out wife or children, all his kindred (without any distinction) di- [235] vided his estate among them. It is likewise warranted by the example of the Roman laws; wherein the agnati, or relations by the father, were preferred to the cognati, or relations by the mother, till the edict of the emperor Justinian (p) abolished all distinction between them. It is also conformable to the customary law of Normandy, (q) which indeed in most respects agrees with our English law of inheritance. However, I am inclined to think, that this rule of our law does not owe its Immediate original to any view of conformity to those which I have just now mentioned; but was established in order to effectuate and carry into execution the fifth rule, or principal canon of collateral inheritance, before laid down; that every heir must be of the blood of the first purchasor. For, when such first purchasor 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 purchasor 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; from the father (for instance) rather than from the mother; from the father's father rather than from the father's mother: and therefore they hunted back the inheritance if I may be allowed the expression) through the male line; and gave it to the next relations on the side of the father, the father's father, and so upwards; imagining with reason that this was the most probable way of continuing it in the line of the first purchasor. A conduct much more rational than the preference of the agnati, by the Roman laws : which, as they gave no advantage to the males in the first instance or direct lineal succession, had no reason for preferring them in the transverse collateral one: upon which account this preference was very wisely abolished by Justinian. That this was the true foundation of the preference of the agnati [236] or male stocks, in our law, will farther appear, if we consider, that, whenever the lands have notoriously descended to a man from his mother's side, this rule is totally reversed; and no relation of his by the father's side, as such, can ever be admitted to them; because he cannot possibly be of the blood of the first purchasor. And so, e converso, if the lands descended from the father's side, no relation of the mother, as such, shall ever inherit. So also, if they in fact descended to John Stiles from his father's mother Cecilia Kempe; here not only the blood of Lucy Baker his mother, but also of George Stiles his father's father, is perpetually excluded. And, in like manner, if they be known to have descended from Frances Holland the mother of Cecilia Kempe, the line not only of Lucy Baker, and of George Stiles, but also of Luke Kempe the father of Cecilia, is excluded. Whereas, when the side from which they descended is forgotten, or never known (as in the case of an estate newly purchased to be holden ut feudum antiquum), here the right of inheritance first runs up all the father's side, with a preference to the male stocks in every instance; and, if it finds no heirs there, it then, and then only, resorts to the mother's side; leaving no place untried, in order to find heirs that may by possibility be derived from the original purchasor. The greatest probability of finding such was among those descended from the male ancestors; but, upon failure of issue there, they may possibly be found among those derived from the females. p Nov. 118. q Gr. Coustum. c. 25. (39) If a man seised in fee ex parte materna, levy a fine sur grant et render, granting to A. This I take to be the true reason of the constant preference of the agnatic succession, or issue derived from the male ancestors, through all the stages of collateral inheritance; as the ability for personal service was the reason for preferring the males at first in the direct lineal succession. We e see clearly, that if males had been perpetually admitted, in utter exclusion of females, the tracing the inheritance back through the male line of ancestors must at last have inevitably brought us up to the first purchasor: but as males have not been perpetually admitted, but only generally [237] preferred; as females have not been utterly excluded, but only generally postponed to males; the tracing the inheritance up through the male stocks will not give us absolute demonstration, but only a strong probability, of arriving at the first purchasor; which, joined with the other probability, of the wholeness of entirety of blood, will fall little short of a certainty. Before we conclude this branch of our inquiries, it may not be amiss to exemplify these rules by a short sketch of the manner in which we must search for the heir of a person, as John Stiles, who dies seised of land which he acquired, and which therefore he held as a feud of indefinite antiquity. (r) In the first place succeeds the eldest son, Matthew Stiles, or his issue: (no 1.)—if his line be extinct, then Gilbert Stiles and the other sons, respectively, in order of birth, or their issue; (no 2.)-in default of these, all the daughters together, Margaret and Charlotte Stiles, or their issue : (n° 3.) On failure of the descendants of John Stiles, himself, the issue of Geoffrey and Lucy Stiles, his parents, is called in: viz. first, Francis Stiles, the eldest brother of the whole blood, or his issue: (n° 4.)—then Oliver Stiles, and the other whole brothers, respectively, in order of birth, or their issue: (no 5.)-then the sisters of the whole blood all together, Bridget and Alice Stiles, or their issue: (no 6.)-In defect of these, the issue of George and Cecilia Stiles, his father's parents; respect being still had to their age and sex: (no 7.)