and the remaining third to the one child who is the sole representative of her mother.3 § 306. (ii) Reason for rule of succession in stirpes.-This mode of representation is a necessary consequence 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, without any respect to the stocks from whence they sprung, and those children were partly male and partly female; then the eldest male among them would exclude not only his own brethren and sisters, but all the issue of the other two daughters; or else the law in this instance must be inconsistent with itself, and depart from the preference which it constantly gives to the males, and the firstborn, among persons in equal degree. Whereas, by dividing the inheritance according to the roots, or stirpes, the rule of descent is kept uniform and steady: the issue of the eldest son excludes 3 "Blackstone's discussion of the canons of descent has been by no means free from criticisms. But whether or not he, in this respect, accurately stated the provisions of the civil and of the common law, and the reasons for their distinction, his words are of great importance, because, during the whole formative period of the American law of descent—at least, outside of the original colonies-Blackstone's Commentaries was generally accepted as the embodiment of the common law. Every student resorted to it as teaching the elements of his profession. Most practitioners regarded it as the authoritative statement of the English law at the period of separation. So that those who framed the existing statutes of descent may safely be presumed to have been guided largely by what is there said as to rules of law which they were about to redeclare or alter, and as to the reasons for their existence. Referring to the text in this light, it is significant that in America the most general and earliest departures from the common law were in the abolishment of primogeniture and the preference of males. These changes swept away the reasons given by Blackstone for representation among collaterals, and it must have been in the minds of the framers of the statutes to follow another maxim frequently expressed by Blackstone, and sweep away the law itself, together with the reasons for its existence. (Knapp v. Windsor, 6 Cush. (Mass.) 156; Snow v. Snow, 111 Mass. 389; Balch v. Stone, 149 Mass. 39, 20 N. E. 322.) The significance of these cases is chiefly in the fact that they construe such language as 'next of kin in equal degrees' as implying a taking per capita by the class described." Douglas v. Cameron, 47 Neb. 358, 66 N. W. 430, 432. all other pretenders, as the son himself (if living) would have done; but the issue of two daughters divide the inheritance between them, provided their mothers (if living) would have done the same: and among these several issues, or representatives of the respective roots, the same preference to males and the same right of primogeniture obtain, as would have obtained at the first among the roots themselves, the sons or daughters of the deceased. As if a man hath two sons, A and B, and A dies leaving two [219] sons, and then the grandfather dies; now the eldest son of A shall succeed to the whole of his grandfather's estate; and if A had left only two daughters, they should have succeeded also to equal moieties of the whole, in exclusion of B and his issue. But if a man hath 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 who is younger than his sister: here when the grandfather dies, the eldest son of C shall succeed to one-third, in exclusion of the younger; the two daughters of D to another third in partnership; and the son of E to the remaining third, in exclusion of his elder sister. And the same right of representation, guided and restrained by the same rules of descent, prevails downwards in infinitum. § 307. (iii) History of rule of succession in stirpes.-Yet this right does not appear to have been thoroughly established in the time of Henry the Second, when Glanvill wrote; and therefore in the title to the crown especially, we find frequent contests between the younger (but surviving) brother and his nephew (being the son and representative of the elder deceased) in regard to the inheritance of their common ancestor: for the uncle is certainly nearer of kin to the common stock, by one degree, than the nephew; though the nephew, by representing his father, has in him the right of primogeniture. The uncle also was usually better able to perform the services of the fief; and besides had frequently superior interest and strength, to back his pretensions and crush the right of his nephew. And even to this day, in the lower Saxony, proximity of blood takes place of representative primogeniture; that is, the younger surviving brother is admitted to the inheritance before the son of an elder deceased: which occasioned the disputes between the two houses of Mecklenburg, Schwerin, and Strelitz, in 1692. Yet Glanvill, with us, even in the twelfth century, seems to declare for the right of the nephew by representation; provided the eldest son had not received a provision in lands from his father (or as the civil law would call it), had not been forisfamiliated, [220] in his lifetime. King John, however, who kept his nephew Arthur from the throne, by disputing this right of representation, did all in his power to abolish it throughout the realm: but in the time of his son, King Henry the Third, we find the rule indisputably settled in the manner we have here laid it down,' and so it has continued ever since. And thus much for lineal descents. § 308. (e) Fifth rule: collateral descent to blood of first purchaser.