The History of the Common Law of England [72]
or Daughter, or any descending from them in the Right Line) the Rules are these, viz. 1. The Brothers and Sisters, ex utrisque Parentibius conjuncti, and the immediate Children of them, shall exceed equally without Preference of either Sex, and the Children from them shall succeed in stirpes; as if there be a Brother and Sister, and the Sister dies in the Life of the Descendant leaving one or more Children, all such Children shall succeed in the Moiety that should have come to their deceased Mother, had she survived. 2. But if there be no Brothers or Sisters, ex utrisque Parentibus conjuncti, nor any of their immediate Children, then the Brothers and Sisters of the half Blood and their immediate Children shall succeed in Stirpes to the Deceased, without any Prerogative to the Male. 3. But if there be no Brothers or Sisters of the wbole or half Blood, nor any of their immediate Children (for the Grandchildren are not provided for by the Law) then the next Kindred are called to the Inheritance. (But by the Author's Leave, I think the Grandchildren are impliedly provided for, as they succeed their Father or Mother Jure representationis.) 4. And if the next Kindred be in an equal Degree, whether on the Part of the Father as Agnati, or on the Part of the Mother as Cognati, then they are equally called to the Inheritance, and succeeded in Capita, and not in Stirpes. Thus far of the settled Laws of the Jews, Greeks, and Romans, but the Particular or Municipal Laws and Customs of almost every Country derogate from those Laws, and direct Successions in a much different Way. For Instance. By the Customs of Lombardy, according to which the Rules of the Feuds, both in their Descents and in other Things, are much directed; their Descents are in a much different Manner, viz. Leges Feiudarum, Lib. I. Tit. I. If a Feud be granted to one Brother who dies without Issue, it descends not to his other Brother unless it be specially provided for in the first Infeudation: If the Donee dies, having Issue Sons and Daughters, it descends only to the Sons; whereas by the Roman Law it descends to both: The Brother succeeds not to the Brother unless specially provided for, & Ibid. Tit. 50. The Ascendants succeed not, but only the Descendants, neither does a Daughter succeed nisi ex Pacto, vel nisi sit Feodum Faemineum If we come nearer Home to the Laws of Normandy, Lands there are of Two Kinds, viz. Partible, and not Partible; the Lands that are partible, are Valvasories, Burgages, and such like, which are much of the Nature of our Socage Lands; these descend to all the Sons, or to all the Daughters: Lands not partible, are Fiefs and Dignities, they descend to the eldest Son, and not to all the Sons; but if there be no Sons, then to all the Daughters, and become partible. The Rules and Directions of their Descents are as follow, viz. 1. For want of Sons or Nephews, it descends to the Daughters; if there be no Sons or Descendants from them, it goes to Brothers, and for want of Brothers, to Sisters, (observing as before the Difference between Lands partible and not partible) and accordingly the Descent runs to the Posterity of Brothers to the seventh Degree; and if there be no Brothers nor Sisters, nor any Descendants from them within the Seventh Degree, it descends to the Father, and if the Father be dead, then to the Uncles and Aunts and their Posterity, (as above is said in the Case of Brothers and Sisters) and if there be none, then to the Grandfather. So that according to their Law, the Father is postponed to the Brother and Sister, and their Issues, but is preferred before the Uncle: Tho' according to the Jewish Law, the Father is preferred before the Brother; by the Roman Law, he succeeds together equally with the Brother; but by the English Law, the Father cannot take from his Son by an immediate Descent, but may take as Heir to his Brother, who was Heir to his Son by Collateral Descent. 2. If Lands descended from the Part