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who last died actually seised in infinitum, but shall never lineally ascend.
Heirs Apparent and Presumptive. By law, no inheritance can vest, nor can any person be the actual complete heir of another, till the ancestor be previously dead. Nemo est haeres viventis. Before that time, the person who is next in the line of succession is called an heir apparent, or heir presumptive. Heirs apparent are those whose right of inheritance is indefeasible, provided they outlive the ancestor. Heirs presumptive are such, who, if the ancestor should die immediately, would, under present circumstances, be his heirs, but whose right of inheritance may be defeated by the contingency of some nearer heir being born. Nay, even if the estate has descended by the death of the owner to a brother, nephew or daughter, whose presumptive succession would be destroyed by the birth of a child, and a posthumous child be born, the estate shall be taken away from such preşumptive heir.
Actual Seisin of the Ancestor. Such ancestor, from whom an inheritance of lands may be derived, must have had actual seisin of the lands, either by his own entry, or by the possession of his own or his ancestor's lessee for years, or by receiving rent from a lessee of a freehold, or unless he has had the equivalent to corporal seisin in hereditaments that are incorporeal, such as the receipt of rent and the like. But he shall not be accounted an ancestor, who has only a bare right or title to enter or be otherwise seised. The law requires this notoriety of possession, as evidence that the ancestor had the property in himself, which is now to be transmitted to the heir. Which notoriety has taken the place of the ancient feudal investiture, whereby, while feuds were precarious, the vassal, on the descent of lands, was formerly admitted in the lord's court, and there received his seisin in the nature of a renewal of his ancestor's grant, in the presence of the feudal peers. The seisin of any person makes him the root or stock, from which all future inheritance, by right of blood, must be derived, as expressed, seisina facit stipitem. As early as the time of Henry II, we find the rule laid down, that the land shall never ascend, haereditas nunquam ascendit.1
II. The male issue shall be admitted before the female; sons shall be preferred to daughters.
1 This rule is now altered.
Males Preferred. This preference of males to females is agreeable to the law of succession among the Jews, and also among the Athenians, but was totally unknown to the laws of Rome, as at present extant, wherein brothers and sisters succeeded to equal portions of the inheritance. The English preference for males arose entirely from the feudal law. Our Welsh ancestors preferred the males, but the Danish invaders of England made no distinction of sex, and admitted all children at once to the inheritance. The early Saxons also manifested a preference for the male sex. Under feudal principles, no female could ever succeed to a proper feud, inasmuch as she was unable to perform the military services for which the feudal system was established. The English law does not extend to a total exclusion of the females, as the Salic law, where feuds were most strictly retained; it only postpones them to males, for though daughters are excluded by sons, they succeed before any collateral relations; our law, like that of the Saxon feudists, taking a middle course between the absolute rejection of females, and the placing them on a footing with males.
III. Where there are two or more males, in equal degree, the eldest only shall inherit, but the females all together.
Primogeniture. 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. By the laws of Henry I, in England, the eldest son had the capital fee or principal feud of his father's possessions, and no other pre-eminence. Afterwards the eldest daughter had the mansion house, when the estate descended in coparcenary. The Greeks, Romans, Britons and Saxons, and even originally the feudists, divided the lands equally, some among all the children, some among the males only.
Benefits therefrom. But when the sovereigns began to create honorary feuds, or titles of nobility, it was found necessary to make them impartible, feuda individua, and in consequence descendible to the eldest son alone. To this was added the inconvenience of splitting estates, viz., the division of military services, the multitude of infant tenants incapable of performing any duty, the consequent weakening of the strength of the kingdom, and the inducing younger sons to adopt an idle life in the country, instead of engaging in mercantile, military, civil or ecclesiastical duties.
Lands in Socage Tenure. Yet we find that socage estates frequently descended to all the sons equally, up to the reign of Henry II, but they have now fallen into the right of succession by primogeniture, except in Kent.
Female Primogeniture. Females continue as they were by the ancient law, for they were all equally incapable of performing any personal service. The prevention of the minute subdivision of estates was left to be provided for by the lords, who had the disposal of these female heiresses in marriage. However the succession by primogeniture, even among females, took place as to the inheritance to the crown, and the right of sole succession, though not of primogeniture, was also established with respect to female dignities and titles of honor. Thus if an earl dies, leaving only daughters, the eldest shall not necessarily be countess, but the king may confer the title on any of the daughters, as he pleases.
