The Orphans Legacy, Part 2 · Chapter 36
CHAP. XXXVI. Of Succeſſion in the Line Tranſverſal or Collateral.
1. The Line Collateral is Two-fold: In which Line the Jus Repraeſentationis holds only in Brothers Children, not in their Grand-Children.
2. Regularly the whole blood is ever firſt Admiſſable to Succeſſion in the Line Tranſverſal or Collateral.
3. Yet in that Line the nigher Degree, though but of the half-blood, is preferrable before a remoter Degree of the whole blood.
4. How far, and to what Degree Collateral Kindred may Succeed each other.
5. How the Succeſſion goes, in caſe the deceaſed leaves no Children, but Kindred only by the Aſcendent and Collateral Line.
1. THe Tranſverſal or Collateral Line is Two-fold; the one Deſcendent by the Brother and his Children downwards; the other Aſcendent by the Uncle, and ſo on upwards; and none of the Aſcendent do ever Succeed, unleſs they of the Deſcendent Line do fail. aBract. l. 2. …. 30. nu. 1. Britt. c. 119.And the nigheſt degree to the deceaſed in the Deſcendent Line do Succeed firſt; but that failing, then the nigheſt of Kin in the Line Aſcendent. And although Brothers Children of the whole blood do ever exclude Brothers Children of the half-blood, yet this Jus Repraeſentationis in the Collateral or Tranſverſal Line holds only in Brothers Children, not in their Grand-children. bCuiac. ad Novel. 18. Capriol. lib. 3. nu. 125. Graſs. q. 31. Pet. Greg. lib. 45. cap. 11. nu. 8. & Covar. de Succeſ. ab I…t. Peregrin. art. 21. nu. 7, 8. de Fidei Commiſſ.So that if A. dye, leaving behind him Children by one Brother deceaſed, and Grand-children by another Brother alſo deceaſed, theſe Grand-children of the one are excluded by the Children of the other. cAlex. lib. 3. Conſ. 5.For in a Tranſverſal or Collateral Succeſſion the Son alone doth repreſent the Father, and then only when the controverſie is touching the Succeſſion of his Uncle, dIbid. in fin. Conſil.not of his Great Uncle or others of any degree higher or farther off. eMenoch. lib. 4. Praeſ. 95. nu. 8.But when the Children of Brothers deceaſed do concur with other Brothers of the deceaſed, then they all ſucceed according to the Stock or Root, and they draw no more than their Father ſhould have done if he had been then alive. fGraſs. q. 30.And by the ſaid Law of Repreſentation it comes to paſs, That Brothers Children who are in the third Degree, are by way of Fiction ſuppoſed to be in the ſecond Degree, and ſo are preferr'd before the Uncles of the deceaſed, who are in the ſame third degree.gNovel. 218. cap. …. & Cuiac. ibid. & Pet. Greg. cap. 11. nu. 7.
2. In the Tranſverſal or Collateral Line this is a perpetual Rule, That they are firſt to be admitted who are of the whole blood of the deceaſed. As thus; A. having B. a Son, and C. a Daughter by one Wife, and D. a Son by another Wife, dies, B. Succeeds him and dies Iſſueleſs; In this Caſe C. the Daughter to A. and Siſter to B. by the whole Blood ſucceeds him, and not D. the Brother by the half Blood. hLittl. l. 1. c. 1. & Britt. c. 119. nu. 7. Fleta lib. 6. c. 1. §. omnes autem. & §. jus etiam. & §. quandoque.In like manner E. having F. a Brother, and two Sons, viz. G. by one Wife, and H. by another Wife, dies; G. ſucceeds him and dies Iſſueleſs; In this Caſe F. Uncle to G. (who is of the whole Blood) ſucceeds him, and not H. Brother to G. by the half Blood. iLittl. ibid. Coke l. 3. in Ratcliffs Caſe, fol. 40. b. & 41. a. b. & 42. a.But if F. alſo dye Iſſueleſs, then H. ſucceeds him, becauſe he is Allied to him both ways, as well by the Grand-Father as by the Grand-Mother. kLittl. ibid. paulo poſt.And therefore, unleſs F. be Brother to E. as well on the Mothers ſide as on the Fathers ſide, the ſucceſſion will be otherwiſe.
