第59章 XI. (7)

Secondly, Whereas both Bracton and Fleta agree, that half Blood to him that is a Purchaser is an Impediment of a Descent from the Common Ancestor, half Blood is no Impediment. As for Instance; A. has Issue B. a Son and C. a Daughter by one Venter, and D. a Son by another Venter: If B. purchases in Fee and dies without Issue, it shall descend to the Sister, and not to the Brother of the half Blood; but if the Land had descended from A. to B. and he had entred and died without Issue, it was a Doubt in Bracton and Britton's Time, whether it should go to the younger Son, or to the Daughter? But the Law is since settled, that in both Cases it descends to the Daughter, Et. seisina facit Stipitem & Primum Gradum. Et Possessio Fratris de Feodo simplici facit Sororem esse haeredem.

Thus upon the whole it seems, That abating those small and inconsiderable Variances, the States and Rules of Descents as they stood in the Time of Hen. 3, or at least in the Time of Edw.

I were reduced to their full Complement and Perfection, and vary nothing considerably from what they are at this Day, and have continued ever since that Time.

I shall therefore set down the State and Rule of Descents in Fee-Simple as it stands at this Day, without meddling with Particular Limitations of Entails of Estates, which vary the Course of Descents in some Cases from the Common Rules of Descents of hereditary Successions; and herein we shall see what the Law has been and continued touching the same ever since Bracton's Time, who wrote in the Time of Hen. 3. now above 400Years since, and by that we shall see what Alterations the Succession of Time has made therein.

And now to give a short Scheme of the Rules of Descents, or hereditary Successions, of the Lands of Subjects as the Law stands at this Day, and has stood for above four hundred Years past, viz.

All possible hereditary Successions may be distinguished into these 3 Kinds, viz, either, 1st, In the Descending Line, as from Father to Son or Daughter, Nephew or Niece, i.e. Grandson or Grandaughter. Or, 2dly, ln the Collateral Line, as from Brother to Brother or Sister, and so to Brother and Sisters Children. Or, 3dly, 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 transverse 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: I shall therefore set down a Scheme of Pedigrees as high as Great-Grandfather and Great-Grandmothers Grandsires, and as low as Great-Grandchild; which nevertheless will be applicable to more remote Successions with a little Variation, and will explain the whole Nature of Descents or hereditary Successions.

This Pedigree, with its Application, will give a plain Account of all Hereditary Successions under their several Cases and Limitations, as will appear by the following Rules, taking our Mark or Epocha from the FATHER and MOTHER.

But first, I shall premise certain general Rules, which will direct us much in the Course of Descents as they stand here in England: (Viz.)First. In Descents, the Law prefers the Worthiest of Blood:

As, 1st, In all Descents immediate, the Male is preferred before the Female, whether in Successions Descending, Ascending, or Collateral: Therefore in Descents, the Son inherits and excludes the Daughter, the Brother is preferred before the Sister, the Uncle before the Aunt.

2dly, In all Descents immediate, the Descendants from Males are to be preferred before the Descendants from Females: And hence it is, That the Daughter of the eldest Son is preferred in Descents from the Father before the Son of the younger Son; and the Daughter of the eldest Brother, or Uncle, is preferred before the Son of the younger; and the Uncle, nay, the Great-Uncle, i.e. the Grandfather's Brother, shall inherit before the Uncle of the Mothers Side.

Secondly, In Descents, the next of Blood is preferred before the more remote, tho' equally or more worthy. And hence it is, 1st, The Sister of the whole Blood is preferred in Descents before the Brother of the half Blood, because she is more strictly joined to the Brother of the whole Blood (viz. by Father and by Mother) than the half Brother, though otherwise he is the more worthy.

2dly, Because the Son or Daughter being nearer than the Brother, and the Brother or Sister than the Uncle, the Son or Daughter shall inherit before the Brother or Sister, and they before the Uncle.

3dly, That yet the Father or Grandfather, or Mother or Grandmother, in a direct ascending Line, shall never succeed immediately the Son or Grandchild; but the Father's Brother (or Sisters) shall be preferred before the Father himself; and the Grandfather's Brother (or Sisters) before the Grandfather: And yet upon a strict Account, the Father is nearer of Blood to the Son than the Uncle, yea than the Brother; for the Brother is therefore of the Blood of the Brother, because both derive from the same Parent, the Common Fountain of both their Blood. And therefore the Father at this Day is preferred in the Administration of the Goods before the Son's Brother of the whole Blood, and a Remainder limited Proximo de Sanguine of the Son shall vest in the Father before it shall vest in the Uncle. Vide Littleton, Lib. I. fol. 8, 10.