IV. The lineal descendants, in infinitum, of any person deceased, shall represent their ancestor, i. e., shall stand in the same place, as the person himself would have done, had he been living.
Representation by Race. Thus the child or grandchild, either male or female, of the eldest son succeeds before a younger son, and so in infinitum. And these representatives shall take just so much as their principals would have done. Thus if a man has two daughters and one die, leaving six children, the surviving daughter, on the death of her father intestate, takes a moiety of his estate, the remaining moiety to be divided among the six grandchildren, being the share which their mother would have had, if she had lived.
Per Stirpes. This taking by representation is termed succession in stirpes, according to the roots, since all the branches inherit the same share as their root, whom they represent, would have done. And in this manner also was the Jewish succession, but the Roman differed somewhat. In the descending line, the right of representation continued in infinitum, and the inheritance descended per stirpes. And so among collaterals, if any person of equal degree with the persons represented was still existing, as if the deceased left one brother and two nephews, the sons of another brother, the succession was still guided by the roots.
Per Capita. If, however, both of the brothers 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. So if a man's next heirs are 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 divide it into only 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 issue of her mother.
English Mode of Representation. This mode of representation is a result of the double preference given by our law, first to the male issue, and next to the first born among the males, to both which, the Roman law is a stranger. For if all the children of three sisters were in England to claim per capita, in their own right as next of kin to the ancestor, then the eldest male among them would exclude his brethren and sisters and also his cousins, or else the law would be inconsistent with itself, and depart from its preference to males, and the first born among persons of equal degree.
Example of Per Stirpes Representation. Whereas by dividing the inheritance per stirpes, according to the roots, the rule of descent is kept uniform; the issue of the eldest son excludes all other persons, while the issue of two daughters divide the inheritance between them, provided their mothers, if living, would have done the same. If a man has two sons, A and B, and A dies, leaving two sons, and then the grandfather dies; now the elder son of A shall succeed to the whole of his grandfather's estate, but if A had left only two daughters, they would have succeeded to equal moieties of the whole, in exclusion of B and his issue. But if a man has only three daughters, C, D and E, and C dies, leaving two sons, D, leaving two daughters, and E, leaving a daughter and a son, younger than his sister; here when the grandfather dies, the elder son of C shall succeed to one-third, in exclusion of the younger; the two daughters of D to another third, and the son of E to the remaining third, to the exclusion of his sister. And the same right of representation, restrained by the same rules of descent, prevails downwards in infinitum.
Established in England. This right does not appear to have been established in England, until the reign of Henry III, prior to whose reign, in the title to the crown especially, we find contests between the younger brother and his nephew, the son of a deceased brother, in regard to the inheritance of their common ancestor; for the uncle is nearer of kîn to the common stock by one degree than the nephew, though the latter, by representing his father, has in him the right of primogeniture. Even to this day in lower Saxony, proximity of blood takes precedence of representative primogeniture, that is, the younger surviving brother is admitted to the inheritance before the son of an elder brother, deceased.
V. On failure of lineai descendants or issue of the person last seised, the inheritance shall descend to his collateral relations, being of the blood of the first purchaser.
Blood of the First Purchaser. Thus if A purchases land, and it descends to B, his son, and B dies seised thereof without issue, whoever succeeds to this inheritance must be of the blood of A, the first purchaser of this family. The first purchaser, perquisitor, is he who first acquired the estate to his family, whether by sale or gift, or by any other method, except by descent.
Peculiar to Our Law. This is a rule almost peculiar to our own laws. It was entirely unknown among the Jews, Greeks and Romans, who looked no further than the person who died last seised of the estate, but assigned him an heir, without regard to the origin of his title. Our rule, agreeing with the law of Normandy, had a feudal original.
Of the Blood of the Ancestor. When feuds became hereditary, the heir, who would succeed to the feud, must be of the blood, that is, lineally descended from the first feudatory or purchaser. Hence if a vassal died, seised of a feud of his own acquiring, or feudum novum, it could not descend to any but his own offspring, not even to his brother, because he was not descended, nor derived his blood, from the first acquirer.
Collateral Heirs. But if it was feudum antiquum, that is, one descended to the vassal from his ancestors; then his brother, or other collateral relation, who derived his blood from the first feudatory, might succeed to such inheritance. The reason for this distinction 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.