But, when this last case has occurred in the King’s Court, it has sometimes been ordered by the Court, acting upon equitable principles, that the Land so given should remain to the Eldest son, especially if he has not any other Fee in possession, until the paternal Inheritance fall to him. Because, in the mean time, as he is not the Lord of the paternal Inheritance, the Rule, that no one can at once be Heir and Lord, does not stand in his way. But since by the Rule of succession, he must become Lord of that part of the Inheritance, it may be asked, whether he is not to be considered as Heir of the part in question, when he is Heir of the whole Inheritance? To this we answer, that it is as yet uncertain and in contingency, whether the Eldest son will be the Heir or not. If, indeed, his Father should die before him, then it is no longer doubtful, because he is his Heir. Should it so happen, he ceases to be the Owner of the Land he formerly acquired by succeeding to his Uncle; and, then, such Land shall descend to the younger son, as the right Heir. If, however, the Eldest son should die before his Father, it is, then, equally clear, that he will not be the future Heir of his Father; and, therefore, those two accidents of Law, the Hereditary Right and Dominion[215] never concur in his person. It should be remarked, that Bishops and Abbots cannot, without the consent and confirmation of the King, make an absolute disposition of any part of their Demesnes, their Baronies being held in Frankalmoigne of the Gift of the King and his Ancestors.[216]
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.