'.,.,;■■,•) ; i-'M ■■:'. m\ 'mm muu m Hi; liil UUi C}i}Uili-i\!\ 'ilMi 1 hi?)! ;;? ::*:t::::'K*:::3:iii ;i;i iii'n H;*^ ;/'':* ;i^!^i;;'';\^i^- lilv-:;-':!:':;^! H' IL: tiiiiij'i ill JJi'; ;' H 1 i •V)i LAuii \jnA UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY -fc 1 1 n ^ n ^imANbtL/:J^.. V/ry:.\i\ii.iU\: ^xmrnn"^ VlOS-ANGEi^j: .^t-LlBRARYa v/.va3A!Nf1l\\V %OJIT v^LU:iANLti^J. AN E S S AY TOWARDS THE FURTHER ELUCIDATION OF THE LAW OF DESCENTS, In two thick Volumes 8vo. price il. 135. in boards, TREATISE ON COPYHOLDS, By CHARLES WATKINS, Esq. OF THE MIDDLE TEMPLE, BARRISTER AT LAW. THE SECOND EDITION, CORRECTED AND MUCH ENLARGED FROM THU AUTHOr's PAPERS, AND FURTHER AUGMENTED WITH NOTES OF ALL THE MORE RECENTLY ADJUDGED CASES ON THE SUBJECT, ^ DOWN TO THE PRESENT PERIOD. By ROBERT STUDLEY VIDAL, OF THE MIDDLE TEMPLE, ESQ. THE AUTHOR's EXECUTOR. To this Edition is also added, ^A" APPENDIX OF MANORIAL CUSTOMS, ^c. Tlic first volume contains the Doctrine of Manors, Grants, Surrenders, Entails, Remainders, Executory Interests and Trusts, Admission, Fines, Forfeitures, Exthiguishment, and Suspension and Enfranchisement. The second volume treats of Courts, Customs, Freebench, Guardian- ship, License, Heriots, Suit, Rent, Corporal Services, and of the Appli- cation of the Statute Law to Copyhold Property. With Tables of the Names of Cases, and a General Index. In octavo, price 12*. boards, THE PRINCIPLES OF CONVEYANCING, DESIGNED FOR THE USE OF STUDENTS; WITH 0n 3Introtiumon ON THE STUDY OF THAT BRANCH OF LAW. By CHARLES WATKINS, Esq. OF THE MIDDLE TEMPLE, BARRISTER AT LAW. THE THIRD EDITION, Will) very Considerable Additions, By RICHARD PRESTON, Esq. OF LINCOLn's-INN, BARRISTEll AT LAW. AN ESSAY TOWARDS THE FURTHER ELUCIDATION OF THE LAW OF DESCENTS; AVITH AN APPENDIX ON THE DISTRIBUTION OF THE PERSONAL EFFECTS OF INTESTATES. By CHARLES WATKINS, J, f^^^ OF THE MIDDLE TEMPLE, ESQ. BARRISTEU AT LAW, AUTHOR OF A TREATISE ON COPYHOLDS, &C. &C, THIRD EDITION, CORRECTED AND ENLARGED FROM THE AUTIIOr's "PAPERS, AND FURTHER AUGMENTED WITH NOTES OF ALL THE MORE RECENTLY ADJUDGED CASES ON THE SUBJECT, DOWN TO THE PRESENT PERIOD. By ROBERT STUDLEY VIDAL, OF THE MIDDLE TEMPLE, ESQ. F.S.A. THE AUTHOR'S EXECUTOR. LONDON PRINTED FOR AV. CLARKE AND SONS, LAW BOOKSELLERS, PORTUGAL-STREET, LINCOLN'S-INN. 1819. _XA/^Z.?.1cl Luke Hansard & Sons, near Lincoln's-Lm Fields. TO CHARLES BUTLER, ESQ. OF lincoln's-inn, barrister at law; THIS VOLUME 75 INSCRIBED, AS A TESTIMONY OF RESPECT, BY HIS MOST FAITHFUL AND OBLIGED FRIEND AND SERVANT, THE EDITOR. LAW THE EDITOR^S PREFACE. The liberality, or as loughtperliaps rather to say, the kind indulgence which I have experienced from the profession and the public at large, with regard to the new edition of the late Mr. Watkins*s Treatise on Copyholds, induces me to hope that the new edition which I now offer them of the same learned Author's Essay towards the further Elucidation of the Law of Descents, conducted as it has been on precisely the same plan, may meet with a similarly favourable reception. From the nature of the work, and the circumstance of a Second Edition of it having been published under the im- mediate superintendance of the Author a 4 himself, EDITOR S PREFACE. himself, it was not, of course, to be ex- pected that any very great room should have been left for either alteration or correction on the present occasion. On an examination of the Author's papers, however, it appeared that some improve- ments of this description had occasionally suggested themselves to him ; and the reader may rest assured that, in the present edition, every alteration and correction which those papers Avere found to supply, has been made with the most exact and scrupulous fidelity. To have meddled in any degree with the body of the work, except under the sanction of such express authority, would have been to engage in a task of the "^ utmost delicacy and peril, and one to which I could not but be sensible that I was by no means competent. With re- spect, however, to Additions in the way of EDITOR S PREFACE. of Note, I did not feel myself under a similar degree of restraint, inasmuch as a clear line of distinction could here be drawn, so as to preclude every possibility of the Authors reputation being brought into the slightest jeopardy by any inad- vertence or misconception of my own. I have therefore ventured to add a few Notes, comprising the substance of all the cases connected with the Law of Descents that have been determined subsequently to the Author's decease, taking care, how- ever, to have such additions in every instance distinctly pointed out, by being included within crotchets. That some errors of the press should not have found their way into a work con- taining such a multiplicity of references was scarcely to be expected; it is believed, however, that the reader will not find reason to complain of their being either numerous EDITOR S PREFACE. numerous or of any material moment. A few inaccuracies of this sort, together with, some trifling omissions, will be found noticed at the end of the Table of Con- tents ; and for any others, I am persuaded that I cannot do better than again throw myself on the candour and generosity of a profession at whose hands I have already experienced such an abundant measure of indulgence. 13th October,! ROBERT STUDLEY VIDAL. 1819. / AUTHOR^S PREFACE SECOND EDITION. The Author of the following pages, when considering the doctrine of Descents, was frequently involved in difliculties which he was not able to remove, or by any means to satisfy himself with respect to, from those Treatises which were ex- pressly dedicated to the investigation of that important subject ; and more especially with regard to the descent of reversions and remainders expectant upon estates of freehold: he therefore found that his sole resource was patiently to turn over the pages of miscellaneous authors, and to collect, out of the profusion of matter scattered through the several volumes he perused, the particular passages which related AUTHOR S PREFACE. related more immediately to those points; and, by adding some remarks as he went along, to illustrate what he thought was obscure, or to connect the several passages he selected or referred to, to digest, in some degree, to regular method, the chaotic mass, and form a concatenation through the whole. He pursued the scheme ; and such was the orimn of the ensuing; sheets. As to the execution of the design, it is not his province to pronounce. All he shall say is, that he hopes the reader will not expect in such collection the ne plus ultra of investigation, or in those observations a professed treatise on the subject ; but to remember that they are no other than a collection of a few authorities thrown to- gether with a few remarks, Avith a design originally to satisfy