descent might have been broken), was held not to be a sufficient reason to induce a court of equity to consider the case, as if such a conveyance had actually been made, it not being, according to the terms of the trust, any part of the express duty of the trustees to execute such conveyance. Chitty.

(29) Hence the expression heir at law must always be used with a reference to a specific estate; for if an only child has taken by descent an estate from his father, and another from his mother, upon his death without issue, these estates will descend to two different person also, if his two grandfathers and two grandmothers had each an estate, which descend father and mother, whom I suppose also to be only children, then, as before, these for will descend to four different heirs.

G

VOL. I.

70

posed purchasing ancestor) "shall also be heir to the son;" a maxim, that will hold universally, except in the case of a brother or sister of the halfblood, which exception (as we shall see hereafter) depends upon very spe> cial grounds.

The rules of inheritance that remain are only rules of evidence, calculated to investigate who the purchasing ancestor was; which in feudis [224] vere antiquis has in process of time been forgotten, and is supposed so to be in feuds that are held ut antiquis.

VI. A sixth rule or canon therefore is, that the collateral heir of the person last seised must be his next collateral kinsman, of the whole blood. 0

First, he must be his next collateral kinsman, either personally or jure representationis; which proximity is reckoned according to the canonical degrees of consanguinity before mentioned. Therefore, the brother being in the first degree, he and his descendants shall exclude the uncle and his issue, who is only in the second. And herein consists the true reason of the different methods of computing the degrees of consanguinity, in the civil law on the one hand, and in the canon and common laws on the other. The civil law regards consanguinity, principally with respect to successions, and therein very naturally considers only the person deceased, to whom the relation is claimed: it therefore counts the degrees of kindred according to the number of persons through whom the claim must be derived from him; and makes not only his great-nephew but also his first-cousin to be both related to him in the fourth degree; because there are three persons between him and each of them. The canon law regards consanguinity principally with a view to prevent incestuous marriages, between those who have a large portion of the same blood running in their respective veins; and therefore looks up to the author of that blood, or the common ancestor, reckoning the degrees from him: so that the great-nephew is related in the third canonical degree to the person proposed, and the first-cousin in the second; the former being distant three degrees from the common ancestor (the father of the propositus), and therefore deriving only one-fourth of his blood from the same fountain; the latter, and also the propositus himself, being each of them distant only two degrees from the common ancestor (the grandfather of each), and therefore

(30) With reference to this and the preceding rule, it is to be observed, that, "in order to constitute a good title, the party must be the nearest collateral heir of the whole blood of the person last seised on the part of the ancestor through whom the estate descended. When lord Hale speaks of the nearest collateral relation of the whole blood of the person last seised, and of the blood of the first purchaser, he means the latter branch of the expression, as a qualification, and not an addition to the first branch, that the collateral heir of the whole blood must claim through the ancestor from whom the estate descended, and thus be of the blood of the first purchaser. Per Leach, vice-chancellor. Hawkins v. Shewen, 1 Sim. & Stu. Rep. 257. which case and the pedigree annexed to the same deserve attention. On account of the qualification required for the heir to be of the blood of the first purchaser, or acquirer, of the estate, it may not unfrequently happen, that the person upon whom the inheritance devolves in a regular and legal course of descent or succession, is not (as independently of, and laying aside this qualification) heir or next of kin to the person last seised of it, either in the paternal or maternal line.

It appears that Littleton, and his commentator, lord Coke, (Ten. s. 6. fo. 11. b.) have laid down a different doctrine, "touching the necessity of the person, who inherits, being always heir or the worthiest and nearest relative to the person last seised:" but it is conceived that the rules must be taken together in a connected view, and as such the rule will stand thus, "that the person or persons, who inherit, and upon whom the law casts the inheritance upon the death of the person seised, must always be the worthiest and nearest of such of the relatives of the whole blood of the person last seised, as are of the blood and consanguinity of the purchaser, and such are not incapacitated by the first rule of descent." Rob. Inh. 46, 7. (H. Chit. Desc. 108, 9.} Chitty.

