(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 man hath issue a son and a daughter, the son purchaseth land in fee and dieth without issue, the daughter shall inherit the land; but if the father hath afterward issue a son, this son shall enter into the land as heir to his brother, and if he hath issue a daughter and no son, she shall be coparcener with her sister. LITTLETΟΝ. AND in case where the son purchaseth land in fee- [Sect. 4. 12 2.] simple, and dies without issue, they of his blood on the 2 To the most worthy of blood;father's side shall inherit as heirs to him, before any (167)* of the blood on the "mother's side: but if he hath no Preference of male heir on the part of his father, then the land shall descend to the heirs on the part of the mother (15). heirs over heirs female: heirs on the part of the father shall inherit before heirs on the part of the mother. 12 a. Vid. sect. 354. an ex By this it appeareth, that our author divideth heirs into heirs of the part of the father, and into heirs of the part cellent point. of the mother. (i) "They of his blood on the father's side." Here (i) Bracton, lib. 2. it is to be understood, that the father hath two immedi-fol. 65. 67, 68, 69, &c. Fleta, lib. 6. ca. 1, 2, ate bloods in him, viz. the blood of his father, and the &c. Britton, ca. 128, blood of his mother (16). Both these bloods are of the 119. Pl. Com. 444. same case, Lord Hardwicke seems to have taken it for granted, that on a descent the mean profits belong to the uncle; for he directed, that the profits of the estate descended should be accounted for by the uncle, only from the birth of the posthumous son. See ant. 55 b. (vol. 1. p. 640.) where Lord Coke puts the case of a daughter's being intitled against a posthumous brother to corn sowed before his birth; which seems to show, that Lord Coke did not consider the posthumous child as intitled to any mean profits on a descent. See also Wils. Rep. vol. 2. p. 526. where Lord C. J. De Grey, in delivering the opinion of the court of C. P. on a question whether a posthumous son was actually seised, denies that the posthumous son in the case of a descent, can be intitled to any profits received before his birth, and cites 9 H. 6. 25. as an authority in point. [Hargr. n. 4. 11 b. (59).) [See Goodtille, d. Newman v. Newman, 3 Wils. 516.528. 3d edit. Ant. p. 136, 137. n. (1).]-[Ed.] (15) Et cest l'oppinion de toutes les justices M. 12 E. 4. Mes la fuit tenus si terre descende a un home de part son pere, qui devia sans issue, que son prochein heire de part son pere enheritera a luy cest assavoir le prochein que est del sank le pere de part layel. Et pur defaute de trel heire, ceux que sont de sank le pere del part le mere le pere, S. lailesse doient enheriter. Et s'il ny ad tiel heire de part le pere donques le seignour avera le terre par eschete. Red. But this passage is not in any edition prior to Redman's, and seems an addition to Littleton by another hand, and to be an opinion extracted from 12 E. 4. 14. pl. 12. which is indeed cited in the margin of Redman.-[Hargr. n. 4. 12 a.] (16) But sometimes a man can only have immediate inheritable blood from one parent, as where his father or mother is an alien or person attainted; and this it seems Clere's case. Tr. (k) Britton, fol. 15. Fleta, lib. 1. ca. 18 Pl. Com. 445, 446, &c. Clere's case. (1 Sid. 200.) (168)* *12 b. (Plowd. 444.) part of the father. (k) And this made ancient authors say, that if a man be seised of lands in the right of his wife, and is attainted of felony, and after hath issue, this issue should not inherit his mother, for that he could derive no blood inheritable from the father. And both these bloods of the part of the father must be spent *before the heir of the blood of the part of the mother shall inherit, wherein ever the line of the male of the part of the father, that is, the posterity of such male, be they male or female, (who ever in descents are preferred,) must fail before the line of the mother shall inherit. (1) 19 R. 2. Garr. 100 (1) And the reason of all this is, for that the blood of the part of the father is more worthy, and more near in judgment of law, than the blood of the part of the mother (м). suffices to enable children to inherit from the parent, who confers the inheritable blood, and also to inherit to each other. See acc. ante 8 a. n. 2. (vol. 1. p. 90. n. 6.) and the following note by Lord Hale on Lord Coke's next passage, where he mentions, that according to ancient authors the issue of an attainted father cannot inherit to the mother. "This seems not to be law. A female heretrix takes an alien to hushand, and they have issue: the issue shall inherit to the