his own doubts, and not urged by a presumption of being ca- pable of yielding instruction to others. However, from the approbation which some AUTHOR S PREFACE. some have been pleased to express of them, and in the hope that they may save to others the trouble which he has expe- rienced, he is influenced to submit them to the public eye; and should they throw any further light on so truly interesting a subject, the Author would feel himself ineffably happy in being in the least in- strumental to the elucidation of a doctrine so important and extensive in its conse- quences. As these sheets were not designed as a regular treatise on the subject, but merely to assist the Author in his researches, and to have recourse to for the purpose of di- recting him at once to the several books in which the points he has collected might be found, when the hurry of the moment would not permit him to hunt his subject through volume after volume, he has been frequent in his references; and has some- times, AUTHOR S PREFACE. times, perhaps, added observations and allusions which some of his readers may possibly think foreign to his pursuit : but as the intention of the work is thus ex- plained, and as he has found those obser- vations and allusions frequently useful to himself, he imagined that they might sometimes prove so to others ; and as they would take up but litde room, he has suffered them to remain. The approbation bestowed upon the former edition, has induced die Author to correct and to enlarge the work ; and he hopes, thai, in the present edition, he has made it more extensively useful. CONTENTS. ' CHAP. I. Of the Seisin of the Ancestor. Sect. i. Of the tiecessiii/ of an Actual Seisin, Page i 2. Hoiv ail Actual Seisin maj/ be obtained, 59 3. Hoiv it may he defeated, - - - 82 4 . Of ivhat Hereditaments a Possessio Fratrts may be, - - - 106 CHAP. II. The Rules or Canons of Descent, - - 110 CHAP. III. Of the Descent of Reversions and Remainders expectant upon Estates of Freehold. Sect, 1. Of a Mesne Seisin, ^c. - - - 116 2. To ivhom he must make himself Heir, who claims tvhere there has been no Mesne Seisin, - - - - - 151 3. Explanation of the Table of Descents^ 157 CHAP. CONTESTS. ' CHAP. IV. Of the Entry of a Posthumous Heir, - Page 200 CHAP. V. . Of Descents ex Parte Materna ; and what shall change such Descent, and give the Preference to the Paternal'Line, ----- 223 APPENDIX :— On the Distribution of the Personal Effects of Intestates, _ - _ - 305 INDEX, ...-.--- 316 NOTE: The references Ante and Post, are to the marginal paging. ERRATA: Page 10, Note (m) 1. 2 13 — („) . 3 14 — (0) ' 9 - - (P) - 1 15 — (9) - 2 235 — (fc) - - 236 — (m) - 3 237 — (0) - 2 238 — (u) - 3 240 — (0-2 For 5th Edit, read 6th Edit. AN ESSAY ON THE LAW OF DESCENTS. CHAP. I. OF THE SEISIN OF THE ANCESTOR. SECT. I. Of the Necessity of an Actual Seisin, A NCESTORS, from whom heredita- Descent and merits can be derived by descent, purchase. may be divided into those who have taken immediately by purchase, and those who have, themselves, succeeded by de- scent to the hereditaments claimed. B There 2 ESSAY ON THE Ch. I. There are, indeed, other mediods of acquiring an estate in lands and tene- ments, to which estate the heirs of the person so acquiring may inherit ; but, in comphance widi the usual mode of divi- sion, estates are here considered as being taken either by descent or purchase : yet, thouo-h such division is thus followed, it must, nevertheless, be remembered, that it is by no means accurate. But positions of this kind are too commonly adopted implicitly ; and writers, " copying each other from generation to generation,'* without sufficiently attending to the na- ture, the causes, or the consequences, of a particular rule, are often led to apply it to diings which it was not originally in- tended to embrace, and embarrass them- selves and their readers in endeavourino; to subject them to it. The rule we are speaking of is thus fre- quently applied to matters which are absolutely v.ilhout its view, as it applies only to the rightftd estate of the tenant^ as tenant ; or, in other terms, it is expressive s of § 1. LAW. OF DESCENTS. 3 the modes by which the law enables him to take such estate. Nor does it, indeed, apply miexceptionabty to him (a). It has nothing to do with disseisins, Disseisiu,&c. abatements, &c. (6), which are estates [2] gained by wrong (c). For when an estate so gained descends to the heir of the dissei- sor, &c. the estate so taken by the heir is presumed to be a rightful one until the (a) Seeposf. ch. 5. p. 156. of a remainder to the heirs of the body of a person who takes no estate him- self; in which case the heirs take neither by descent nor purchase. (b) Co. Lift. 3. b. 18 b. Plowd. 47. b. (c) And note ; an estate gained by wrong is always a quasi fee. For wrong is miHmited, and not con- tained within rules ; as if a tenant for life be disseised, the disseisor gains a fee; so the usurpation of an advow- son gained the fee at common-law, and now does so in all cases to which the statute of Westminster lid. does not reach. Hob. 322 — 3. Elvis v. Archbishop of York, & al. 5 Com. Dig. 447. Seisin (F. i.) 9 Vin.Si. Disseisin. (A. 2.) 105. (I.) Gilb. Ten. 119. 8c Watk. N. xxi. p. 371. Co. Litt. 277. a. 296. b. N. (1). Bro. Estates, 17. 41. See also Co. Litt. 3. b. 18. b. 153. b. 257. b. Litt. S. 279. & Co. Litt. 186. 1 Burr. 111. Taylor 8c Atkins V. Horde, ii post. S. 3. B 2 contrary 4 ESSAY ON THE Clu i. contrary be shewn ; and the entry of the disseisee would, at common-law (d), have been tolled by such descent, for the title of the heir is ostensibly just; and the law, on the succession of theheir,does not inquire into the title of the ancestor. Again; it reaches not to the estate of Escheat. the lord, as lord, i. e. when he takes by escheat (e). For, as to the estate -which he holds of his superior, whether the lord for the time being obtained such estate by descent or purchase, he must be considered as a tenant ; but relative only to the estate held of himself, can he be considered as lord. If he, therefore, takes by escheat, he is widiout the rule. When the lord granted an estate, the portion of his property, to another and his heirs, the grant, on the failure of such heirs, necessarily ceased, and the lands returned to the lord. He, therefore, had (d) See Stat. 32 Hen. 8. c. 33. (e) Vide Mich. 37 Hen. VI. pi. 1. Co. Litt. 18. b- 2c N. (2) Harg. a Bl. Comm. ch. 15. p. 244. a kind § 1. LAW OF DESCENTS. a kind of reversionary interest {f) ; though, from the same narrow way of thinking, we frequently conceive that such reversion cannot exist. But the maxim that a reversion cannot be expectant upon a fee, ought not to be apphed in this case. A tenant having only a fee-simple himself, if he grant over that fee-simple to another, he, certainly, can have no reversion, as there is nothing left in him. But the estate of the lord is to be considered upon different principles : the tenant has not his estate absolutely for ever, but provisionally only, i. e. as long as he shall have any heirs existing ; and, consequently, as this is not an absolute es- tate, a reversionary interest, or, however, one of that nature, must still be in the lord. When an estate is given to a person and the heirs of his body, the reversion continues in the donor. As the special heirs may fail sooner than the general (/) 1 Sir Wm.Blackst.Rep. 133. 