the eldest son, succeeds before the younger son, and so in infinitum (a). And these representatives shall take neither more nor less, but just so much as their principals would have done. As, if there be two sisters, Margaret and Charlotte; and Margaret dies, leaving six daughters; and then John Stiles, the father of the two sisters, dies without other issue: these six daughters shall take among them exactly the same as their mother Margaret would have done, had she been living; that is, a moiety of the lands of John Stiles in coparcenary: so that, upon partition made, if the land be divided into twelve parts Charlotte the surviving sister shall have six thereof, and her six nieces, the daughters of Margaret, one a piece. This taking by representation is called succession in stirpes, according to the roots; since all the branches inherit the same share that their root, whom Which is called succession in stirpes; they represent, would have done. (319) And in this manner also was the Jewish succession directed (b); but the Roman somewhat differed from it. In the descending line, the right of representation continued in infinitum, and the inheritance still descended in stirpes: as, if one of three daughters died, leaving ten children, and then the father died; the two surviving daughters had each one-third of his effects, and the ten grandchildren had the remaining third divided between them. And so among collaterals, if any person of equal degree with the persons represented were still subsisting (as, if the deceased left one brother, and two nephews, the sons of another brother), the succession was *still [* 380] guided by the roots: but, if both the brethren were dead leaving issue, then their representatives in equal degree became themselves principals, and shared the inheritance per capita, that is, share and share alike; they being themselves now the next in degree to the ancestor, in their own right, and not by right of representation (c). So, if the next heirs of Titius be six nieces, three by one sister, two by another, and one by a third; his inheritance by the Roman law was divided into six parts, and one given to each of the nieces whereas the law of England in this case would still divide it only into three parts, and distribute it per stirpes, thus: one third to the three children who represent one sister, another third to the two who represent the second, and the remaining third to the one child who is the sole representative of her mother. Thus also, as we have seen, if one of several parceners dies leaving issue, the share of the parcener goes to the issue, by virtue of the continued right of representation (d). The rule of representation is applied even in those cases where by custom some of the other rules, which we shall presently notice, are disregarded; as, for instance, where the custom of Borough English exists by which the (a) Hale, H. C. L. 236, 237. (b) Selden, De. Succ. Ebr. c. 1. (c) Nov. 110, c. 3; Inst. 3. 1. 6. (319) "The second rule of the descent is, that if a person dying seised, or as owner of land, leaves lawful issue of different degrees of consanguinity, the inheritance shall descend to the children and grandchildren of the ancestor, if any be living, and to the issue of such children or grandchildren as shall be dead, and so on to the remotest degree, as tenants in common. But such grandchildren and their descendants shall inherit only such share as their parents respectively would have inherited if living. The rule is thus declared in the New York Revised Statutes, and it probably is to be found in the laws of every State in the Union." 4 Kent's Com. 391. See 3 Washb. Real Prop. 21 to 44, 3d ed., in note where the statutes are quite fully given. youngest son inherits in preference to the eldest (e), or in gavelkind lands, where all sons inherit equally (ƒ). So that if a purchaser of gavelkind land dies intestate, leaving no issue and no brother, but a nephew Thomas, and two grand-nephews, the sons of William, a deceased brother of Thomas, then Thomas takes half, and each of the grand-nephews a quarter of the land (g). *The application of the rule is governed by those other rules of [*381] descent which determine the question which of the issue takes; and by those special rules which custom has established for the particular locus in quo, different from the common law. This right of perpetual representation is an ancient rule which seems to have grown general during the twelfth century, and seems to have been more slowly introduced into the collateral, than the descending line. In the time of Henry II., when Glanvil wrote, it does not appear to have been universally admitted, though that author appears to declare in its favour by holding that the son of an eldest son should inherit in priority to his uncle, a younger son of the same stock. Frequent contests took place between relations, such of these as to inheritance, and especially as to the title to the crown. Many arguments were urged, founded on the superior personal ability of the uncle to perform the duties or services attaching to the inheritance. We are not surprised to find that king John, who kept his nephew Arthur from the throne, attempted (h) to establish the principle that the uncle being nearer to the common stock had the superior right; but in the time of his son Henry III., we see the rule treated as indisputably settled (i) in the manner in which it now exists, and but few attempts were afterwards made to shake it (k). (IV.) Males pre *IV. A fourth general rule or canon is, that the male ferred to females.issue shall be admitted before the female. (320) [* 382] Thus sons shall be admitted before daughters; or, as our male lawgivers have somewhat uncomplaisantly expressed it, the worthiest of blood shall be preferred (1). As if John Stiles has two sons, Matthew and Gilbert, and two daughters, Margaret and Charlotte, and dies; first Matthew, and (in case of his death without issue) then Gilbert, shall be admitted to the succession, in preference to both the daughters. This preference of males to females is entirely agreeable to the law of succession among the Jews (m), and also among the states