3. Suppoſe a man dies, leaving behind him neither Children, Parents, Brothers, nor Siſters, nor their Children, but only Brothers Grand-children, Uncles, and other Collateral Kindred; In this Caſe we muſt follow the Rule of Law, the nigher in degree ſhall have the precedency in right; and if there be divers in the ſame degree, they are all equally Admiſſable according to number, not Root or Stock, and that without diſtinction of Sex, conſideration being had only of the Kindred it ſelf. lGraſs. §. Succeſſio ab inteſtat. q. 33.Again, ſuppoſe there were Three Brothers, whereof two of the whole Blood, and one of the half Blood: If theſe two of the whole Blood dye, each of them leaving a Child behind him, whereof one afterwards dyes alſo, and iſſueleſs: In this Caſe the ſurviving Uncle is preferred before the other Son by the Brother, albeit that Brother was of the whole Blood to the Father of the deceaſed. mRanchin. Deciſ. par. 4. Conſil. 45. & Alex. lib. 5. Conſil. 166.So alſo the Uncle of a deceaſed is preferrable before his Brothers Grand-children, albeit the ſaid Grand-children proceeded of a Father who was of the whole Blood to the deceaſed, and the ſurviving Uncle but of the half Blood. nBoerii Deciſ. 302.For in the Collateral Line the being of the whole or half Blood is not conſiderable beyond Brothers Children; for then the nearneſs of degree, not whether whole or half Blood is conſiderable: So that although a Brothers Son of the whole Blood ſhall exclude a Brother of the half Blood, yet even the Children of Brothers and Siſters of the half Blood ſhall exclude remoter Kindred of the whole Blood in the Collateral Line. oAuthen. poſt fratres, de Legit. haered.The Reaſon in Law is, becauſe (as aforeſaid) in a Tranſverſal or Collateral Line the nigher degree, though but of the half Blood, ſhall be preferr'd before a more remote degree of the whole Blood; which yet doth not hold in a Right Line, whether Deſcendent or Aſcendent. And if a man dye leaving neither Children, Parents, Brothers, Siſters, nor their Children behind him; in this caſe the Uncles and Aunts concur in the Succeſſion, and exclude all other collateral Kindred, becauſe there are none others in the third degree as they. After theſe, then do ſucceed the Great Uncle and the Brothers Grand-children, to whom the deceaſed was a Great Uncle, all in a parity, becauſe they are in the fourth degree. And here Note, that Nephews and Nieces ſucceed together with their Uncles and Aunts in the Goods of their Grand-Father and Grand-Mother, yet only for ſuch a proportion and for ſo much as ſhould have come to their Parent if he or ſhe had been alive; for it is in a conjoyn'd not in a diſtinct ſence that the Jus Repraeſentationis is here in force.
4. It is a Queſtion how far and to what degree collateral Kindred may ſucceed each other. The Civil Law puts a difference in this caſe between collateral Kindred by the Male Line, and collateral Kindred by the Female. It is ſaid, that Kindred by the Fathers ſide may even in collaterals ſucceed even to the tenth degree incluſive, and by the Mothers ſide to the ſixth degree. p§. ult. Inſt. de Succeſs. Cognat.For the Kindred by the Mothers ſide is not extended ſo far as that of the Fathers ſide, becauſe, that by the Mothers ſide is only beholden to, and holpen by the Praetor or the Praetorian Law, but that of the Fathers ſide hath alſo the Civil Law to confirm it. But this difference or diſtinction being of no uſe or practice with us, let us not miſtake upon this ground, and thereby without cauſe occaſion our Theory to beget an Errour in Practice. For in very deed this difference or diſtinction is now removed by the Civil Law it ſelf; for whereas the Old Law of the Digeſts and Codes did diſtinguiſh between Kindred by the Father, and Kindred by the Mother, now by a latter Law of the Novels this difference or diſtinction is aboliſhed.
