fiction by which collaterals were introduced into the succession, it will appear, that as we are led by a chain of successive presumptions to suppose the estate of John Stiles to have descended from his father Geoffrey, rather than his mother Lucy, and from his grandfather George Stiles, rather than his grandmother Cecilia Kemp; so, if it did not descend to George, from Walter his father, the next presumption would be, that it descended from his mother Christian Smith, who again would presumably derive it from her father William; so that the issue of William Smith, the paternal grandfather's maternal grandfather, would necessarily have better title than the issue of Luke Kemp, the paternal grandmother's father, who stands lower (if we may so speak) in the chain of presumptions.

But whatever may have been the merits of this question, it is now for ever set at rest by the 8th section of the Inheritance Act, which, in accordance with the view taken by Mr. Justice Blackstone (q), prefers the maternal line of the more remote male paternal or male maternal ancestor, to the maternal line of the nearer, both as regards the issue of lineal ancestors, and the lineal ancestors themselves, now first introduced into the succession.

VII. A seventh rule is, that where an ancestor, to whom, if living at the purchaser's death, the inheritance would, according to the fifth rule, have descended, dies before the purchaser, leaving issue, the issue of such ancestor in infinitum shall represent him, according to the same law of succession as before laid down with respect to the issue of the purchaser; but with this addition, that those related by the whole blood to the purchaser, are preferred to those related by the half blood.

It is obvious, from the nature of consanguinity, which means a descent from the same common ancestor, that as regards the purchaser, the issue of his lineal ancestor are

(1) See First Real Property Rep. p. 14.

necessarily his collateral kindred, and that such of them as becomes his heir, in capacity of issue to his ancestor, must inherit as collateral heir to himself. The seventh rule thus transfers us from the subject of lineal inheritance (to which alone our preceding rules referred) to that of collateral inheritance.

On the subject of collateral inheritance, it deserves remark, in the first place, that the right of collaterals no longer depends (as it formerly did) on the fiction that the estate of the purchaser was granted as a feud of indefinite antiquity (r), but on a positive statute-law of descent. For the new act of parliament has now by express provision intoduced both the "lineal ancestors" of the purchaser and their "descendants" into the succession (s). Indeed, when the right of the former was established, that of the latter would follow of course, upon the common law principle of representation. It would seem, therefore, that an estate purchased in fee-simple can no longer be considered as granted to hold ut feudum antiquum(t), but rather as a new feud, with inheritable properties different from those which attached to a new feud under the ancient system, being descendible not only to those who derive their blood from the purchaser, but those also from whom he derives his, and to their descendants.

It is also to be observed, that the right of collaterals is now referable universally, and in every case, to that of the ancestor from whom they descend, and it is only in his right, that they can ever be considered as heirs to the purchaser. Under the former system this was subject, in a particular case, to exception, it being held that between brothers and sisters, the descent was to be considered, for some purposes, as immediate (u). But by the new act, no brother or sister shall be considered to inherit im

() Vide sup. p. 363.

(s) Sects. 7, 8.

(1) Vide sup. p. 12.

(u) 2 Bl. Com. 226; Watk. Desc. 111 n.; H. Chit. Desc. 64, 354

mediately from his or her brother or sister, but every descent from a brother or sister shall be traced through the parent(x).

But to revert to the rule under consideration.

First, the issue of the purchaser's lineal ancestor represent him in infinitum, and that according to the same law of succession as prevails among the issue of the purchaser.

Thus, if John Stiles purchases land, and dies entitled to the same, without issue, and his father Geoffrey be dead, it descends to Francis, the eldest son of Geoffrey, the brother of John, rather than to George his grandfather; or if Francis be also dead, leaving several children, then to the eldest son of Francis, the nephew of John, and does not pass to any remoter ancestor of John, unless the issue of Geoffrey are exhausted. So, it will descend to a son, or even a daughter of Francis (if he left no son) rather than to Oliver Stiles, the brother of John; for such son or daughter represent the father, who, as the elder son of Geoffrey, represented him.

