89

[29th August, 1833.]

(a) The rules which govern the transmission of freehold estates of inheritance at common law, on the decease of an absolute proprietor, in the absence of express disposition by him, are (for the most part) well understood, and appear to be well suited to the habits and feelings of the people. By these rules an estate descends to the eldest or only son, or his descendants, if he should be dead leaving issue, and next to the second and other sons, according to priority of birth, and their descendants; in default of sons and their descendants, it descends to daughters in equal shares, if more than one, and to the descendants of any deceased daughters, such descendants taking the share which would have gone to the parent if living. When there is no lineal descendant, the estate goes to the eldest or only brother of the whole blood, that is, who was born of the same father and mother as the deceased proprietor, and to his descendants, if he should be dead leaving issue, and to the other brothers in succession and their descendants. If there be no brother, or descendants of a brother, the sisters of the whole blood succeed in equal shares, and the descendants of deceased sisters, such descendants taking their parent's share as before. In case of the failure of brothers and sisters and their descendants, it be

comes necessary to inquire whether the deceased proprietor took the estate himself by inheritance, or whether he acquired it immediately by a deed or will, or, in technical language, was a purchaser. In the former case, the heir is to be sought in the family from which the estate descended to the deceased proprietor, that is, either on the father's side or on the mother's side, as it happened; in the latter case, the law gives the preference to the relations on the paternal side, but, if there be none such, then it directs the inheritance to go to the relations on the maternal side.

Here occurs a rule, drawn from feudal principles, which is at variance with ordinary feelings and notions, and has been long considered unjust: every lineal ancestor of the deceased proprietor, whether near or remote, is excluded from immediately inheriting. An estate may pass to the younger brother of the father, and upon his death it may pass to the father as his heir; but rather than go at once to the father or the mother of the deceased proprietor, the law directs it to escheat, that is, to fall, as for want of an heir, to the lord of whom the land was holden; that is, in most cases, to the crown. In default, however, of lineal and immediate collateral heirs and their descendants, the inheritance is to be traced through the

We think that both these rules may be taken away, without introducing any uncertainty into the law of inheritance, or materially impairing its symmetry.

AND 1st. AS TO THE ASCENDING LINE.

It appears desirable that the lineal ancestor should be let in to the succession in such order as to infringe as little as possible on the present rules, and to found the new rule upon some principle already established, making it agreeable, so far as may be, to the feelings of the people, and to the general policy of the law of inheritance. This, we think, may best be done, by introducing the ancestor wherever the descendants of such ancestor would be entitled, according to the present rules: the ascending line would thus come in immediately after the descending. If the purchaser of an estate died without issue, and intestate, leaving a father, that father would take before the brothers or sisters, or their descendants; and, if there were neither father, nor brothers, or sisters, or their descendants, a surviving grandfather would take before uncles or aunts. Conformity in the laws regulating different species of property is desirable, with a view to the better general understanding of the law; accordingly, one recommendation of this rule is, that it would make the transmission of real property, in one case, conformable to the law now long established for the transmission of personal property, which, in case of the intestacy of a person dying unmarried and without issue, goes exclusively to the father as next of kin; a law which it is believed has not been found inconvenient, nor considered

unfair or objectionable. The father, too, as the general dispenser of the family property, seems the fittest person to have the control over whatever is to devolve by law upon some part of his family.

By a technical rule of pleading, the descent from one brother or sister to another, has been hitherto considered immediate, and in the opinion of some persons, it would be better to consider that as a substantial rule, and to prefer brothers and sisters to the father; this, however, would be introducing an anomaly, especially if the principle were not followed up by postponing generally the ancestor to his descendants, the grandfather for instance to the uncle. It may be argued, in support of such proposal, that the ancestor who is likely to be advanced in life, may be expected to be less capable of making a discreet disposition of the property, that he may be tempted unfairly to divert it to his issue by a different marriage, or even to make some disposition altogether capricious and unreasonable; but the dependence of children on their parents is acknowledged to be salutary; and, when it is considered that the proposed change of the law will only come into operation in the absence of express disposition, and therefore, it may be presumed, for the most part, where no strong reason was felt by the deceased proprietor for making a disposition, the general good of the family seems likely to be best consulted by vesting the property in its head, rather than in any of the younger members; and, as already observed, less violence will thus be done to the general system of the law of inheritance.

The same reasons, we consider, should prevail against a plan, which has been proposed, of giving to the ancestor an interest during his life only.