163. 2 BL Comm. ch. 15. p. 244. And see the form of the writ of escheat m the Register, & F. N. B. 144. E. F. B 3 ones, ESSAY ON THE Ch. i. ones, it is regarded as a less estate ; and, consequently, there may be a reversion expectant on it. The donor has a larger estate than the donee, because a faikire of issue is much more hkely to happen than a failure of heirs. The lord has a higher estate than a tenant in fee, because the fee is determinable on the failure of the tenant's heirs; whereas his own estate is not so determinable (g). — And here, again, the estates of the lord and tenant in fee differ. Upon a grant in fee, the lord gave a portion o/his estate; but on a' feoffment, the tenant transfers his whole interest. He does not, since the statute ( A ) Quia Emptores Terranun, leave any thing in himself, but puts the grantee in his own place to all intents and purposes. To say that an estate in fee must last for ever, is (g) As an estate for one's own life is greater, in consideration of law, than an estate pour autre vie: thus, if A. be tenant for life, with remainder over to B. for life, and A. grant to B. for the life of B., A. will have a reversion left in him. See Co. Litt. 41. b. 42. a. Bra. Est. 67. Fitzh. Abr. Dower. f^Q. (A) See Co. Litt. 269. b. Watk. N. xxxvii. & Ivi. to Gilb. Teii. p. 391. 400. improper, § 1. LAW OF DESCENTS. improper, as tlie failure of heirs thus de- termines it ; it may, indeed, by possibility do so, and so may an estate-tail (/); and yet a reversion is allowed upon the latter estate. But there is another objection which may, perhaps, be thought to carry greater force, which is this; as the reversion, if it be one, is expectant upon an estate in fee, there can be no mesne seisin of it : and if so, how can it go, as it evidently must, to whoever has the manor or seioni- or}^ in exclusion of the half-blood ? But this objection, however plausible, is, cer- tainly, not justly founded. The descent of this interest differs essentially from that of the reversion of the tenant. The one, indeed, can be no more the subject of an actual seisin than the other. But here the cases differ. The tenant has nothinix to which the reversion can attach; and, con- sequently, the descent must be ruled by its own seisin. The reversion of the lord (i) 10 Co. 44. a, Jennings's case. Dovgl. 324. Davie i\ Stevens, 1 Pr. Wms. 366. B 4 is 8 ESSAY ON THE Ch. i, is not self-subsistent, but attached to his seigniory ; it is, as it were, an incident or appendancy to it, and, therefore, shall follow it as its principal (k). But when lands actually fall, the lord, in order to complete his title to the pre- mises so escheated, ought absolutely to enter or bring his writ of escheat; for if he neglect to enter or to sue out his Avrit, or if he do any act which may amount to an implied waivure of his right, his title by escheat will be barred ( / ). The embarrassment of several authors, in endeavouring to bring the title by es- cheat within the rule, is evident also from this ; their being sometimes driven to con- sider the lord as an assignee of the tenant, or as ultimus hceres. Now, as the lands cannot possibly escheat until the estate of the tenant be absolutely expired, there {k) See 4 Co. 1 1. a. &c. Bevil's case. Harg. N. (a), to Co. Lin. 18. b. Si post. S. 4. p. 86. (/) 2 Blackst. Comm. ch. 15. p. 245. See Co. Lift. 268.a. &b. andi^.AT.^. 144. can ^ 1. LAW OF DESCENTS. 9 can be nothing to assign ; nothing to be inherited. Yet, notwithstanding what has been said, as I intend, at least principally, to speak of descents as they relate to com- mon individuals, or tenants (as such) only, I think the usual division of estates into such as are acquired by descent or pur- chase, sufficiently correct for my present purpose. If a person takes immediately by ptJR- Ancestor lak CHASE, and the hereditaments purchased ^hasel^^'^'^ be corporeal, he generally, and indeed always if the instrument by which they L^^J are conveyed is founded upon feodal prin- ciples, at the same time acquires or re- ceives the corporeal seisin or possession. If they are incorporeal hereditaments, and especially if they are reversions or remain- ders, whereof no such corporeal seisin can be had, then the property therein, whether it be vested in possession, or in interest only, or merely contingent, is fixed or settled in such purchaser, at the time of such purchase made. But 10 ESSAY ON THE Ch. i. But, whether the hereditaments pur- chased be corporeal or incorporeal, or in [4] possession or reversion, yet, on such pur- chase being completed, and the property in them being transferred, such purchaser immediately becomes the stock of descent, and the hereditaments so purchased be- come transmissible to his own heirs. Remainders ^nd here it may not be improper to re- descendible. . r • i • mark, that a remamder of inheritance, whether vested or contingent, is transmis- sible to the heirs of the person to whom limited {?n), equally with an estate which is (m) See Fearne on Contingent Rem. 286. (3d. edit) and vol. i. p. 534. (4th edit.) [364. 5th edit.] 1 Vese^, 47. Hodgson v. Rawson, 237. Peck v. Parrot. 2 Ves. 119. Exel v. Wallace, and note f- 2 Atkins, 621. Chauncey 8c al. v. Graydon 8c al. And, consequently, where such remainder is in fee, it shall escheat for default of heirs. Bro. Ten. 107. and see ibid. ; Prerogative le Roy, pi. 251. and Extin- guishment, pi. 3. And the lord may maintain an action of waste, as the remainder-man might have done. See Bro. uhi. sup. and F. N. B. 58 G. But he shall not have his writ of escheat during the life of the particular tenant ; though he shall h^ve a writ § I. LAW OF DESCENTS. 11 is vested in possession. For it mailers not whether there be, or be not, a capacity in writ of intrusion if a stranger enter on his death. F. N. B. 144. B. Bro. Escheate, pi. 6. &. 2-2. Waste, pi. 40. For a remainder is held of the lord (Bro. Tenures, pi. 107. Prerogative h Roy, pi. 25. and Extinguish- ment, pi. 3.) as well as a reversion, or particular te- nancy. See Dyer, 137. p/. 