Gambar halaman
PDF
ePub

14. What is the third rule, or canon of descents ?—214-216.

It is, that where there are two or more males, in equal degree, the eldest only shall inherit; but the females all together.

15. As to what does succession by primogeniture take place among females ?—216.

As to the inheritance of the crown.

16. As to what does the right of sole succession take place among females ?—216.

Female dignities and titles of honor.

17. What is the fourth rule, or canon of descents ?–217.

It is, that the lineal descendants, in infinitum, of any person deceased, shall represent their ancestor ; that is, shall stand in the same place as the person himself would have done had he been living

.8. What is this taking by representation called ?—217.

It is called succession in stirpes, according to the roots ; since all the branches inherit the same share that their root, whom they represent, would have done. 19. What is understood by sharing per capita ?—217, 218.

Among collaterals, if any person, of equal degree with the persons represented, were still subsisting (as, if the deceased left one brother, and two nephews, the sons of another brother), the succession was still guided by the roots ; but if both the brethren were dead, leaving issue, then their representatives in equal degree became themselves principals, and shared the inheritance per capita, that is, share and share alike ; they leing themselves now the next in degree to the ancestor, in their own right, and not by right of representation.

20. What is the fifth rule, or canon of descents ?—220.

That on failure of lineal descendants, or issue, of the person last seized, the inheritance shall descend to his collateral relations, being of the blood of the first purchaser, subject to the three preceding rules or canons. This is a rule almost peculiar to our own laws, and those of a similar origin.

21. What is the great and general principle upon which the lau of collateral inheritance depends ?—223.

That upon failure of issue in the last proprietor, the estate shall descend to the blood of the first purchaser; or, that it shall result back to the heirs of the body of that ancestor from whom it either really has, or is supposed by fiction of law to have, originally descended.

22. What is the sixth rule, or canon of descents ?—224.

That the collateral heir of the person last seized must be his next collateral kinsman of the whole blood.

23. Horo must he be his next collateral kinsman ?-224.

Either personally, or jure representationis. On failure of issue of the person last seized, the inheritance shall descend to the other subsisting issue of his next immediate ancestor.

24, Are lineal ancestors the common stocks of collateral inheritance 9-226.

Yes; the lineal ancestors, though incapable themselves of succeeding to the estate, because it is supposed to have already passed them, are yet the common stocks from which the next successor must spring.

25, Must the heir be the nearest kinsman absolutely?—227.

No; only sub modo ; that is, he must be the nearest kinsman of the whole blood.

26. Who is a kinsman of the whole blood ?—227.

He that is derived, not only from the same ancestor, but from the same couple of ancestors.

27. Why is the half blood excluded ?—228–230.

The total exclusion of the half-blood from the inheritance, being almost peculiar to vur own law, is looked upon as a strange hardship, by such as are unacquainted with the reasons on which it is grounded. But these censures arise from a misapprehension of the rule, which is not so much to be considered in the light of a rule of descent, as of a rule of evidence; an auxiliary rule to carry a former into execution. The universal principle of collateral inheritances being this, that the heir to a feudum antiquum must be of the blood of the first feudatory or purchaser, that is, derived in a lineal descent from him. The doctrine of the whole blood was calculated to supply the frequent impossibility of proving a descent from this first purchaser, without some proof of which there can be no inheritance allowed of; and this purpose it answers, for the most part, effectually enough It is not an injustice, nor always a hardship ; since even the succession of the whole blood was originally a beneficial indulgence, rather than the strict right of collaterals ; and though that indulgence is not extended to the demi-kindred, yet they are rarely abridged of any right which they could possibly have enjoyed before.

28. What may descend to the half blood ?—233.

The Crown may descend to the half blood of the preceding sovereign. For the royal pedigree being always a matter of sufficient notoriety, there is no occasion to call in the aid of this presumptive rule of evidence, to render probable the descent from the royal stock.

29. In what kind of estates is half blood no impediment to the descent.? -233.

In estates tail, where the pedigree from the first donee must be strictly proved, half blood is no impediment to the descent; because, when the lineage is clearly made out, there is no need of this auxiliary proof.

30. What is the seventh and last rule, or canon of descents ?—234.

That in collateral inheritances the male stock shall be preferred to the female, (that is, kindred derived from the blood of the male ancestors, however remote, shall be admitted before those from the blood of the female, however near), unless where the lands have, in fact, descended from a female.

31. What is probably the origin of this rule ? —235.

It was established in order to effectuate and carry into execution the fifth rule, or practical canon, of collateral inheritence; that every heir must be of the blood of the first purchaser

32. When is this rule totally reversed ? —236.

Where lands have notoriously descended to'a man from his mother's side. Then no relation of his by the father's side, as such, can ever be admitted to them; because he cannot be of the blood of the first purchaser.

CHAPTER XV.

OF TITLE BY PURCHASE-AND, FIRST, BY

ESCHEAT.

1. Horo is purchase defined ?—241.

Purchase, perquisitio, taken in its largest and most extensive sense, is defined by Littleton : the possession of lands and tenements, which a man hath by bis own act or agreement, and not by descent from any of his ancestors or kindred.

2. What does it include ?—241.

Every other method of coming to an estate but merely that by inheritance.

3. What is meant by conquestof the feudists?—242, 243.

What we call purchase, perquisitio, the feudists called conquest, conquestus or conquisitio ; both denoting any means of acquiring an estate out of the common course of inheritance. The Norman jurists styled the first purchaser (that is, he who brought the estate into the family which at present owns it) the conqueror or conquereur. Which seems to be all that was meant by the appellation given to William the Norman, when his manper of ascending the throne of England was, in his own and his successors' charters, and by the historians of the times, entitled conquestus, and himself conquæstor, or conquisitor; signifying that he was the first of his family who acquired the crown of England.

4. In whut consists the difference, in effect, betroeen the acquisition of an estate by descent, and by purchase ?—243.

It consists principally in these two points : 1. That hy purchase the estate acquires a new inheritable quality, and is descendible to the owner's blood in general, and not the blood only of some particular ancestor.

2. An estate taken by purchase will not make the heir answerable for the acts of the ancestor, as an estate by descent will.

5. What are the five methods of acquiring title to estates by purchase?-244.

1. Escheat; 2. Occupancy; 3. Prescription; 4. Forfeiture; 5. Alienation.

6. What is escheat?--244.

It denotes an obstruction of the course of descent, and a consequent determination of the tenure by some unforeseen contingency; in which case the land naturally results back, by a kind of reversion, to the original grantor, or lord of the fee.

7. Upon what principle is the law of escheats founded ?—245.

It is founded upon this single principle, that the blood of the person last seized in fee-simple, is, by some means or other, utterly extinct and gone ; and, since none can inherit his estate but such as are of his blood and consanguinity, it follows, as a regular consequence, that when such blood is extinct the inheritance must fail; the land must become what the feudal writers denominate feudum apertum, and must result back again to the lord of the fee, by whom, or by those whose estate he hath, it was given.

8. How are escheats divided ?-245.

Frequently, into those propter defectum sanguinis, and those propter delictum tenentis; the one sort, if the tenant dies without heirs; the other, if the blood be attainted.

9. What are the modes of failure of heritable blood ?—246, 247.

They are : 1. When the tenant dies without any relations on the part

of
any

of his ancestors. 2. When he dies without any relations on the part of those ancestors from whom his estate is descended.

3. When he dies without any relations of the whole blood

« SebelumnyaLanjutkan »