Mrs. Davis insisted that the case was not provided for at all by the statute, and that being casus omissus, the common law applied, which would give her, as the representative of her father (Canon IV, Ante p. 460), onehalf of the estate. But it was held by three judges out of five: 1st, That the statute had wholly abrogated the common law (as had been previously decided in Browne v. Turberville, 2 Call. 390; and Templeman v. Steptoe, 1 Munf. 339), and had provided a rule for every case which could happen. (6 Rand. 363, &c., 368, 409, 437, 439.) 2nd, That the statute was founded on the affections of the heart, and follows the current in its natural flow, preferring as heirs the classes nearest in blood; and in the same class giving to those individuals nearest the intestate larger portions, and allowing the more remote to take per stirpes; to this end (i. e. to determine the shares amongst the members of a class), and to this end alone, calling the jus representationis to its aid. (Id. 365, 419, 436, 441.) 3rd, That the statute is to be interpreted according to the analogies of the statute of distribution of a decedent's personal property, and of the civil law, whence this statute, as well as the statute of distributions, was in most particulars taken. (Id. 368, &c., 374, 436.) 4th, That the inheritance in the present case was therefore to be divided into five equal parts, of which Mrs. Davis, J. G. and Francis Rowe, should each have one (taking per capita), and the other two parts should be divided respectively between the children of Mrs. Boyd and Mrs. Shackleford, who would thus take per stirpes, the shares of their deceased ancestors being in the degree of the nearest. The present statute has incorporated the principal doctrine of Davis v. Rowe (stated above as the 2nd) into its text. (V. C. 1873, c. 119, § 3.) 25. Qualifications of the General Rule; W. C. 1. Collaterals of the half-blood take only half shares. "Collaterals of the half-blood shall inherit only half so much as those of the whole blood. But if all the collaterals be of the half-blood, the ascending kindred (if any) shall have double portions." (V. C. 1873, c. 119, § 2; Blunt & al v. Gee & al, 5 Call. 489; Garland v. Harrison, 8 Leigh, 368; Hepburn & als v. Dundas & als, 13 Grat. 223.) 2h. Doctrine of Hotchpot. Where any descendant of a person dying intestate as to his estate, or any part thereof, shall have received from such intestate in his life-time, or under his will, any estate, real or personal, by way of advancement, and he or any descendant of his, shall come into the partition and distribution of the estate with the other parceners and distributees, such advancement shall be brought into hotchpot with the whole estate, real and personal, descended or distributable, and thereupon such party shall be entitled to his proper portion of the estate, real and personal. (V. C. 1873, c. 119, § 14.) The origin and nature of the doctrine of hotchpot, and the leading principles applicable thereto, have been already stated in treating of estates in co-parcenary. See ante p. 443, &c. 4. Miscellaneous Provisions; W. C. 15. Alienage of Ancestor (whether living or dead), is no bar to making Title by Descent. At common law, aliens, upon a principle of civil policy, are incapable of taking by descent, being allowed to have no inheritable blood in them. Hence, it is held by Sir Edward Coke, not without some show of reason (2 Th. Co. Lit. 191), that if an alien cometh into England, and there hath issue two sons, who are thereby natural-born subjects, and one of them purchase lands in fee, and dieth without issue, his brother shalt not be his heir; for there was never any inheritable blood between the father and them. And although this particular application of the principle, as between brothers, has been since overruled (Godfrey v. Dixon, 3 Cro. (Jac.) 539; Collingwood v. Pace, 1 Lev. 60), yet it was upon the ground that descent between brothers is immediate, and not through the father; so that in other cases, the alienage of an ancestor through whom the kindred must be derived did still operate at common law to preclude one subject from inheriting to another. In order, therefore, to obviate a principle logical enough, but leading to harsh results not warranted by sound policy, the statute 11 & 12 Wm. III, c. 6, was enacted, to the effect that alienage of the ancestor through whom one derives his pedigree shall be no bar to his making his title by descent. (2 Bl. Com. 249 to 251.) And this statute having been in substance adopted in Virginia (12 Hen. Stats. 139), it was held under it (Jackson, &c., v. Saunders, 2 Leigh, 109), that an alien naturalized, might derive title by descent from a citizen-uncle, although his mother, the uncle's sister, was still living, and a nonresident alien; and now the statute itself embodies that principle, declaring that in making the title by descent, it shall be no bar that any ancestor (whether living or dead), through whom he derives his descent from the intestate, is or hath been an alien. (V. C. 1873, c. 119, $ 4.) 28. Alien-friends may take by descent in Virginia. "Any alien, not an enemy, may acquire by purchase or descent, and hold real estate, in this State; and the same may be transmitted in the same manner as real estate held by citizens." (V. C. 1873, c. 4, § 18.) 38. Persons in order to inherit, must be either in being at decedent's death, or then in ventre sa mere, and born within ten months thereafter. The statute of descent provides that "any person in ventre sa mere, who may be born in ten months after the death of the intestate, shall be capable of taking by inheritance in the same manner as if he were in being at the time of such death." (V. C. 1873, c. 119, § 8; 2 Bl. Com. 208, & n (9); Ante, p. 455.) 45. Bastards are capable of inheriting and transmitting inheritance on the part of their mother, as if lawfully begotten. (V. C. 1873, c. 119, § 5; Garland v. Harrison, 8 Leigh, 368; Hepburn & als v. Dundas & als, 13 Grat. 219.) 5. Bastards at Common Law, in some instances, are made legitimate in Virginia; W. C. 1h. Where the father afterwards intermarries with the CHAPTER XV. OF TITLE BY PURCHASE; AND I. BY ESCHEAT. 24. Title to Lands by Purchase, or act of the Parties; W. C. 1o. Meaning of Purchase. Purchase (perquisitio), taken in its largest sense, is defined by Littleton, (2 Th. Co. Lit. 184), to be "the possession of lands or tenements that a man hath by his deed or agreement, unto which possession he cometh not by title of descent from any of his ancestors, or of his cousins, but by his own deed;" and thus it stands in direct opposition |