(162)* LITTLETΟΝ. son's estate; *BUT if there be father and son, and the father hath a brother that is uncle to the son, and the son [Sect. 3. 10 b.] Exclusion of lineal as-purchase land in fee-simple, and die without issue, cent-the father, living his father, the uncle shall have the land as heir though next of blood, not inheritable to his 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 (7) ascend. Yet heir 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 unless he claim by col. 11 a. (e) Pl. Com. 293 b. Osborne's case. ascent. (c) "It is a maxim in law, that inheritance may lineally descend, but not ascend." I never read an opinion in any book old or new against this maxim, but (d) Lib. Rub. ca. 70. only in lib. rub where it is said, (d) si quis sine libe ris decesserit, pater aut mater ejus in hæreditatem succedat, vel frater et soror si pater et mater desint; si nec hos habeat, soror patris vel matris, et deinceps qui propinquiores in parentela fuerint hæreditarid succedant; et dum virilis sexus extiterit, et haereditas abinde sit, fæmina non hæreditat. But all our ancient authors and the constant opinion ever since do affirm the maxim. By this maxim in the conclusion of his case, only lineal ascension in the right line is prohibited, and not in the collateral. (e) Quælibet hæreditas naturaliter quidem (e) Brit. cap. 119. Fleta, lib. 6. ca. 1. ad hæredes hæreditabiliter descendit, nunquam quidem Numb. ca. 27. Rat- naturaliter ascendit. Descendit itaque jus quasi pon cliff's case, ubi supra. (3 Co. 40.) (163)* derosum, quod cadens deorsum recta linea vel transversali,et nunquam reascendit eâ viâ quâ descendit post mortem antecessorum, à latere tamen *ascendit alicui propter defectum hæredum inferius provenientium ; so as the lineal ascent is prohibited by law, and not the (7) linealment-P. and Red. collateral (S). And in prohibiting the lineal ascent, the common law is assisted with the law of the twelve ta (8) In Ratcliffe's case, 3 Co. 40, the reasons given for excluding lineal ascent are, first, that fathers and mothers are not of the blood of the children; secondly, that the exclusion is agreeable to the Jewish law, as prescribed to Moses by God himself; and thirdly, that it tends to avoid that confusion and diversity of opinions in the case of descents, of which the allowance of lineal ascension by the civil law is said to be the occasion. Lord Coke himself controverts the first of these reasons, by the words of Littleton in the section here commented upon, and by the case of administration, in which the father or mother is preferred as nearest of blood to their children, and also by the case of a remainder to the son's nearest of blood, under which description the father is entitled to take by purchase. But as to the two other reasons, Lord Coke rather appears to adopt them. However, neither of them, seems satisfactory. The inference from God's precept to Moses is unwarranted, unless it can be shown, that it was promulgated as a law for mankind in general, instead of being, like many other parts of the Mosaical law, a rule for the direction of the Jewish nation only. Besides, by the Jewish law, the father did succeed to the son in exclusion of his brothers, unless one of them married the widow of the deceased, and raised up seed to him. See Bl. Law Tracts, v. 1. p. 182. 8vo. ed. and Seld: de Succes. Ebræor. c. 12. there cited. The argument from the supposed confusion and uncertainty, which might arise, if lineal ascent should be permitted, is not less liable to objection; because lineal ascent might be governed by the same rules as lineal descent; and what is the difference between the two, that should create more confusion and uncertainty in the one case than in the other? Our modern writers account for our law's disallowance of lineal ascent in a very different way; and according to them, it in a great measure originated from the nature of ancient feudal grants, which, like estates tail, being confined to the first feudatory and his descendants, necessarily excluded his father and mother, and all paramount them and also his collateral relations. How this rule in praetice became extended so as to exclude lineal ascent universally, without confining it to the cases to which the feudal reason for the rule is applicable, and yet at the same time is so construed, as to let in all collateral relations, and even the father himself collaterally, and by the medium of others, is not now very easy to explain, though this has been attempted. See Wright's Ten. 180. and Bl. Law Tracts, v. 1. p. 183. 