CHAP. II.
But Heirs are bound, so far at least as the Donations of their Ancestors are reasonable, to warrant them, and the things comprised in them, to the persons to whom they are made, and to their Heirs.[217]
CHAP. III.
Of Heirs, some are nearest,[218] others more remote. A Man’s nearest Heirs are those of his Body, as a Son, or a Daughter.[219] Upon the failure of these, the more remote Heirs are called, namely, the Grandson, or Granddaughter descending in a right line from the Son or Daughter, in infinitum. Then the Brother and Sister, and those descending from them in a transverse line. After these, the Uncle,[220] as well on the part of the Father, as of the Mother, and in like manner the Aunt, and their Descendants.[221]
When, therefore, a Man possessed of an Inheritance dies, leaving one Son only his Heir, it is unquestionably true, that such son shall succeed entirely to his Father. If, however, he leaves more sons, then, a distinction must be made, whether the deceased was a Knight, or one holding by Military Tenure, or whether he was a Free Sockman.[222] Because, if he were a Knight, or holding by Military Tenure, then, according to the Law of the English Realm, his Eldest son shall succeed to the whole Inheritance, so that none of his Brothers can by right claim any part of it.[223] But, if the Parent were a free Sockman,[224] then, indeed, the Inheritance shall be equally divided amongst all the sons, however numerous, provided such Socage Land has been anciently divisible,[225] reserving, however, to the Eldest son as a mark of respect to his seniority,[226] the Capital Messuage, upon his making a Compensation to the others equal to the value.[227] If, however, the Estate was not anciently divisible, then, the Eldest son shall, according to some customs, take the whole Inheritance, whilst, according to other Customs, the younger son shall succeed as Heir.[228] In like manner, should any person leave one Daughter only, his Heir, then what we have laid down with respect to a son shall unquestionably prevail. If, however, he leave more Daughters, then, the Inheritance shall, without distinction, be divided between them, whether their Father was a Knight or a Sockman, reserving to the Eldest Daughter, the Capital Messuage, under the conditions before mentioned. But it should be observed, if either of the Brothers or Sisters, amongst whom the Inheritance is divided, should die, without leaving any Heir of his or her Body, then the portion of the person so dying shall be divided amongst the survivors. But the Husband of the Eldest Daughter shall do Homage[229] to the Chief Lord for the whole Fee. But the Younger Daughters, or their Husbands, are bound to perform to the Chief Lord the services due for their Land, by the hand of the Eldest Daughter, or her Husband. Yet the Husbands of the Younger Daughters are not bound to perform any Homage, or even Fealty, to the Husband of the Eldest Daughter, in her lifetime.
Nor are their Heirs in the first and second degrees; but those in the third descent from the Younger Daughters are bound by the Law of the Realm, to do Homage for their Tenement to the Heir of the Eldest Daughter, and to pay a reasonable Relief.[230] In addition it should be known, that Husbands cannot give any part of the Inheritance of their Wives, without the consent of their Heirs, nor can they remit any part of the right of the Heirs, unless in her lifetime.[231] If, however, a Man leaves a son and Heir, and has besides one Daughter or more, the son succeeds entirely to the Inheritance—from whence it follows, that if a Man should have married many Wives,[232] and by each of them have had one or more Daughters, and at length an only son by the last of them, the son alone shall obtain the Inheritance of the Father; because, it is a general Rule, that a Female can never share an Inheritance with a Male, unless perhaps a special Exception to this exist in some particular City, grounded upon a Custom which has long prevailed there. But, if a man should marry different Women, and by each of them should have one Daughter, or more, all the Daughters are equally entitled to the Inheritance of the Father, in the same manner as if they were all sprung from the same Mother.[233] But when a Man dies without leaving any Son, or Daughter, his Heir, if he has any Grand Children, then, undoubtedly, they shall succeed to him, in the same manner as we have above mentioned, his Son or Daughter would have succeeded, and under similar distinctions. For the Descendants in the right line, are always to be preferred to those who are in the tranverse line. But when any one dies, leaving a younger son, and a Grandson, the Child of his Eldest son, great doubt exists, as to which of the two the Law prefers in the succession to the other, whether the Son or the Grandson. Some think, the Younger Son has more right to the Inheritance than such Grandson, for this reason—that the Eldest Son did not survive his Father, and was not in existence when the Inheritance fell, but the Younger Son did out-live both his Brother and his Father, and it is, therefore, right, as they contend, that he should succeed to his Father. But others incline to think, that the Grandson ought of right to be preferred to his Uncle.
For since the Grandson descended from the Eldest Son and is the Heir of his Body, he would have succeeded to all his Father’s rights had he still lived, and he ought therefore to succeed. In which opinion I concur, if his Father was not portioned off[234] by the Grandfather.
For a Son may, in the lifetime of his Father, be portioned off by him, if the father assigns a certain part of his Land to the Son, and deliver him Seisin in his lifetime, at the request and with the unrestrained consent of the Son, in such manner, that the latter be fully satisfied with such part. In such case, the Heirs of the Son’s Body, cannot claim, as against their Uncle, or any other person, any greater portion of the residue of the Grandfather’s Inheritance, than the part of their Father, although the Father himself might, if he had survived the Grandfather. Besides, if the Eldest Son, after having in his Father’s lifetime done Homage to the Chief Lord for his paternal Inheritance, should die before his Father, there is no question but that his Son shall be preferred to the Uncle. Upon this subject, however, a contest may arise, between the Grandson and the Chief Lord, if the latter refuse the Homage of the Grandson; or between the Chief Lord and the Uncle, if the Chief Lord has warranted the Homage of the Grandson. In both these cases, there is no reasonable objection to prevent the matter coming to the Duel, unless the Homage can be proved; for then, indeed, (as the Law now obtains between the Uncle and the Grandson) Melior est conditio possidentis.[235]