[the manner we have here laid it down (q).] And thus much for descents to the issue of the purchaser.

V. A fifth Rule is, that on failure of the issue of the purchaser, the inheritance shall descend to the nearest lineal ancestor then living in the preferable line ;-supposing no issue of a nearer deceased ancestor in that line to exist.

Under this Rule we are to remark, that,

1. After the issue, the next descent is to the lineal ancestry.

This principle is but recently adopted into our law (r), which, in failure of descendants of the deceased, would admit the descendants of his lineal ancestor (that is, his own collateral heirs,) under colour of a fiction formerly explained (s); but always excluded the lineal ancestor himself: so that the land would rather escheat to the lord (t) than ascend to a father or a grandfather; to illustrate which the inheritance of an estate is compared, by an antient writer, to the descent of a falling body. "Descendit jus (says Bracton) quasi ponderosum quid, cadens deorsum rectâ lineâ; et nunquam reascendit eâ viâ quâ descendit (u).” This resulted, like many other of our institutions, from the doctrines of feudal tenure. [For it was an express rule of the feudal law (x), that "successionis feudi talis est natura quod ascendentes non succedunt,"] and we find the same principle recognized in the old law of France (y). [Our Henry the first indeed, among other restorations of the old Saxon laws, restored the right of succession in the

[ascending line (z); but this soon fell again into disuse, for so early as Glanville's time (who wrote under Henry the second) we find it laid down as an established law, that hæreditas nunquam ascendit (a), which from that time remained an invariable maxim. These circumstances evidently show this antient peculiarity of our law to be of feudal original, and taken in that light, there were some arguments in its favour. For if the feud of which the son died seised was really feudum antiquum, or one descended to him from his ancestors, the father could not possibly succeed to it, because it must have passed him in the course of descent before it could have come to the son, unless indeed it were feudum maternum, or one descended from his mother, and then the father would be excluded by the feudal maxim already considered, as he did not derive his blood from the purchaser. And if it were feudum novum, or one newly acquired by the son, the father would still be excluded by the same maxim: which was founded not only upon the personal merit of the vassal which might be transmitted to his children, but also upon this consideration of military policy, that the decrepit grandsire of a vigorous vassal would be but indifferently qualified to succeed him in his feudal services. Nay, even if this feudum novum were held by the son ut feudum antiquum, such feud must in all respects have descended as if it had been really an antient feud; and therefore could not go to the father, because if it had been an antient feud, the father must have been dead before it could have come to the son. Thus, whether the feud were strictly novum or strictly antiquum, or whether it was novum held ut antiquum, in none of these cases the father could possibly succeed.] Such at least have been alleged, (and apparently with truth,) as the reasons of the rule which excluded the ascending line (b). The reasoning, however,

(z) Ll. Hen. 1, c. 70; Blackborough v. Davis, 1 P. Wms. 40. (a) Glan. lib. 7, c. 1.

(b) See Co. Litt. by Harg. 11 a, n. (1).

was not consistently applied: for it has been justly observed, that if the father is not to inherit the estate, because it must be presumed to have already passed him in the course of descent, the elder brother should, upon the same principle, never be heir to the younger; and if the object is merely to pass over a decrepit feudatory, the father's elder brother should never succeed to his nephew; and yet a succession in both these collateral lines was always permitted by law (c). The rule besides was opposed to natural justice, and the common feelings of mankind : which evidently suggest not only that a man's progenitors should be allowed to inherit his estate, but that their proper place in the succession is second only to that of his posterity. Such accordingly is now the rule; and we owe this great improvement to the same statute of 3 & 4 Will. IV. c. 106, to which we have already had occasion to refer. Its provision on this subject is as follows: "that every lineal ancestor shall be capable of being heir to any of his issue; and in every case where there shall be

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no issue of the purchaser, his nearest lineal ancestor "shall be his heir, in preference to any person who would "have been entitled to inherit, either by tracing his de"scent through such lineal ancestor, or in consequence of "there being no descendant (d) of such lineal ancestor : "so that the father shall be preferred to a brother or sis"ter, and a more remote lineal ancestor to any of his issue "other than a nearer lineal ancestor or his issue (e).”

2. The descent is to the nearest living ancestor in the preferable line.

How the preference is to be settled between two different lines of ancestry, will appear by the next Rule. But in the mean time we are to observe, that in the same line the nearest of blood has the precedency.

(c) Christian's Blackstone, vol. ii.

p. 212.

(d) In this statute the expression "descendants" of any ancestor, "shall

extend to all persons who must trace their descent through such ancestor' (3 & 4 Will. 4, c. 106, s. 1).

(e) 3 & 4 Will. 4, c. 106, s. 6.

Thus, if in failure of the issue of John Stiles, we proceed to inquire for his heir, among his lineal ancestors, we are to prefer Geoffrey Stiles, his father, to George, his grandfather (supposing both to be living), and so we are to prefer Lucy, his mother, to Esther, his maternal grandmother (ƒ).

This branch of the Rule, though in a direct sense also resting on the same positive enactment, is not, like the other, new in its principle, but agrees in substance with the law as it stood prior to the late act of parliament. For though the lineal ancestors were not themselves permitted to succeed, yet they were always regarded as the fountains of inheritable blood, and the stocks from which the next succession must spring, so that their issue were admitted, in right of descent from them, to the inheritance (g); and as to their issue, the rule was, that the descendants of a nearer lineal ancestor, in the preferable line, were preferred to those of one more remote (h). Very similar to which, as Blackstone observes, was the law of inheritance among the antient Germans our progenitors, "hæredes successoresque sui cuique liberi, et nullum testamentum: si liberi non sunt, proximus gradus in possessione, fratres, patrui, avunculi (i)."

3. The Rule applies only in the event of the issue of every nearer deceased ancestor in the same line being extinct. For if the issue of any such ancestor exist, the order of succession is governed, as we shall see hereafter, by a different rule.

VI. It may be laid down as a sixth Rule, that, among the lineal ancestors of the purchaser, the paternal line (whether of the purchaser, or of any ancestor male or female,) is always preferred to the maternal.

Therefore Geoffrey, the father, in the annexed Table of

(ƒ) See Table of Descent (No. II.) (h) Ibid. (g) 2 Bl. Com. 226.

(i) Tacitus de Mor. Germ. 21.

Descent, (No. II.,) will succeed rather than Lucy, the mother; and if Geoffrey be dead, any of his male ancestors, George, Walter, and Richard, (according to their proximity,) will have the preference to any of his maternal ancestors, or to the maternal ancestors of George, or Walter respectively; though, on the other hand, all these maternal ancestors will take precedence of Lucy the mother, or any ancestor of hers. Upon the same principle, when, upon failure of the main line of John's paternal ancestry by the extinction of the blood of Richard, we inquire for the next heir-we are to select Ann Godfrey, the mother of the more remote male paternal ancestor, in preference to Christian Smith, the mother of a male paternal ancestor less remote; for if we were to give the preference to Christian, we should be resorting to the maternal line of George, instead of his paternal, which would be contrary to our rule.

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This preference of the paternal line, is now founded on the express enactment of the late statute for amendment of the law of inheritance (3 & 4 Will. 4, c. 106); which provides, (by sect. 7,) "that 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; and also that 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 that no female ma"ternal ancestor of such person, nor any of her descend"ants, shall be capable of inheriting until all his male "maternal ancestors and their descendants shall have "failed." And by section 8, "that where there shall be "a failure of male paternal 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