The History of the Common Law of England [76]
the Rules then of Succession were either in Reference to Goods, or Lands. 1st, As to Goods, one Third Part thereof went to the Wife, another Third Part went to the Children, and the other Third was left to the Disposition of the Testator; but if he had no Wife, then a Moiety went to the Children, and the other Moiety was at the Deceased's Disposal. And the like Rule if he had left a Wife, but no Children. Glanv. lib. 7. cap. 5. & Vide lib. 2. cap. 29. But as to the Succession of Lands, the Rules are these. First, If the Lands were Knights Service, they generally went to the eldest Son; and in case of no Sons, then to all the Daughters; and in case of no Children, then to the eldest Brother. Secondly, If the Lands were Socage, they descended to all the Sons to be divided; Si feurit Soccagium & id antiquitus divisum; only the Chief House was to be allotted to the Purparty of the Eldest, and a Compensation made to the rest in lieu thereof: "Si vero non fuerit antiquitus divisum, tunc Primogenitus secundum quorundam Consuetudinem totam Haereditatem obtinebit, secundum autem quorundam Consuetudinem postnatus Filius Haeres est." Glanville, lib. 7. cap. 3. So that altho' Custom directed the Descent variously, either to the eldest or youngest, or to all the Sons, yet it seems that at this Time, Jus Commune, or Common Right, spoke for the eldest Son to be Heir, no Custom intervening to the contrary. Thirdly, As the Son or Daughter, so their Children in infinitum, are preferred in the Descent before the Collateral Line or Uncles. Fourthly, But if a Man had two Sons, and the eldest Son died in the Life-time of his Father, having Issue a Son or Daughter, and then the Father dies. it was then controverted, whether the Sou or Nephew should succeed to the Father, tho' the better Opiuion seems to be for the Nephew, Glanvil. lib. 7. cap. 3. Fifthly, A Bastard could not inherit, Ibid. cap. 13, or 17. And altho' by the Canon or Civil Law, if A. have a Son born of B. before Marriage, and after A. marries B. this Son shall be legitimate and heritable; yet according to the Laws of England then, and ever since used, he was not heritable, Glanvil. lib. 7. cap. 15. Sixthly, In case the Purchaser died without Issue, the Land descended to the Brothers; and for want of Brothers, to the Sisters; and for want of them, to the Children of the Brothers or Sisters; and for want of them, to the Uncles; and so onward according to the Rules of Descents at this Day; and the Father or Mother were not to inherit to the Son, but the Brothers or Uncles, and their Children. Ibid. cap. 1. & 4. And it seems, That in all Things else the Rules of Descents in reference to the Colateral Line were much the same as now; as namely, That if Lands descended of the Part of the Father, it should not resort to the Part of the Mother, or e converso; but in the Case of Purchasers, for want of Heirs of the Part of the Father, it resorted to the Line of the Mother, and the nearer and more worthy of Blood were preferred: So that if there were any of the Part of the Father, tho' never so far distant, it hindred the Descent to the Line of the Mother, though much nearer. But in those Times it seems there were two Impediments of Descents or hereditary Successions which do not now obtain, viz. First, Leprosy, if so adjudged by Sentence of the Church: This indeed I find not in Glanville; but I find it pleaded and allowed in the Time of King John, and thereupon the Land was adjudged from the Leprous Brother to the Sister. Pasch. 4 Johannis. Secondly, There was another Curiosity in Law, and it was wonderful to see how much and how long it prevailed; for we find it in Use in Glanville, who wrote Temp. Hen. 2. in Bracton Temp. Hen. 3. in Fleta Temp. Edw. I and in the broken Year of 13 E. I. Fitzh. Avowry 235. Nemo potest esse Tenens & Dominus, & Homagium repellit Perquisitum: And therefore if there had been three Brothers, and the eldest Brother had enfeoffed the second, reserving