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children of the brothers and fifters deceased, také per capita each an equal fhare, as has been obferved before respecting the inteftate's grandchildren'. 9. If a perfon die inteftate, leaving neither wife nor child, nor reprefentative of fuch child, nor father nor mother, nor brother nor fifter, but hath a grandfather or grandmother living; then the grandfather or grandmother has the whole perfonal eftate, in exclufion of the inteftate's uncles and aunts; and if there be a grandfather on the father's fide, and a grandmother on the mother's fide, the whole is divided between them and fo it is if there be a grandmother on the father's fide, and a grandfather on the mother's fide. 10. If a perfon die inteftate, leaving neither wife nor child, nor representative of fuch child, nor father nor mother, nor brother nor fifter, nor grandfather nor grandmother, but leaving uncles and aunts, and brother's or fifter's children; thofe uncles and aunts, whether on the father's fide or mother's, will share the inteftate's whole perfonal eftate, together with his brother's and fifter's children'.

;

IF a perfon die inteftate, leaving none of those relations, the general rule by the ftatute of diftribution is, that his perfonal eftate fhall go to his next of kindred in equal degree; and thofe may be the children of his uncles or aunts, and his brothers or fifters grandchildren, all of whom being in the fourth degree, will fhare equally alike; and if there is but one perfon that can take, as being the only person who is the nearest of kin, the ftatute vefts the whole in that perfon ".-For further difcovering the degrees of kindred, when none of those that have been mentioned are to be found, we may obferve the following table, which is laid down conformable to what has been before mentioned refpecting the mode in which the different degrees of kindred are to be reckoned. We may likewife obferve, that where there are relations, both by the father's fide and mother's, in equal degree

r Pag. 72.

& Pag. So.

t Ibid.

Pag. 73..

of

of kindred, they fhare equally alike; for here there is no difference (though there is in refpect of real eftate, as will be seen in the enfuing chapter), whether the relations be by the father's fide or by the mother's; but those who are nearest of kin will be preferred, be it by either fide; and the half blood will be equally entitled with those of the whole blood.

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IF the inteftate have no kindred, his real eftate, which will be the fubject of our enfuing chapter, will efcheat to the King, or to the lord of the manor, or other person entitled thereto, by virtue of any grant from the Crown; for where no person can claim any property, there the King shall be entitled by his prerogative. As to perfonal eftate, concerning which we have been treating; where a bastard who has no kindred, being, as the law terms him, nullius filius, that is, the son of no one, or as he is fometimes termed, filius populi, that is, the fon of the people (or any one else that has no kindred), dies inteftate, and without wife or child, it hath formerly been held, that the ordinary might feize his goods, and dispose of them in pios ufus, or in pious ufes. But the ufual course now is, for fome one to procure letters patent, or other authority from the King; and then the ordinary of course grants administration to such appointee of the Crown*.

HENCE it may be perceived, that a baftard is utterly incapable of taking any real estate by descent, and that he cannot be heir to any one; neither can he be entitled to any fhare in the diftribution of an inteftate's personal eftate: when born he is capable of taking by devife, and the lawful issue of a baftard is capable of inheriting or taking by descent or otherwise such estate as the parent might die poffeffed of, but no perfon except his wife or lawful iflue can claim any part of his estate as kindred; for he can have no collateral kindred.-Baftards are children born out of wedlock, or before matrimony; but if a child be begotten while the parents are fingle, who afterwards marry, and thereby the child is born in lawful wedlock, he is no baftard. And children born fo long after the death of the hufband, that by the usual courfe of geftation, they could not be begotten by him, are baftards. But this being a matter of fome uncertainty, the law is not exact as to a few days. So children born during wedlock may in fome circumftances be baftards: as in cafe the hufband be out of the kingdom of England (or, as it is commonly phrased, without the four feas) for above nine months, fo that accefs to his wife cannot be prefumed, her iffue, during that period, will be baftards". But generally during the coverture access of the husband is presumed, unlefs the contrary be proved. In cafe of a divorce in thefpiritual court a vincula matrimonii, or from the band of ma

Black. Com. 2 V. 505,

y Co. Litt. 244.

