descends from John to (6thly) his eldest son Edmund; DESCENTS. and from him to (7thly) his only son James.-James dying without issue, we must once more seek the heir of the remainder-man, whom we find among the yet living issue of John Brown; for John leaving a daughter by one wife, and a son and daughter by another, the remainder descends (8thly) to Henry his son by Frances Wilson, as of the worthiest sex ; but he dying without issue, we again seek the heir of Benjamin, and find that John left two daughters also, Penelope Brown, and Felicia Brown, by different wives; these daughters being in the same degree, and both equally the children of their common father, through whom they derive their title to inherit (1) shall (9thly) succeed as parceners. One of these daughters dying without issue in the life-time of the other, the other shall then succeed to the whole; for she does not claim as heir to her deceased sister, but as the now only heir of her father. But the surviving sister dying also without issue, we pursue our old inquiry, and ask again for the heir of Benjamin, the remainder-man; and as his male issue is now extinct, and as he left two daughters, Susannah and Catherine, (by different wives), we find that they or their issue shall (10thly) next inherit, as heirs to him. On their death, or that of their issue, whereby the descendants of the remainder-man are become extinct, we must yet seek his right heir; and this we find to be (11thly) Bridget Brown, his sister of the whole-blood; for though the half-blood (1) Sisters of the half-blood cannot succeed as heirs to each other; but they may succeed as the heirs of their common father, being equally his children. The same law as to sons or daughters in gavelkind. 8 Mod. 208; Turner v. Turner, Robins. Gavelk. b. 1, c. 6, p. 100-105; Foxe v. Smith, 1 Freem. 45; and see Robins. b. 1, c. 3, P. 37, where a custom is noticed for lands to descend to, and be partible among, brothers by the first ventre only, to the exclusion of those by a second. See also Co. Lit. 140, b. DESCENTS. succeed equally with the whole among the descendants of Benjamin, according to the worthiness of sex or priority of birth, yet such remainder being legally vested in Benjamin, he alone is the person from whom it can be claimed, and to whom the person claiming must make himself heir: for those whom we have called the half-blood among his descendants, are only of the half-blood to each other, but are equally derived from him. But those of the half-blood above him, being not (by the terms) derived from the same couple of ancestors as he is, cannot possibly succeed as heirs to him. And, therefore, though Timothy Brown is the right heir (on the death of Benjamin and his issue), to Joseph Brown their common father, yet it is not his heir that we seek, but the heir of Benjamin; and as he is not the heir of Benjamin, (being by the second ventre, and therefore of the half-blood only to him), he shall not succeed to the remainder, but such remainder shall descend to Bridget his sister, of the whole-blood, i. e. by the first ventre: but in case she die without issue, it shall then go (12thly) to Thomas Brown, her uncle; and the issue of Joseph Brown by Emma Atkins, the second ventre, shall be excluded, as they can never be the right heirs of Benjamin, the first purchaser, from whom it must still be claimed. On the death of Thomas Brown, without issue, the remainder shall (13thly) go to his uncle Daniel Brown; and not to his brother Joseph Brown; because Thomas having never been seised, it would not on his death go to his heir, but to the heir of Benjamin: and Joseph being the father of Benjamin, could never be (as such) his heir': and Stephen, not being derived from the same couple of ancestors as Benjamin, shall not succeed. From Daniel it shall (14thly) go to Abraham, the son of Edward and Barbara Brown. But had the estate we are speaking of been an estate in possession instead of reversion, it would have descended See Show. 246. . very differently; for it would then have gone from Benjamin DESCENTS. to (I.) William; then to (II.) Isaac ; and from Isaac to (III.) Lucy Brown; who being the person now last actually seised, (supposing the persons entitled, continually to have gained an actual seisin), is become the stock of descent, and therefore we must now seek for the heir of her, and not of Benjamin. Her father, William Brown, left issue a son, (George) by his second wife; but this son being but of the half-blood to Lucy, shall never inherit as heir to her. We then must go one step higher; and here we find (IV.) her aunt Susannah to be her heir of the whole-blood. Susannah dying without issue, the estate again devolves; and as we suppose her to have been actually seised, we must find out who is heir to her; and this we discover to be now (V.) George Brown, the son of her brother William, who, though of the half-blood to Lucy, is of the whole blood to Susannah, and, therefore, shall inherit to her. And