-A fifth rule is, that on failure of lineal descendants, or issue, of the person last seised, the inheritance shall descend to the blood of the first purchaser; subject to the three preceding rules. Thus if Geoffrey Stiles purchases land, and it descends to John Stiles, his son, and John dies seised thereof without issue; whoever succeeds to this inheritance must be of the blood of Geoffrey, the first purchaser of this family. The first purchaser, perquisitor, is he who first acquired the estate to his family, whether the same was transferred to him by sale, or by gift, or by any other method, except only that of descent. § 309. (i) Rule peculiar to English law. This is a rule almost peculiar to our own laws, and those of a similar original. For it was entirely unknown among the Jews, Greeks, and Romans: none of whose laws looked any further than the person himself who died seised of the estate: but assigned him an heir, without considering by what title he gained it, or from what ancestor he derived it. But the law of Normandy agrees with our law in this respect: nor indeed is that agreement to be wondered at, since the law of descents in both is of feudal original; and this rule or canon cannot otherwise be accounted for than by recurring to feudal principles. Mod. Un. Hist. xlii. 334. 8 1. 7. c. 3. h Hale. H. C. L. 217. 229. Bracton. 1. 2. c. 30. § 2. k Co. Litt. 12. 1 Gr. Coustom. c. 25. § 310. (ii) Origin of the rule.-When feuds first began to be hereditary, it was made a necessary qualification of the heir, who would succeed to a feud, that he should be of the blood of, that is lineally [221] descended from, the first feudatory or purchaser. In consequence whereof, if a vassal died possessed of a feud of his own acquiring, or feudum novum (a new fee), it could not descend to any but his own offspring; no, not even to his brother, because he was not descended, nor derived his blood, from the first acquirer. But if it was feudum antiquum (an ancient fee), that is, one descended to the vassal from his ancestors, then his brother, or such other collateral relation as was descended and derived his blood from the first feudatory, might succeed to such inheritance. To this purpose speaks the following rule; "frater fratri sine legitimo hærede defuncto, in beneficio quod eorum patris fuit, succedat: sin autem unus e fratribus a domino feudum acceperit, eo defuncto sine legitimo hærede, frater ejus in feudum non succedit (a brother may succeed to his brother dying without a lawful heir, in the estate which was their father's: but if one of the brothers shall have received the fee from his lord, and die without a lawful heir, his brother does not succeed.) "m The true feudal reason for which rule 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. And therefore, as in estates-tail, (which a proper feud very much resembled), so in the feudal donation, "nomen hæredis, in prima investitura expressum, tantum ad descendentes ex corpore primi vasalli extenditur; et non ad collaterales, nisi ex corpore primi vasalli sive stipitis descendant (the name of heir expressed in the first investiture extends only to the descendants of the body of the first vassal, and not to the collaterals unless they descend from the body of the first vassal or stock)"; the will of the donor, or original lord (when feuds were turned from life estates into inheritances), not being to make them absolutely hereditary, like the Roman allodium, but hereditary only sub modo (in a particular way); 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. n Crag. 1. 1. t. 9. § 36. m 1 Feud. 1. § 2. § 311. (iii) Feudum novum to be held ut feudum antiquum. However, in process of time, when the feudal rigor was in part 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, because they might have been of the blood of, that is, descended from, the first imaginary purchaser. For [222] since it is not ascertained in such general grants whether this feud shall be held ut feudum paternum (as a paternal fee), or feudum avitum (an ancestral fee), but ut feudum antiquum (as an ancient fee) merely; as a feud of indefinite antiquity; that is, since it is not ascertained from which of the ancestors of the grantee this feud shall be supposed to have descended; the law will not ascertain it, but will suppose any of his ancestors, pro re nata (for the occasion as it may arise), to have been the first purchaser: and therefore it admits any of his collateral kindred (who have the other necessary requisites) to the inheritance, because every collateral kinsman must be descended from some one of his lineal ancestors. Of this nature are all the grants of fee simple estates of this kingdom; for there is now in the law of England no such thing as a grant of a feudum novum, to be held ut novum; unless in the case of a fee-tail, and there we see that this rule is strictly observed, and 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 therefore the collateral kindred of the grantee, or descendants from any of his lineal ancestors, by whom the lands might have possibly been purchased, are capable of being called to the inheritance. Yet, when an estate hath really descended in a 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 hath passed: for all others have demonstrably none of the blood of the first purchaser in them, and therefore shall never succeed. As, if lands come to John Stiles by descent from his mother, Lucy Baker, no relation of his father (as 1009 Bl. Comm.-64 |