(31) This is only true in the paternal line; for when the paternal and maternal lines are both admitted to the inheritance, the most remote collateral kinsman ex parte putern will inherit before the nearest ex parte materna. See p. 236. post.

having one half of each of their bloods the same. The common law regards consanguinity principally with respect to descents; and having therein the same object in view as the civil, it may seem as if it ought to proceed according to the civil computation. But as it also respects [225] the purchasing ancestor, from whom the estate was derived, it therein resembles the canon law, and therefore counts its degrees in the same manner. Indeed the designation of person, in seeking for the next of kin, will come to exactly the same end (though the degrees will be differently numbered), whichever method of computation we suppose the law of England to use; since the right of representation, of the parent by the issue, is allowed to prevail in infinitum.9 This allowance was absolutely neces

(32) It is suggested by Mr. Christian, in his edition of Blackstone, "that the true and only way of ascertaining an heir at law in any line or branch is by the representation of brothers or sisters in each generation, aud that the introduction of the computation of kindred, either by the canon or civil law, into a treatise upon descents, may perplex, and can never assist; for if we refer this sixth rule either to the civil or canon law, it will in many instances be erroneous. It is certain that a great-grandson of the father's brother will inherit before a son of the grandfather's brother; yet the latter is the next collateral kinsman according to both the canon and civil law computation; for the former is in the fourth degree by the canon and the sixth by the civil law; the latter is in the third by the canon and the fifth by the civil; but in the descent of real property the former must be preferred."

The doctrine of consanguinity, as laid down by Blackstone, has however been thus vindicated by the author of the recent treatise of descents:

"Mr. Christian asserts, that this introduction of the computation of kindred into a treatise of descent, may perplex, but can never assist.'

"But it may be asked, by what means are we to ascertain and determine who is nearest to a person deceased, whether his uncle or his brother, or any other of his relations? We have no rule which directs that a brother can inherit before an uncle, but merely that on failure of lincal descendants, or issue of the person last seised, the inheritance shall descend to his collateral relations. (Canon 5.) And then follows this sixth rule, which designates which of these collateral relations shall be preferred; namely, the next collateral kinsman of the whole blood. And who, it will be asked, is the next collateral kinsman? Unless we can have recourse to the degrees of consanguinity, as pointed out by the canon law, in order to ascertain this fact, we have no rule by which we can determine what collateral relative is entitled to the inheritance. But Mr. Christian further asserts, that this computation of the sixth rule of descents, if referred either to the civil or canon law, will in many instances be erroneous; for a grandson of the father's brother will inherit before a son of the grandfather's brother; yet the latter is the next collateral kinsman. Mr. C.'s assertion is founded on a mistaken view of the rules of descent, and on a disregard of their connexion one with another; for if we refer to the fifth canon, which intimates that the descent in the collateral line is subject to the second, third, and fourth rules of descent, we shall find, that the lineal descendants of any person deceased shall represent their ancestor, and stand in the same place as the person himself would have done, had he been living and again, by the exposition of lord Coke of the word 'next,' we shall find, that it must be understood in a double seuse; namely, next jure representationis, and next jure propinquitatis; that is, by right of representation, and by right of propinquity; and that Littleton, in his position, that the 'next collateral cousin shall inherit,' meaneth of the right of representation; for legally, in course of descents, he is next of blood inheritable Co. Litt. 10. b. And therefore, though on the face of the table of consanguinity, the great grandson of the father's brother does appear to be more degrees removed than the son of the grandfather's brother, yet inasmuch as he represents his lineal ancestor, the uncle of the deceased, he is one degree nearer than the son of the grandfather's brother, who represents only the great-uncle of the deceased. But again, Mr. C. disa. vows this doctrine of representation of blood, and proposes that the rule is only true in the paternal line; for when the paternal and maternal lines are both admitted to the inheritance (that is) when the deceased was the purchaser of the estate; and it therefore is a feudum novum, to be held ut antiquum, the most remote collateral kinsman, ex parte paterna, will inherit before the nearest ex parte materna. Mr. C. again falls into the same error, and seems to disregard the subsequent rules of descent by which the kindred derived from the blood of the male ancestors, however remote, are admitted before those from the blood of the female, however near. The rule therefore may stand good and unexceptionable in this form, that the collateral kinsinan, who is either by representation, or in his own personal right, nearest to the deceased, shall be admitted, and succeed to the inheritance, on failure of his lineal descendants. The rules of descent must be taken together in a connected view; nor can we in many instances state any one of the canons of descent as a positive rule without such connexion the one with another. Thus, for instance, as in the direct descending line by the first canon, taken by itself, all the children, so by the fifth rule, all the collateral relatives, of any person deceased would be entitled to an equal share of the inheritance: but these are subsequently explained, the one to