This branch of the rule is open, in general, to the same remarks as those which have been already made under Rules III. and IV., and will require no further discussion, though it may be worth while to notice [the correspondence of the Jewish law with ours in this particular, as well as in the representation among the issue of the deceased; for on failure of issue, the father or other lineal ancestor was himself said to be the heir, though long since dead, as being represented by the persons of his issue, who were held to succeed, not in their own rights, as brethren, uncles, &c. but in right of representation, as the offspring of the father, grandfather, &c. of the deceased (y).]

As to the remaining branch of the rule, viz. that which regards the distinction between the whole and half-blood, -it results from the first branch of the rule (taken in con

(x) 3 & 4 W. 4, c. 106, s. 5, VOL. I.

(y) Num. c. 27; Seld. de Succ. Ebræor. c. 12.

CC

nection with Rule VI.) that the collateral heir of the purchaser is the issue of the nearest of his lineal ancestors in the preferable line, who has left posterity living at the death of the purchaser, subject to the principles as to sex, primogeniture, and representation. But among such issue, some may be relations to the purchaser, of the whole blood, and some of the half-blood only; and it is consequently necessary to lay down an additional principle to determine whether both these classes are admissible, and whether any and what precedency is to be allowed between them.

[A kinsman of the whole blood is he that is derived, not only from the same ancestor, but from the same couple of ancestors. For every man's blood is compounded of the bloods of his respective ancestors, and he only is of the whole or entire blood with another, who hath, so far as the distance of degrees will permit, all the same ingredients in the composition of his blood, that the other hath. Thus, the blood of John Stiles being composed of those of Geoffrey Stiles his father and Lucy Baker his mother, therefore his brother Francis, being descended from both the same parents, has entirely the same blood with John Stiles, or he is his brother of the whole blood. But if, after the death of Geoffrey, Lucy Baker, the mother, marries a second husband, Lewis Gay, and hath issue by him, the blood of this issue, being compounded of the blood of Lucy Baker (it is true) on the one part, but that of Lewis Gay instead of Geoffrey Stiles on the other part, it hath therefore only half the same ingredients with that of John Stiles, so that he is only his brother of the halfblood. So also if the father has two sons, A. and B., by different venters (or wives), now these brethren are not brethren of the whole blood, but of the half-blood only.

The Act for improvement of the law of inheritance assigns to such of the purchaser's collateral kinsmen as are of the whole blood, and their issue, the preference to those who are of the half-blood only, in the same degree,

but admits the latter to the next place in the succession (z). Thus if the father have a son A., by one venter, sion(z). and two sons, B. and C., and a daughter, by another venter, and B. purchases land, and dies without issue, and the father be also dead, C., the younger brother, or on failure of C. and his issue, the sister, shall succeed in preference to A., the elder brother. But the latter (though only of the half-blood,) and his issue, will succeed in preference to any collateral relation not descended from B.'s father, though of the whole blood with B. So on the death of John Stiles the purchaser, without issue, his father Geoffrey being also dead, he will be succeeded, not only by his elder brother, or his second brother Oliver, but even by his sisters Bridget and Alice, in preference to his halfbrother, the son of his mother Lucy and Lewis Gay, who cannot indeed inherit until the paternal line are exhausted; for his mother (who, by the fifth rule, must take before him,) cannot (by the sixth rule) take while any of the paternal line remains. But the son of Lucy and Lewis Gay (and his issue after him) will stand next to his mother, in the order of succession, and in preference to any other collateral relation of John Stiles ex parte maternâ, though of the whole blood with John Stiles.

In the admission of the half-blood, the act introduces a new principle of inheritance; for, as the law before stood, the half-blood (like the lineal ancestor) were totally excluded, and the land would rather escheat to the lord than go to any kinsman (however near), bearing that kind of relation to the person from whom descent was to be traced. Therefore A. in one of the cases just supposed, and the son of Lucy and Lewis Gay in the other, would have been absolutely incapable of the succession. Nay, even when a father died, and his lands descended to his eldest son A. who entered thereon, and died seised without issue, still B. the son of the same father, by another venter, could not

(3) 3 & 4 Will. 4. c. 106, s. 9.