Bracton: Thorne Edition: English. Volume 3, Page 314

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Volume 3, Page 314

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[001] And so if he enfeoffs him to hold of the chief lords. And so if he enfeoffs him to hold to
[002] himself and the heirs of his body; if he dies seised without such heirs, the land given
[003] will revert to the eldest brother as an escheat for lack of an heir, though the deceased
[004] brother has more remote heirs, and if homage has been taken it disappears,¹ which
[005] is not so in the first case. If he enfeoffs his middle brother² to hold to himself and his
[006] heirs generally, for homage and service, the eldest brother and feoffor will be his
[007] nearer heir,³ [because] the right always descends to the eldest,⁴ together with seisin,
[008] because he ought to have first seisin,⁵ [but] it will pass from his hand to more remote
[009] heirs, [if there is one who claims.⁶ If there is not, right and seisin will always remain
[010] with him, since there is no heir apparent, or if there is he makes no claim,]⁷ not from
[011] his hand by descent, nor does the mere right descend from him by descent, but of
[012] necessity,⁸ since the eldest cannot be heir and lord, because homage and dominium
[013] are incompatible with one another, because the homage thrusts the thing from the
[014] hand of the feoffor to his nearer heir, namely, to his sons or daughters if there are
[015] such, ⁹ because as long as there is anyone descending from the eldest he is always
[016] preferred to those in a transverse line.¹⁰ If there are none, or though born they have
[017] failed, then to the youngest brother, not by the assise of mortdancestor but by writ
[018] of right,¹¹ because neither the youngest brother nor the [eldest's] son or daughter
[019] can be nearer heirs to the middle brother, only the eldest brother, and thus the others
[020] below will be his heirs, but nothing will descend to them by hereditary right in the
[021] lifetime of the eldest brother, only of necessity, because he cannot be lord and heir.
[022] When his heirs below have recovered by judgment, the right will then first descend
[023] to them, together with seisin, not before. Hence if the eldest has no heir of his body
[024] and the youngest begins to claim, and before he obtains by judgment the eldest
[025] begins to have heirs, the youngest brother's action falls. But if they first begin to
[026] exist after judgment rendered for the youngest brother, seisin will never be taken
[027] from him.¹² Similarly, when the children of the eldest brother put into seisin fail,
[028] or if the eldest brother has never withdrawn and his children fail, an action will then
[029] lie for the youngest brother, but the eldest will always defend himself in his seisin
[030] against the youngest by his children, since they are nearer heirs.>

A case in which a sister by the same father and the same mother is preferred to a male by a different father or mother, in connexion with an acquisition.

[032] A niece, the daughter of a sister of a deceased uncle, and a nephew, the son of a
[033] brother of the deceased, born of the same father but a different mother, each brought
[034] an assise

Notes

1. Supra ii, 77, 235

2. ‘medium’

3. ‘quia quamdiu . . . transversali’: infra nn. 9-10

4. Om: ‘et cum . . . remanebit,’ miscopied

5. Supra ii, 192, iii, 308; B.N.B., ii, 437

6. Supra 308

7. Supra ii, 83, 1983

8. Om: ‘si sit qui petat,’ redundant

9-10. ‘quia quamdiu . . . transversali,’ from lines 8-9

11. Supra 295, 307-8

12. Supra ii, 193, iii, 294, 308