2 Cro. Jac. 541.

a Co. Litt. 244.

b

3 P. Will. 276. Stra. 925.

trimony,

trimony, all the iffue born during the coverture are bastards; for fuch an abfolute annulling of the marriage can only take place where fome caufe is fhewn, which made the marriage. unlawful from the beginning.

BESIDES what has been mentioned concerning baftards, it should be observed, that it must be confanguinity or relationship by blood, and not affinity, a relationship by marriage, whereby perfons may be entitled as kindred to an inteftate's eftate; for as to fuch as have married with any of the inteftate's family or relations who have died before him, no advantage can accrue to them by fuch marriage for example, suppose A, was to die inteftate, and the only iffue he ever had were a fon and a daughter, both of whom had married and died before him, leaving a wife and husband, who furvived him; neither this wife nor hufband would have any part of A's real or perfonal eftate, though the iffue of his fon and daughter, with his wife (if fuch were living), would have the whole; but if none of them were living, the whole personal estate would go to his next of kindred in fuch manner as has been fhewn, and the real estate to fuch as are described in the ensuing chapter. And if A had died inteftate without wife or child, and his only kindred had been a brother and fifter, both of whom had married and died before him, leaving a wife and husband, who had furvived him; neither this wife nor husband would be entitled to any part of A's estate; but in this cafe he would die without kindred, and his real eftate would efcheat to the King, or lord of the manor, or other person who might be entitled thereto by virtue of any grant from the Crown, and his perfonal eftate would veft in the King, as we have lately hinted; and thus it would be in respect to the husband of A's mother, and the hufband or wife of any one that were his next of kin, and had married and died before him. But in cafe his fon or daughter, brother, fifter, or mother, or any other who were his next of kin, had survived him, and died in ever fo fhort a time after, then the husband or wife of him, or fhe that had furvived him, might be entitled; that is, the husband in right of the wife, and the wife in respect of her husband; but neither of them as being of kin to A. The right of the diftributive share vefts immediately on the inteftate's death, as hath been mentioned. Although by the ftatute no diftribution is to be made within a year; yet the fhare of the deceased person is an intereft vested and tranfmiffable to his executors or adminiftrators,

• Pag. 73. G 3

CHAP. IV.

The Defcent of real Eftates, or Eftates of Inheritance. How the Law difpofes thereof to the Heir; the Hufband of a deceafed Wife, and the Wife of a deceafed Hufband.

SECTION THE FIRST.

HOW THE LAW DISPOSES OF THE INHERITANCE TO THE HEIR.

A

LL freehold eftates are called real eftates, and may be

of inheritance or not of inheritance, as mentioned page 28. The principal freehold eftates of inheritance are fee fimple, and fee-tail. There are alfo eftates of inheritance, which defcend according to the custom of gavelkind, borough-english, and the customs of manors, yet do not all come under the legal defcription of freehold; with those latter, as well as the former, an adminiftrator, as such, has no concern, except it be with the eftate held pur auter vie (mentioned page 30). To avoid confufion, thofe latter eftates will be defined towards the end of this chapter.-Fee-fimple is where a man hath lands, tenements, or hereditaments, (the latter of which comprehend not only all kinds of ground, as arable or plowed ground, meadows, pastures, woods, moors, marshes, and all kinds of houfes, edifices, or buildings, which are called corporeal hereditaments, but also advowfons or rights of presentation to churches, commons, ways, offices, dignities, penfions, annuities, and rents, which are called incorporeal hereditaments ); to hold to him and his heirs for ever, generally, abfolutely, and fimply, without any particular heirs being mentioned, but that being referred to his own pleasure, or the difpofition of the law, in cafe he makes no difpofition thereof himself, as he may to whom he thinks fit. And hence we may perceive, that this eftate may confift both of corporeal and incorporeal hereditaments, or either. But no perfon can be properly fuch an ancestor, as that an inheritance in lands or tenements can be derived from him, unless he hath had actual feifin of fuch lands, either by his own entry, or by the poffeffion of his own or his ancestor's leffee for years, or by receiving rent from a leffee of the freehold; or unless he hath had what is equivalent to corporal feifin in hereditaments that are incorporeal; fuch as the receipt of rent, a prefentation to the church in cafe of an advowfon, and the like. And therefore all the cafes which will be hereafter

a Mentioned page 24.

II

Black. Com. 2 V. 209.

mentioned

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