D E S i 
prevail in infinitum. Indeed It may be queftioned how far 
the introduction of the computation of kindred, either 
by the canon or civil law, is of ufe in the common-law 
doffrine of defcents. 
This right of reprefentation being eftabliftied, the for¬ 
mer part of the prefent rule amounts to this : that, on 
failure of iflue of the perfon laft feifed, the inheritance 
fliall defcend to the other fubfifting iflue of his next im¬ 
mediate anceftor. Thus, if A. dies without iHue, his 
eftate fliall defcend to his eldelt brother, (if more than 
one) or his reprefentatives ; he being lineally defcended 
from A.’s father, his next immediate anceftor. On failure 
of brethren, or filters, and their iflue, it fliall defcend to 
the uncle of A. the lineal defcendant of his grandfather; 
and fo on in infinitum. The elder brother of the whole 
blood fliall have-land by defcent, purchafed by a middle 
or younger brother, if fucli die without iifue ; for as to 
defcents between brethren, the eldelt is the mod worthy 
of blood to inherit to them as well as to the father. Lit. 3. 
3 Rep. 40. Here it muft be obferved, that the lineal an- 
ceftors though (according to the firft rule) incapable 
themfelves of fucceeding to the eftate, becaufe it is fup- 
pofed to have already palled them, are yet the common 
flocks from which the next fuccelfor muft fpring. But 
though the common anceftor be thus the root of the in¬ 
heritance, yet it is not neceffary to name him in making 
out the pedigree or defcent. For the defcent between 
two brothers, is held to be an immediate defcent; and 
therefore title may be made by one brother, or his re¬ 
prefentatives, to or through another, without mentioning 
their common father. 1 Sid. 196. iVentr. 423. 1 Lev. 60. 
12 Mod. 619. 
The law takes no notice of the difability of the father 
in cafe of defcent, but only of the immediate relation of 
brothers and filters, as to their eftates ; fo that the ina¬ 
bility of the father doth not hinder the defcent between 
them; for example : A man had iifue a foil and a daugh¬ 
ter, and w 7 as attainted of treafon/and died; the fon pur¬ 
chafed lands, and died without iflue ; and it was adjudged 
that,notwithftanding the attainder of the father, the daugh¬ 
ter fliall take by defcent from her brother, becaufe the 
defcent between them was immediate, and the law doth 
not regard the difability of the father. 4 Leon. 5. 'Where 
a perfon feifed of lands, hath iifue two daughters, if one 
of them commits felony, after the father’s death, both 
daughters being alive, a moiety fliall defcend to one 
daughter, and the other fhall efcheat. Co. Lit. 163. 
But, fecondly, the heir need not be the neareft kinf¬ 
man abfolutely, but only fub modo ; that is, he muft be 
the neareft kinfman of the whole- blood ; for, if there be a 
much nearer kinfman of the half- blood, a dillant kinfman 
of the whole fliall be admitted, and the other entirely ex¬ 
cluded : nay, the eftate fhall efcheat to the lord, fooner 
than the half-blood fliall inherit. A kinfman of the whole- 
blood is he that is derived, not only from the fame an¬ 
ceftor, but from the fame couple of anceftors. For, as 
every man’s own blood is compounded of the bloods of 
his refpedtive anceftors, he is only properly of the whole 
or entire blood with another, who hath (fo far as the dif- 
tance of degrees will permit) all the fame ingredients in 
the compolition of his blood that the other hath. Thus, 
the blood of A. being compofed of thole of his father 
and his mother, therefore his brother being from both 
the fame parents hath entirely the fame blood with A; 
or, in other words, he is his brother of the w-liole blood,. 
But if, after the death of A.’s father, his mother had mar¬ 
ried a fecond huiband, and had iifue by him; the blood of 
this iflue, being compounded of the blood of A.’smother 
only on the one part, but of that of the fecond huiband 
on the other part, it hath therefore only half the fame 
ingredients with that of A. himfelf; fo that fuch iifue is 
only A.’s brother of the half-blood; and for that reafon 
they fhall never inherit to each other. So alfo if the fa¬ 
ther has two fons, A. and B. by different venters, or 
wives; thefe two brethren are not brethren of the wliole- 
2 
: E N T. 755 
blood, and therefore fliall never inherit to each other, but 
the eftate fliall rather efcheat to the lord. Nay, even if 
the father dies, and his lands defcend to his eldelt fon A. 