26. Bro. Esch. 6. Waste, 40. Gilb. Ten. 88. But note, this is confined to a remainder in fee ; for a remainder in tail is held of the donor, and, conse- quently, cannot escheat to the lord of whom it is not holden. ^ee Bro. Esch. 21. Kitch. ill, 112. And if the tenant in tail enter, and die without is- sue, the donor shall have a writ oi formedon, and not of escheat. F. N. B. 144. A. & 219. E. &c. If the donor gra7Jt his reversion over to a strj^nger, the donee shall hold of such stranger. F. N. B. 219. E. 2 Co. 92. a. & b. But if lands be given to A. in tail, with remainder in fee to a stranger, the donee shall hold of the chief lord ; as, in this case, the whole estate, is conveyed. Bro. Ten. 21. Dyer, 362. pi. 19. 2 Inst. 505. Co. Litt. 21. b. If the tenant in tail has the reversion in himself, there, although the two estates continue distinct, yet, as he cannot hold of himself, the tenure of the estate- . tail is suspended, and he is tenant to the lord in fee. See 2 Co. 92. b. Bro. Ten. 84. 107. -F. N. B. 143. A. 144. A. Dyer, 235. pi. 22. 20 Vin. Ten. (H. a.) pi. 12. And 12 ESSAY ON THE Ch. u in such R E M A I N D E 11 of vGsting i n posses- sion, if the possession were to become va- cant ; Relief. And it seems that, if the person having the fee- simple have also the possession of the lands, though it be only in tail, he shall pay a relief to the lord on the descent of the fee. See 20 Vin. 252. Tenure. (H. a.) pi. ire. Bro. Reliefe, 2. Fiizh. Abr. Reliefe, 2. N. (a.) to F. N. B. 143. A. See Dyer, 252. pi. 22. 308. pi. 74. Kitch. 146. a, & b. So where the tenant in tail holds, as such, of the lord, as where the remainder is over to a stranger, he shall pay a relief if he have the possession. Kitch. 146. b. But if the person who so holds in fee or in tail of the lord, have not the possession, as if there be a pre- cedent estate of freehold in existence, it seems that the relief is not leviable on the descent of such fee or entail, during the continuance of such precedent estate ; as if it be to A. for life, remainder to B. in tail, re- mainder to the right heirs of B. ; and B. die, living A. ; the relief shall not be levied in A.'s life-time. Kitch. 146. b. F. N. B. 143. A. So it seems, if there be a grant to C. in tail, with remamder to D. in fee; that C, being tenant to the lord, the relief shall be paid on the descent of his estate, and not on that of D. See before. But if A. grant to B. in tail, and afterwards grant the reversion over to a stranger, so that the tenant in tail shall hold of such stranger, and the stranger hold over of the lord, it does not appear clear, whether j any relief is payable to the lord on the descent of the reversionary § 1. LAW OF DESCENTS. 13 cant ; (for in either of these cases it shall be descendible;) but if a remainder be li- mited so as to be continoent as to the per- SON to whom it is limited, here, while there is a want of capacity in such person to receive it, during such contingency, the remainder cannot possibly be inherit- able; for as there is no person who can take, there is no person from whom it can L'^J be derived {n). So also with respect to executory de- Executory devises. Vises : ir, or so soon as, there is a person reversionary fee during the continuance of the estate- tail ; there being no tenant to the lord entitled to the possession. Yet, quare; as by this mean, the lord may be defrauded of his relief. See Keilw. 83. b. 84. a. & b. & N. (1) to Co. Litt. 91. b. As a tenant in tail shall hold of the donor as the donor holds over, it should seem that the donor should pay his accustomed dues and services, and that the donee should reimburse him, to the end that the lord of the seigniory should not lose his rights. See Moore, 890, pi. 1253. Rivet's case. Gilh. Ten. 173. And we may here remark, that a possession in law only, is sufficient to entitle the lord to his reUef. See post, 26. N. (f ). (n) See 1 Fearne, 534. 545. (4th edit.) [364. 371. 5th edit.] capable 14 ESSAY ON THE Ch. i. capable of taking the expectant fee, should the anterior one happen to determine ; then, or so soon, it is so far vested or fixed (o) in such person as to become trans- missible to his heirs in a regular course of descent (p). Possibilities. So, also, as to mere possibilities ; they are descendible to the heirs of the persons entitled to them, in the same manner as remainders or executory devises {q). An^ (o) Lord Chancellor Talbot, when speaking of an interest of this nature, said, " It does not indeed ab- solutely vestf because the contingency may never arise : but it is carrying it too far to say that it does not vest at all." And, accordingly, he decreed that it did vest i?i such manner as to become transmissible to the represen- tatives of the person entitled. Cases Tonp. Talb. 12^. King r. Withers ; and see 2 Fesey, 119. note f- and Fearne, 160. (p. 341 . vol. i. 4th edit.) [224-5. 5th edit.] (p) Fearne, 444. (3d edit.) [552. Sc seq. 5th edit.] See 1 Fes. 411. Wright r. "Wright. 2 Ves. 119. and note t- Forrester., 121. King r. Withers. Post, ch. iii. sec. 2. See 3 Durnf. ^' East. 88. Jones 8c al. v. Roe, lessee of Perry; and 2 Burr, 1134. Selwyn?;. Selwyn. 5 Brown's Cases in Pari. 388. Wilson v. Bayly & Ux. ((/) See 1 Strange, 131— 6. Marks v. Marks. 2 Atkins, 618. Chauncey v. Graydon. Forr. 123 — 4. King § 1. LAW OF DESCENTS. 15 And therefore, in the case of a pur- f'iistpur- CHASER, the question is, Whether the rg] property intended to be conveyed, limited, Fi^^ture of or transferred, of, or in, such heredita- ments, WAS LEGALLY VESTED OR FIXED in such purchaser; or whether he was ever capable of taking such future interest dur- ing the continuance of the particular es- tate or anterior fee, should it chance to have determined or fallen? And 7iot, Whether he ever had the corporeal POSSESSION of those which are corporeal, OR WHAT IS TANTAMOUNT THERETO in incorporeal heraditaments ? (as receipt of rent, presentation to advowson, &c.) For in many cases, if such property be fixed BYPURCHASE, thougli the ancestor so pur- chasing had never gained any actual sei- sin (r), yet his heir may inherit. King V. Withers. 2 Blackst. Coinm. 290. ch. xix. Feame, 444. (3d edit.) [552. & seq. 5th edit.] 3 Dvrtif. ^ East, 88. Jones Sc al. v. Roe, lessee of Perry ; and 2 Burr. 1134. Sehvyn v. Selwyn. (r) In fact ; See the case of Geary v. Bearcroft, Carter, 57. and post. 18. 52. in not. By 16 Livery of tseisin and at- tornment. ESSAY ON THE Ch. 1. [7] By ibe feodal law, indeed, an actual and corporeal inveslilure or seisin, or a re- gular attornment, was essential to give completion to a transfer of property ; but, at this day, by the introduction of conveyances unknown to that institution, at least when that institution had attained its maturity ; for devises of lands were cer- tainly known in countries where, and at times when, that system was received, though that system was as certainly then in its youth (s): At this day, I say, such actual Of the ori- gin of the feudal sys- tem. (s) That devises were known in this kingdom in the time of the Saxons, see Bacoii on Efig. Gov.h. i. ch. xli. p. 68. fol. (edit, of 1739.) Sullivan s Lect. lect. XV. p. 145. 