sary, else there would have frequently been many claimants in exactly the same degree of kindred, as (for instance) uncles and nephews of the deceased; which multiplicity, though no material inconvenience in the Roman law of partible inheritances, yet would have been productive of endless confusion where the right of sole succession, as with us, is established. The issue or descendants therefore of John Stiles's brother are all of them in the first degree of kindred with respect to inheritances, those of his uncle in the second, and those of his great-uncle in the third; as their respective ancestors, if living, would have been; and are severally called to the succession in right of such their representative proximity.

The right of representation being thus established, the former part of the present rule amounts to this; that, on failure of issue of the person last seised, the inheritance shall descend to the other subsisting issue of his next immediate ancestor. Thus, if John Stiles dies without issue, his estate shall descend to Francis his brother, or his representatives; he being lineally descended from Geoffrey Stiles, John's next immediate ancestor, or father. On failure of brethren, or sisters, and their issue, it shall descend to the uncle of John Stiles, the lineal descendant of his grandfather George, and so on in infinitum. Very similar to which was the law of inheritance among the ancient Germans, our progenitors: "haeredes successoresque, "sui cuique liberi, et nullum testamentum : si liberi non sunt, proximus gra"dus in possessione, fratres, patrui, avunculi." (t)

Now here it must be observed, that the lineal ancestors, though [226] (according to the first rule) incapable themselves of succeeding to

the estate, because it is supposed to have already passed them, are yet the common stocks from which the next successor must spring. And therefore in the Jewish law, which in this respect entirely corresponds with ours, (u) the father or other lineal ancestor is himself said to be the heir, though long since dead, as being represented by the persons of his issue; who are held to succeed, not in their own rights, as brethren, uncles, &c., but in right of representation, as the offspring of the father, grandfather, &c. of the deceased. (w) But, though the common ancestor be thus the root of the inheritance, yet with us it is not necessary to name him in making out the pedigree or descent. For the descent between two brothers is held to be an immediate descent; and therefore title may be made by one brother or his representatives to or through another without mentioning their common father. (x) If Geoffrey Stiles hath two sons, John and Francis, Francis may claim as heir to John, without naming their father Geoffrey; and so the son of Francis may claim as cousin and heir to Matthew the son of John, without naming the grandfather; viz. as son of Francis, who was the brother of John, who was the father of Matthew. But though the common ancestors are not named in deducing the pedigree, yet the law still respects them as the fountains of inheritable blood; and therefore, in order to ascertain the collateral heir of John Stiles, it is first necessary to recur to his ancestors in the first degree; and if they have left any other issue besides John, that issue will be his heir. On default of such, we must ascend one step higher, to the ancestors in the second degree, and then to those in the

t Tacitus de mor. Germ. 21.
u Numb. c. 27.
w Selden, de succ. Ebr. c. 12.
x Sid. 196. 1 Vent. 423. 1 Lev. 60. 12 Mod. 619.

mean the male issue, and of them the eldest, in preference to the females; and the latter, the next collateral, either in his own right, or by representation in the male line, in preference to the female." See H. Chitty's Desc. 110-113. Chitty.