now all the issue of his grandfather Benjamin, by his first wife Anne Lee, being extinct, we must go to (VI.) Bridget, the daughter of Joseph and Elizabeth Brown; for the issue of Benjamin, by Jane Smith, being of the halfblood to George, shall never inherit as heirs to him. But Bridget succeeding, and having been actually seised, we must now have recourse to her heir; and this we find to be (VII.) John Brown, the son of Benjamin, by Jane Smith; for though of the half-blood to George, he is lineally descended from the only brother of the whole-blood to Bridget, and shall therefore (as the elder issue of Benjamin are now extinct), succeed to her. From John it descends to (VIII.) Edmund; and from Edmund to (IX.) James; and from James to (X.) his aunt Penelope; and from Penelope to (XI.) her aunt Catherine: for though the issue of her father, John Brown, by Frances Wilson, are but of the half-blood to Penelope, yet they are now the only representatives of John, who was the brother of the whole-blood [BOOK V. PART 1. DESCENTS. to Catherine; and, therefore, the estate shall descend from her to (XII.) Henry Brown; and from him to (XIII.) Felicia; and she being the last of the issue of her grandfather Benjamin, we find Thomas, the son of Philip and Esther, to be (XIV.) her heir; for as to Bridget, the daughter of Joseph and Elizabeth, it has already passed her; and Timothy, the son of Joseph and Emma, is but of the half-blood to Felicia, and therefore shall not succeed to her; but he shall succeed as heir to Thomas, being the now only son of his brother Joseph, (his brother of the whole-blood). From Timothy (XV.) it goes to (XVI.) Daniel; and from Daniel to (XVII.) Stephen; and from Stephen to (XVIII.) Abraham Brown and his issue, &c. In the annexed Table the descent is traced in the paternal line only of the purchaser. The succession into the maternal line being, it is imagined, sufficiently marked out in the preceding Table of Descents, III. given after Sir William Blackstone, by which (it may be proper just to notice) it will appear that on the extinction of the issue, and also of the paternal heirs of Benjamin Brown, the remainder or estate in possession (for the descent of either must, in this respect, be perfectly the same) would go to the right heirs of Barbara Finch (XIX. & 15.); on their failure, to those of Margaret Pain (XX. & 16.); and, on default of her heirs, to those of Esther Pitt (XXI. & 17.); and, for want of such, to those of Elizabeth Webb (XXII. & 18.) the mother of Benjamin. The rule always being to give the preference to the paternal line, and not to have recourse to the maternal till the paternal be exhausted. Again, in tracing the paternal line, we begin with the father of the person last seised, or first purchaser, and proceed upwards through the grandfather, great grandfather, &c. as far as the line can be pursued. And when the heirs on this part can be no longer discovered, we begin with those of the wife of that paternal ancestor with whom our discoveries ended, and proceed downwards to the heirs of the mother; thus it first goes to (11.) Bridget; then to (12.) DESCENTS. Thomas; then to (13.) Daniel; then to (14.) Abraham, &c. But if we seek the heir of Benjamin in the maternal line, we begin with (15.) Barbara; then proceed to (16.) Margaret; then to (17.) Esther; and then to (18.) Elizabeth. III. THE MEANS BY WHICH THE ORIGINAL COURSE We have seen, that an estate derived ex parte materna will, so long as it continues in a course of descent, be inheritable by none but such as claim from her, or her line of ancestry, but that if an estate so derived from the maternal line by descent be once fixed in the maternal heir by purchase and not by descent) he will become a new ancestor, and the estate thenceforth descend to his heirs general with a preference of the paternal to the maternal line, as in other cases of a seisin ut feudum antiquum. Hence it becomes material to consider what acts, and what form of limitation, by the person last seised of an estate er parte materna, will amount to such a new acquisition as to vest the estate in him or his heirs by purchase. As to which it may, first, be observed, that in order to effect a change of descent to the paternal line, the person seised ex parte materna must acquire a new estate, for if he be in by the conveyance in anywise as of his old estate, he cannot be in as purchaser, and the descent consequently will not be changed. A person cannot, therefore, raise a fee-simple to his own right heirs (by the name of heirs) as a purchaser or purchasers, unless he parts with his whole estate, for if the reversion expectant on the particular estate granted by him, remain in him, this, as a part of his old estate, will continue in its original channel of descent": nor can he make the heirs of his body take by purchase by any conveyance operating by the common law'. Thus, if he limit an estate to A. for life, with remainder • Co. Lit. 22, b; 1 P. Wms. 359, 387. |