The Orphans Legacy, Part 2 · Chapter 34
CHAP. XXXIV. Of Succeſſion in the Right Line Deſcendent.
1. What the Jus Repraeſentationis is; or that ſeveral Children by one Father deceaſed do Conjunctim repreſent the Perſon of that Father.
2. That Succeſſion (when the Caſe ſo requires) is to be computed in Stirpes not in Capita.
3. That the Grand-Child (living the Father) ſucceeds not to the Grand-Father; nor (by the Civil Law) if conceived after his Grand-Fathers death.
4. How the Succeſſion (according to the Civil Law) is, in Caſe of Children not all of them by the ſelf-ſame Parents; and how at Common Law.
1. NExt to the Widow, this Right of Succeſſion in the Right Line deſcendent is the firſt degree of Right to the Adminiſtration of an Inteſtates Goods; for they are in the firſt place admiſſable to ſuch Adminiſtration, who are of the Right Line deſcendent from the deceaſed: So that if a man dye Inteſtate, leaving behind him Children, Parents, and Collateral Kindred, the Children do in the firſt place Succeed as to the Goods whereof he died Inteſtate, excluſively to the Grand-Children whoſe Parents are living. It is otherwiſe if their Parents be dead; for if a man dye, leaving one Son, and one or more Grand-Children by another Son deceaſed, theſe Grand-Children are Admiſſable, together with that living Son, their Uncle. And this is Jure Repraeſentationis, whereby ſeveral Children of one Father do Conjunctim repreſent the Perſon of that Father: But yet this muſt be underſtood according to the Law-Terms, not in Capita but in Stirpes only, that is, not according to the ſeveral Branches, or by Poll as we uſe to ſay, but according to the one Common Root of thoſe ſeveral Branches; and therefore put all the Grand-children together, they can have no greater proportion among them all than ſingly belonged to their Father, were he then alive. So that in the foreſaid caſe the Eſtate is to be divided into Two equal parts, whereof one Moity is due to the Son, the other Moity to the Grand-children to be equally divided amongſt them. a§. Cum filius. Inſt. de haered. quae ab inteſt. & Graſ. §. Succeſſio ab Inteſt. q. 2. nu. 6. & Capriol. de Succeſ. ab Inteſt. lib. 1. nu. 602.And this Right or Law of Repreſentation holds in infinitum in the Right Line deſcendent; bCapr. ibid. & Graſs. ibid. q. 2. nu. 13. Covar. Pract. quaeſt. cap. 38. nu. 5. & Gomez. Reſol. Tom. … cap. 1. nu. 15.contrary to the Opinion of the Famous Bartol, who held, that it reached not beyond the Great Grand-children.
2. In like manner, if there be divers Grand-children by divers Sons deceaſed, and no Son living, they ſucceed to their Grand-Father in Stirpes not in Capita, that is as aforeſaid, not according to the diſtinct number of the ſeveral Grand-children, but according to the number of their Fathers or Sons to the Inteſtate; ſo that the Grand-children by each deceaſed Son to the Inteſtate ſhall Conjunctim, and amongſt them all reſpectively have juſt that proportion, which their reſpective Fathers, or Sons to the Inteſtate could challenge if they had been alive at the time of the Inteſtates deceaſe; ſo that Two Grand-children by one Son have no more than one Grand-child by another Son, becauſe the Son by whom are the Two Grand-children to the Inteſtate could have no more than the Son by whom there is but one Grand-child, in caſe both the Sons had been living when the Inteſtate died. Indeed, if there be no Grand-children, ſave only by one Son, then they ſucceed equally according to their number, unleſs they be in unequal degree, as Grand-children and Great Grand-children. And the reaſon why Succeſſion goes in Stirpes not in Capita, is becauſe they ſucceed not in their own right, but in the right of their Anceſtor.
3. A Grand-child whilſt his Father is alive, hath not the precedent right to the Adminiſtration of the Goods of his Grand-Father dying Inteſtate; nor doth a Grand-child ſucceed to his Grand-Father unleſs he be born, at leaſt conceived, at the time of his Grand-Fathers death. cBarry de Succeſſ. Inteſt. nu. 5.So that a Grand-child conceived after his Grand-Fathers death is not in his own perſon by right of Repreſentation (according to the Civil Law) Admiſſable to ſucceed his Grand-Father. dGraſ. ubi ſup. q. 2. nu. 16. Guid. Pap. q. 612. Capriol. ubi ſup. lib. 1. nu. 619. § & licet. Inſt. de haered. quae ab Inteſt.And that which hitherto hath been ſaid of Sons and Grand-Sons holds true in Law as to Daughters and Grand-daughters, who are equally with the other Admiſſable to a ſucceſſion of their Inteſtate Parents Goods without any diſtinction of Sex.eGraſ. ibid. q. 2. nu. 2.
4. Whereas the Law is, That Children ſhall ſucceed equally to the Adminiſtration of their Inteſtate Parents Goods, this muſt be underſtood only of ſuch Children as are begotten of the ſelf-ſame Parents; for if there be Children by divers Parents, as if a Woman hath had Two Husbands, and one Child by the Firſt, Two by the Second; In this caſe each of them reſpectively ſucceeds (according to the Civil Law) only to the Goods of his own Father, but all of them equally to their Mothers. fGraſs. ibid. q. 17.And this alſo by the ſame Law holds true as to the Grand-children by ſuch Children of each marriage reſpectively. Otherwiſe it is, if a man hath had two Wives, with Goods and Children by each of them, and dye Inteſtate, leaving no Relict or Widow; for in this caſe all the Children by both Wives ſhall equally ſucceed to the Goods and Chattels of their Father dying Inteſtate.
In the caſe of a Prohibition granted to the Eccleſiaſtical Court, for granting Letters of Adminiſtration to a Siſter of the half blood, when there was a Brother of the whole blood, who ſued for them. It was agreed by the Court, That it is in the power of the Ordinary to grant Adminiſtration either to the Brother of the whole blood, or to the Siſter of the half blood, at his Election, becauſe they are in equal degree of Kindred to the Inteſtate. But if Adminiſtration be granted to the Husband and Wife where the Husband is not of Kin to the Inteſtate, but a Stranger; in ſuch caſe if he ſurvive his Wife, he ſhould have all the Goods, and the Kindred be defrauded, which is not reaſonable; and therefore ſuch Adminiſtration ſhall be void.gMich. 23 Car. in B. R. Styles 74, 75. Vid. Paſch. 24 Car. in B. R. Hill and Birds Caſe. Styles 102. acc.