II. Title by Operation of Law.

CHAPTER I.

DESCENT.

GLANVILL, VII., c. 3. Of heirs some are next of blood, some are more remote. Heirs next of blood are those who are begotten of the body of the ancestor, as a son or a daughter. On failure of these the remoter heirs are called to the inheritance, for instance the grandson or granddaughter descending in a direct line from a son or a daughter without limit. Next the brother and sister and their descendants. Next the uncle both on the father's and the mother's side, and the aunt in like manner and their descendants. When, therefore, any one who holds an inheritance dies, if he has an only son, it is without reserve true that that son is the successor of his father in the whole inheritance. If he has left more sons than one, then there is a distinction whether he was a knight, or a tenant of a knight's fee, or a free socman. Because if he were a knight or a tenant by knight service, then according to the law of England the first-born son succeeds his father in the whole inheritance, so that none of his brothers can demand of right any share therein. If, however, he be a free socage tenant, then the inheritance shall be divided between all the sons, however many they be, in equal shares, if that socageland has been subject by ancient custom to division, saving, however, to the eldest son the chief messuage in consideration of the dignity due to his seniority. He must, however, make its value good to the others out of other property. But if there is no ancient custom of division, then the first

born son according to the custom of some places will get the whole inheritance, while according to the custom of other places the youngest son is the heir. Further, if any one leaves an only daughter his heiress, then what has been said above as to an only son applies to the daughter without any distinction. But if he has left more daughters than one, then the inheritance shall be divided equally among them, whether their father was a knight or a socman, saving, however, to the eldest daughter the chief messuage according to the above-mentioned rule. And it should be observed that if any one of the brothers or sisters, amongst whom the inheritance is divided, dies without an heir of the body, then the share which belonged to the deceased shall be divided amongst the other survivors. If, moreover, any one has a son and heir, and besides a daughter or daughters, the son succeeds to the whole; hence it follows that if any one has had more wives than one, and a daughter or daughters by each of them, and at last by the latest wife an only son, that son alone takes the inheritance of his father, because, speaking generally, it is true that a woman never shares with a man in any inheritance, unless there may be some special practice in a particular borough existing by virtue of long usage in that borough. If, however, any one has had several wives, and by each of them a daughter or daughters, all the daughters shall share equally in the father's inheritance, in the same way as if they had all been by the same mother. And when any one dies without a son or daughter as heir, if he has grandsons or granddaughters, children of a son or a daughter, then there is no question but that the grandchildren succeed in the same way as has been before laid down concerning the succession of a son or daughter, and that the same rules apply. For lineal descendants are always preferred to collaterals. But when any one dies leaving a younger son and a grandson the son of a pre-deceased eldest son, there often arises a great question as to the law, which of the two should be preferred to the succession, that is to say, whether the younger son or the

grandson. For some used to be of opinion that the younger son was the rightful heir rather than the grandson, apparently on the ground that the first-born son, not having survived his father, never actually became his heir, and so the younger son having survived both his father and his brotherrightly in their view succeeds his father. Others, however, think that the grandson ought of right to be preferred to his uncle. For since the grandson is the issue of the eldest son, and is the heir of his body, he ought to succeed to all the rights which his father would have had if he had been still alive. This is my opinion, unless the father has been portioned by the grandfather, etc.

c. 4. On the failure of lineal descendants the brother or brothers will succeed, or, if there are no brothers, then the sisters come in; if these are pre-deceased, their children are next in order, and after these the uncles and their children, and in the last place aunts and their children, bearing in mind the distinction above explained between the sons of a knight and the sons of a socman, and the grandsons in like manner, observing also the distinction between males and females.

c. 16. A doubt may arise as to the case of a bastard, who cannot have any heir unless he have an heir of his body.

HALE, COM. LAW, 250-255. First, touching hereditary successions. It seems, that according to the ancient British. laws, the eldest son inherited their earldoms and baronies; for they had great dignities and jurisdictions annexed to them, and were in nature of principalities; but that their ordinary freeholds descended to all their sons; and this custom they carried with them into Wales, whither they were driven.

Whereupon, three things are observable, viz.: First, that at this time, the hereditary succession of the eldest son, was then known to be of the common and usual law in England. Secondly, that the succession of all the sons was the ancient customary law among the British in Wales, which by this

statute was continued to them. Thirdly, that before this time bastards were admitted to inherit in Wales, as well as the legitimate children; which custom is hereby abrogated: and although we have but few evidences touching the British laws before their expulsion hence into Wales, yet this usage in Wales seems sufficiently to evidence this to have been the ancient British law.

Secondly, as to the times of the Saxons and Danes. Their laws, collected by Brompton and Lambard, speak not much concerning the course of descents; yet it seems that commonly descents of their ordinary lands at least, except baronies and royal inheritances, descended also to all the sons; for amongst the laws of King Canutus, in Mr. Lambard, is this law, viz., No. 68: "Sive quis incuria sive morte repentina fuerit intestato mortuus, dominus tamen nullam rerum suarum partem (practer eam quae jure debetur hereoti nomine) sibi assumito. Verum eas judicio suo uxori, liberis & cognatione proximis justc (pro suo cuique jure) distributo."

But this equal division of inheritances among all the children was found to be very inconvenient, for:

First, it weakened the strength of the kingdom; for by frequent parcelling and subdividing of inheritances, in process of time they became so divided and crumbled, that there were few persons of able estates left to undergo public charges and offices.

Secondly, it did by degrees bring the inhabitants to a low kind of country living; and females were broken; and the younger sons, which, had they not had those little parcels of land to apply themselves to, would have betaken themselves to trades, or to civil, or military, or ecclesiastical employments, neglecting those opportunities, wholly applied themselves to those small divisions of lands; whereby they neglected the opportunities of greater advantage of enriching themselves and the kingdom.

So that without question, by little and little, almost generally in all counties of England (except in Kent, who were

most tenacious of their old customs in which they gloried, and some particular feuds and places where a contrary usage prevailed), the generality of descents or successions, by little and little, as well of socage lands as knights service, went to the eldest son, according to the declaration of King Edward I. in the statute of Wales above-mentioned.

STAT. MERTON (20 HEN. III., 1235), c. 9. To the King's Writ of Bastardy, whether one being born before matrimony may inherit in like manner as he that is born after matrimony, all the bishops answered that they would not, nor could not, answer to it; because it was directly against the common order of the Church. (2) And all the bishops instanted the Lords, that they would consent, that all such as were born afore matrimony should be legitimate, as well as they that be born within matrimony, as to the succession of inheritance, forsomuch as the Church accepteth such for legitimate. And all the Earls and Barons with one voice answered that they would not change the laws of the realm, which hitherto have been used and approved.

LIT., § 2. And if a man purchase land in fee simple and die without issue, he which is his next cousin collaterall of the whole blood, how farre so ever he be from him in degree, may inherite and have the land as heire to him.

$3. But if there be father and son, and the father hath a brother that is uncle to the son, and the son purchase land in fee-simple, and die without issue, living his father, the uncle shall have the land as heir to the son, and not the father, yet the father is neerer of blood; because it is a maxime in law, that inheritance may lineally descend, but not ascend. Yet, if the son in this case die without issue, and his uncle enter into the land as heire to the sonne (as by law he ought) and after the uncle dieth without issue, living the father, the father shall have the land as heire to the uncle, and not as heire to the sonne, for that he commeth to the land by collateral discent and not by lineall ascent.