third and fourth, and so upwards in infinitum, till some couple of ancestors be found, who have other issue descending from them besides the deceased, in a parallel or collateral line. From these ancestors the heir of John Stiles must derive his descent; and in such derivation the [227] same rules must be observed, with regard to the sex, primogeniture, and representation, that have before been laid down with regard to lineal descents from the person of the last proprietor.

But, secondly, the heir need not be the nearest kinsman absolutely, but only sub modo; that is, he must be the nearest kinsman of the whole blood; for if there be a much nearer kinsman of the half blood, a distant kinsman of the whole blood shall be admitted, and the other entirely excluded; nay, the estate shall escheat to the lord, sooner than the half blood shall inherit.33 A kinsman of the whole blood is he that is derived, not only from the same ancestor, but from the same couple of ancestors. For, as every man's own blood is compounded of the bloods of his respective ancestors, he only is properly of the whole or entire blood with another, who hath (so far as the distance of degrees will permit, all the same ingredients in the composition of his blood that the other had. Thus, the blood of John Stiles being composed of those of Geoffrey Stiles his father, and Lucy Baker his mother, therefore his brother Francis, being descended from both the same parents, hath entirely the same blood with John Stiles; or he is his brother of the whole blood. But if, after the death of Geoffrey Lucy Baker the mother marries a second husband, Lewis Gay, and hath issue by him; the blood of this issue, being compounded of the blood of Lucy Baker (it is true) one the one part, but that of Lewis Gay (instead of Geoffrey Stiles), on the other part, it hath therefore only half the same ingredients with that of John Stiles; so that he is only his brother of the half blood, and for that reason they shall never inherit to each other. So also, if the father has two sons, A and B, by different venters or wives; now these two brethren are not brethren of the whole blood, and therefore shall never inherit to each other, but the estate shall rather escheat to the lord. Nay, even if the father dies, and his lands descend to his eldest son A, who enters thereon, and dies seised without issue; still B shall not be heir to this estate, because he is only of the half blood to A, the person last seised: but it shall descend to a sister (if any) of the whole blood to A: for in such cases the maxim is, that the seisin or possessio fratris facit sororem esse haeredum. Yet, had A died without entry, then B might have [228] inherited; not as heir to A his half-brother, but as heir to their common father, who was the person last actually seised. (y) *4

y Hale, H. C. L. 236.

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(33) It may be observed, that it is always intended, or presumed, that a person is of the whole blood, until the contrary be shewn. Kitch. 225. a. Plowd. 77. a. Trin. 19. H. 8. pl. 6. p. 11. b. Watk. Desc. 75. n. (u).

(34) The meaning of the maxim is, that the possession of a brother will make his sister of the whole blood his heir in preference to a brother of the half blood. Litt. 58.

It may from the above passage in the text be perceived, that the rule depends entirely on the question, whether the elder son had obtained a seisin of the estate; for if he has obtained such a seisin, though not by actual entry, as will be sufficient to make him an ancestor, so as to transmit the estate descending to his own right heirs, his sister of the whole blood will be entitled in preference to the brother of the half blood; but if he has not obtained such a seisin, his brother of the half blood will succeed as heir to his father, who was the person last seised [H. Chit. Desc. 118.] Of some inheritances there cannot be a scisin, or a possessio fratris ; as if the eldest brother dies before a presentation to an advowson, it will descend to the half-brother as heir to the person last seised, and not to the sister of the whole blood. 1 Burn Ec. 11. So of reversions, remainders, and executory devises, there can be no seisin or possessio fratris; and if they are reserved or granted to A and his heirs, he who is heir to A when they come into possession, is