8vo. ed. See also a learned note on the subject in Littleton avec Observat. par M. Houard. This edition of Littleton is in 2 vol. 4to. and was published at Rouen in 1766.- [Hargr. n. 1. 11 a. (56).] [And see Sulliv. Lect. xiv. 2 BI. Com. 208. Lord Hale, in his History of the Common Law, says, that by the law of Normandy, the father was postponed to the brother and sister, and their issues, but was preferred before the uncle. According to the Jewish law, the father was preferred before the brother; by the Roman law he succeeded equally with the brother. But by the English law the father cannot take from his son by an immediate deseent, but may take as heir to his brother, who was heir to his son, by collateral descent. 2 Hist. c. 11. 5th ed. p. 93. A father or mother may, however, be cousin to their own child, and in that relation may inherit from him, notwithstanding the relation of father or mother. Eastwood v. Vincke, 2 P. Wms. 614.]-[Ed.] (9) See Tab. 5. 1. de successione ab intestato; but neither in this nor in any other part of the 12 Tables, do I see any thing to exclude lineal ascent; and as I have not met with any book on the Roman law in which such an exclusion is men (164)* 11 b. *Here our author, for the confirmation of his opinion, draweth a reason and a proof (as you have perceived) from one of the maxims of the common law. "And his uncle enter into the land. For if the unwho, to entitle the fa- cle in this case doth not enter into the land, then cannot ther to inherit, must have been last seised of the father inherit the land: for there is another maxim the actual freehold. (1) 11. H. 4. 11. in law herein implied, (f) that a man, that claimeth as 10 Ass. 27. 34 Ass. heir in fee-simple to any man by descent, must make himp. 20. 19 E. 2. Quar. Imped. 177. 45 E. 3. self heir to him that was last seised (K) of the actual 13. 40 Ass. p. 6. freehold and inheritance (10). And if the uncle in this case doth not enter, then had he but a freehold in law, and no actual freehold, but the last that was seised of the actual freehold was the son to whom the father cannot make himself heir; and therefore Littleton saith, and his uncle enter into the land, as by law he ought, to make the father to inherit, as heir to the uncle. "As by law he ought." These words, as a key, do open the secrets of the law; for hereupon it is conclu-ded, that where the uncle cannot get an actual possession by entry or otherwise, there the father in this case can tioned, I conclude, that Lord Coke (K) The last actual seisin in any ancestor, says Sir Matthew Hale, makes him, as it were, the root of the descent, equally to many intents, as if he had been a purchaser; and therefore he that cannot, according to the rules of descents, derive his succession from him that was last actually seised, though he might have derived it from some precedent ancestor, shall not inherit. 2 Hal. Hist. c. 11. p. 120. The law requires this notoriety of possession as evidence that the ancestor had that property in himself, which is to be transmitted to his heir. The seisin therefore of any person makes him the root or stock from which all future inheritance by right of blood must be derived, which is briefly expressed in the maxim of Fleta, Seisina facit stipitem. See 2 Bl. Com. 208. 212. 227, 228. 1 Bl. Law Tr. 180. 8 Co. 36.-[Ed.] (165)* not inherit. And therefore if an advowson be granted to the son and his heirs, and the son die without issue, and this descend to the uncle, and he die before he doth or can present to the church, the father shall not inherit, because he should make himself heir to the son, which he cannot do (L). And so of a rent and the like. But if the uncle had presented to the church, or *had seisin of the rent, there the father should have inherited. For Littleton putteth his case of an entry into land but for an example. If the son make a lease for life, and die without issue, and the reversion descend to the uncle, and he die, the reversion shall not descend to the father, because in that case he must make himself heir to the son. A. infeoffs the son with warranty to him and his heirs, the son dies, the uncle enters into the land and dies, the father if he be impleaded shall not take the advantage of this warranty, *for then he must vouch A. as heir to his son, which he cannot do (11); for albeit the warranty descended to the uncle, yet the uncle leaveth it as he found it, and then the father by Littleton's (ought) cannot take advantage of it. For Littleton, sect. 603. saith that Vid. sect. 603. 