This determination, continued Kysarcius , how contrary soever it may seem to run to the stream of vulgar ideas, yet had reason strongly on its side; and has been put out of all manner of dispute from the famous case, known commonly by the name of the Duke of Suffolk’s case.⸻It is cited in Brook , said Triptolemus ⸻And taken notice of by Lord Coke , added Didius .—And you may find it in Swinburn on Testaments, said Kysarcius .
The case, Mr. Shandy , was this.
In the reign of Edward the Sixth, Charles duke of Suffolk having issue a son by one venter, and a daughter by another venter, made his last will, wherein he devised goods to his son, and died; after whose death the son died also⸺but without will, without wife, and without child—his mother and his sister by the father’s side (for she was born of the former venter) then living. The mother took the administration of her son’s goods, according to the statute of the 21st of Harry the Eighth, whereby it is enacted, That in case any person die intestate the administration of his goods shall be committed to the next of kin.
The administration being thus (surreptitiously) granted to the mother, the sister by the father’s side commenced a suit before the Ecclesiastical Judge, alleging, 1st, That she herself was next of kin; and 2ndly, That the mother was not of kin at all to the party deceased; and therefore prayed the court, that the administration granted to the mother might be revoked, and be committed unto her, as next of kin to the deceased, by force of the said statute.
Hereupon, as it was a great cause, and much depending upon its issue—and many causes of great property likely to be decided in times to come, by the precedent to be then made⸺the most learned, as well in the laws of this realm, as in the civil law, were consulted together, whether the mother was of kin to her son, or no.—Whereunto not only