This total exclusion of the half blood from the inheritance, being almost peculiar to our own law, is looked upon as a strange hardship by such as are unacquainted with the reasons on which it is grounded. But these censures arise from a misapprehension of the rule, which is not so much to be considered in the light of a rule of descent, as of a rule of evidence: an auxiliary rule, to carry a former into execution. And here we must again remember, that the great and most universal principle of collateral inheritances being this, that the heir to a feudum antiquum must be of the blood of the first feudatory or purchasor, that is, derived in a lineal descent from him; it was originally requisite, as upon gifts in tail it still is, to make out the pedigree of the heir from the first donee or purchasor, and to shew that such heir was his lineal representative. But when, by length of time and a long course of descents, it came (in those rude and unlettered ages) to be forgotten who was really the first feudatory or purchasor, and thereby the proof of an actual descent from him became impossible; then the law substituted what sir Martin Wright (2) calls a reasonable, in the stead of an impossible, proof; for it remits the proof of an actual descent from the first purchasor; and only requires in lieu of it, that the claimant be next of the whole blood to the person last in possession, (or derived from the same couple of ancestors); which will probably answer the same end as if he could trace his pedigree in a direct line from the first purchasor. For he who is my kinsman of the whole blood, can have no ancestors beyond or higher than the common stock, but what are equally my ancestors also ; and mine are vice versa his: he therefore is very likely to be derived from that unknown ancestor of mine, from whom the inheritance descended. But a kinsman of the half blood has but one half of his ancestors above the common stock the same as mine; and therefore there is not the same probability of that standing requisite in the law, that he be derived from the blood of the first purchasor.

[229]

To illustrate this by example. Let there be John Stiles, and Francis, brothers, by the same father and mother, and another son of the same mother by Lewis Gay, a second husband. Now, if John dies seised of lands, but it is uncertain whether they descended to him from his father or mother; in this case his brother Francis, of the whole blood, is qualified to be his heir; for he is sure to be in the line of descent from the first purchasor, whether it were the line of the father or the mother. But if Francis should die before John, without issue, the mother's son by Lewis Gay (or brother of the half blood) is utterly incapable of being heir; for he cannot prove his descent from the first purchasor, who is unknown, nor has he that fair probability which the law admits as presumptive evidence, since he is to the full as likely not to be descended from the line of the first purchasor, as to be descended; and therefore the inheritance shall go to the ncarest relation possessed of this presumptive proof, the whole blood.

And, as this is the case in feudis antiquis, where there really did once exist a purchasing ancestor, who is forgotten; it is also the case in feudis novis held ut antiquis, where the purchasing ancestor is merely ideal, and never existed but only in fiction of law. Of this nature are all grants of

z Tenures, 186.

entitled to them by descent; that is, that person who would have been heir to A, if A bad lived so long, and had then died actually seised. 2 Wood. 256. Fearne, 448. 2 Wils. 29. It may also be observed, that if the father die with heirs male, his daughters by different venters may inherit together to the father, although they cannot inherit to each other. Bro. Abr. Descent, pl. 20. 1 Roll. Abr, 627. Christian.

lands in fee-simple at this day, which are inheritable as if they descended from some uncertain indefinite ancestor, and therefore any of the collateral kindred of the real modern purchasor (and not his own offspring only) may inherit them, provided they be of the whole blood; for all such are, in judgment of law, likely enough to be derived from this indefinite ancestor : but those of the half blood are excluded, for want of the same probability. Nor should this be thought hard, that a brother of the purchasor, though only of the half blood, must thus be disinherited, and a more remote relation of the whole blood admitted, merely upon a supposition and fiction of law: since it is only upon a like supposition and fiction, that brethren of purchasors (whether of the whole or half blood) are entitled to inherit at all; for we have seen that in feudis stricte novis neither brethren nor any other collaterals were admitted. As therefore in feudis antiquis we have seen the reasonableness of excluding the half blood, if by a fic- [230] tion of law a feudum novum be made descendible to collaterals as if it was feudum antiquum, it is just and equitable that it should be subject to the same restrictions as well as the same latitude of descent.

