case Evelyn against Evelyn in case of intestacy the grandfather shall not  share with the brother win wms Justin novel de ascension gradus vin come hale  hist of the commonlaw cod title l Ventr Collingwood v pace lib Reg a foe b S c  atk dick hark ms from de grey ms that and that Nov John Evelyn a infant die  intestate leave a brother and a grandfather Q whether the brother be entitle  under the statute of distribution to the whole of his personal estate or it  shall be divide equal between the brother and grandfather Mr attorneygeneral  and Browning for the plaintiff the brother cite Wallis v Hodson atk burn  Eccles law that January that a posthumous child shall come in under the  statute of distribution and two case that have be determine exact in point  upon this question videlicet pool v Whishaw S c cite Ves in exchequer that  July determine that a brother and sister be near than a grandfather and  grandmother because there be but one degree between brother and brother and  two between grandfather and grandson by our law Norbury v Richard at the roll  Michaelmas and hold the grandfather be not entitle the brother take the whole  by our law the brother make title immediate from the brother and cite  Blackborough v Davis salk wms solicitorgeneral and capper on the other side  the statute give the personal estate to the next of kin three way of compute  kindred saint by canon law d by civil law d by commonlaw ambler by canon law  all collateral be in equal degree that be for the sake of profit in grant  dispensation for marriage the commonlaw be find on the canon law neither of  those law be the rule to govern degree of kindred but the civil law be and by  that you must have resort to the person in who the blood meet the ground of  the determination in the exchequer fail it be on a notion that there be but  one degree between brother and brother in page v Davis that June hold that  uncle and nephew be in equal degree which can not be if there be but one  degree between brother and brother Harvey v whiting at the roll that February  from a manuscript and also report in Prec in Ch vol p nom Mentney v petty by  the name of Mildney v pit sir Joseph Jekyl accord to the manuscript note say  he have consult a learned civilian and hold the grandmother and uncle take in  equal degree and also say that by the same way of reason a intestate brother  and grandfather be in equal degree though that have never be determine Lord  chancellor also produce a note which he take of that case which agree with the  manuscript cite lineal descendant shall be prefer to ascendants even to the  utmost degree before the statute the mother as well as the father be entitle  to the whole personal estate preferable to the brother the statute have alter  the law with regard to the mother only sir Joseph Jekyl in the case of Cowper  v Cowper wms wrong print in his argument take notice that by the civil law  there be two degree between brother and brother Thomas v Killeridge Ves sen  nom Thomas v Kettericke that Dec first cousin and great nephew be hold to be  in equal degree Thirt v Robinson Michaelmas Geo Lord Hardwicke chancellor take  time to consider of the question and say as there be two determination on  ambler the point he will not hasty overturn they and order copy of the decree  in those case to be lie before he Lord chancellor Hardwicke have take time for  his opinion give it this day Monday that Jan question whether the personal  estate shall go entire to his brother Q or whether the defendant his  grandfather shall share it as be in equal degree accord to the civil law  ambler er p this question have be determine twice on stat car that the  grandfather shall not share the first be pool v Whishaw in exchequer in by the  unanimous opinion of all the four baron the other be Norbury v Richard that  November before fortescue m r I be of opinion the decision in pool v Whishaw  be right I have see a note of that case by c b ware and also by c b dod who be  of counsel in it the latter be a short but the clear report of it and by that  it appear doctor lane argue it in the same manner as this case have be argue  the court say there have be no such usage since the stat to let the  grandfather share with the brother and I have hear of none since if it be res  integral there be just ground both in the law of England and the Roman law to  prefer the brother the word of the statute must be take together the word pro  his cuiq jure will let in any advantage of equality or preference which a  person be entitle to by our law before the statute but one degree between  brother and brother by our law Blackborough v Davis wms Ventr the old Roman  law give the whole to the brother in preference to the grandfather unless the  grandfather on the father side be let in to share ambler cod I title the  mother be not let in at all viii I title p No where lie down that the novel be  not receive in the western part of the world and dr lane in his argument on  that case in the exchequer say they be receive except in particular instance  where the customary law of the place break in upon they by Nov c brother and  sister be let in to share with the father and to cry out in vol c title prove  it absurd from that law that the grandfather shall share with the brother and  sister of the intestate additional reason from Lord hale that brother and  brother be but one degree in collateral line the general observation in vin  ratio succedend in his Com quarto edition be very opposite he admit a law  rather and if in any case it prevail it ought to the brother in preference to  the grandfather it be unnatural to carry the personal estate up to the  grandfather who must be long before provide for and be perhaps go out of life  a contrary determination will produce inconvenience and may tend to alter many  distribution which have be make since and acquiesce under note the editor have  compare the fact of this case and the decree as state in atkins with the  register book and find that they correspond the decree declare inter alian  that as to the personal estate of John Evelyn the same belong whole to the  plaintiff Charles his survive brother and that the defendant sir I Evelyn the  grandfather have no right to share the distribution with he