of Greece, or at least among the Athenians (n); but was not adopted by the laws of Rome (0), (such of them at least as are at present extant,) wherein brothers and sisters were allowed to succeed to equal In what countries this rule prevailed; (e) Blackborough v. Davis, 1 P. W. 41; Clements v. Scudamore, ib. 63; Bowen v. Littlewood, ib. 594; 2 Lord Raym. 1024, 1 Mod. 102. The courts do not extend peculiar customs further than the evidence of them is clear. See Muggleton v. Barnet, 1 H. & N. 282; 2 H. & N. 653. (f) Hook v. Hook, 1 H. & M. 43. (h) Hale, H. C. L. 217, 229. (k) Dalrymple on Feuds, c. 5, s. 2, cites as instances the contest decided by Edward I., between Bruce and Baliol; the rival claims of the Duke of Lancaster and Earl of March on the abdication of Richard II.; and those of Cardinal Bourbon and Henry of Navarre to the crown of France on the death of Henry III. Edward III.'s claim to the French throne was grounded upon an alleged right of representation, that he might take through his mother, though she was by the Salic law excluded. This claim, however, even if the difficulty of so claiming had been less manifest, was clearly bad upon the same principle of representation, since a descendant, also through a female from Edward's eldest uncle, was alive. (2) Hal. H. C. L. 235. (n) Petit. LL. Attic. 1. 6, t. 6. (320) This rule of descent has not been adopted in this country. portions of the inheritance (p). Without entering into the comparative merit of the Roman and the other constitutions in this particular, or examining into the alleged greater dignity of blood in the male or female sex; it is sufficient arises from feudal here to observe, that our preference of males to females seems to principles. have arisen entirely from the feudal law. For though our British ancestors, the Welsh, appear to have given a preference to males (q), yet our Danish predecessors (who succeeded them) seem to have made no distinction of sexes, but to have admitted all the children at once to the inheritance (r). But the feudal law of the Saxons on the continent (which was [* 383] probably brought over hither, and first altered by the law of king Canute) gives an evident preference of the male to the female sex. Pater aut mater, defuncti, filio non filiæ hæreditatem relinquent. Qui defunctus non filios sed filias reliquerit, ad eas omnis hæreditas pertineat (s)." It is possible, therefore, that this preference might be a branch of that imperfect system of feuds, which obtained here before the conquest: especially as it subsists among the customs of gavelkind, and as, in the charter or laws of king Henry I., it is not (like many Norman innovations) given up, but rather enforced (t). The true reason of preferring the males must be deduced from feudal principles: for, by the genuine and original policy of that constitution, no female could ever succeed to a proper feud (u), inasmuch as they were incapable of performing those military services, for the sake of which that system was established. But our law does not extend to a total exclusion of females, as the Salic law, and others, where feuds were most strictly retained: it only postpones them to males; for, though daughters are excluded by sons, yet they succeed before any collateral relations; our law, like that of the Saxon feudists before mentioned, thus steering a middle course between the absolute rejection of females, and the putting them on a footing with males. V. A fifth rule or canon of descent is this: that where there are two or more males, in equal degree, the eldest only shall inherit; but females all together. (321) As if a man has two sons, Matthew and Gilbert, ture or descent and two daughters, Margaret and Charlotte, and dies; Matthew his eldest son, shall alone succeed to his estate, in exclusion of Gilbert, the second son, and both the daughters; but, if both the sons die without issue before the father, the daughters [*384] Margaret and Charlotte shall both inherit the estate as to the eldest male;-Copar cenary or descent to all the females together. coparceners (x). (p) But we find that by the Lex Vaconia, De Hereditatibus mulierum, it was decreed that no one should make a woman his heir (ne quis hæredem virginem neque mulierem faceret); (Cic. Verr. 1, 42); nor leave to any one by way of legacy more than to his heir or heirs. This law is however supposed to have referred principally to those who were rich, in order to prevent the extinction of opulent families. (Adam's Roman Antiq. * (321) The right of primogeniture is not recognized in the law of descents in this country. Among what nations right of primogeniture prevailed. This right of primogeniture in males seems anciently to have only obtained among the Jews, in whose constitution the eldest son had a double portion of the inheritance (y); in the same manner as with us, by the laws of king Henry I. (z), the eldest son had the capital fee or principal feud of his father's possessions, and no other pre-eminence; and as the eldest daughter had afterwards the principal mansion, when the estate descended in coparcenary (a). The Greeks, the Romans, the Britons, the Goths, Vandals, and Franks, the Saxons, and even originally the feudists, divided the lands equally; some among all the children at large, some among the males only. This is certainly the most obvious and natural way; and has the appearance, at least in the opinion of younger brothers, of the greatest impartiality and justice. But when the emperors began to create honorary feuds, or titles of nobility, it was found necessary (in order to preserve their dignity) to make them impartible (b), or (as they styled them) feuda individua, and in consequence descendible to the eldest son alone. This example was farther enforced by the inconveniences that attended the splitting of estates; namely, the division of the military services, the multitude of infant tenants incapable of performing any duty, the consequential weakening of the strength of the kingdom, and the inducing younger sons to take up with the business. and idleness of a country life, instead of being serviceable to themselves and the public, by engaging in mercantile, in