« PreviousContinue »
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.
This I take to be the true reason of the constant prefer- The greatest.
i'ii probability of
ence of the agnatic succession, or tissue derived from the finding heirs
... being among
male ancestors, through all the stages of collateral inheri- the descendants
l_ i_'i" e i • i /• of the male nn
tance; as the ability for personal service was the reason for cestor, was the
- . . 1 * J ., .. • .. . true reason of
preferring the males at first in the direct lineal succession, their preference We see clearly, that if males had been perpetually admitted, heritages. 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 purchaser : 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 or entirety of the blood, will fall little short of a certainty.
Before we conclude this branch of our inquiries, it may Exemplification 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 this 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 tegether, Margaret and Charlotte Stiles, or their issue: (No. 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: (No. 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
(r) See the table of descents annexed. VOL. II. B n
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: (No. 8.)—then the issue of Richard and Anne Stiles, the parents of his paternal grandfather's father: (No. 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 : (No. 10.)—and so on in the paternal grandfather's maternal line, or blood of Christian Smith, in infi[ *238 ] nitum: till both the immediate bloods of George Stiles, the paternal grandfather, are spent.—Then we must resort to the issue of Luke and Frances Kempe, the parents of John Stiles's paternal grandmother: (No. 11.)—then to the issue of Thomas and Sarah Kempe, the parents of his paternal grandmother's father: (No. 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: (No. 13.)—and so on in the paternal grandmother's maternal line, or blood of Frances Holland, in infinitum; till both the immediate bloods of Cecilia Kempe, the 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, (Nos. 14, 15, 16.) Willis's, (No. 17.) Thorpe's, (Nos. 18, 19.) and White's, (No. 20.) in the same regular successive order as in the paternal line. The Case or The student should however be informed, that the class,
Bm.ke. consi- 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. And yet, notwithstanding these respectable authorities, the compiler of this table hath ventured (in point of
(*) Plowd. 450. (OElem. e. 1. (u) H. C. L. 240, 244.
theory, for the case never yet occurred in practice, (to give the preference to No. 10 before No. 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 course of argument, by justice Manwoode(44); 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 [ *239 ] blood of No. 10 was derived to the 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.
(w) Dyer, 314.
(44) The disputed doctrine was thus laid down by Mr. Justice Manwoode in the case of Clere v. Brook, (Plowd. 450)—" The brother or sister of the purchaser's grandmother, viz, the mother of the purchaser's father, shall be preferred before the brother or sister of the purchaser's great grandmother, viz. the mother of the purchaser's father's father; because they are equally worthy in blood, (for, such heirs come from the blood of the female sex, from which the purchaser's father issued,) and where they are all equally worthy, the next of blood shall always be preferred as heir."
Mr. Wat kins devotes the 3rd section of the 3rd chapter of his Essay on the Law of Descents, to a refutal of this doctrine, and a support of that maintained by our author. On the other hand the question is ably discussed by Mr. Osgoode in his " Remarks on the Law of Descents," (from which copious extracts are given in 3 Cruise's Digest, 381—411, and also in a long note to2 Hale's Hist, of the Com. Law, s edition,)where ourauthor's
reasoning is temperately examined and
The result appears to be, that, if the
Since the first publication of this note, the point mooted has been legislatively set at rest, by the 7th and 8th sections of the statute of 3 & 4 Gul. IV. c. 106, and the law is established in conformity with Blackstone's doctrine.
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 No. 16, which is analagous 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 an ingenious author (y); and establishes a collateral doctrine (viz. the preference of No. 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 Coke (a) ; 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 No. 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 " cestui/ que doit "inheritor al pere, doit inheriter al Fits" (b). And so Sir Matthew Hale (c) says, "that though the law excludes the "father from inheriting, yet it substitutes and directs the "descent, as it should have been, had the father inherited."
(x) Pag. 235—237. (a) Fitz. Abr. tit. Discent, 2; Bro.
(y) Law of Inheritances, 2d edit., Abr. tit. DUcent, 3.
pag. 30, 38, 61, 62, 66. (*) See pag. 223.
(z) Co. Litt. 12; Hawk. Abr. in loc. (c) Hist. C. L. 243.