IX. If a man dye Childless and Intestate, to whom shall the Estate de∣scend.
* 1.1If a man dye Childless, and withal Intestate, on whom the Succession should de∣scend, is not easily to be determined. There being no one thing wherein the Laws do more differ. All which differences may notwithstanding be reduced under two Heads, whereof the one hath respect to the nearest of kin, the other to the several Spring-heads from whence it descended: That which came by the Father, to his Relations; and that which came by the Mother, to hers. But here we must distinguish between the ancient Inheritance, and that lately purchased: That of Plato must be understood of the former, Ego Legum conditor, &c. I being a Law giver, saith he, do ordain, That neither your Per∣sons nor Patrimonial Estates are in your own power fully, but your stock and lineage have a Right thereunto; as well they that now are, as they that are to come. Whereby it seems that Plato would have 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, the Ancient Inheritance preserved intire for that Tribe or Kindred by which it came: Which I would not have so to be understood, as though it were not naturally lawful to dispose of any goods that descend unto us, from either Parents or Ancestors otherwise. (For sometimes to relieve the wants of a Friend, who hath well deserved of us, is not only commendable, but necessary.) But (that in a case ambiguous) it may appear what we ought to believe the will of the Intestate was. For we take it as granted, That he that dies hath at his death a full Right to dispose of his Estate. But since it is impossible for him to retain this Right being dead, and that it may be presu∣med, That he would not altogether lose that Right, whereby he might gratifie his Friends: It concerns us to enquire in what order this benefit should naturally descend. Wherein that of Aristotle is most rational, Potius est gratiam referri ei qui benefecit quam amico con∣ferre beneficium; That it is better to return thanks to our Benefactor, than to oblige new Friends. For as Cicero saith truly, There is no duty so necessary as that of Gratitude:* 1.2 For since Libera∣lity hath but two Branches, whereof one is to do good, the other to repay good; the former we may do if we will, but the latter we must do if we would be honest, and can do it without inju∣ring any. So St. Ambrose, It becomes every man to have a greater respect unto him from whom we have received a Courtesie, than unto others. And presently after, What can be more against our duty, than not to return what we have received? Now our Gratitude is exprest either to the living or 〈◊〉〈◊〉 the dead, as Lisias observes in his Funeral Oration, It is shewed in doing good to their Children, being naturally the surviving parts of them, and unto whom their parents, if living, would have been most beneficent. In me conferes quicquid in li∣beros meos contuleris, saith the Fisher-man, in Procopius,* 1.3 who was about to adventure his life against a Dog-fish, to gain a very great Pearl for the Emperour Cosroe, That is the best Gratitude that is shewed to the dead: For what, O Emperour, thou shalt confer on my Chil∣dren, if I perish, thou bestowest upon me. And according to this rule did they walk who framed the Justinian Laws, in that question concerning whole and half Brothers, and in that concerning Cousins in Blood, and in some others. Brothers, saith Aristotle, do love