Perhaps by this time the exclusion of the half blood does not appear altogether so unreasonable as at first sight it is apt to do. It is certainly a very fine-spun and subtle nicety; but considering the principles upon which our law is founded, it is not an injustice, nor always a hardship; since even the succession of the whole blood was originally a beneficial indulgence, rather than the strict right of collaterals; and though that indulgence is not extended to the demi-kindred, yet they are rarely abridged of any right which they could possibly have enjoyed before. The doctrine of the whole blood was calculated to supply the frequent impossibility of proving a descent from the first purchasor, without some proof of which (according to our fundamental maxim) there can be no inheritance allowed of. And this purpose it answers, for the most part, effectually enough. I speak with these restrictions, because it does not, neither can any other method, answer this purpose entirely. For though all the ancestors of John Stiles, above the common stock, are also the ancestors of his collateral kinsman of the whole blood; yet, unless that common stock be in the first degree (that is, unless they have the same father and mother), there will be intermediate ancestors, below the common stock, that belong to either of them respectively, from which the other is not descended, and therefore can have none of their blood. Thu, though John Stiles and his brother of the whole blood can each have no other ancestors than what are in common to them both: yet with regard to his uncle, where the common stock is removed one degree higher (that is, the grandfather and grandmother), one half of John's ancestors will not be the ancestors of his uncle his patruus, or father's brother, derives not his descent from John's maternal ancestors: nor his avunculus, or mother's brother, from those in the paternal line. Here then the supply of proof is deficient, and by no means amounts to a certainty; and the higher the common stock is removed, [231] the more will even the probability decrease. But it must be observed, that (upon the same principles of calculation) the half blood have always a much less chance to be descended from an unknown indefinite ancestor of the deceased, than the whole blood in the same degree. As, in the first degree, the whole brother of John Stiles is sure to be descended from that unknown ancestor; his half brother has only an even chance, for half John's ancestors are not his. So, in the second degree, John's uncle of the whole blood has an even chance; but the chances are three to one against his

uncle of the half blood, for three-fourths of John's ancestors are not his. In like manner, in the third degree, the chances are only three to one against John's great uncle of the whole blood, but they are seven to one against his great-uncle of the half blood, for seven-eighths of John's ancestors have no connexion in blood with him. Therefore the much less probability of the half blood's descent from the first purchasor, compared with that of the whole blood, in the several degrees, has occasioned a general exclusion of the half blood in all.

But, while I thus illustrate the reason of excluding the half blood in general, I must be impartial enough to own, that, in some instances, the practice is carried farther than the principle upon which it goes will warrant. Particularly when a kinsman of the whole blood in a remoter degree, as the uncle or great-uncle, is preferred to one of the half blood in a nearer degree, as the brother; for the half brother hath the same chance of being descended from the purchasing ancestor as the uncle; and a thrice better chance than the great-uncle or kinsman in the third degree. It is also more especially overstrained, when a man has two sons by different venters, and the estate on his death descends from him to the eldest, who enters and dies without issue; in which case the younger son cannot inherit this estate,

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because he is not of the whole blood to the last proprietor. (a) [232] This, it must be owned, carries a hardship with it, even upon feodal

principles: for the rule was introduced only to supply the proof of a descent from the first purchasor; but here, as this estate notoriously descended from the father, and as both the brothers confessedly sprung from him, it is demonstrable that the half brother must be of the blood of the first purchasor, who was either the father or some of the father's ancestors. When, therefore, there is actual demonstration of the thing to be proved, it is hard to exclude a man by a rule substituted to supply that proof when deficient. So far as the inheritance can be evidently traced back, there seems no need of calling in this presumptive proof, this rule of probability, to investigate what is already certain. Had the elder brother, indeed, been a purchasor, there would have been no hardship at all, for the reasons already given or had the frater uterinus only, or brother by the mother's side, been excluded from an inheritance which descended from the father, it had been highly reasonable.

Indeed it is this very instance, of excluding a frater consanguineus or brother by the father's side, from an inheritance which descended a patre, that Craig (b) has singled out on which to ground his strictures on the English law of half blood. And, really, it should seem as if originally the custom of excluding the half blood in Normandy (c) extended only to exclude a frater uterinus, when the inheritance descended a patre, and vice versa, and possibly in England also; as even with us it remained a doubt, in the time of Bracton, (d) and of Fleta, (e) whether the half blood on the

a A still barder case than this happened, M. 10 Edw. III. On the death of a man, who had three daughters by a first wife, and a fourth by another, his lands descended equally to all four as coparcer ners. Afterwards the eldest two died without issue: and it was held, that the third daughter alone should inberit their shares, as being their beir of the whole blood; and that the youngest daughter should retain only her original fourth part of their common father's lands. (10 Ass. 27.) And yet it was clear law in M. 19 Edw. II. that where lands had descended to two sisters of the half blood, as coparceners, each might be heir of those lands to the other. Mayn. Ed. II. 628. Fitzh abr. tit. quare impedit. bl. 2. t. 15. § 14. c Gr. Co.ustum, c. 25. dl. 2. c. 30. § 3. e l. 6. c. 1. § 14.

