The rules of descent above given will be better apprehended by a reference to the accompanying table, taken, with a little modification, from Mr. Watkins' Essay on the Law of Descents. In this table, Benjamin Brown is the purchaser, from whom the descent is to be traced. On his death intestate, the lands will accordingly descend first to his eldest son, by Ann Lee, William Brown; and from him (2ndly) to his eldest son, by Sarah Watts, Isaac Brown. Isaac dying without issue we must now seek the heir of the purchaser, and not the heir of Isaac. William, the eldest son of the purchaser, is dead; but William may have had other descendants, besides Isaac his eldest son; and, by the fourth rule, all the lineal descendants in infinitum of every person deceased shall represent their ancestor. We find accordingly that William had a daughter Lucy by his first wife, and also a second son, George, by Mary Wood, his second wife. But the son, George, though younger than his half sister Lucy, yet being a male, shall be preferred according to the second rule; and he is therefore (3rdly) the next heir. Had Isaac been the purchaser, the case would have been different; for, his half brother George would then have been postponed, in favour of his sister Lucy of the whole blood, according to the seventh rule. But now Benjamin is the purchaser, and both Isaac and George are equally his grandchildren. George dying without issue, we must again seek the heir of his grandfather Benjamin, who now is undeniably (4thly) Lucy, she being the remaining descendant of his eldest son. Lucy dying likewise without issue, her father's issue become extinct; and we must still inquire for the heir of Benjamin Brown, the purchaser, whom we now find to be (5thly) John Brown, his only son by his second wife. The land then descends from John to (6thly) his eldest son Edmund, and from Edmund (7thly) to his only son James. James dying without issue, we must once more seek the heir of the purchaser, whom we find among the yet living issue of John. John leaving a daughter by his first wife, and a son and a daughter by his second wife, the lands descend (8thly) to Henry his son by Frances Wilson, a- being of the male sex; but he dying without issue, we again seek the heir of Benjamin, and find that John left two daughters, but by different wives; these daughters, being in the same degree and both equally the children of their common father, whom they represent, shall succeed (9thly) in equal shares. One of these daughters dying without issue in the lifetime of the other, the other shall then succeed to the whole as the only issue of her father. But the surviving sister dying also without issue, we still pursue our old inquiry, and seek again for the heir of Benjamin Brown the purchaser.
Explanation of the table.
(h) Stat. 3 & 4 Will. IV. c. 106 s. 8.
(i) 2 Black. Com. 238.
(j) Watkins on Descent, 130 (146 et seq. 4th ed.).
(k) Stat. 22 & 23 Vict. c. 35, ss. 19, 20.
Descent to the sons and their issue.
The issue of the sons of the purchaser is now extinct; and, as he left two daughters, Susannah and Catherine, -by different wives, we shall find, by the second and third rules, that they next inherit (10thly) in equal shares as heirs to him. Catherine Brown, one of the daughters, now marries Charles Smith, and dies, in the lifetime of her sister Susannah, leaving one son, John. The half-share of Catherine must then descend to the next heir of her father Benjamin, the purchaser. The next heirs of Benjamin Brown, after the decease of Catherine, are evidently Susannah Brown and John Smith, the son of Catherine. And in the first edition of the present work it was stated that the half share of Catherine would, on her decease, descend to them. This opinion has been very generally entertained (l). On further research, however, the author inclined to the opinion that the share of Catherine would, on her decease, descend entirely to her son (llthly) by right of representation; and that, as respects his mother's share, he and he only, is the right heir of the purchaser. The reasoning which led the author to this conclusion will be found in the Appendix (m). This point may now be considered as established.
Descent to the daughters of the purchaser and their issue.
(l) 23 Law Mag. 279; 1 Hayes's Conv. 313; 1 Jarman & Bythewood's Conveyancing, by Sweet, 139.
If Susannah Brown and John Smith should die without issue, the descendants of the purchaser will then have become extinct; and Joseph Brown, the father of the purchaser, will then (12thly), if living, be his heir by the fifth and sixth rules. Bridget, the sister of the purchaser, then succeeds (13thly), as representing her father, in preference to her half brother Timothy, who is only of the half blood to the purchaser, and is accordingly postponed to his sister by the seventh rule. But next to Bridget is Timothy (14thly) by the same rule, Bridget being supposed to leave no issue.
On the decease of Timothy without issue, all the descendants of the father will have failed, and the inheritance will next pass to Philip Brown (15thly), the paternal grandfather of the purchaser. But the grandfather being dead, we must next exhaust his issue, who stand in his place, and we find that he had another son, Thomas (16thly), who accordingly is the next heir; and, on his decease without issue, Stephen Brown (17thly), though of the half blood to the purchaser, will inherit, by the seventh rule, next after Thomas, a kinsman in the same degree of the whole blood. Stephen Brown dying without issue, the descendants of the grandfather are exhausted; and we must accordingly still keep, according to the sixth rule, in the male paternal line, and seek the paternal great grandfather of the purchaser, who is (18thly) Robert Brown; and who is represented, on his decease, by (19thly) Daniel Brown, his son. After Daniel and his issue follow, by the same rule, Edward (20thly) and his issue (21stly) Abraham.