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the heir of the felon in case the feudal tenures had never been introduced. And that this is the true operation and genuine history of escheats will most evidently appear from this incident to gavelkind lands (which seems to be the old Saxon tenure), that they are in no case subject to escheat for felony, though they are liable to forfeiture for treason." Id. 251.

On attainder and civil death, see Kynnaird v. Leslie, L. R. 1 C. P. 389. Cf. Avery v. Everett, 110 N. Y. 317.

On the rights of the Crown to equitable interest in real and personal property when cestui que trust dies without heirs or next of kin, see cases collected in Ames, Cases on Trusts, 497-515; and cf. Mr. Hardman's article in 4 Law Quart. Rev. 318.

CHAPTER II.

DESCENT.

SECTION I.

IN GENERAL.

ST. 20 HEN. III. (MERTON) c. 9. To the King's Writ of Bastardy, whether one being born before matrimony may inherit in like manner as he that is born after matrimony, all the bishops answered, that they would not, nor could not, answer to it; because it was directly against the common order of the Church. (2) And all the bishops instanted the Lords, that they would consent, that all such as were born afore matrimony should be legitimate, as well as they that be born within matrimony, as to the succession of inheritance, forsomuch as the Church accepteth such for legitimate. And all the Earls and Barons with one voice answered, that they would not change the laws of the realm, which hitherto have been used and approved.

LIT. § 2. And if a man purchase land in fee simple and die without issue, be which is his next cousin collateral of the whole blood, how far soever he be from him in degree, may inherit and have the land as heir to him.

LIT. § 3. But if there be father and son, and the father hath a brother that is uncle to the son, and the son purchase land in fee simple, and die without issue, living his father, the uncle shall have the land as heir to the son, and not the father, yet the father is nearer of blood; because it is a maxim in law, that inheritance may lineally descend, but not ascend. Yet if the son in this case die without issue, and his uncle enter into the land as heir to the son (as by law he ought) and after the uncle dieth without issue, living the father, the father shall have the land as heir to the uncle, and not as heir to his son, for that he cometh to the land by collateral descent and not by lineal ascent.

LIT. § 4. And in case where the son purchaseth land in fee simple, and dies without issue, they of his blood on the father's side shall inherit as heirs to him, before any of the blood on the mother's side: but if he hath no heir on the part of his father, then the land shall descend to the heirs on the part of the mother. But if a man marrieth an inheritrix of lands in fee simple, who have issue a son, and die and the son enter into the tenements, as son and heir to his mother, and after dies without issue, the heirs of the part of the mother ought to inherit, and not the heirs of the part of the father. And if he hath no heir on

the part of the mother, then the lord, of whom the land is holden, shall have the land by escheat. In the same manner it is, if lands descend to the son of the part of the father, and he entereth, and afterwards dies without issue, this land shall descend to the heirs on the part of the father, and not to the heir on the part of the mother. And if there be no heir of the part of the father, the lord of whom the land is holden shall have the land by escheat. And so see the diversity, where the son purchaseth lands or tenements in fee simple, and where he cometh to them by descent on the part of his mother, or on the part of his father.

LIT. § 5. Also, if there be three brethren, and the middle brother purchaseth lands in fee simple, and die without issue, the elder brother shall have the land by descent, and not the younger, &c. And also if there be three brethren, and the youngest purchase lands in fee simple, and die without issue, the eldest brother shall have the land by descent, and not the middle, for that the eldest is most worthy of blood.

LIT. § 6. Also, it is to be understood, that none shall have land of fee simple by descent as heir to any man, unless he be his heir of the whole blood. For if a man hath issue two sons by divers venters, and the elder purchase lands in fee simple, and die without issue, the younger brother shall not have the land, but the uncle of the elder brother, or some other his next cousin, shall have the same, because the younger brother is but of half blood to the elder.

LIT. § 7. And if a man hath issue a son and a daughter by one venter, and a son by another venter, and the son of the first venter purchase lands in fee and die without issue, the sister shall have the land by descent, as heir to her brother, and not the younger brother, for that the sister is of the whole blood of her elder brother.

LIT. 8. And also, where a man is seised of lands in fee simple, and hath issue a son and daughter by one venter, and a son by another venter, and die, and the eldest son enter, and die without issue, the daughter shall have the land, and not the younger son, yet the younger son is heir to the father, but not to his brother. But if the elder son doth not enter into the land after the death of his father, but die before any entry made by him, then the younger brother may enter, and shall have the land as heir to his father. But where the elder son in the case aforesaid enters after the death of his father, and hath possession, there the sister shall have the land, because possessio fratris de feodo simplici facit sororem esse hæredem. But if there be two brothers by divers venters, and the elder is seised of land in fee, and die without issue [and his uncle enter as next heir to him, who also dies without issue], now the younger brother may have the land as heir to the uncle, for that he is of the whole blood to him, albeit he be but of the half blood to his elder brother.