-then the issue of Walter and Christian Stiles, the parents of his paternal grandfather: (n° 8.)-then the issue of Richard and Anne Stiles, the parents of his paternal grandfather's father, (n° 9.)— and so on in the paternal grandfather's paternal line, or blood of Walter Stiles, in infinitum. In defect of these, the issue of William and Jane Smith, the parents of his paternal grandfather's mother: (n° 10.)-and so on in the paternal grandfather's maternal line, or blood of Christian Smith, in infinitum: till both the immediate bloods of George Stiles, the [238] paternal grandfather, are spent.-Then we must resort to the issue of Luke and Frances Kempe, the parents of John Stiles's paternal grandmother: (n° 11.)--then to the issue of Thomas and Sarah Kempe, the parents of his paternal grandmother's father: (n° 12.)—and so on in the paternal grandmother's paternal line, or blood of Luke Kempe, in infinitum.-In default of which we must call in the issue of Charles and Mary Holland, the parents of his paternal grandmother's mother: (n° 13.)-and so on in the paternal grandmother's maternal line, or blood of Frances Holland, in infinitum; till both the immediate bloods of Cecília Kempe, the r See the table of descents annexed. and his heirs; the estate taken by the conusor under the render will now be descendible to his heirs ex parte paterna. 1 Prest. Conv. 210. 318. Co. Litt. 316. Dyer, 237. b. Price v. Langford, 1 Salk. 92. And the same in the case of feoffment and re-infeoffment, or even if a man Eeised er parte materna, make feoffment in fee reserving rent, the rent shall descend to the hers ex parte paterna. Co. Litt 12. b Archbold paternal grandmother, are also spent.-Whereby the paternal blood of John Stiles entirely failing, recourse must then, and not before, be had to his maternal relations; or the blood of the Bakers, (n° 14, 15, 16.) Willis's, (n° 17.) Thorpe's, (n° 18, 19.) and White's, (n° 20.) in the same regular successive order as in the paternal line. 40 course The student should however be informed, that the class, no 10, would be postponed to no 11, in consequence of the doctrine laid down, arguendo, by justice Manwoode, in the case of Clere and Brooke; (s) from whence it is adopted by lord Bacon, (t) and sir Matthew Hale: (u) because it is said, that all the female ancestors on the part of the father are equally worthy of blood; and in that case proximity shall prevail. 10 And yet, notwithstanding these respectable authorities, the compiler of this table hath ventured (in point of theory, for the case never yet occurred in practice)" to give the preference to no 10 before n° 11; for the following reasons: 1. Because this point was not the principal question in the case of Clere and Brooke: but the law concerning it is delivered obiter only, and in the of argument by justice Manwoode; though afterwards said to be confirmed by the three other justices in separate, extrajudicial conferences with the reporter. 2. Because the chief justice, sir James Dyer, in reporting the resolution of the court in what seems to be the same case, (w) takes no notice of this doctrine. 3. Because it appears from Plowden's report that very many gentlemen of the law were dissatisfied with this position of justice Manwoode; since the blood of no 10 was derived to the [239] purchasor through a greater number of males than the blood of no 11, and was therefore in their opinion the more worthy of the two. 4. Because the position itself destroys the otherwise entire and regular symmetry of our legal course of descents, as is manifest by inspecting the table; wherein n° 16, which is analogous in the maternal line to no 10 in the paternal, is preferred to no 18, which is analogous to no 11, upon the authority of the eighth rule laid down by Hale himself: and it destroys also that constant preference of the male stocks in the law of inheritance, for which an additional reason is before (x) given, besides the mere dignity of blood. 5. Because it introduces all that uncertainty and contradiction, which is pointed out by that ingenious author; (y) and establishes a collateral doctrine (viz. the preference of n° 11 to no 10) seemingly, though perhaps not strictly, incompatible with the principal point resolved in the case of Clere and Brooke, viz. the preference of no 11 to no 14. And, though that learned writer proposes to rescind the principal point then resolved, in order to clear this difficulty; it is apprehended, that the difficulty may be better cleared, by rejecting the collateral doctrine, which was never yet resolved at all. 6. Because the reason that is given for this doctrine by lord Bacon (viz. that in any degree, paramount the first, the law respecteth proximity, and not dignity of blood) is directly contrary to many instances given by Plowden and Hale, and every other writer on the law of descents. 7. Because this position seems to contradict the allowed doctrine of sir Edward s Plowd. 450. x Pag. 235, 6, 7. 1 Elem. c. 1. u H. C. L. 240,244. (40) See observations on the case of Clere and Brooke, and on the commentator's objections to it, H. Chitty on Descents, 125 to 130. and the note post, 240. (41) Mr. Cruise states that a case exactly in point arose on the Midland circuit in 1805; and was intended to have been argued in Westminster-hall, but was compromised. "Several eminent counsel were however consulted, among whom was serjeant Williams; and they were all of opinion that sir W. Blackstone's doctrine was wrong." 