5. Laſtly, if the deceaſed left no Children, but Kindred by the Aſcendent and collateral Line; then for a yet clearer diſcovery of the Right of Succeſſion diſtinguiſh thus; viz. Either he hath only Brothers of the whole Blood, or only ſuch Brothers Children; or he hath Brothers by the half Blood, or ſuch Brothers Children: In the firſt caſe the Brothers only ſucceed; in the ſecond caſe only the Brothers Children; in the third caſe the half Brothers, and ſuch Brothers Children ſucceed equally according to their Stock or Root, not according to the number of their perſons. ql. Praetor. ff. de Coll. 60.Likewiſe if one dye, leaving one Brother and three Children of another Brother deceaſed of the whole Blood, the Brother alone ſhall have (as formerly declared) as much as the ſaid three Children; and theſe do ſucceed excluſively to all other collateral Kindred. Alſo Brothers of the half Blood do exclude other collaterals Aſcendent, as Uncles, Aunts, whether by the Father or the Mothers ſide, and that without diſtinction of Sex. rAuth. de haered. ab inteſt. §. reliquum. & §. ſeq. C. de haered. Auth. ceſſante. & Auth. Tres fratres.But put caſe a man dies without Children or Parents, leaving one Brother by the Fathers ſide only, another Brother by the Mothers ſide only: for inſtance; A man having had two Wives, and a Son by each, dies; and the ſecond Wife takes another Husband, having a Son by him; then if the Son by the ſecond Wife of the firſt Husband dies, he leaves a Brother of the half Blood by the Father, and a Brother of the half Blood by the Mother; In this caſe the Civil Law ſayes, that the Brother by the Fathers ſide ſhall ſucceed in the Goods that came by the Father, and he by the Mothers ſide in the Goods which came by the Mother, sCod. de Leg. haer. de Emanci…at. in fin.and both of them equally as to all Goods otherwiſe acquired; but our Law knows no ſuch diſtinction, for they ſhall ſucceed equally, being equal in degree and equal in Blood; becauſe by Marriage all was inveſted in the Father.
THE Orphans Legacy The Third Part.
OF Legacies and Deviſes.
THE CONTENTS OF THE CHAPTERS of the Third Part.
| Chap. | |
| OF Legacies and Deviſes in General. | 1. |
| Of Deviſors, and Deviſes, or Legataries. | 2. |
| Of Words and Expreſſions ſufficient for Legacies. | 3. |
| Of Conditions and their Reſemblances incident unto Legacies. | 4. |
| Of the ſeveral Marks and Kinds of Conditions and Queſtions in Law touching the ſame. | 5. |
| What things are Deviſables by Will; and whether a Testator may Bequeath what is not his own. | 6. |
| Of Lands Deviſable by Will. | 7. |
| Certain caſes touching Deviſes of Lands, void or not void | 8. |
| Certain Caſes touching Deviſes of Land in Fee-ſimple. | 9. |
| Certain Caſes touching Deviſes of Land by way of Entail. | 10. |
| Certain Caſes in Law touching Deviſes of Land for Life only. | 11. |
| Certain Caſes in the Law touching Deviſes of Leaſes, or for a Term of Years. | 12. |
| Law Caſes touching Deviſes of Reverſions or Remainders. | 13. |
| Touching Deviſes of Lands with Limitations and upon Conditions. | 14. |
| Touching Deviſes of Rents. | 15. |
| Of Deviſes touching the Sale of Lands by Executors or others. | 16. |
| Of Legacies and Deviſes in reſpect of Marriages, as alſo between Husband and Wife. | 17. |
| Of Legacies and Deviſes to a Child in the Womb. | 18. |
| Certain Caſes of Deviſes touching Lands and Real Chattels. | 19. |
| Caſes in the Law touching Legacies of Chattels Perſonall. | 20. |
| Of Legacies touching Goods in Generall; alſo what is to be underſtood under that Notion of Goods; and what by Moveables and Immoveables. | 21. |
| Law Caſes touching Money Bequeathed by the Teſtator. | 22. |
| Of Legacies relating to Debts, with certain caſes in the Law touching the ſame. | 23. |
| Touching Election in point of Legacies; to whom The Election of a Legacy expreſsed with too much Generality or Dubiety, belongs; whether to the Executor or to the Legatary, with certain caſes in the Law touching the ſame. | 24. |
| When and how Legacies are null, or become void or voidable; with certain caſes in the Law touching the ſame. | 25. |
| Certain Poſitions or Aſſertions of Law for the better understanding of this Subject of Legacies and Deviſes, with certain mixt caſes touching the ſame. | 26. |