7.5th Law of Canute, Tyrr. Hist. E?ig. b. 6. p. 60. vol. i. fol. Lamborde's Peramb. A'ew^, 441. 492. Sonmer of Gavelk. S^. Appendix, 197. 211. (edit. 1726.) Robinson on Gavelk. b. l. ch. ii. p. 30. b. 2. ch. v. p. 234. 242. 2 Blackst. Comm. 373. ch. xxiii. See Hales Coram. Law, 2^1 — 2. ch. xi. (Runnington's edit.) Co. Litt. 11 1. b. and note (1). Powell on Devises, 1. Laborious have been the researches into the origin of feuds, and many and discordant have been the hy- potheses advanced: while some preposterously deny their establishment till the system had attained its per- fection. § 1. LAW OF DESCENTS. 17 actual or corporeal seisin is, in many cases, rs"! not indispensably necessary to the vesting or fixing such a property in hereditaments [9] as fection, others, from the analogy which several of the customs of barbarous nations bear to those of feudal usage, imagine they discover traces of this system in almost every state upon earth. The polity of rude nations must have been simple, and such as their situation and necessities prompted, rather than the result of philosophical enquiry. AH nations were originally rude : all nations had external enemies, and internal connections and dependencies. When population increased, they endeavoured to en- large their borders. The wants and constitution of man urged him to society : society, as it conferred mutual benefits, required mutual aids. Thfe idea of A PUBLIC or A STATE at length prevailed. Subor- dination and rule were found absolutely necessary to the defence and well-being of society. When they had acquired new territories, they must have defended them; hence those who shared in the conquered lands, contributed to the general defence. Men, secure un- der the shadow of society, cultivated their polity, and ripened the suggestions of the moment into a regular system. Among a nation of savages there must have been freedom : " The chief of a petty plundering na- tion can never be despotic : the spoil is shared in common, and each individual defends his liberty as his own peculiar treasure. The first kings of Rome" c (says 18 ESSAY ON THE Ch. i. as to make them descendible to the heirs of A PURCHASER. Thus (says Voltaire,) " were like the captains of the Buc- caneers." (i). From circumstances thus similar, can we be sur- prised at similar usages? Hence the analogy between the customs of barbarous nations (2). To illustrate this, let us advert to the decimal di- vision of states. The celebrated division of this king^- dom into counties, hundreds, and tythings, and the making each person in suchtything answerable for his fellows, has been much and deservedly extolled for its wisdom, and generally attributed to Alfred. But such division seems to have been (at least in some measure, though, perhaps, not in its perfect establishment) prior to that immortal man. The division of a state into less districts would be one of the earliest efforts of its civil polity (3). And we shall presently see the cause of such divisions being decimally made. Some (1) See 1 Voltaire s Spirit of Nat — Prelim. Disc. — PJdlo- sophy of Hist. 428. and Malt. North Antiq. vol. i. ch. 8. p. 163—4. (2) See pref. to Mall. North Antiq. p. ix. Ferguson on Civil Society, part. 1. ch. 1. and part 2. s. 1. and 2 Robertson s Amer. B. 4. N. Ixii. Squire's Anglo Sax. Gov. S. 7. 11. 13. N. (6). 19. 20. 21. N. (3). 26. 27. 31. 32. 35. &c. Mac- phcrs. Dissert, on the Calcdon. Dissert, xii. (3) See JVhif. Hist. Manch. b. 1. ch. 8. sec. 4. p. 369. Nor, Antiq. vol. i. ch. 8. p. 174. 181. § 1. LAW OF DESCENTS. 19 Thus livery of seisin was, by the com- Feoflfment. mon law, and still is absolutely essential [10] to Some have supposed the origin of counties to have been from the government of the nations remaining in the conquered countries of Europe, who retained their lands in allodio (4). However, counties, and hundreds, and tythings also, seem much more ancient than the time of Alfred, and to have been common to the northern nations (5). That they, or something very analogous to them, were known to the British and Celtic nations, is also clear (6). The Romans had, in very ancient days, their centurions, deans, 8cc. The Hebrews also had their rulers over thousands, over hundreds, over fifties, and over tens (7). The Germans and other gothic nations seem to have been acquainted with hundreds (8). In (4) See Dalrymple on Feud. Prop. 9. Sullivan's Led. 51, 197. 245. Spirit of LawSyh.^O. ch. 17, 18. (5) See Mill. View of Eng. Gov. b. 1. ch. 6, p. 118, b, 1. ch. 9. p. 177. Fortescue on Mon. pref. xxxii. and p, 112. Sullivan, 245. Spirit of Laws, b. 30. ch. 17. vol ii. p. 376 — 7. Bickn. Alf. 204. note. Pref. to 3 Co. 7 b. and to 9 Co. 9. b. Co. Litt. 168. a. & b, and note (6) Stuarfs Diss, on the Engl. Const, part 4. sec. 3- p. 250. & N. 5. Squire, S. 81. & N. (4). 83. 87. 2 Rapin, 154, &c. (8vo. edit.) (6) Whit. Manchester, b. i. ch. 8. b. 4. p. 370. and 1 JVarr. Wales, b. 3. p. 185—6, (8vo. edit.) See Squire, 'ubi sup. (7) See Lowman, c. 9. p. 162. and Squire, s. 20. (8) Whit. Manch. b. 1. c. 8. s. 4. p. 370- * Blackst. Comm. 116. Bacon on Eng. Gov. b. 1. c. 25. See Adair's Hist. Anier. Ind. 15. and note. Stuart's Diss, on Eng. Const. pt. 4. s. 2. p. 229. C ^2 20 ESSAY ON THE Ch. i. [11] to the completion of a feoffment: without it the deed was a mere nulUty, and con- veyed no property whatever to the feoffee ; insomuch In China a practice prevails nearly similar to our own division of hundreds and tythings : their towns are divided into four parts, ('this, I presume, follows from theforvn of their towns, which is square) (9); and these into smaller divisions of ten houses each, &,c. 8cc. (10). In Japan, they establish one out of every five heads of families as a magistrate over the rest (11). But what comes nearest to our own mode of division seems to have been that of Mexico and Peru. Peru was divided into small districts containing ten families each : five of these composed a higher class of fifty families ; and two of these last composed another called an hundred : ten hundreds constituted the largest (9) See Mem. Acad. Scien. Paris, vol. v. p. 296. Hist. 1718. art. vii. and see the Code of Gentoo Laws, ch. 14. p. 172 — 3. (8vo. edit.) and Numb. ch. x.xxv. 5. This form of towns was common in the East. Babylon and Damascus were squares : Nineveh a parallelogram. And note ; the Welsh had a quadruple division : thus, 4 Erw made 1 Tj/zm ; 4 Tj/zyn 1 Rhandir ; 4 Rhandir \ Gavael; ^Gavealx Trev; 4 Trev 1 Maenawr; 12 Maenator a 2 Drev 1 Cwmnmd; 2 Ctvmmwd 1 Cantrev. — Owen's Welch Diet, voce Cantrev. and see Taylor on Gavelk, c. vi. p. 96. &c. Though, perhaps, this proceeded only from the general custom of dividing things into halves, and those halves into quarters. (10) See Le Compfs Hist, of China, 891. See also, 2 Rapin's Hist. 157. (ii) Spir, Laws, h. 14. ch. 15. § 1. LAW OF DESCENTS. 