CO. LIT. 13 a. If a man giveth lands to a man, to have and to hold to him and his heirs on the part of his mother, yet the heirs of the part of the father shall inherit, for no man can institute a new kind of inheritance not allowed by the law, and the words (of the part of his

mother) are void, as in the case that Littleton putteth in this chapter. If a man giveth lands to a man to him and his heirs males, the law rejecteth this word males, because there is no such kind of inheritance, whereof you shall read more in his proper place.

Co. LIT. 26 b. John de Mandeville by his wife Roberge had issue Robert and Mawde. Michael de Morevill gave certain lands to Roberge and the heirs of John Mandeville her late husband on her body begotten, and it was adjudged that Roberge had an estate but for life, and the fee tail vested in Robert (heirs of the body of his father being a good name of purchase), and that when he died without issue, Mawde the daughter was tenant in tail as heir of the body of her father, per formam doni, and the formedon which she brought supposed, "quod post mortem præfatæ Robergiæ et Roberti filii et hæredis ipsius Johannis Mandeville et hæred' ipsius Johannis de præfata Robergia per præfatum Johannem procreat' præfat' Matildæ filiæ prædict' Johannis de præfata Robergia per præfatum Johannem procreatæ sorori et hæredi prædicti Roberti descendere debet per formam donationis prædict'." And yet in truth the land did not descend unto her from Robert, but because she could have no other writ it was adjudged to be good. In which case it is to be observed, that albeit Robert being heir took an estate tail by purchase, and the daughter was no heir of his body at the time of the gift, yet she recovered the land per formam doni, by the name of heir of the body of her father, which notwithstanding her brother was, and he was capable at the time of the gift; and therefore when the gift was made she took nothing but in expectancy, when she became heir per formam doni.

CANONS OF DESCENT.1

1. INHERITANCES shall lineally descend to the issue of the person who last died actually seised in infinitum, but shall never lineally ascend.2

2. The male issue shall be admitted before the female.

3. Where there are two or more males in equal degree, the eldest only shall inherit, but the females all together.

4. The lineal descendants, in infinitum, of any person deceased shall represent their ancestor: that is, shall stand in the same place as the person himself would have done had he been living.

5. On failure of lineal descendants, or issue, of the person last seised, the inheritance shall descend to his collateral relations, being of the blood of the first purchaser; subject to the three preceding rules.3

1 These canons are taken from Blackstone. On the Law of Descent, see 2 Bl. Com. c. 14, pp. 200-240.

2 See Jackson d. Austin v. Howe, 14 Johns. 405.

3.66 The method of computing these degrees in the canon law, which our law has adopted, is as follows: we begin at the common ancestor and reckon downwards: and

6. The collateral heir of the person last seised must be his next collateral kinsman of the whole-blood.1

7. In collateral inheritances, the male stocks shall be preferred to the female (that is, kindred derived from the blood of the male ancestors, however remote, shall be admitted before those from the blood of the female, however near); unless where the lands have, in fact, descended from a female.2

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THIS ejectment was brought on the demise of J. Gregory as to one undivided third part of certain premises in Sussex, and on the demise of D. Geere as to another undivided third part. At the trial at the last assizes for Sussex a verdict was found for the plaintiff, subject to the opinion of this court on the following case.

Elizabeth Lemmon, widow, being seised in fee of certain lands in the parishes of Jevington and Folkington in Sussex, by will dated 12th January 1693 devised the same "to her son Richard Lemmon and her daughter Elizabeth wife of E. Baldy and their heirs forever, provided that if her said son and daughter should both have issue, then both their dividends aforesaid were to go to the issue of their own bodies; but if but one of them should have issue, then the premises should go to that issue, whether it be the child of her son or daughter

in whatsoever degree the two persons, or the most remote of them, is distant from the common ancestor, that is the degree in which they are related to each other. Thus, Titius and his brother are related in the first degree; for from the father to each of them is counted only one; Titius and his nephew are related in the second degree; for the nephew is two degrees removed from the common ancestor; viz., his own grandfather, the father of Titius."- 2 Bl. Com. 206.

"In agnation too is to be sought the explanation of that extraordinary rule of English law, only recently repealed, which prohibited brothers of the half-blood from succeeding to one another's lands. In the customs of Normandy, the rule applies to uterine brothers only, that is, to brothers by the saine mother but not by the same father; and, limited in this way, it is a strict deduction from the system of agnation, under which uterine brothers are no relations at all to one another. When it was transplanted to England, the English judges, who had no clew to its principle, interpreted it as a general prohibition against the succession of the half-blood, and extended it to consanguineous brothers, that is to sons of the same father by different wives. In all the literature which enshrines the pretended philosophy of law, there is nothing more curious than the pages of elaborate sophistry in which Blackstone attempts to explain and justify the exclusion of the half-blood.” — Maine, Anc. Law (4th ed.), 151.

2 See Clere v. Brook, Plowd. 442, 450, 451; 2 Bl. Com. 238, 240; Davies v. Lowndes, 7 Scott, 21, 56.

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