3 Cru. Dig. 2 ed. 411. n. Coke; (z) who lays it down (under different names) that the blood of the Kempes (alias Sandies) shall not inherit till the blood of the Stiles's (alias Fairfields) fail. Now the blood of the Stiles's does certainly not fail, till both n° 9 and no 10 are extinct. Wherefore no 11 (being the blood of the Kempes) ought not to inherit till then. 8. Because in the case, Mich. 12 Edw. IV. 14. (a) (much relied on in that of Clere and Brooke) it is laid down as a rule, that "cestuy, que doit inheriter al pere, doit inheriter al "fils." (b) And so sir Matthew Hale (c) says, "that though the law [240] "excludes the father from inheriting, yet it substitutes and directs "the descent as it should have been had the father inherited." * Now it is settled, by the resolution of Clere and Brooke, that no 10 should have inherited before n° 11 to Geoffrey Stiles, the father, had he been the person last seised; and therefore no 10 ought also to be preferred in inheriting to John Stiles, the son. In case John Stiles was not himself the purchasor, but the estate in fact came to him by descent from his father, mother, or any higher ancestor, there is this difference: that the blood of that line of ancestors, from which it did not descend, can never inherit as was formerly fully explained. (d) And the like rule, as there exemplified, will hold upon descents from any other ancestors. : The student should also bear in mind, that during this whole process, John Stiles is the person supposed to have been last actually seised of the estate. For if ever it comes to vest in any other person, as heir to John Stiles, a new order of succession must be observed upon the death of such heir; since he, by his own seisin, now becomes himself an ancestor or stipes, and must be put in the place of John Stiles. The figures therefore denote the order in which the several classes would succeed to John Stiles, and not to each other: and before we search for an heir in any of the higher figures (as no 8), we must be first assured that all the lower classes (from n°1 to no 7) were extinct, at John Stiles's decease.43 b See pag. 223. z Co. Litt. 12. Hawk. abr, in loc. a Fitzh. Abr. tit. discent. 2. Bro. Abr. tit. discent. 3. d See pag. 256.7 (42) This rule, however, does not apply in all cases; for a brother of the half blood would succeed to the father, though he could not to the son (43) The preference bestowed upon n° 10 to no 11, in the accompanying table of descents, has given rise to a legal controversy, in which much learning and ability have been employed. On the side of Mr. Justice Blackstone, Mr. Christian and Mr Watkins have ranged themselves; opposed to him are Mr. Wooddeson, Mr. Cruise, and Mr. Osgoode. It has been intimated, however, by more than one authority, that the point in dispute is scarcely worth the labour of an adjustment; for, up to the present time, no case of the kind has come before the courts for discussion. See ante 233. note 41. Nor is it probable that one will arise to render the determination of practical utility. See H. Chitty on Descents, 127, 8. Whatever weight there may be in this observation, it is due from the present editor of Blackstone's Commentaries to state as briefly as may be, the arguments on both sides. Mr. Christian's principal grounds are, that the rule laid down by the learned judge, is part of a consistent and certain system, by which we can immediately discover the heir to any inheritance; and that if we deviate from it, we are soon bewildered in uncertainty and confusion. If the grandmother is more worthy than the mother, because related by one male blood, and the Inother by none, the great-grandmother ought to be still more worthy, because related by two male bloods. And that principle which operates so powerfully as to carry the estate past the mother to the grandmother, ought to preserve its consistency, and to carry it also from the grandmother to the great-grandmother, provided they are immediately united to the male ascending branch. If 10 is not to be preferred to 11, what principle can we find to determine between 10, 12, and 13? They have all an equal claim by proximity. If we go a step higher we shall find the descendants of the brothers of Anne Godfrey, William Smith, Jane King, Thomas Kempe, Sarah Browne, Charles Holland, and Mary Wilson, have all the same pretensions; and we may easily suppose also, 15, 31, or any other number of claimants, without any clue whatever to determine the priority of their proximity. But, according to the rule laid down by the learned judge, no two cases can possibly be produced, but we can determine instantly which has the prior right by descent. His note is in these terms: "Some professiona! gentlemen have not been satisfied with the learned judge's arguments for his preference of no 10 to no 11. In the year 1779 an anonymous pamphlet was published, entitled Remarks on the Laws of Descent,' in which these arguments were fully considered and controverted. The late learned Vinerian Professor has also declared, that he can by no means accede to this opi nion of sir William Blackstone.' 2 Woodd. 