doth derive him title to certain lands, as heir to some of his ancestors. And of this, and of that which hath been spoken, doth arise another division of estates in fee-simple, viz. every man, that hath a lawful estate in fee simple, hath it either by descent, or by purchase. Latin word 237 a. Nature of descent. inferiorem Mirr. cap. 2. sect. 5. & 434. Brit. fo. 115.. "Descents." This word cometh of the descendere, id est, ex loco superiore in movere; and in legal understanding it is taken when Bract. lib. 5. fol. 370. land, &c. after the death of the ancestor is cast by course 215, Vid. sect. 5. of law upon the heir, which the law calleth a descent. (Sid. 198. Ante, 13 b. Ante, 163.) And this is the n blest and worthiest means whereby lands are derived from one to another, because it is wrought and vested by the act of law, and right of blood, unto the worthiest and next of the blood and kindred of the ancestor; and therefore it hath not in the common law altogether the same signification that it hath in the civil law; for the civilians call him, hæredem, qui ex testamento succedit in universum jus testatoris (E). But by the common law he is only heir which succeed- How it differs from de *237 b. scent in the civil law. person by the single operation of law; the latter, where the title is vested by the person's own act and agreement. Post, 18 a, b. Descent, or hereditary succession, is the title whereby a man, on the death of his ancestor, acquires his estate, as his heir at law. An heir, therefore, is he upon whom the law casts the estate immediately on the death of the ancestor; and an estate so descending on the heir is called the inheritance. -[Ed.] (E) By the civil law, the heir is defined to be, he who is universal successor to all the goods, and all the rights of the deceased, and who is bound to acquit all the charges and burdens of the said goods. 1 Domat. b. 1. t. 1. s. 1. p. 558. And this definition embraced the two sorts of heirs known to that law, viz. those who were instituted, or named by a testament, called testamentary heirs; and those to whom the law gave the inheritance on account of their proximity in blood, who were called, for that reason, heirs at law. And the latter were also called heirs to intestates, because they succeeded, if they were not excluded by a testament. Ibid. But the law of England makes a distinction between these two sorts of heirs, and gives them different names. For the heir, in the legal understanding of the common law, is he to whom lands, tenements, or hereditaments, by the act of God, and right of blood, do descend of some estate of inheritance. And by the common law a man cannot be heir to goods or chattels. For, as to these, the person who succeeds to them is called in the law, executor, if he succeeds by the appointment of the deceased in his last will and testament; or administrator, if he succeeds by the appointment of the ordinary, in the case of one dying intestate. Post, 7 b. 8 a. Terms of the law verb. Executor, and Administrator.[Ed.] (159)* LITTLETON. [Sect. 2. 10 a.] Rules of descent. 1. To the next of blood. tion, for the canonists do ever begin from the stock, namely, from the person of whom they do descend; of whose distance the question is. For example, if the question be, in what degree the sons of two brothers stand by the canon law, we must begin from the grandfather and descend to one son, that is one degree; then descend to his son, that is another degree; then descend again from the grandfather to his other son, that is one degree; then descend to his son, that is a second *degree; so in what degree either of them are distant from the common stock, in the same degree they are distant between themselves and if they be not equally distant, then we must observe another rule. In what degree the most remote is distant from the common stock, in the same degree they are distant between themselves; and so the most remote maketh the degree. Gradus dicitur à gradiendo, quia gradiendo ascenditur et descenditur. And thus much of the civil and canon law is necessary to the knowledge of the common law in this point (3). (G) AND if a man purchase land in fee-simple and (3) See further as to consanguinity and the manner of computing its degrees by the civil and canon law, Bl. Law Tracts, 8vo. ed. v. 1. p. 14. and 173; and the annotations in the edit. of the Corp. Jur. Canon, by the Pithai on that part of Gratian's Decretum cited by Lord Hale; and Inst. lib. 3. tit. 6, et Dig. 38. tit. 10. and the commentators on those titles.-[Hargr. n. 1. 24 a.] (G) All possible hereditary successions, says Sir Matthew Hale, may be distinguished into three kinds, viz. First, in the descending line, as from father to son or daughter, nephew or niece, i. e. grandson or granddaughter. Secondly, in the collateral line, as from brother to brother or sister, and so to brother and sister's children. Thirdly, in an ascending line, either direct, as from son to father, or grandfather (which is not admitted by the law of England); or in the transversal line, as to the uncle or aunt, great-uncle or great-aunt, &c. And because this line is again divided into the line of the father, or the line of the mother, this transverse ascending succession is either in the line of the father, grandfather, &c. on the blood of the father; or in the line of the mother, grandmother, &c. on the blood of the mother. The former are called agnati, the latter cognati. 2 Hal. H. C. L. c. 11. p. 113, 114. See Gradus Parentela. The rules which govern the law of descents in England, will be considered, in this chapter, under two general heads, 1st To the next in blood; under which division will be stated, the preference of the lineal line over the collateral line; the doctrine of representation; and the exclusion of lineal ascent. 