718. warranties shall descend to him that is heir by the com- (Ante, 329.) mon law; and sect 718. he saith that every warranty which descends, doth descend to him that is heir to him which made the warranty by the common law; which proveth that the father shall not be bound by the warranty made by the son, for that the father cannot be heir to (11) "Quære of this case of war- to the youngest son with the land." ranty; for though the lien of war- Hal. MSS. Seè acc. 2 Rol. Abr. ranty descends from him who makes 743, where it is said, that the father the warranty, to the heir at common may vouch on such a warranty to law, and it cannot descend to the the uncle. In Gilb. Ten. 18. there special heir, because it is a thing is a reference to Lord C. J. Hale's in gross, yet the benefit of a war- note on this part of Lord Coke, ranty, being once annexed to land, from which it appears that Lord shall go in divers cases as incident C B. Gilbert had seen Lord Hale's to the land to the special heir or MSS. notes. [Hargr. n. 1. 12 a. assignee. Thus a gift of borough- (60).] english, with a warranty, shall go *12 a. (L) But if the advowson be appendant to a manor, there actual seisin of the manor will give an actual seisin of the advowson. Post, 15 b. n. 1. (85). Watk. Desc. 60, 61.-[Ed.] VOL. H. 2 в Vid. sect 735, 736, the son, that made the warranty. And a warranty shall 737. 35 Η. 6. 33. John 79.) not go with tenements, whereunto it is annexed, to any special heir, but always to the heir at the common law (12). And therefore if the uncle be seised of certain lands, and is disseised, the son release to the disseisor, with warranty, and die without issue, this shall bind the uncle; but if the uncle die without issue, the father may Crook's case. (5 Co. enter, for the warranty cannot descend upon him. So if the son concludeth himself by pleading concerning the tenure and services of certain lands, this shall bind the uncle; but if the uncle die without issue, this shall not bind the father, because he cannot be heir to the son, and consequently not to the estoppel in that case; but if it *be such an estopple as runneth with the land, then it is otherwise (13). (166)* 10 b. "Yet the father is nearer of blood." And therefore Diversity herein in the some do hold upon these words of Littleton, that if a case of purchase. 5 E. 6. tit. Administr. lease for life were made to the son, the remainder to his Br. 47. Ratcliffe's in the Chapter of Socage. case, ubi supra. See next of blood, that the father should take the remainder by purchase, and not the uncle, for that Littleton saith the father is next of blood, and yet the uncle is heir. As if a man hath issue two sons, and the eldest son hath issue a son and die, a remainder is limited to the next of his blood, the younger son shall take it, yet the other is his heir. (Hob. 33.) (3 Co. 40.) 11 b. (g) Note, that true it is that the uncle in this case is Descent to an heir may heir, but not absolutely heir; for if after the descent to be defeated by the of a posthumous heir him the father hath issue a son or daughter, that issue nearer of blood. (g) 11 Ass. p. 6. Doct. and Stud. 12 b. 32 H. 6. 35. (h) 19 H. 6. 61. shall enter upon the uncle (14). (h) And so it is, if a (12) See acc. both as to estoppels and warranties, Hob. 31. 8 Co. 54. But observe what is said by Lord Hale in the preceding note.-[Hargr. n. 2. 12 a.] (13) "The son makes lease for life, and dies; the uncle releases to the lessee for life in tail on condition, and dies. Quære, who shall enter for the condition broken, as the reversion in fee doth not descend to the father?" Hal. MSS. --[Hargr. n. 3. 12 a. (61).] (14) Here Lord Coke is silent as to the right to the intermediate profits from the death of the father. In the case of Basset and Basset. Lord Ch. Hardwicke held, that a posthumous son, claiming under a remainder in a settlement, was, by construction of the 10 & 11 W. 3. c. 16. which preserves remainders for posthumous children, where no estate is limited to trustees for that purpose, intitled to the mean profits. See 3 Atk. 203. But in the |