Descent of an estate tail.
The old rule.
(y) Doe d. Gregoryv. Whichelo, 8 T. Rep. 211.
Insion of lineal ancestors.
Feudum norum ut antiquum.
(z) -2 Black. Com. 220.
(a) Bract, lib. 2, c. 29; Co. Litt. 11 a.
6. The sixth rule is, that the father and all the male paternal ancestors of the purchaser, and their descendants, shall be admitted, before any of the female paternal ancestors or their heirs; all the female paternal ancestors and their heirs, before the mother or any of the maternal ancestors, or her or their descendants; and the mother and all the male maternal ancestors, and her and their descendants, before any of the female maternal ancestors, or their heirs (c). This rule is a development of the ancient canon, which requires that, in collateral inheritances, the male stocks should always be preferred to the female; and it is analogous to the second rule above given, which directs that in lineal inheritances the male issue shall be admitted before the female. This strict and careful preference of the male to the female line was in full accordance with the spirit of the feudal system, which, being essentially military in its nature, imposed obligations by no means easy for a female to fulfil; and those who were unable to perform the services could not expect to enjoy the benefits (d). The feudal origin of our laws of descent will not, however, afford a complete explanation of this preference; for such lands as continued descendible after the Saxon custom of equal division, and not according to the Norman and feudal law of primogeniture, were equally subject to the preference of males to females, and descended in the first place exclusively to the sons, who divided the inheritance between them, leaving nothing at all to their sisters. The true reason of the preference appears to lie in the degraded position in society, which, in ancient times, was held by females; a position arising from their deficiency in that kind of might, which then too frequently made the right. The rights given by the common law to a husband over his wife's property (rights now generally controlled by proper settlements previous to marriage), show the state of dependence to which, in ancient times, women must have been reduced (e). The preference of males to females has been left untouched by the recent act for the amendment of the law of descents; and the father and all his most distant relatives have priority over the mother of the purchaser: she cannot succeed as his heir until all the paternal ancestors of the purchaser, both male and female, and their respective families, have been exhausted. The father, as the nearest male lineal ancestor, of course stands first, supposing the issue of the purchaser to have failed. If the father should be dead, his eldest son, being the brother of the purchaser, will succeed as heir in the place of his father, according to the fourth rule; unless he be of the half blood to the purchaser, which case is provided for by the next rule, which is: -
Preference of males to females.
(b) 2 Black. Com. 212 ,221, 222;
Wright's Tenures, 180. See also Litt. 11 a, n. (1).
(c) Stat. 3& 4 Will. IV. c. 106, s. 7, combined with the definition of "descendants," sect. 1.
Preference of males to females still continued.
(d) 2 Black. Com. 214.
(e) See post, the chapter on Husband and Wife.
7. That a kinsman of the half blood shall be capable of being heir; and that such kinsman shall inherit next after a kinsman in the same degree of the whole blood, and after the issue of such kinsman, when the common ancestor is a male (f) and next after the common ancestor, when such ancestor is a female. This introduction of the half blood is also a new regulation; and, like the introduction of the father and other lineal ancestors, it is certainly an improvement on the old law, which had no other reason in its favour than the feudal maxims, or rather fictions, on which it was founded (g). By the old law, a relative of the purchaser of the half blood, that is, a relative connected by one only, and not by both of the parents, or other ancestors, could not possibly be heir; a half brother, for instance, could never enjoy that right which a cousin of the whole blood, though ever so distant, might claim in his proper turn. The exclusion of the half blood was accoimted for in a manner similar to that by which the exclusion of all lineal ancestors was explained; but a return to practical justice may well compensate a breach in a beautiful theory. Relatives of the half blood now take their proper and natural place in the order of descent. The position of the half blood next after the common ancestor, when such ancestor is a female, is rather a result of the sixth rule, than an additional independent regulation, as will appear hereafter.
8. The eighth rule is, that, in the admission of female paternal ancestors, the mother of the more remote male paternal ancestor, and her heirs, shall be preferred to the mother of a less remote male paternal ancestor, and her heirs; and, in the admission of female maternal ancestors, the mother of the more remote male maternal ancestor, and her heirs, shall be preferred to the mother of a less remote male maternal ancestor, and her heirs (h). The eighth rule is a settlement of a point in distant heirships, which very seldom occurs, but which has been the subject of a vast deal of learned controversy. The opinion of Blackstone (i) and Watkins (j) is now declared to be the law.
By the old law the half blood could not inherit.
(f) Stat. 3 & 4 Will. IV. c. 106, s. 9.
(g) 2 Black. Com. 228.
9. A further rule of descent has now been introduced by a recent statute (k), which enacts that, where there shall be a total failure of heirs of the purchaser, or where any land shall be descendible as if an ancestor had been the purchaser thereof, and there shall be a total failure of the heirs of such ancestor, then and in every such case the land shall descend, and the descent shall thenceforth be traced, from the person last entitled to the land, as if he had been the purchaser thereof. This enactment provides for such a case as the following. A purchaser of lands may die intestate, leaving an only son and no other relations. On the death of the son intestate there will be a total failure of the heirs of the purchaser; and previously to this enactment the land would have escheated to the lord of the fee, as explained in the next chapter. But now, although there be no relations of the son on his father's side, yet he may have relations on the part of his mother, or his in oilier may herself be living: and these persons, who were before totally excluded, are now admitted in the order mentioned in the sixth rule.