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made by the

Act.

died, leaving B, the elder son, to succeed him on B's death without issue, C could not inherit, not being of the whole blood of B, the person last seised; although if B had not lived to inherit, C could have taken as heir of A. Blackstone (0) goes into an elaborate defence of the rule, although he admits that it sometimes produced hardship, but it is now almost entirely Alteration done away with by the Act, which provides (p) that any relation of the half-blood of the person from whom descent is to be traced may be his heir, and is to be entitled next after any relations, in the same degree, of the whole blood, and their issue, where the common ancestor is a male, and next after the common ancestor, where the common ancestor is a female. The Act also puts aside the feudal rule which prevented a father from succeeding his son, for it enacts (q) that every lineal ancestor is to be capable of being heir to any of his issue, and that in every case where there is no issue of the purchaser, his nearest lineal ancestor is to be his heir, in preference to any person tracing his descent through such lineal ancestor or in consequence of there being no descendant of such lineal ancestor. The reader will also recollect that by Canon IV. the lineal descendants in infinitum of any person deceased are to represent their ancestor. We thus arrive at the following rules:

Canon.

V. On failure of lineal descendants or issue of the pur- New Fifth chaser, the inheritance shall descend to his nearest lineal ancestor, and the issue of such ancestor in infinitum.

Canon.

VI. Every relation of the half-blood of the purchaser New Sixth is to be entitled next after any relations in the same degree of the whole blood, and their issue where the common ancestor is a male; and next after the common ancestor, where the common ancestor is a female.

(0) 2 Bl. Com. 227.
(p) S. 9.
(g) S. 6.

New Seventh
Canon.

The next question is, how the nearest lineal ancestor is to be chosen-whether preference is to be given to ancestors on the father's side or on the mother's? and further, what is to be the order of inheritance amongst the favoured class-whether, for instance, an aunt is to inherit before a grandfather? The Act supplies an answer to these questions by enacting (r) what we may take as the next rule, viz.

VII. None of the maternal ancestors of the person from whom the descent is to be traced, nor any of their descendants, shall be capable of inheriting until all his paternal ancestors and their descendants shall have failed; no female paternal ancestor of such person, nor any of her descendants, shall be capable of inheriting until all his male paternal ancestors and their descendants shall have failed; and no female maternal ancestor of such person, nor any of her descendants, shall be capable of inheriting until all his male maternal ancestors and their descendants shall have failed.

Thus we see that on the death of the purchaser without issue, his father is the next heir, and after the father his issue, that is, the purchaser's brothers and sisters; the brothers taking singly in order of seniority, and being represented by their issue, if any and on failure of these, the purchaser's sisters will be his co-heiresses, and be in their turn represented by their issue. Failing issue of the purchaser's father, the inheritance will next go to his grandfather and his issue, and so on until the whole line of male paternal ancestors and their issue is exhausted.

After this the female line on the father's side is to be admitted. It was formerly greatly disputed whether preference should, in such a case, be given to the

(r) S. 7.

nearer or more remote female ancestor; for instance, whether the purchaser's paternal grandmother or his paternal great-grandmother had the best claim to be taken as the root of descent, and similarly in tracing descents on the mother's side. This question is now settled by the Act, which has decided (s) in favour of the more remote female ancestor, whether on the paternal or maternal side, and thus we arrive at our last rule.

Canon.

VIII. Where there shall be a failure of male paternal New Eighth ancestors of the person from whom the descent is to be traced and their descendants, the mother of his more remote male paternal ancestor or her descendants shall be the heir or heirs of such person, in preference to the mother of a less remote male paternal ancestor, or her descendants: and where there shall be a failure of male maternal ancestors of such person and their descendants, the mother of his more remote male maternal ancestor and her descendants shall be the heir or heirs of such person, in preference to the mother of a less remote male maternal ancestor, and her descendants. If, therefore, there is a failure of the purchaser's male paternal ancestors, and his heirs must be sought for amongst his female paternal ancestors, his father's mother or her descendants will come last in order of selection. Next, if all the paternal ancestors, male and female, of the purchaser, and their heirs, have failed, recourse must be had to his maternal ancestors. In that case, his mother will first be his heir, and then descent must be traced through her ancestors, by the same process as has been followed in tracing descent through the purchaser's father, and thus, supposing all the intervening heirs to have failed, the inheritance will at last devolve upon his maternal grandmother and her heirs. If these fail, there will be no more heirs of the purchaser: in that case, the

(8) S. 8.

person last entitled must be sought for, and the process gone through again with him. Finally, if it is utterly impossible to find any person entitled to the inheritance, it will escheat to the Crown as lord of the fee.

CHAPTER VII.

OF COPYHOLDS.

دو

tenure can be

THE origin of copyholds has been treated of in an No copyhold earlier part of this work. It is, therefore, only neces- created now. sary, as to that point, to add that no copyholds can be created at the present day. The existing form of copyhold tenure is the result of a number of very gradual changes, each of which, being an encroachment upon the rights of the lords of manors, was not recognised by the law until it had been impressed with the stamp of long-continued custom. Hence arose the saying, that "time is the nurse of manors (a). And since it is manifestly impossible to create a custom, it follows that it is impossible to create a copyhold to be held according to that custom. Nor is it possible to create a copyhold by providing for land being held according to the custom of some existing manor. For in every copyhold there must be " perfect tenure between very lord and very tenant” (b); in other words, all the services due from the tenant must be centred in one lord. But it has been for a long time impossible to originate such a tenure, inasmuch as the Statute of Quia Emptores (c), passed in the year 1290, enacted that every feoffee of lands should hold them of the same chief lord, and by the same services and customs, as his feoffor had done. If, then, a feoffor does not reserve any new services to himself, the land is held by its former tenure; if he does, the services due from the tenant are not centred

(a) Co. Cop. s. 31.
(b) Ibid.

(c) 18 Ed. I. c. I.

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