mother. Post, Seot. 114. and fol. 33 a. for dower of wife being alien or attainted." Hal. MSS. To the same purpose is what follows, being a note on fo 8 a. post, where Lord Coke asserts, that the children of an alien cannot inherit to each other, though he allows that the children of one attainted, if born before the attainder, may. "Quære of this; for it seems the blood of the mother suffices to make them inheritable one to the other, and this was the principal reason in Hobby's case." Hal. MSS. Also Lord Hale, in another note in fol. 8 a. post, abridges the case of Bacon and Bacon from Cro. Cha. and cites Stephen's case in the dutchy as another case of the same kind, and then there is the note following. "Yet note that he cannot be heir to his mother, because she is an alien Husband denizen takes wife an alien, or wife takes husband an alien, and they have issue. It seems the issue shall inherit to the father in the first case, to the mother in the second. Ergo videtur. that if alien hath issue by denizen two sons, one son shall inherit to the other, because the mother is a denizen; and so in the case of a person attainted, having issue after attainder; and this was one of the reasons of Hobby's case." Hal. MSS. This doctrine is agreeable to Lord Hales's argument when he gave judgment in Collingwood and Pace, cited ante fol. 8 a. n. 2 (vol. 1. p. 90. n 6.) and also confirms the ob servation hazarded in n. 5. fol. 8 a. post - [Hargr. n. 7. 12 a. (62).] (M) So the son shall be admitted before the daughter; and the brother is preferred before the sister; and the unele before the aunt. This preference of males to females is evidently derived from the feudal law; but our law does not extend to a total exclusion of females, as the Salic law, and others, where teuds were most strictly retained: it only postpones them to males: for though daughters are excluded by sons, yet they succeed before any collateral relations. 2 Hal. Hist. c. 11. p. 116. 2 Bl. Com. 214.-[Ed.] "Before any of the blood on the mother's side." Britton, ca. 118, 119. Fleta, lib. 6. ca. 2. And it is to be observed, that the mother hath also two immediate bloods in her, viz. her father's blood, and her mother's blood. Now to illustrate all this by example, Robert Fairñeld, son of John Fairfield and Jane Sandie, takes to wife Ann Boyes, daughter of John Boyes and Jane Bewpree, and hath issue William Fai field, who purchaseth lands in fee. Here William Fairfield bath four immediate bloods in him, two of the part of his father, viz. the blood of the Fairfields, and the blood of the Sandies, and two of the part of his mother, viz. the blood of the Boyses, and the blood of the Bewprees, and so in both cases upward in infinitum. Now admit that William Fairfield die without issue, first the blood of the part of his father, viz. of the Fairfields, and for want thereof the blood of the Sandies (for both these are of the part of the father), if both these fail, then the heirs of the part of the mother of William Fairfield shall inherit, viz first the blood of the Boyses, and for default thereof, the blood of the Bewprees. (169)* (m) And note, it is an old and true maxim in law, that none shall inherit any lands as heir, but only the blood of the first purchaser (N), for (*) refert à quo fiat But the heir must be of the blood of the first perquisitum. As for example, Robert Coke taketh the purchaser: daughter of Knightley to wife, and purchaseth lands to (m) Pl. Com Sir E. him and to his heirs, and by *Knightley hath issue Ed- (*) Fleta, lib. 6. ca. 1,. ward, none of the blood of the Knightleys, though they 2, &c. fol. 65. 67, 68, 69, &c. be of the blood of Edward, shall inherit, albeit he had no Britton, cap. 119. kindred but them, because they were not of the blood of the first purchaser (o), viz. of Robert Coke (17). Clere's case 447. Bract. lib. 2. 24 E. 3.50. 39 Ε. 3. (17) "And therefore if the heir p. 4." Hal. MSS.- [Hargr. n. 6. Dyer 6. 24 Ε. 3. 24. of the part of the father be attaint- 12 a.j ed, the land shall escheat. 49 Ass. 37 Ass. 4. 40 Ε. 3. 9. 42 E 3. 10. 45 Ε. 3. Releases 28. 7 Н. 5. 3,4. 8 Ass. 6. 35 Ass. 2. 5 Ε. 4. 7. (N) The first purchaser, perquisitor, is he who first acquired the estate 3 H. 5. 21 H. 7. 33. to his family, whether by sale, gift, devise, or any other mode, except only 40 Ass. 6. Ratcliffe's that of descent. 2 Bl. Com. 220. And see n. (O) infra.-[Ed.] (O) This rule, which was entirely unknown among the Jews, Greeks, and Romans, is plainly derived from the feudal law; for when feuds first became hereditary, no person could succeed to a feudum novum but the lineal descendants of the person who first acquired it, who was called case. 3 Co. 42. 1 |