21 insomuch that if the feoffee had died be- [12] fore livery, such Uvery could not be made to largest division, consisting of a thousand families, &c. (12). Most nations reckon by tens (13). The Athenians divided their city into ten parts or tribes, &.c. The tithes or tenths w^ere paid to kings, &c. by many ancient nations beside the Jews 04)- An (12) See Mod. Univ. Hist, vol, xxxviii. p. 469. and vol. xxxix. p. 14. 3 Blackst. Comm. ch. 4, p. 31. And see Of the Hindoo Divisions, Code of Gentoo Laws, Pref. p. 115. & c. 17. s. 6. p. 230. (13) The ancient Scandinavians, indeed, had a great respect for the nnmber twdte ; and from them seems the number of our jury to have been deiived. It is observa- ble, that we, to this day, reckon to twelve ; but then we return to ten : we do not say one and twelve,^ but thirteen, and continue by tens. It is observable, also that our score consists of two tens — twenty — twi ten. And to our Saxon ancestors are we to attribute the custom of numbering to twelve. See further, Nor. Ant. vol. i. ch.4. p. 61 —65. ch. 7. p. 133—138. ch. 8. p. 169. ch. 13. p. 356. (note), and vol. ii. p. 7. Edda, Fab. 1. & note (A), and p. 41 . & N. (C). Tab. vii. 3 Blackst. Comm. 349. ch. 23. and p. 365. and note {b). See also 3 Roll. Jnc. Hist. h. 5. art. iv. and compare with Mai. c. 4. p. 58. and Pref. to ibid. The Welch reckon to ten ; and then they say one and ten, and not eleven ; and so continue till fie and ten, which answers to our fifteen. They then say one and fifteen, or one,fve, and ten ; and so on to four a.nd fifteen ; and then twenty, or a score ; and so on till ten and twenty ; one, ten, and twenty. Sec. to two twenties : and continue by twenties or scores. It is observable, that their term for a hundred, or ten tens, is cant, which signifies, a complete series of' num- bers. See Owen's Welch Diet, voce Cant. (14) See Clayt. Chron. of Hebrew Bible, 102. Roll. Jnc. Hist. b. 2. part. 2. ch. 1. b. 6. ch. 2. art. ix. Patrick on Gen, xiv. v. 21. xxviii. v. 22. See 1 Samuel, ch. 8. v. 17. c 3 22 ESSAY ON THE Ch. i. [13] to his heir ; nor ceuld he inherit without it (t). As the ancestor had no property in An effect so general must have had as general a cause. The division of our own kingdom seems ne- cessarily to have flowed from the then state of society prevaihng among us ; the history of which associations in this island is deduced with great ability by Professor Millar (15). Yet the decimal arrangement of those divisions is supposed by many to have been derived from the ecclesiastical polity, and that from the Mosaic institutions ( 1 6). But that such decimal arrangement was not from the Mosaic institution is clear, in that we find it among nations who were wholly unac- quainted with either the Jewish or the Christian polity . As the method of reckoning by tens was thus com- mon to most nations, we must seek a cause which was equally common to them : and this cause, most pro- bably, was the number ofthose natural instruments of notation which every one carries about him, the fin- gers. This was a cause common to all, and which, therefore, all might have followed (17). This method of (0 See Co. Litt. 52. b. See also Bailer's Nisi Priiis, 256 — 7. See 1 Burr. 92. Taylor cl. Atkins v. Horde ■ ■, — ■ . . ^ , -^ .^.1.— I, ■ .^ 1*^ ■■—■■ ■■■— — I ■ - I-— ■ (15) See his View of Engl. Gov. and also Squire on Angl. Sax. Gov. (16) See Millar, b. 1. c. 6. p. 114. Bacon on Eiig. Gov. part. 1. c. 26. (fol. edit. 1739.) (17 See Millars View of Eng. Got. h. 1. ch. 6. p. 115. and note I . Adair s Amer. Jnd. arg. vi. p. 74. &c. 136. and sec Capt. Cooke's 1st Voi/. Dcscript. of Otahcite. 5 1. LAW OF DESCENTS. 23 in the hereditaments intended to be con- veyed, he could communicate none to his posterity ; of reckoning was simple ; and simple must have been the method of early times, when people were yet rude. The American Indians are yet savage, and they continue to make use of this method to this day ( 1 8). More examples of general congruity might be selected, (as the trial by ordeal, for instance:) but when we find a cause to be general, shall we be sur- prised at a general effect ? From the same source are we to trace the analogy be- tween the usages of barbarous states and those of the feudal system. But yet the causes of the irruption of the northern invaders of the empire, and their views of conquest, and more especially the condition of those among whom they settled, were almost pecuhar to themselves, and essentially different from those of most if not all, others, who thus went conquering and to conquer : and therefore their system of government must have been, in some degree, singular (19). But still this originally simple, though latterly so complicated, yet well-concerted system, so generally estabhshed in Europe, seemed calculated only for a nation of warriors, in their progress from an horde of savages to a settled state. Ill-adapted to a refined or refining age, its corruption, its decline, gave birth to a constitution, more fitted for a community of men. Our (18) See Adair as above. (19) See Dalrymples Feu<^. Prop, ch. 1. And 3IiUar, h. 1. ch. 4. p. 71. c 4* [14] 24 ESSAY ON THE. Ch. 1. ri5l posterity ; in the same manner as if a de- Death of the yjgge had died before the devisor, his heir devisee be- i ■, could fore that of the devisor. Our British ancestors were once savages like the rude natives of America ; and were the Britons our contemporaries, and not our progenitors, we should reoard them less partially, and more readily allow the equality. Our Germanic forefathers were also sa- vage : the northern nations were addicted to rapine and war, were rude and uncultivated ; they even placed the happiness of a future state in cutting each other to pieces, and drinking beer from the scull of an enemy ! (20). When an horde of these warriors settled in a coun- try, they were yet a jaeop/e, and required the assistance of each other, while thus surrounded by foes. Though the country was portioned out among the several indi- viduals entitled, yet each could not have defended his property by his own arm. The individuals were united, and formed a state. Hence were provisions of a mihtary nature reserved. And as the causes of early nations were, in general, very similar, the effects were very similar also. Thus we discover usages analogous to those of the feudal system in various states. We descry the rudiments of it among the Scythians (21), and (20) See the Edda ; Fab. xx. Ode ofRegner Lodbrog. Nor. Antiq. v. 1. c. 6. p. 120. c. 12. p. 310. v.ii. p. 105 — ill. & p. 232 — 3. and compare with Adair, 65. 