The Orphans Legacy, Part 2 · Chapter 35
CHAP. XXXV. Of Succeſſion in the Right Line Aſcendent.
1. Whether Parents, ſpecially the Mother, be next of Kin to her Child.
2. The method of Succeſſion (by the Civil Law) in the Right Line Aſcendent.
3. How the Succeſſion goes by the Civil Law, when ſome of the Collaterals concurr with thoſe of the Aſcendent Line.
4. Whether by the ſame Law, the deceaſeds Brothers and Brothers Children may concurr with their Parents to the Succeſſion.
1. NOtwithſtanding that Maxime at the Common Law, That Inheritance cannot Lineally Aſcend, yet is the Parent more nigh of blood to the Child even by that Law, than is the Uncle. aLittl. Tenures, fol. 1.And by the Civil Law, as the Son and Daughter be in the firſt degree of Kindred in the Line Deſcendent: So the Father and Mother are in the firſt degree of Kindred in the Line Aſcendent. b§. 1. Inſtit. de Grad. Cognat.To conſtitute a Kindred it is ſufficient that the Relations do centre and agree in aliquo Tertio, or flow from one common Head or Fountain, or ſpring from the ſame Stock or Root; Thus the Father and the Daughter, the Mother and the Son, the Mother and the Daughter, the Father and the Son, they flow from one and the ſame Fountain, they ſpring from the ſame Root, viz. the Grand-Father; and therefore are of Kin each to other. And by the Laws of this Realm Parents are reputed to be of Kin to their Children, and the Mother to be of Kin to her Child; and therefore by the Statute Law if a man ſeized of Lands in Socage, his Heir being within the Age of Fourteen years; In this caſe the Mother ſhall have the Wardſhip of her Son, as being next of Kin to whom the Lands cannot deſcend. cStat. de Marlebridge, an. 52 H. 3. & Brook Abridg. tit. Adminiſt. 47. Coke lib. 3. Ratcliff's Caſe.Indeed, by the Law of the twelfth Table, the Mother could not Succeed to her Children, nor they to her. dInſt. de S. C. Tertil. in Prin.But this is now altered, the Law now being otherwiſe. eAuth. Novel. de haered. ab Inteſtat.It cannot be denyed but that this Queſtion, viz. Whether the Mother be of Kin to her Child? hath been much controverted amongſt the ableſt Lawyers, and in the cloſe of all, after much diſpute it hath been adjudged in the Negative, viz. That the Mother is not of Kin to her Child. fBrook. Abr. tit. Adminiſt. nu. 47. & Coke lib. 3. in Rot. liſſs Caſe. cum ſimilib.As in that remarkable of the D. of Suffolk in Ed. the ſixth's time, wherein an Adminiſtration was granted away from the Mother to a Siſter of the half blood. According This remarkable Caſe of the D. of Suff. wherein the point was, whether the Mother or the half Siſter ought to have the Adminiſtration, is at large in Swinb. part 7. §. 8. nu. 10. with the reaſons of Judgement exactly weighed and conſidered.to which Judgement divers other Adminiſtrations for ſeveral years after were granted away from the Mothers, to the Brethren and Siſters as next of Kin. Notwithſtanding all which, the Law indeed being all that while quite otherwiſe than was practiſed, at laſt the Truth prevailed, and the practice now frequent, and Judgement every where given for the Mother, that ſhe is of Kin to her Child, g21 H. 8. cap. 5.who dying Iſſueleſs and Inteſtate, the Adminiſtration of his Goods may be committed to her as next of Kin, according to the Statute. Or if he be Iſſueleſs but not Inteſtate, and maketh his Kin his Executor, or bequeath the reſidue of his Goods to his Kin, the Mother in this caſe is Admiſſable to the Executrixſhip as next of Kin to her Child, or on the ſame account to enjoy the Legacy during her life, and after her death then the other next of Kin.h§. Si igitur. Novel. ibid. ubi ſup. & D. D. in …. cum ita. §. fin. ff. de Legat. 2. Graſs. Theſ. Com. Opin. §. Fidei Commiſſ. q. 16.