2. AS TO THE HALF BLOOD.

We think it advisable that no distinction should exist between the whole and the half blood, except that preference should be given to the whole blood of the first purchaser, as between his kindred in equal degree, or their descendants, with the exception of a single case afterwards mentioned. The following reasons seem to us sufficient for putting the whole blood and the half blood on an equal footing, with the above exception:

1. One ancestor only of any couple of ancestors being the person from or through whom the inheritance descends, it seems needless to have any regard to the other ancestor. Thus, if land descend from the father to the eldest son, there seems no reason why it should not pass from him to the second son, whether born of the same or another mother.

2. The rule is recommended by the principle of conformity already suggested, as, in the transmission of personal estate, the whole blood and half blood stand on an equal footing, and so in case of descent of a title of nobility, or of an estate tail.

3. The difference between the whole and the half blood, however well understood by lawyers, is, it is believed, not familiar to the public; lands are, therefore, liable to be left to descend contrary to the intention of the owner, and they are liable to be claimed and to be possessed contrary to the law, without an evil intention; and further,

in deducing the title on sales of estates, the circumstance of the half blood, being not of very frequent occurrence, is liable to be overlooked by those who prepare the abstract of title, and by those who know nothing of the pedigree but what is laid before them; and thus a bad title may be approved of by the advisers of a purchaser for valuable consideration, and accepted by him; whatever leads to insecurity of titles is, of course, independently of other considerations, greatly objectionable.

Some of the above reasons apply with equal force to the case in which the person who died seised was himself the purchaser.

The reason which has inclined us to give a limited preference to the whole blood in this case is, that, when one parent has issue by another marriage, the connection between the members of the two families is felt to be much less than between the members of each family. If a brother leave a whole brother or sister, or the issue of either of these, and also an elder brother by a different marriage, it would be repugnant to common feelings and notions to direct his estate to descend to the half brother, although, if he left a brother or sister of the half blood, or the issue of such, and only a more remote relation of the whole blood, the proximity of kindred would seem to give a reasonable preference to the former. It would be desirable, if, with reference to the half blood, a distinction could be drawn between the case of a purchaser by his own act, according to the familiar use of the word purchaser, and that of a purchaser in the mere

technical sense of the word, that is, a person who may have succeeded perhaps to the family estate, but is considered as a purchaser because it comes to him through some deed or will, and not by inheritance; and in the latter case to put the whole and the half blood on an equal footing: it is considered, however, impracticable to frame a law founded on this distinction, which should be clear and simple, except, indeed, that a power may be given to the person from whom the property comes, of directing that it shall be taken as if it descended from a particular line of ancestors as hereafter explained, in which case we think the distinction of the whole and half blood may also be taken away.

It is proposed, therefore, that the whole blood of the first purchaser, who took without reference to any ancestor, shall be preferred, as between persons claiming through the same ancestor of the first purchaser, to the half blood, and that, subject to this preference, the distinction between the whole and the half blood shall be abolished.

3. AS TO THE FEMALE ANCESTOR. With respect to the question as to the preference of the nearer or more remote female ancestor on the paternal side, the case having, it is understood, occurred more than once since the Commentaries were published, it seems expedient to settle it: and the symmetry of the rules of inheritance appears most consulted by adopting the rule laid down by Mr. Justice Blackstone. It is proposed to declare this to be the law, and to extend it, of course, to the case of direct ascent, so

that the mother of the paternal grandfather would be preferred to the mother of the father. Four tables are subjoined, one showing the present order of inheritance as laid down by Mr. Justice Blackstone; the others, showing the order of inheritance according to the proposed alterations.

4. LIMITATION TO SPECIAL HEIRS.

The rule above mentioned, which directs, that, where the inheritance passes to collateral relations of the last proprietor, those only are admitted to take, who are of the blood of the first purchaser, occasioning an estate to pass sometimes in a different channel, where the deceased owner had inherited the estate, and where he had acquired it by what the law denominates purchase, although the distinction is often, as has already been observed, only technical, introduces complexity, and sometimes causes anomalous diversities in the transmission of estates. Thus, if a person acquired an estate immediately under a will or settlement made by his maternal ancestor, that estate would descend to his relations on the father's side, and would not return to the family from which it came, until the father's line were exhausted. On the other hand, if it came from a maternal ancestor by descent, strictly so called, all the relations on the paternal side would be excluded, and, rather than pass to them, the estate would escheat. In consequence again of a principle of courts of equity, that a man cannot be a trustee for himself, and that, where the beneficial estate is in the same party with the legal estate, it is absorbed by the latter, cases have oc