blood never can exist in any other branch of the pedigree than that which traces the pedigree of the person last seised from the common ancestor: all descendants from any other person in the line of succession must be of the whole

are

blood to the person last seised; since they descendants from two persons being the common ancestors. Pedigrees frequently become unnecessarily complicated, from disregarding these distinctions.

And with respect to the rule possessio fratris facit sororem esse hæredem, it is also to be observed, that the mere circumstance that a person is of the half-blood to the person last seised, will not exclude him from taking as heir, if he be of the whole blood to those ancestors through whom the descent is to be derived by representation.

Thus, suppose two first cousins to intermarry, and to have issue F. The father D also had issue G by another wife, and F, being the first purchaser, dies seised: G could never take as the paternal heir of F, because he is of the halfblood to F; but he can take as maternal heir to F, because, with reference to E, the maternal ancestor, D, and consequently F his son, he derives his pedigree from two persons the common ancestors of E.

who were

Thus, in tracing the pedigree from E, G is considered as of the whole blood of E, and therefore of F, although with reference to a descent from F, as first purchaser, or in the

paternal line, in right of representation of the father as father, distinguished from being cousin of E, he is not of the whole blood to F.

Instead, therefore, of propounding the rule to be, that the heir must be of the whole blood of the person last seised, it would be more correct to say, that he must be of the whole blood to, that is, descended from, those two parents, whether father and mother, or grandfather and grandmother, or other ancestors in an higher degree, who are the common link or vinculum in the pedigree. The apparent difficulty of the case which has been stated, arises from the circumstance that G claims and takes as cousin, and not as brother, to F. One of those discussions, which take place between young gentlemen studying the law, and shortly afterwards a case of actual practice, led to this criticism. In short, general rules frequently mislead students from the universality of their terms; and it is only by a critical examination of the reason of the rule, that the exception can be discovered.

The proposition that a father cannot be heir to his child, is another instance which leads to a similar discussion. The father may be heir to his child, as his cousin, though he never could be his heir, as his parent.

To examine this point: In the second volume of his Commentaries, (p. 13) the learned Blackstone has a passage in these words: "In

"personal estates the father may succeed to his "children; in landed property he can never "be their heir, by any the remotest possibility." By this passage it must be understood, that the father cannot succeed to his son merely in the character and relation of father. In any other sense, it is not by any means accurate to say the father cannot, "by any the remotest possibility," succeed to the son as his immediate heir. The intention of Blackstone evidently was to admit, that which, certainly, is true, that the father, though he cannot be heir to the son, merely as his father, yet, eventually, may become heir to the estate; and after a descent to any collateral kinsman, may succeed as the heir to that person. It also seems to have been his intention to have denied that there was any possible means by which the father could succeed as immediate heir to his son, by any the remotest possibility. A contrary doctrine however is clearly established. It has been held that the father may be immediate heir not only to the estate of his son, but to his son, as the second cousin of the son. For as the father would be entitled to be heir, as cousin to the son, if he did not sustain the relation of father, he is not excluded merely on the ground that he is the father. In searching for the heir of the son, the father, considered merely as the father, must be passed over as not inheritable; on the other hand, he is to be allowed the right of a cousin and collateral kinsman, when he can claim in that character, for

quum

duo jura in uno persona concurrunt, aquum est ac si essent in diversis. Thus he is to be

considered in a double point of view; first, as a father, secondly, as a cousin. Suppose then two cousins to intermarry, and that there is issue of that marriage a son, who purchases lands and dies in inquiring for the heir to the son, it is a decisive objection against a claim of the father, that he is the father; as often as the question is, whether he shall be preferred to the uncle or great uncle of the son, on the part of his father. But let the paternal line fail, and then recourse must be had to the maternal line. In that line the father may succeed as a cousin to his son, thus:

A, a bastard, has two sons, B and C ; B has a son D; C has a daughter E; these two children intermarry and have issue F, who purchases lands, and dies without issue. In this case D, the father, B the grandfather, and A the great grandfather, as the paternal ancestors of F in the direct ascending line, are to be excluded from the succession. C therefore, if living, as the paternal great uncle, or E his daughter, as the paternal cousin in right of her representation of C, and notwithstanding she is the mother of F, may succeed to his estate. But suppose C and E to be dead without issue, then B, as the brother of C; and if B be dead, then D his son may succeed; the former as brother, the latter as nephew to C; in other