2d. To the most worthy of blood; which head will embrace the doctrine of the preference of males to females, and of the paternalline over the maternal line, with the rules as to descents ex parte die without issue,he which is his next cousin collateral of the whole blood, how far soever he be(4) from him in degree, may inherit and have the land as heir to him. *Littleton showeth here who shall be heir to lands in fee-simple; for he intendeth not this case of an estate tail, for that he speaketh of an heir of the whole blood, for that extendeth not to estates in tail, as shall be said hereafter in this chapter, section 6. (160)* 10 a. (Plowd. 444.) Neither excludeth he brethren or sisters, because he hath a special case concerning them in this chapter, sect. 5. and in his chapter of Parceners; but this is intended *where a man purchaseth lands and dieth without issue, and having neither brother nor sister, then his next cousin collateral shall inherit (5). So as here is implied a The lineal line prefer division of heirs, viz. lineal (whoever shall first inherit), red to the collateral (4) de lui, L. and M. Roh. Red. (5) In the preceding page, Lord Coke begins his comment on that part of Littleton which describes the course of descent by the common law of England; and this seems to be a proper place for referring the student to some valuable writings published since Lord Coke's time on the same subject. See Hul. Hist. C. L. c. 11. Wright's Ten. 174. Gilb. Ten. 2. Dalrymp. Feud. Prop. 4th ed. c. 5. p. 159; and Bl. Law of Desc. To the first and last of these books it is that we principally call the attention of the student; though it must be confessed, that in all of them the history of the law is so learnedly and critically traced, and the feudal principles, on which it chiefly depends, are so clearly unfolded, that a sub 10 b. line. ject in itself dry and abstruse, be- Bract. lib. 2. cap. 30. paternâ and ex parte maternâ; the right of primogeniture; and the exclusion of the half blood. And here we may remark, as introductory to the doctrine contained in this chapter, that by law no inheritance can vest, nor can any person be the actual complete heir of another, all the ancestor is previously dead: Nemo est hæres vivents Before that time, the person who is next in the line of succession, is called an heir apparent, or heir presumptive. Heirs apparent are such whose right of inheritance is indefeasible, provided they outlive their ancestor; as the eldest son or his issue, who must by the coupe of the common law be heir to the (161) quòd linea recta Lineal descent is and collateral (who are to inherit for default of lineal). Upon this word (next) I put this case. One hath issue two sons, A. and B., and dieth; B. hath issue two sons, C. and D., and dieth. C. the eldest son hath issue and dieth. A. purchaseth lands in fee-simple, and dieth without issue, D. is the next cousin, and yet shall not inherit, but the issue of C.; for he that is inheritable is accounted in law next of blood. And therefore here is understood a division of next, viz. next jure repræsenta19 R. 2. tit. Garr. tionis, and next jure propinquitatis; that is, by right of representation and by right of propinquity. And Littleton meaneth of the right of representation, for legally in course of descents he is next of blood inheritable (1). And the issue of C. doth represent the person "Next of blood," intended of the next jure representationis. 100. father, whenever he happens to die. Heirs presumptive are such who, if the ancestor should die immediately, would, in the present circumstances of things, be his heirs; but whose right of inheritance may be defeated, by the contingency of some nearer heir being born. 2 Bl. Com. 208. Infra, 11 b.-[Ed.] (H) This rule, says Sir William Blackstone, is almost universally adopted by all nations; and it seems founded on a principle of natural reason that (whenever a right of property transmissible to representatives is admitted, the possession of the parents should go, upon their decease, in the first place, to their children, as those to whom they have given being, and for whom they are therefore bound to provide. 2 BI. Com. 210.-[Ed.] (1) And these representatives take neither more nor less, but just so much as their principals would have done. This taking by representation is called succession in stirpes, cording to the roots; since all the branches inherit the same share that their root, whom they represent. of C.; and if C. had lived, he had been legally the next of blood. And whensoever the father, if he had lived, should have inherited, his lineal heir by right of representation shall inherit before any other, though another be, jure propinquitatis, nearer of blood. And therefore Littleton intendeth this case of next cousin of blood (2 Inst. 7.) 30 Ass. p. 47. immediately inheritable. So as this produceth another division of next blood, viz. immediately inheritable, as the issue of C; and mediately inheritable, as D., if the issue of C. die without issue; for the issue of C. and all that line, be they never so remote, shall inherit before D. or his line; and therefore Littleton saith well, how far so ever he be from him in degree. And here ari- Diversity herein in the seth a diversity in law between next of blood inheritable case of purchase. by descent, and next of blood capable by purchase. And therefore in the case before mentioned, if a lease for life were made to A., the remainder to his next of blood in fee; in this case, as hath been said, D. shall take the remainder, because he is next of blood and capable by purchase, though he be not legally next to take as heir by descent (6). (6) "Harpur having a son and four daughters, viz. A. B. C. and D. devises to the son in tail, remainder to B. and C. for life, remainder proximo consanguinitatis et sanguinis of the devisor; and Easter 17 Jam. by two justices against one, the remainder vests in all the daughters when the son dies without issue. But afterwards, Mich. 10 Jam. per totam curiam, it vests in the eldest daughter only, and not. in all the daughters; 1. because prezimo; 2. because an express estate is limited to two of the daughters.-Periman and Pierce."-Hal. MSS. See S. C. in Palm. 11. and 303. 2 Rol. Rep. 256. Bridgm. 14. 0. Bendl. 102. 106.-Lord Chief Justice Hale also gives a note on the words proximus de sanguine vel would have done. 2 Bl. Com. 217. The Jewish succession was after |