military, in civil, or in ecclesiastical employments (c). These reasons occasioned an almost total change in the method of feudal inheritances abroad; so that the eldest male began [* 385] universally to succeed to the whole of the lands in all military tenures: and in this condition the feudal constitution was established in England by William the Conqueror. sons before the reign of Henry III. Yet we find, that socage estates frequently descended to all the sons equally, so lately as when Glanvil (d) wrote in the reign of Henry II.; and it is menDescent of socage tioned in the Mirror (e), as a part of our ancient constitution, estates to all the that knights' fees should descend to the eldest son, and socage fees should be partible among the male children. However, in Henry III.'s time, we find by Bracton (f), that socage lands, in imitation of lands in chivalry, had almost entirely fallen into the right of and subsequently succession by primogeniture, as the law now stands: except in Kent, where they gloried in the preservation of their ancient gavelkind tenure, of which a principal branch was the joint inheritance of all the sons (g); and except in some particular manors and townships, where their local customs continued the descent sometimes to all, sometimes to the youngest son only, or in other more singular methods of succession. in Kent. As to the females, they are still left as they were by the ancient law: for they were all equally incapable of performing any personal service; and therefore Descent to all the one main reason of preferring the eldest ceasing, such preference females, would have been injurious to the rest: and the other principal purpose, the prevention of the too minute subdivision of estates, was left to be (y) Selden, De Succ. Ebr. c. 5 (z) C. 70. (a) Glanvil, 1. 7, c. 3. (b) 2 Feud. 55. (c) Hale, H. C. L. 221. VOL. I.-84 (d) L. 7, c. 3. (e) C. 1, s 3. (f) L. 2, c. 30, 31 94. crown. Dignities descend considered and provided for by the lords, who had the disposal of these female except as to the heiresses in marriage. However, the succession by primogeniture, even among females, took place as to the inheritance of the crown (h); wherein the necessity of a sole and determinate succession is as great in the one sex as the other. And the right of sole succession, though * not of primogeniture, was also established with respect among females, [*386] to female dignities and titles of honour. For, if a man holds an earldom to him and the heirs of his body, and dies, leaving only daughters; the eldest shall not of course be countess, but the dignity is in suspense or abeyance till the king shall declare his pleasure; for he, king's pleasure. being the fountain of honour, may confer it on which of them he pleases (i), and the one so selected and her issue will continue to bear it. If, however, such issue become extinct, the title will again become in abeyance, unless there be a failure of issue of all the coparceners except one, in which last case the descendant of that one will be entitled to claim the title (k). There is a distinction in the case of an office of honour, which may be exercised by deputy, for the coparceners may agree in appointing a deputy of suitable dignity (7). according to In these rules we may observe a clear trace of the ancient law of feuds, before their descent by primogeniture among males was established, namely, that the lord might bestow them upon such son as he thought proper, "progressum est ut ad filios devenire in quem scilicit dominus hoc vellet beneficium confirmare" (m). As to the mutual rights of parceners sufficient has already been said (n). (VI.) Relations of [387] * VI. A sixth rule is that a relation of the whole blood, and his or her issue, shall be preferred to a relation of the same degree of the half blood, and his or her issue, but the relations of the half blood are not excluded (p). (322) whole blood preferred to those of half blood. (h) Co. Litt. 165. (i) Co. Litt. 165, Harg. n. In re Braye Peerage, 8 Scott, 108. For other instances of abeyance, see 10 Cl. & Fin. 957. (k) İb. (?) When the office of great chamberlain had descended to two sisters, coheiresses of the Duke of Ancaster, one of whom was married to Peter Burrell, Esq., the judges gave it as their opinion in the House of Lords, that the office belongs to both sisters; that the husband of the eldest is not of right entitled to execute it; and that both sisters may execute it by deputy, to be approved of by them; such deputy not being of a degree inferior to a knight, and to be approved of by the king." 1b.; et Journ. Dom. Proc. May 25, 1781. See also Parl. Reg. for 1780. (m) 1 Feud. 1. (n) Ante, p. 356. (p) The words of the act are (s. 9) "That any person related to the person from whom the descent is to be traced, by the half blood, shall be capable of being his heir, and the place in which any such relation by the half blood shall stand in the order of inheritance, so as to be entitled to inherit, shall be next after any relation in the same degree of the whole blood and his issue, where the common ancestor shall be a male; and next after the common ancestor, where such common ancestor shall be a female; so that the brother of the half blood on the part of the father, shall inherit next after the sisters of the whole blood on the part of the father and their issue, and the brother of the half blood, on the part of the mother, shall inherit next after the mother." The latter part of the section can only be understood by reference to the succeeding rule that male ancestors and their issue are preferred to female ances tors, which renders its meaning sufficiently plain. For a half brother the son of a common father will take by virtue of being issue of the father before the succession reaches the mother, but after the brothers and sisters of the whole blood who themselves come after the father, but a half brother, the son of a common mother, does not take till all male paternal ancestors and their issue are exhausted, and then the succession goes to the mother before him, and he takes next after her. (322) See 4 Kent's Com. 409 to 412; 3 Washb. Real Prop. 15, 16, 3d ed. |