2. If the deceaſed leave no Children, they in the Right Line Aſcendent do by the Civil Law ſucceed him, but in this Order. Firſt, the Father and Mother ſucceed equally, and excluſively to all others that are of a more remote degree; or the Mother only, if the Father be not alive; or the Father only, if the Mother be dead. iGraſs. §. Succeſſ. ab Inteſt. q. 22.And if there be ſeveral Parents of a diſtinct Line, who are equal in degree but unequal in number, they ſucceed according to their Stock or Root, not according to their number; thus the Grand-Father by the Fathers ſide ſhall have as much as both Grand-Father and Grand-Mother by the Mothers ſide. kGraſs. ibid. & Pet. Greg. lib. 45. cap. 9. nu. 10. & Cuiac. ad Novel. 118.But if the Parents be in an unequal or different degree, then the right of Repreſentation doth ceaſe, and the nigher ſhall ever exclude the more remote. Thus the Father excludes both the Grand-Fathers by the Fathers and Mothers ſide, and the Mother both the Grand-Mothers.lGraſs. ibid. Greg. cap. 9. nu. 11. Covar. de Succeſs. ab Inteſt. & Cuiac. ubi ſupra.
3. There are alſo ſome of the Collateral Line, who by the Civil Law do concur with thoſe of the Aſcendent Line; for the Brothers and Siſters of the deceaſed do ſucceed him, together with the Father and Mother. mGraſs. ibid. Greg. cap. 9. nu. 12. Capriol. lib. 2. nu. 76. de Succeſ. ab Inteſt. & Auth. Novel. de haered. ab Inteſt.And the Succeſſion when the Brothers concur, is proportioned according to their number. nNovel. 118. Cu…ac. ib. Covar. de Succeſ. ab Inteſt. Vaſ que de Succeſ. progra. lib. 3. §. 25. nu. 38. Pet. Greg. lib. 45. c. 9. nu. 13. & Mynſing. Obſerv. Cent. 6. n. 41.But if there be divers Kindred of the ſame degree to the Inteſtate, whoſe Father is dead, whereof ſome are by the Fathers ſide, others by the Mothers ſide; as if the deceaſed leave a Grand-Father by his Fathers ſide, and a Grand-Father and Grand-Mother by the Mothers; In this Caſe the Succeſſion is not proportioned according to their number, but it is to be divided into two equal parts, and the Grand-Father by the Fathers ſide draws the one Moity, the Reſt the other Moity. And if it happens that together with thoſe of the Line Aſcendent, and with Brothers of the whole blood to the deceaſed, there be the Sons of other Brothers of the whole blood deceaſed; In this Caſe the Sons of ſuch Brothers deceaſed ſhall Succeed together with the others, but not according to their Number, but according to their Stock or Root; that is, thoſe Sons of ſuch deceaſed Brothers ſhall among them all have only that proportion which would have come to their Fathers if they had been alive. oGraſs. q. 23. Greg. 29. Cuiac. in Novel. 118.Here Note, that this is meant only of the Children of ſuch Brothers deceaſed; therefore the Grand-children, and others more remote are not admitted together with the Parents, and Brothers, and Siſters of the deceaſed.pGraſs. & Covar. ubi ſupra.
4. Brothers and Siſters only of the half blood to the deceaſed do not concur with the Parents in the Succeſſion. qGraſs. q. 24. & Fach. lib. 6. c. 8.Thus the Grand-Father in Succeſſion to his Grand-child doth exclude the Brothers of half blood to ſuch Grand-child, unleſs the Brothers be of the ſame blood, and of the ſame ſide with ſuch Grand-Father. rPap. lib. 21. tit. 1. art. 8. Guid. Pap. Conſil. 176.And if a man dye Inteſtate, leaving a Mother and the Children of his Brothers deceaſed behind him, the Mother alone ſhall Succeed to the Inteſtate, sMeynard, lib. 7. cap. 21.unleſs there be other Brothers of the deceaſed then living; for then the ſaid Children of the ſaid Brothers deceaſed ſhall concur with the Mother. tMeynard ib. ita Judicat. in Arreſto Tholoſ.Thus Brothers and Brothers Children may concur with their Parents to the Succeſſion of the deceaſed, but all other Collaterals are excluded by the Parents; inſomuch that the Uncles both by the Fathers and the Mothers ſide are excluded by the Grand-Father and Grand-Mother of the deceaſed.uDecii Conſil. …23.