. agreeth well with the etymology of the word (heir) to whom the Post, 7 b.) lands descend, for hæres dicitur ab hærendo, quia qui hæres est haeret, hoc est, proximus est sanguine illi cujus est hæres. as he that is haeres, sanguinis est haeres, et heres haereditatis. So And the learning of degrees (b) set out in the civil and canon law (F) (wherein I find some difference) is worth the knowledge, to the end that Littleton and the law may the better be understood, which I will divide into certain rules; whereof the first is, That a person added to a person in the line of consanguinity maketh a degree. And it is to be understood, that a line is threefold, viz. the line ascending, descending, and collateral. And first, for example, of the ascending line, take the son and add the father, and it is one degree ascending; add the grandfather to the father, and it is a second degree ascending. 23 b. Degrees of consanguinity how com puted. (b) Vid. 10 E. Cessavit 30. Rule 1. So as how many persons there be, take away one, and you have the number of degrees. If there be four persons it is the third de- (Plowd. 444.) gree, if five the fourth, for one must exceed, and then you have the degree. Likewise by the descending, take the father and add the son, and it is one degree; then take the son and add the grandchild, and it is the second degree; and so likewise further. Wherein observe that the father, son, and grandchild, albeit there are three persons, yet they make but two degrees, because (as it hath been said) one must exceed for making a degree. (158)* Rule 3. Difference It is to be noted, that in every line the person must be reckoned from whom the computation is made. And there is no difference between the canon and civil law in the ascending and descending between the line (1); for those whom the civilians do reckon in the second de- civil law as gree, the canonists do reckon in the first (2); and those whom they to the coll canon and termediis, prima dempta, tot sunt gradus inter eas. II. Pro collateralibus. Collateralium in linea æquali quoto gradu quis distat a stipite communi, toto distant inter se vel sibi attinent. Collateralium in linea inæquali quoto gradu remotior distat a communi stipite, toto inter se distant.-Juxta jus civile.I. In linea recta ascendentium et descendentium quot sunt personæ de quibus quæritur, computatis intermediis, una dempta, tot sunt gradus inter eas. 11. Collateralium. 1. In linea æquali, quoto gradu qui distat a communi stipite, toto duplicato distant inter se, vel sibi attinent; nam quælibet persona facit gradum. 2. In linea inæquali, quot sunt personæ, stipite dempto, tot sunt gradus.-Nota in contractibus matrimonialibus computatio canonica est recepta, et hoc per decretalem tertii in concilio generali. Hall. MSS.[Hargr. n. 3. 23 b. (142).] (F) The doctrine of descents, or law of inheritance in fee-simple, depends on the nature of kindred, and the several degrees of consanguinity, which is defined to be vinculum per (Vid. stat. 32 H. 8. cap. 38. of marriages. 2 Inst. 683. 25 H. 8. cap. 22.) *24 a 1 place the fourth, these place in the second. Therefore if we will know in what degree two of kindred do stand according to the civil law, we must begin our reckoning from one, by ascending to the person from whom both are branched, and then by descending to the other to whom we do count, and it will appear in what degree (Plowd. 444.) they are. For example, in brothers and sisters' sons, take one of them and a secend to his father, there is one degree; from the father to the grandfather, that is the second degree; then descend from the grandfather to his son, that is the third degree; then from his son to his son, that is the fourth. But by the canon law there is another computation, 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 (159) 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). LITTLETON. [Sect. 2. scent. next of blood. (G) AND if a man purchase land in fee-simple and 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. (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 sonarum ab eodem stipite descendentium, the connexion or relation of persons descended from the same stock. This consanguinity is either lineal or collateral. Lineal consanguinity is that which subsists between persons of whom one is descended in a right line from the other; as between father, grandfather, and great-grandfather, or between father, son, and grandson. Every generation in this direct lineal consanguinity constitutes a degree, reckoning either upwards or downwards. Collateral consanguinity is that which subsists between persons who lineally descend from the same ancestor, who is the stirps or root, the stipes, trunk, or common stock; but who do not descend the one from the other. The method of computing the degrees of consanguinity by the canon law, which our law has adopted, is as follows: We begin at the common ancestor and reckon downwards, and in whatsoever degree the two persons, or the most remote of them, are distant from the common ancestor, that is the degree in which they are said to be related. Infra, 23 b. 2 Bl. Com. 202. 207. 3 Cru. Dig. 373.-[Ed.] (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 grand-daughter. 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, (160)* 10 a. *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 (Plowd. 414.) tail, as shall be said hereafter in this chapter, section 6. *10 b. The lineal 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 division of heirs, viz., lineal (whoever shall first inherit), and collateral (who are to inherit for default of lineal). For in descents it collateral it is a maxim in law, quòd linea recta semper præfertur transver- Glan. lib. 7. sali (H). Lineal descent is conveyed downward in a right line; as Bract. lib. 2. (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 Hal. 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 subject in itself dry and ab line pre ferred to the line. ca. 3. 4. struse, becomes not only plain and intelligible, but even agreeable and interesting. Mr. R. Robinson's Discourse concerning the Law of Inheritances in Fee-simple, is another treatise on the same subject, which should not be passed over without notice. Many parts of it are ingeniously written; but unfortunately the author has chiefly exerted his talents in inventing a new calender of consanguinity, the explanation of which employs a very considerable part of the work; and by always referring to this, and by introducing a number of arbitrary terms, which are only intelligible as he explains them, he involves his subject, before too much embarrassed with difficulties, in still greater perplexity.[Hargr. n. 1. 10 b. (54).] 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 paternal line over the maternal line, with the rules as to descents exparte paterna and exparte materna; 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, till the ancestor is previously dead: Nemo est hæres viventis. 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 course of the common law be heir to the 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 Bl. Com. 210.—[Ed.] |