135. and Roberts. Amer. B. 4. N.lxix, See also M//ar'* Viev:, b. l. c. 5. s. 2. p. 107. Talc, on Clim. b, 6. c. 2. p. 347. and Roll. Anc. Hist. b. 6. c. 1. s. 3. (21) Hor. lib. iii. ode 24. and see Roll. Anc. Hist. b. 6. ch, 1. s, 3. Mall. JV. A. pref. and ch. 2. 4, &c. § 1. LAW OF DESCENTS. 25 could not have succeeded. The death of [16].. the 4evisor is as essential to the completion of and we trace it through the countries v/hich they over- ran (22). In the several states of Europe which they invaded, we find it estabUshed in a greater or a less degree : we observe the same customs in their progress in Asia (23) : and we observe too, at least its resem- blance, even in the remote island of Japan (24). In several parts of Europe a system very similar, if not, originally, the same, seems to have prevailed long be- fore the invasion of the Gothic tribes. Whitaker finds it in the British polity, and thinks it coeval with the first government of our island ; and thence extends it to other Celtic nations (25). Lowman points out a great similarity between the Hebrew and feudal systems (26). An analogous usage prevailed also, it is said, in the New World; in Mexico, Peru, &c. (27); and even in the islands of the Pacific Sea (28). That (22) See Volt. Spir. Nat. v. ii. c. 91. p. 248. and Mall. N. A. nbi sup. (23) Volt, ubi sup. and 1 Roberts. Charles V. s. 3. p. 228. & 470. Note (YY). (24) See Li7ischoten, b. 1. c. 26. p. 46. (25) Hist. Maiich. b. 1. c. 8. s. 3. and see i Warr. Wales, b. 3. p. 186. 195. 246. and Tayl. on Gavelk. passim. and Wright's Ten. 48. "N. (e). (26) Lowm. on the Civil Gov. of the Hebr. c. 4. and see Ainsic. on the Pentateuch. (27) See Volt. Spir. Nat. v. 3. c. 147. p. 216. and Roberts. Amer. b. 7. (28) See Cooke's Voy. Description of the Friendly and Society Islands. 26 ESSAY ON THE Ch. i. of the devise, as the Hvery of seisin is to the completion of the feoffment. In both cases. That this system was known, however, to our Ger- man ancestors, is clear; and by them estabUshed in the countries through which they passed, or in which they settled. By them was it planted, or at least improved, in our island ; though it did not receive its completion till the arrival of the Norman race (29). To argue that it was not known to the Saxons, be- cause it was not matured till the Norman sera, is ab- surd. Can nothing exist till it is perfect ? As there are causes common to all, or almost all, nations, there will be suggestions equally common : but the im- provement of what is thus suggested must depend upon the several states. When we seek into the usages of early times, let us be careful to attribute them to simple causes (30). I well know that the feudal system was not fully completed till the Norman period ; all I contend for is, (29) See Millar, b. 1. c 4. b. 2. c. 1. p. 259. and note*. Sullivan, lect. ii. and iii. Law of Forfeiture, 45. Stuarfs View of Soc. in Eur. b. 1. c. 2. s. 1. Ferguson on Civ. Soc. part 1. s. 2. Mall. Nor. Ant. vol. i. c. 8. p. 156. See Spir. of Laws, b- 11. c. 6. b. -^o. c. 1. Hargrove's Note to Co. Litt. 64. a. note (1). 2 Bla. Comm. c. 4. Bac. on Eng. Gov. Dalrymp. Feud. Prop. ch. l. Runnington on Hale's Com. Law, c. 5. p. 107. note (Ji). 2 Tyrr. Gen. Hist. Eng. Introd. p. 86. Stuart's Diss. Antiq. Engl. Const, part 2. s. 1. and part 2. s. 4. Squire, passim. (30) See Stuart's View of Soc. in Eur. b. 1. c. 2. e. 4. ]). 54. (4to edit.) Dalrymple on Feudal Prop. ch. 1. p. 7 — 8. Stuart's Diss. Ant. Eng. Const, part 2. s. 4. p. 123. N. part 4. s. 2. p. 222. and s. 3. p. 247. 2 Roberts. Amer. b. 7. p. 299. (4to edit.) in the life of the ancestor. §. 1. LAW OF DESCENTS. 27 cases, as they could not operate before their consummation, there was nothing conveyed ; and consequently nothing- could be inherited (u). Here the feoffment was not perfected till [17] • •I i« ^ . . . , , . Conveyance the livery or seism given, and so nothing incomplete passed to the ancestor; but there are cases where the purchase may be so far com- plete in the life of the ancestor, who dies before the perfection or ultimate essential is, that it was known, (however imperfectly) to the Saxons, and that they permitted the devising of lands. " The feudal system, (says Sir John Dalrymple,) was not established at once in England, but by degrees ; the same was its progress in every other country in Europe (31)." Some acquaintance with the feudal laws seems abso- lutely essential to the elucidation of our own, as they are relative to property, &c. Yet neither Little- ton nor Sir Edward Coke appears once to have alluded intentionally to them ; and still Baron Gil- bert illustrates the works of both of those celebrated authors, by recurring to feudal principles ! (m) See post, ch. 4. p. 135, (31) Dalrymp. Feud. Prop. c. i. p. 17. and 23. and see Wright's Ten. c. 3. p. 135. &c. and N. (a), (b). Kaims's Ess. on Brit. Antiq. Ess. !• p. 23. of 28 ESSAY ON THE Ch. i. of such purchase, as to fix an inheritable property in him, so as to enable his heirs to succeed by descent to the heredita- ments purchased, notwithstanding such Fine. deficiency of an absolute perfection : as Cognizor where a fine had been levied, sur cogni- dies before \ ' c execution, zaiice (h droit tantum, Sec. to A. m tee ; and afterwards, but before execution, A. Yet the heir died; yet his heir might have entered: in by descent. ^^^ tlioucrh he wcre the first who entered, yet he should have been in by descent, and a posthumous nearer heir might have entered on him; it being a rule {.v), that where the heir takes any thing which (x) See 1 Co. 98. a. and b. Moore, 140—1. ca. 281. (Shellie's Case.) Of this rule see Douglas, 506, note. 1 Fearne, 102. (4th edit.) 2 Burrow, 1106. Long v. Laming. 1 Hargrove's Law Tracts, 497. 551. 2 Bla. Comm. ch. 15. p. 242. Butl. N. (1.) to Co. Lift. 376. b. 1 Bro. Chanc. Ca. 206. Jones v. Mor- gan. Si terre soil done a un home a term de son vie, le rem. a un auter a terme de vie, le rem. al. iij. en le tail, le rem. en fee as drt. heirs le primer tent, en le rem. si touts fuer. morts, le droit heire celuy en le primer rem. serra adjudge eins per Disc, de Heritage, purr ceo q. son Aunc. per possibility purr, aver ewe En- herit. Trin. 1 1 Hen. iv. pL 14. fol. 74. b. might § 1. LAW OF DESCENTS. 29 might have vested in the ancestor, the heir shall be in by descent. Here, by the levying of the fine, the risht was acknowledged on an adverse suit (?/), to have been in the ancestor; and, [18] consequently, his right was established ; and the delivery of possession, on the writ of habere facias seisinatn, was only to invest him with the actual seisin of that which was confessed to have been in him of right, by a matter of record, and of which he had already a seisin in law (z). And here this Seisin inlaw. case (y) See Mr. Hargrave's note (c) to Co. Litt. 121. a. and 1 Cruise on Fines, 25. (z) Co. Litt. 266. b. And observe, that, since the statute 27 Hen. 8. the cestui/ que use has the actual possession of the lands by virtue of that act ; for as, on a fine, an use must ne- cessarily arise, so now that use is immediately exe- cuted. See 13 yi«. 