177.

(35) Mr. Christian has justly observed that this ought to be twice; for the half brother has one chance in two, the great-uncle one in four; the chance of the half brother is therefore twice better than that of the great-uncle.

father's side was excluded from the inheritance which originally descended from the common father, or only from such as descended from the respective mothers, and from newly-purchased lands. So also the rule of law, as laid down by our Fortescue, (ƒ) extends no farther than this: [233] frater fratri uterino non succedet in haereditate paterna. It is moreover worthy of observation, that by our law, as it now stands, the crown (which is the highest inheritance in the nation) may descend to the half blood of the preceding sovereign, (g) so that it be the blood of the first monarch purchasor, or (in the feodal language) conqueror of the reigning family. Thus it actually did descend from king Edward the Sixth to queen Mary, and from her to queen Elizabeth, who were respectively of the half blood to each other. For the royal pedigree being always a matter of sufficient notoriety, there is no occasion to call in the aid of this presumptive rule of evidence, to render probable the descent from the royal stock, which was formerly king William the Norman, and is now (by act of parliament) (h) the princess Sophia of Hanover. Hence also it is that in estatestail, where the pedigree from the first donee must be strictly proved, half blood is no impediment to the descent: (i) because, when the lineage is clearly made out, there is no need of this auxiliary proof. How far it might be desirable for the legislature to give relief, by amending the law of descents in one or two instances, and ordaining that the half blood might always inherit, where the estate notoriously descended from its own proper ancestor, and in cases of new-purchased lands, or uncertain descents, should never be excluded by the whole blood in a remoter degree; or how far a private inconvenience should be still submitted to, rather than a long-established rule should be shaken, it is not for me to determine."

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The rule then, together with its illustration, amounts to this: that, in order to keep the estate of John Stiles as nearly as possible in the line of his purchasing ancestor, it must descend to the issue of the nearest couple of ancestors that have left descendants behind them; because the descendants of one ancestor only are not so likely to be in the line of that purchasing ancestor, as those who are descended from both.

g Plowd. 215. Co. Litt. 15.

f de laud. LL. Angl. 5.
h 12 Will. III. c. 2.

í Litt. § 14, 15.

(36) In titles of honour also half blood is no impediment to the descent: but a title can only be transmitted to those who are descended from the first person ennobled. Co. Litt. 15. Half blood is no obstruction in the succession to personal property. Page 505. post.

(37) It has been observed, whatever ingenuity may have been exerted in apologizing for the exclusion of the half blood, nothing can be more cruel or contrary to our notions of propriety and consistency, than to give the estate to a distant relation, or to the lord, in preference to a balf brother, either when it has descended from the common parent, or when the half brother has himself acquired it. A case was determined in the common pleas, a few years ago, under the following circumstances: a father died intestate, leaving two daughters by his first wife, and his second wife pregnant, who was delivered of a son; this infant lived only a few weeks; and it was held, that as the mother had resided upon one of the father's estates, and had receiv ed rent for others after the father's death, she being the guardian in socage of the infant, this amounted to a legal seisin in him, and of consequence his two sisters could not inherit, and the estate descended perhaps to a remote relation. 3 Wils. 516. And in a late case, where a father died leaving two daughters by different mothers, the mother of the youngest entered upon the premises, and the eldest daughter died; it was held that, the mother being guardian in socage to the youngest, and having a right to enter for her own daughter, the entry of the mother was also an entry for the coparcener the half sister, which created a seisin in her, and therefore, upon her death, her moiety descended to some of her relations of the whole blood. And lord Kenyon held generally that an infant may consider whoever enters on his estate as entering for his use. And he referred to the distinction laid down by lord Coke (Co. Litt. 15. a.), viz. that if the father die, his estate being out on a freehold lease, that is not such a po session as to induce a possessio fratris, unless the elder son live to receive rent after the expiration of the lease, but if the father die leaving his estate out on a lease for years, the possession of the tenant is so far the possession of the eldest son as to constitute the possessio fratris. 7 T. R. 390. Christian