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Issue of the Body of the Ancestor. And therefore, as in estates tail, which a proper feud resembled, so in the feudal donation, the will of the donor or original lord, when feuds were turned from life estates into inheritances, was not to make them absolutely hereditary, like the Roman allodium, but hereditary only sub modo; not hereditary to the collateral relations or lineal ancestors, or husband or wife of the feudatory, but to the issue descended from his body only.
Collateral Kinsmen Admitted. In time, when the feudal rigor somewhat abated, a method was invented to let in the collateral relations of the grantee to the inheritance, by granting him a feudum novum, to hold ut feudum antiquum ; that is, with all the qualities annexed of a feud derived from his ancestors. And then the collateral relations were admitted to succeed even in infinitum, as they might have been of the blood of the first imaginary purchaser, because every collateral kinsman must be descended from some one of his lineal ancestors.
Present Grants of Fee-simple Estates. Of this nature are all the grants in fee-simple in the kingdom, for there is not at present in England such a thing as a grant of a feudum novum, to be held, ut novum, unless in the case of a fee-tail, where none but the lineal descendants of the first donee or purchaser are admitted ; but every grant of lands in fee-simple is with us a feudum novum to be held, ut antiquum, as a feud, whose antiquity is indefinite, and hence the collateral kindred of the grantee or descendants from his lineal ancestors, by whom the lands might have been purchased, are capable of being called to the inheritance.
Heirs of the Ancestor. Yet when an estate has really descended in the course of inheritance to the person last seised, the strict rule of the feudal law is still observed, and none are admitted, but the heirs of those through whom the inheritance has passed, for none others have the blood of the first purchaser in them. As if lands come to a man by descent from his mother, no relation of his father, as such, shall ever be his heir of these lands; and vice versa, if they descend from his father, no relation of his mother, as such, shall ever be admitted thereto. This is also the rule of the French law, which is derived from the same feudal source.
Where of Doubtful Origin. So far as the feud is really
antiquum, the law traces it back, and will not suffer any inherit, but the blood of those ancestors, from whom the feud was conveyed to the late proprietor. But when through length of time, it can be traced no further, or it was taken by an ancestor as a feud of indefinite antiquity, the law admits the descendants of such ancestors either paternal or maternal, to be in their due order the heirs of the last holder.
Law of Collateral Inheritance. This then is the principle, upon which the law of collateral inheritances depends : that upon failure of issue in the last proprietor, the estate shall descend to the blood of the first purchaser, or that it shall result back to the heirs of the body of that ancestor, from whom it either has, or by fiction of law, is supposed to have originally descended.
VI. The collateral heir of the person last seised must be his next collateral kinsman of the whole blood.
Different Modes of Computing Degrees. He must be so either personally or jure representationis, according to the canonical degree of consanguinity. Hence, the brother being in the first degree, he and his descendants shall exclude the uncle and his issue, who are only in the second. Herein consists the reason of the different methods of computing the degrees of consanguinity in the civil law on the one hand, and in the canon and common laws on the other.
Under the Civil Law. The civil law regards consanguinity chiefly with respect to succession, and hence considers only the person deceased, to whom the relation is claimed. It counts the degree of kindred, according to the number of persons, through whom the claim must be derived from him.
Under the Canon Law. The canon law regards consanguinity principally with a view to prevent incestuous marriages, and therefore looks up to the ancestor of the same blood, reckoning the degrees from him.
Under the Common Law. The common law regards consanguinity principally with respect to descents, and having therein the same objects in view, as the civil law, it apparently ought to proceed according to the civil computation. But it resembles the canon law, in its respects to the purchasing ancestor, from whom the estate was derived, and hence counts its degrees in the same manner. The designation of person, in seeking for the next of kin, will come to exactly the same end, though the degrees will be differently numbered, whichever mode of computation we use, since the right of representation of the parent by the issue is allowed to prevail in infinitum, otherwise there would often have been claimants in exactly the same degree of kindred; as for instance, uncles and nephews, which would have produced endless confusion. The issue of a man's brother are all of them in the first degree of kindred with respect to inheritance, those of his uncle in the second, and those of his great uncle in the third, as their respective ancestors, if living, would have been.
On Failure of Issue. On failure of issue of the person last seised, the inheritance shall descend to the other subsisting issue of his next immediate ancestor. Thus if a man die without issue, his estate shall descend to his brother or his representatives, he being lineally descended from the next ancestor, the man's father. On the failure of brothers and sisters and their issue, it shall descend to the uncle of the deceased, and so on.
