Bracton: Thorne Edition: English. Volume 3, Page 312

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Volume 3, Page 312

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[001] capable of inheriting an inheritance descending from some common ancestor, or
[002] incapable. If the co-heirs are capable of inheriting, as where the inheritance is partible,
[003] either by reason of the several persons, as daughters, who are, so to speak, a single
[004] heir, or by reason of the inheritance itself, which is partible, the assise will not lie
[005] but a writ of purparty.¹ If an assise is impetrated, it falls if the exception of mere
[006] right is raised, since each of them is a nearer heir with respect to his part, as against
[007] those who are more remote and in another degree of relationship. If there are several
[008] co-heirs, right and near [heirs] with respect to seisin, but not parceners, all are not
[009] capable of inheriting, only one of them, because of the privilege he has, as was said
[010] above,² he to whom the mere right descends, is preferred to the others. Here the assise,
[011] will not lie, since it only determines possession, but a writ of right, which determines
[012] both, that is, seisin and the mere right, and thus in the foregoing cases, when one
[013] begins to sue by the assise, the tenant is given an exception against the assise.³ This
[014] matter will be explained more fully below in the tractate on cosinage.⁴ ⁵ <As the assise
[015] does not lie between legitimate co-heirs capable of inheriting, parceners, nor between
[016] such who are not parceners, so it does not lie between those who are legitimate and
[017] natural only, as between legitimates and bastards, as where it is objected against a
[018] natural brother that he is a bastard, or a villein, since it cannot be known whether they
[019] may prove themselves legitimate and free or not,⁶ [And though they prove themselves
[020] legitimate and free, they do not thereby prove themselves nearer heirs, and
[021] thus another writ will be necessary, that is, of right, to determine the property.] and
[022] if they do,⁷ the assise of mortdancestor cannot determine the property. And though
[023] they prove themselves legitimate and free, [the others] may prove themselves nearer
[024] heirs, as [where] a daughter by a first husband excepts against a legitimate brother
[025] by a second that he cannot be heir, since he is, so to speak, a stranger to the succession,
[026] [that is], to the maternal inheritance, though a natural and legitimate son of
[027] their common mother, because the maternal inheritance was given in maritagium to
[028] her first husband with the common mother and the heirs issuing from them both, and
[029] thus that he cannot be an heir, though a natural and legitimate brother.⁸ Hence
[030] whether the brother claims against the sister, or conversely, [or against a stranger,]
[031] the assise of mortdancestor will not lie between them, since the brother may be able
[032] to show the contrary. I say this unless, the sister being in seisin and excepting, has
[033] proof immediately to hand, as the instrument of gift or other proof. [Against a
[034] stranger, [if both sue] the daughter is preferred to the brother, if she has such proof.]
[035] If she does not, the assise of mortdancestor falls

Notes

1. Supra 305

2. Supra ii, 189, iii, 279, 280

3. Supra 282, 293

4. Infra 324

5. Supra i, 406

6. Supra 283, infra 316, 324, iv, 301

7. ‘et si sic’

8. Supra 285, 310