Bracton: Thorne Edition: English. Volume 2, Page 191

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Volume 2, Page 191

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[001] the second wife claims by assise [of mortdancestor], as do the brother or sister by
[002] the first wife; the sister by the second wife will be successful and exclude both the
[003] son and the daughter by the first. This is true but the rule applies, [according to some
[004] in both cases,] only to acquired property; if it is an inheritance that descends
[005] it will be otherwise,¹ for if we take as our point of departure the common ancestor
[006] of such persons, from whom the inheritance descends, proprietary right will
[007] never resort to a female as long as there is a male or issue of a male, whether
[008] the heirs are born of one father and the same or different mothers. And the rule
[009] as to nearer and near heirs, remote and more remote, ought to be applicable in the
[010] like case of all other heirs.² [On this matter an express holding may be found [in
[011] the roll] of Trinity term in the third year of king Henry in the county of Sussex,
[012] an assise of mortdancestor [beginning] ‘if Ralph de la Roche.’³ Also [the case] of
[013] William de Mandeville, earl of Essex, and Matilda, countess of Hereford.]⁴ ⁵<And
[014] to the same intent [in the roll] of Michaelmas term in the fourth and beginning of
[015] the fifth years of king Henry in the county of Lincoln, [the case] of Osbert, son of
[016] Richard, and Bartholomew his brother, where the younger son was in seisin and
[017] retained.> [Others say] that the rule applicable to an acquisition ought to be
[018] applied to a descending inheritance since it is evident that everyone establishes a
[019] new stock and a first degree out of his own seisin.⁶ but in truth that is not so, for
[020] example,⁷ a man has two sons by different wives and two daughters; the older
[021] son will be his father's nearer heir, the younger son his near and the daughters
[022] remote. When the inheritance descends to the older as nearer heir his younger
[023] brother will begin to be nearer heir to his older brother and the sisters near heirs.
[024] When the older brother dies without an heir of his body the inheritance descends
[025] to his nearer heir, that is, the younger brother, not to the daughters, although they
[026] are near heirs, nor does it much matter whether they are born of the one⁸ father
[027] and the same or different mothers.⁹ But if the older brother by the first wife, or
[028] the younger brother by the second, acquires property, and each has a sister by
[029] the same mother, the sister will be a nearer heir than the brother by the other wife,
[030] although he is a near heir, because of the right of the whole blood, the double
[031] right of blood on the father's side and the mother's. ¹⁰<[Heirs] may be equals with
[032] respect to possessory right when younger brothers acquire a free tenement through
[033] the passage of time, unequals before.¹¹ So with respect to the right of blood, heirs
[034] may be equals since they stem from one father and¹² the same

Notes

1. Infra 194, iii, 279, 280, 315, ‘secundum quosdam’

2. ‘debet [in consimili casu] de omnibus ...’

3. B.N.B., no. 44; given in full infra iii, 315; not in C.R.R. viii, nor on the two additional membranes of J.I. 1/224 recovered since the printing of that volume. Information from Mr. C. A. F. Meekings

4. Not in B.N.B., not in C.R.R. viii, nor on the recently recovered membranes noted above. B.N.B. i, 169

5. Supra i, 382. This addicio, out of place here, belongs supra 187, where this case, B.N.B. no. 303, is noted

6. Supra 190, infra 197

7. ‘verbi’

8. ‘uno’, as above

9. Infra 194

10. Supra i, 382. These observations suggest the view supra 190

11. Supra 188

12. ‘et’