Bracton: Thorne Edition: English. Volume 2, Page 190

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Volume 2, Page 190

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[001] described above in connection with a younger son, [by writ of cosinage or writ of
[002] right,]¹ according as the uncle or aunt has a brief or a long seisin.² And let what is
[003] said of a younger brother and an uncle or aunt when they are near heirs apply to
[004] all other near heirs in similar cases.

What may make one a nearer heir.

[006] Sex also makes one a nearer heir, as where one having an inheritance procreates a son
[007] and one or more daughters; though all are heirs of the ancestor, in the matter of
[008] succession the male sex must always be preferred to the female. For a woman is
[009] never called to succeed as long as any male heir survives, unless the modus of the
[010] gift provides the contrary, as thus: a man gives another land in marriage with
[011] his daughter, [to them] and the heirs born of their bodies; a daughter is born,
[012] the husband dies, she marries again and has a son, the mother dies; the daughter
[013] will be the nearer heir and bar the son from the succession. Thus the modus of the
[014] gift makes the daughter the nearer heir and excludes the male sex from succession.³
[015] In the same way the line of descent makes a woman in the right line the nearer
[016] heir and bars a male in the transverse line, as where a man has a daughter, or a
[017] son and through him a granddaughter, and a brother; the daughter or granddaughter
[018] is preferred to the brother in the succession because the right line is preferred to
[019] the transverse. Blood also makes one a nearer heir and the right of blood excludes
[020] the male and prefers the female, as thus: a man marries a woman and by her has a
[021] son and a daughter; after her death he marries another by whom he has a son; on
[022] the death of the father⁴ the inheritance descends to the older son, born of the
[023] first wife; he dies seised without an heir of his body and the chief lord puts himself
[024] in seisin; the sister by the same father and mother claims her brother's seisin by
[025] assise [of mortdancestor] and the brother, the offspring of the other wife, does the
[026] same; the sister by the same father and mother will be successful and the right of
[027] blood excludes the male.⁵ Similarly the right of blood makes one a nearer heir and
[028] excludes both the male sex and an older sister from the succession, for example, a
[029] man marries a woman and has a son or daughter by her; after her death he
[030] remarries and fathers a son and a daughter; the son by the second wife acquires
[031] property and dies without an heir of his body; the sister by

Notes

1. No mention of the casus regis

2. Supra p. 188. If uncle or aunt promptly ejected, no novel disseisin: infra iii, 284; if long seisin, heir must bring writ of right, but the casus regis will bar him: P. and M., ii, 285; infra iii, 284, 285, iv, 46

3. Infra iii, 285

4. ‘patre’

5. Br. takes another view elsewhere: infra 191, iii, 315: P. and M., ii, 303 n.