The History of the Common Law of England [81]
Descent is not broken; for if the Son alien those Lands, and then repurchase them again in Fee, now the Rules of Descents are to be observ'd as if he were the original Purchaser, and as if it had been in the Line of the Father or Mother. Seventhly, In all Successions, as well in the Line Descending, Transversal, or Ascending, the Line that is first derived from a Male Root has always the Preference. Instances whereof in the Line Descending, &c. viz. A. has Issue two Sons B. and C. B. has Issue a Son and a Daughter D. and E. D. the Son has Issue a Daughter F. and E. the Daughter has Issue a Son G. Neither C. nor any of his Descendants, shall inherit so long as there are any Descendants from D. and E. and neither E. the Daughter, nor any of her Descendants, shall inherit so long as there are any Descendants from D. the Son, whether they be Male or Female. So in Descents Collateral, as Brothers and Sisters, the same Instances apply'd thereto, evidence the same Conclusions. But in Successions in the Line Ascending, there must be a fuller Explication; because it is darker and more obscure, I shall therefore set forth the whole Method of Transversal Ascending Descents under the Eight ensuing Rules, viz. First, If the Son purchases Lands in Fee-Simple, and dies without Issue, those of the Male Line ascending, usque infinitum shall be preferred in the Descent, according to their Proximity of Degree to the Son; and therefore the Father's Brothers and Sisters and their Descendants shall be preferred before the Brothers, of the Grandfather and their Descendants; and if the Father had no Brothers nor Sisters, the Grandfather's Brothers and their Descendants, and for want of Brothers, his Sisters and their Descendants, shall be preferr'd before the Brothers of the Great Grandfather: For altho' by the Law of England the Father or Grandfather cannot immediately inherit to the Son, yet the Direction of the Descent to the Collateral Ascending Line, is as much as if the Father or Grandfather had been by Law inheritable; and therefore as in Case the Father had been inheritable, and should have inherited to the Son before the Grandfather, and the Grandfather, before the Great-Grandfather, and consequently if the Father had inherited and died without Issue, his eldest Brother and his Descendants should have inherited before the younger Brother and his Descendants; and if he had no Brothers but Sisters, the Sisters and their Descendants should have inherited before his Uncles or the Grandfather's Brothers and their Descendants. So though the Law of England excludes the Father from inheriting, yet it substitutes and directs the Descent as it should have been, had the Father inherited, viz. It lets in those first that are in the next Degree to him. Secondly, The second Rule is this: That the Line of the Part of the Mother shall never inherit as long as there are any, tho' never so remote, of the Line of the Part of the Father; and therefore, tho' the Mother has a Brother, yet if the Atavus or Atavia Patris (i. e. the Great-Great-Great-Grandfather, or Great-Great-Great-Grandmother of the Father) has a Brother or a Sister, he or she shall be preferred, and exclude the Mother's Bother, though he is much nearer. Thirdly, But yet further. The Male Line of the Part of the Father ascending, shall in AEternum exclude the Female Line of the Part of the Father ascending; and therefore in the Case proposed of the Son's purchasing Lands and dying without Issue, the Sister of the Father's Grandfather, or of his Great-Grandfather, and so in infinitum shall be preferred before the Father's Mother's Brother, tho' the Father's Mother's Brother be a Male, and the Father's Grandfather or Great-Grandfather's Sister be a Female, and more remote, because she is of the Male Line, which is more worthy than the Female Line, though the Female Line, be also of the Blood of the Father. Fourthly, But as in the Male Line ascending, the more near is preferred before