Representation through the Father. Here it must be observed, that the lineal ancestors, though according to the first rule, incapable themselves of succeeding to the estate, because it is supposed to have already passed them, are yet the common stock, from which the next successor must spring. Hence in the Jewish law, which in this respect, corresponds with ours, the father or other lineal ancestor is said to be the heir, though long since dead, as being represented by his issue, who are held to succeed not as brothers, uncles, etc., but in right of representation, as the offspring of the father or grandfather of the deceased.
Title from a Brother. But though the common ancestor be thus the root of the inheritance, yet with us, it is unnecessary to name him in tracing the descent, as the descent between two brothers is held to be an immediate descent, and therefore title may be made from brother to brother, without mentioning their common father, who is in reality the fountain of inheritable blood in such case. On default of issue of such parent, we ascend to the next degree and so upwards in infinitum, till some couple of ancestors be found who have other issue descending from them than the deceased, in a parallel or collateral line. In such derivation, the same rules of sex, primogeniture and representation, as in lineal descents from the person of the last proprietor, must be observed.
Half-blood cannot Inherit. The heir need not be the nearest kinsman absolutely, but only sub modo, that is he must be the nearest kinman of the whole blood, who takes precedence of a much nearer kinsman of the half-blood, who in such case will be entirely excluded. The estate shall escheat to the lord, rather than that the half-blood shall inherit. A kinsman of the whole blood is he who is derived, not only from the same ancestor, but from the same couple of ancestors. The possession of a brother will make his sister of the whole blood his heir, in preference to a brother of the half-blood. But if land descends from a father to a son, and he dies before entry, his half-brother, son of the same father may inherit, not as the heir of his half-brother, but as heir to the common father, who was the person last actually seised.
Harsh Expulsion. This total exclusion of the half-blood from the inheritance is almost peculiar to our own law, and is looked upon as a strange hardship by some, who misapprehend the rule, which is not so much to be considered as a rule of descent as a rule of evidence.
Principle of Collateral Inheritance. The great principle of collateral inheritance is this, that the heir to a feudum antiquum must be of the blood of the first feudatory or purchaser, that is, derived in a lineal descent from him. It was originally requisite, as upon gifts in tail it still is, to trace the pedigree of the heir from the first donee or purchaser, and to show that such heir was his lineal representative. But when by length of time, and a long course of descents, the first feudatory or purchaser was forgotten, and the proof of an actual descent from him became impossible; then the law substituted a reasonable in lieu of an impossible proof, for it remits the proof of an actual descent from the first purchaser, and only requires, that the claimant be next of the whole blood to the person last in possession, or derived from the same couple of ancestors.
Restrictions in Recent Feuds. 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 only existed in fiction of law. Of this nature are all present grants of lands in fee-simple, which are inheritable, as if they descended from some indefinite ancestor, and therefore, any collateral kindred of the real modern purchaser may inherit them, provided they be of the whole blood, but those of the half-blood are excluded.
Reasons for Exclusion of Half-blood. This exclusion of the half-blood is certainly a most subtle nicety, but considering the principles on which our law is founded, it is not an injustice, nor always a hardship, since even the succession of the whole blood was originally an indulgence, rather than the strict right of collaterals, and though not extended to the demi-kindred, yet they are rarely abridged of any right, they could have enjoyed before. The half-blood have always a much less chance to be descended from an unknown, indefinite ancestor of the deceased, than the whole blood of the same degree.
Instances of Great Hardship. In some instances this exclusion is carried further, than the principle upon which it is founded will warrant, particularly when a kinsman of the whole blood, in a more remote degree, as an uncle or great-uncle, is preferred to one of the half-blood in a nearer degree, as the brother; for the half brother has the same chance of being descended from the purchasing ancestor as the uncle, and a much greater chance than the grand-uncle. It is especially overstrained, when a man having two sons by different mothers, leaves his estate to the elder by descent, who enters and dies without issue, in which case the younger son cannot inherit the estate, because he is not of the whole blood of the last proprietor.
Exceptions as to the Crown and Estates-tail. Originally the custom of excluding the half-blood in Normandy extended only to exclude a frater uterinus, when the inheritance descended a patre, and vice versa, and possibly in England also. By our law, as it now stands, the crown may descend to the half-blood of the preceding sovereign, so that it be the blood of the first monarch purchaser. Thus it did actually descend from Edward VI to queen Mary, and from her to queen Elizabeth, who were respectively of the half-blood to each other. Hence in estatestail, where the pedigree from the first donee must be strictly proved, half-blood is no impediment to the descent, because when the lineage is clearly made out, there is no need of this auxiliary proof.
General Rule. The rule then is this, that in order to keep the estate of a man, as nearly as possible in the line of his purchasing ancestor, it must descend to 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 that are descended from