262. But from the consideration which I have bestowed upon the subject, I am inclined to concur with the learned judge in giving a preference to no 10 before no 11. I am ready to admit, that some of the reasons adduced to maintain this doctrine cannot be supported; but it does not follow that a doctrine is erroneous, because out of a number of arguments in its favour, some of them are not unanswerable. But the principal grounds, which the Editor relies upon, are the following, viz. that the rule laid down by the learned judge is part of a consistent and certain system, by which we can immediately discover the heir to any inheritance; if we deviate from it, we are soon bewildered in uncertainty and confusion; when the law of descents is not called in to make a provision for a man's family and his near relations, in which both our reason and feelings, however we may wish to divide the inheritance into different portions, correspond with the law, it is then entirely juris positivi, and its only object is certainty, by which anxiety and litigation among a number of claimants of an intestate's estate may be suppressed. But the law of descents is established beyond all possibility of controversy, till we search for an heir among great uncles, and second and third cousins. And between these, and still more remote relations, it is of infinitely greater concern to the public to fix a rule, which can instantly inform us who is the heir, than to attend to any petty considerations of propriety, who ought to be the heir. It is fully settled, in the case of Clere and Brooke, Plowd. 450., that the brother of a paternal grandmother, or his representative, shall be preferred in the descent of a newly-purchased estate to a brother of a mother, or his representative, and this is a law which is certainly contrary to our natural wishes and sentiments; but it does little violence to our feelings to postpone the brother of a grandmother to the brother of a great-grandmother, and so in succession. If the grandmother is more worthy than the mother, because related by one male blood, and the mother by none, the great-grandmother, as is well observed by the editor of Plowden, ought to be still more worthy, being related by two male bloods. And that principle, which operates so powerfully as to carry the estate past the mother to the grandmother, ought to preserve its consistency, and to carry it also from the grandmother to the great grandmother, provided they are immediately united to the male ascending branch. If we have no other rule among heirs through females beyond the mother than proximity; what have we to assist and guide us, when there are descendants of a number of female ancestors, or of ancestors through females of equal proximity? For if 10 is not to be preferred to 11, what principle can we find to determine between 10, 12, and 13? They have all an equal claim by proximity. The supporters of proximity will not be so bold as to say that they shall be coparceners, or that they shall run a race, and one shall gain the estate by occupancy. If we go a step higher, we shall find the descendants of the brothers of Anne Godfrey, William Smith, Jane King, Thomas Kempe, Sarah Browne, Charles Holland, and Mary Wilson, have all the same pretensions; and we may easily suppose also 15, 31, or any other number of claimants, without any clue whatever to determine the priority of their proximity. But, according to the rule laid down by the learned judge, no two cases can possibly be produced, but we can determine instantly which has the prior right by descent. Moreover a feudum novum is considered as a feudum antiquum, or a feud of indefinite antiquity; and if it had actually descended, which we may suppose, from Walter or George Stiles, then the heirs by their wives, and the wives of their descendants, would all have been entirely cut off; and therefore it is not unreasona. ble, or, at least, inconsistent with that supposition, that an heir on the part of a wife of a more remote ancestor of the Stiles's should be preferred to the heir on the part of a wife of a nearer ancestor. "If then the plan of descents laid down by the learned judge be established, it may be explained by the scheme subjoined, which will determine the heir at law in all cases that can possibly be put or devised. "In tracing the heir downwards, in the descending line, no difficulty can ever occur. But in the scheme annexed, I suppose the propositus to die without issue, and without brothers or sisters, seised of an estate by purchase; and I suppose A, B, C, D, &c. to Z, to be his father, grandfather, &c. his lineal ancestors of the same name; and a, b, c, d,-z, to be their wives respectively, who are not necessarily related to each other. To find then the heir of the propositus, we must inquire for the lineal heir or representative of the eldest brother of A the father; then for the representative of the second, third, &c., but if A had no brothers, then for his sisters and their representatives; if none can be found, we must in like manner have recourse to B, and so on to C; and if we find a representative of III, the eldest brother of C, he is the heir at law to the intestate, and will inherit before the representatives of the brothers of D, E, F, &c. And thus we are to go back through the lineal male ancestors of the intestate; but if in going up to Z, or to any indefinite distance, we can find no heir issuing from the male ancestors, we must then have recourse to the females; but in this research we must begin at the other end, and pursue a different direction. We must inquire first, whether z, the wife of one of the remotest male ancestors of the propositus, had a brother or sister leaving a representative; for if so, he will be the heir of the propositus; if we suppose 24, 6, 3, to be the respective brothers of the wives, then the descendants of 24 will inherit before those of 6; and for the same reason those of 6 before those of 3. If z had no brother or sister leaving issue, but has collateral rela Vous descending from her ancestors, one of those must be preferred to any heir on the part of |