who enters thereon, and dies feifed, without iifue; ftill 
B. fliall not be heir to this eftate, becaufe he is only of 
the half-blood to A. the perfon laft feifed ; but it fliall 
defcend to a lifter (if any) of the whole-blood to A. ; for, 
in fuch cafes the maxim is, that pojfcffiofratris facit Joro- 
rem efifc hceredcm, the feilin or pofleflion of the brother 
makes the lifter to be heir. Yet, had A. died without 
entry, then B. might have inherited, not as heir to A. 
his half-brother, but as heir to their common father, who 
was the perfon laft actually feifed. Hale H. C. L. 238. 
,Of fome inheritances there cannot be a feilin, ox pojfcffio 
fratris ; as if the eldeft brother dies before a prefentation 
to an advowfon, it will defcend to the half-brother, as 
heir to the perfon laft feifed, and not to the filler of the 
whole-blood. So of reverlions, remainders, and execu¬ 
tory devifes, there can be no feilin or pojfcffio fratris \ and, 
if they are referved or granted to A. and his heirs, lie 
who is heir to A. when they come into pofleflion, is en¬ 
titled to them by defcent; that is, the perfon who would 
have been heir to A. if A. had lived fo long, and had 
then died actually feifed. Fearue, 448. 2IV1IJ. 29. But, 
though a pojfcffio fratris cannot properly be of a remainder 
or reverfion expectant upon an eftate of freehold, yet, by 
the exertion of certain adts of ownerlhip, as by granting 
them over for term of life, a poffeffio fratris of them may 
be made. 1 Infi. 15 a. 191 b. There can be no pojfcffio fra¬ 
tris of an eftate-tail, nor of honorary dignities; nor of 
the defcent of the crown, and its pofleflions; nor of a 
mere right. 
The total exclufion of the half-blood from the inheri¬ 
tance, being almoft peculiar to our own law, is looked 
upon as a ftrange hardfliip by fuch as are unacquainted 
with thereafons on which it is grounded. But thefe ceit- 
fiires arife from a mifapprehenlion of the rule, which is 
not fo much to be conlidered in the light of a rule of de¬ 
fcent, as of a rule of evidence ; an auxiliary rule to carry 
a former into execution. To illuftrate this rule by ex¬ 
ample : Let there be A. and B. brothers, by the fame fa¬ 
ther and mother, and C. another fon, of the lame mother, 
by a fecond huiband. Now, if A. dies feifed of lands, 
but it is uncertain whether they defcended to him from 
his father or mother, in this cafe, his brother B. of the 
whole-blood, is qualified to be his heir, for he is fine to 
be in the line of defcent from the firft purchalor, whe- 
ther-it were the line of tlie father or mother. But, it B. 
Ihould die before A. without iflue, C. thebrother of the 
half-blood, is utterly incapable of being heir ; for he 
cannot prove his defcent from the firft purchafor, who.is 
unknown; nor has he that fair probability, which the 
law admits as prefumptive evidence, fince lie is to the 
full as likely not to be defcended from the line of the firft 
purchafor, as to be defcended ; and therefore .the inhe¬ 
ritance fliall go to the neareft relation polfelfedof this pre¬ 
fumptive proof, the whole-blood. And, as this is the 
cafe in ficudis anti.quis, where there really did exill a pur- 
chafing anceftor, who is forgotten, it is alfo the cafe vi 
ficudis novis, held ut anliquis, where the purchafing anceftor 
is merely ideal, and never exifted but only in fibtion ot 
law. Of this nature are all grants of lands in fee-fimple 
at this day, which are inheritable as if they defcended 
from fome uncertain indefinite anceftor, and therefore, 
any of the collateral kindred of the real modern purcha¬ 
for (and not his own offspring only) may inherit them, 
provided they be of the whole-blood ; for all fuch are, 
in judgment of law, likely enough to be derived front 
this indefinite anceftor; but thofe of the half-blood are 
excluded for want of the fame probability : nor fhould 
this be thought hard, that a brother of the purchafor, 
though only of the half-blood, muft thus be dilinherited, 
and a more remote relation of the whole-blood admitted, 
merely upon a fuppofirion and fiction ol law : fince it is 
only upon a like fuppofition and fiftion, that brethren of 
purchafors 