266. Fine (X. 3). p/. 3. 1 Cruise, 56. &c. ch. 4. Touchst. 4. and notes. Yet the cognizee cannot bring trespass before an actual entry. 2 Leon. 147. pi. 182. Berry v. Good- man. But see Cro. Eliz. 46. Anon. So in the case of a bargain and sale, the bargainee is in the actual possession by virtue of the statute, so as 30 ESSAY ON THE Ch. i. [19] case differs from the case before put of a feoffment : in this, the right and property were as to fix the property in him ; and also as to the assign- ment or transfer of such property over ; but he cannot bring trespass before his actual entry. Carter, 57. &c. Geary v. Bearcroft. But note : a common recovery vests no freehold, either in deed or in law, nor does any use arise on such reco- very, before execution served. See Jioore, 141. case 281. Shellie's case. Jetik. Cent. 249. pi. 40. Co. Litt. ^66. b. note (2). 2 Cruise, 134. So that if an elder brother suffer a recovery, but no execution be sued, it will not make a sister to inherit in exclusion of the half-blood. See Plowd. 43. b. Yet, if the person suffering a recovery die before execution, execution shall, in many cases, be sued out against his heirs : so that %vhen served it shall have re- lation to the act of the ancestor, and the heir be in by descent : as where A. suffered a recovery with the use (among other uses) to the heirs male of his body, and died before execution ; on execution served, his heir was adjudged, in by descent. Shelly' s case, 1 Co. 93. b. 106. b. See Co. Litt. 361. b. 7 Co. 38. a. See also 5 Burr. 2786 — 7. If a man recover an advowson, and the bishop col- late by reason of lapse, it shall be a sufficient execu- tion of the recovery to cause a possessio fratris. See 1 Leon. 234. See further, of Execution: Of Fines, 1 Cruise, c. 1. p. 3. c. 4. p. 57. Shep. Touchst. c. 2. p. 4. Coke's Readings, h § 1. LAW OF DESCENTS. 31 were fixed in the ancestor before execu- tion ; in the other, the livery of seisin was necessary to the fixture of such property : as the seisin was not given, the property was not fixed. But yet it must be observed, that though the heir thus took hij descent from the an- cestor to whom the fine was so levied, still was he considered in a light which differed from that in which the common heir was taken : he should not have been in ward ; neither should he have had his age ; nor would he have tolled the entry of him who had right (a) ; (which are the character- istics, in some measure, of an estate by purchase.) Thus was he a being of a mongrel kind; something, as it were, be- tween an heir and a purchaser ; partaking of the nature of both, though more nearly \^0\ agreeing to the description of the former than of the latter. Readings, Read. 2. Tracts, 230. 3 Comyns's Dig. Execution (A. 6.) and Fines, (B. 9.) Of Recoveries: 2 Cruise, c. 6. p. 134. See Dyer, 35.^^.28. Ibid.^y:^ — 4. j3/. 15. Comj/ws, as above. (a) See i Co.-gS. b. 106. b. A^ain, 32 Copyholds. ESSAY ON THE Ch. 1. Exchange. Devise. Again, with respect to copyholds; if a. surrender be made to the use of A. in fee, and A. die before admittance, yet the heir of A. shah be admitted ; and upon such his admission, he shall be in by de- scent from the surrender, to which the admittance relates (6). So also in the case of an exchange : If both parties die before either enter, the ex- change is void : but if one enter, and the other die before entry, yet his heir may enter, and shall be in by descent (c). So, in case of a devise to A. in fee, and A. die after the devisor, without having ever made any actual entry himself; yet his heir may enter, and shall take by de- scent {cl), (though the devisee had but a (h) See 5 Burrow. 2786 — 7. Vaughan d. Atkins, V. Atkins ; and see Gilb. Ten. p. 288. Robinson on Gavelk. b. 1. c. 6. p. 98. Ig Viner's Abr. Copyh, (B. e.) 1 Com. Dig. 615. Borough English. Car- thew, 275 — 6. Benson, v. Scott. 1 Watk. Copyh. 103. [163. 2d edit.] (c) See Perkins, s. 285, 286. and l Rep. 98. b. . {d) See Cro. Car. 200. Hulra, v. Keylock. seisin § 1. LAW OF DESCENTS. 33 seisin in law (e). So also, on a devise by [21] custom before the statutes of Hen. VIII. the heir of the devisee might have had a writ of ex gravi querela, if the devisee had died after the devisor, and before entry (Jl. If a person takes a remainder at the time Remaindei of its creation, otherwise than by way of use or devise, the seisin is delivered to the particular tenant of the freehold ; which seisin shall enure and give effect to all the remainders limited thereon (g.) In case a remainder (e) See Co. Lift. 111. a. 240. b. ; and see Jenk. Rep. 227. pi. 92. and Dyer, 221. jil. 16. Bishop v. Bishop. Dr. & Stud. Dial. 2. c. 33. Touchst. 455. Bull. N. P. 103. 2 Mod. 7. Co. Litt. 214. 236. Ploivd. 412, 413. 10 Co. 40. b. 1 Leoji. 290. ca. 293. Matheson v. Tret. 3 Bl. Comm. 168. ch. 10. (/) See F. N. B. 199. B. 200. B. and compare with Co. Litt. 111. and F. N. B. 200. B. and note (rt), p. 463. of 8th edit. 1755, 4to. (g) See Litt. s. 60. 450. See also 1 Vent. 260 — i . and 2 Bl. Comm. 167. ch. 11. So the admission of the particular tenant for life or years of copyhold premises, is the admission of him in remainder; but so as not to prejudice the lord of his fine, where, by custom, such fine is due. See 4 Co. 23, a. Fitche's case. 2 Leviuz, 107. Blackbofne v. D Greaves. 34 ESSAY ON THE Ch. i. [921 remainder be limited by way of use or by devise, as these modes were introduced, (the latter, perhaps, revived; see ante, p. 7. and note (k), since the decline of the feudal system, there needs no livery to be given at all ; yet the remainders so limited become equally transmissible to the heirs of the devisee, or cestui/ que use. And it is the same with respect to executory devises, contingencies, and possibilities (h). Attomnient. If a pcrsou took a remainder by a mesne grant, such grant was anciently attended with attornment ; but now attornment is not necessary (i). In Greaves, i Vent. 260 — 1 . Batmore t;. Graves, Moore, 358. ca. 488. Dell V. Higden. 465. ca. 658. Tiping V. Benning. 1 Mod. 102. and 120 — 1. Blackborne v. Greaves. Lex Custumaria, ch. 17. p. 152. ch. 18. p. 166. Glib. Ten. 163. 194, Co. Compl. Copyh. s. 56. p. 130. and Supplement, s. 7. p. 462. See 2 Comyn's Dig. 391. Copyhold, (G. 9.) 6 Viner's Abr. Copyh. (P. b.) and (C. e.) pZ. 15. Kitch. Courts, 122. a. Cro. Jac. 31. pi. 1. Auneelme f. Auncelme. 3 Lev. 308. Barnes v. Corke. ' (/?) Ante, p. 4. and post. ch. 3. sect. 2. p. 122. (?) See Gi/b. Ten. Co. Litt. &c. under Attornment. And see the statutes 4 8c 5 Ann. c. 1 6. and 1 1 Geo. II. c. 19. § I. LAW OF DESCENTS. 35 111 'the case also of equitable rela- Equitable tions; if the ancestor executes articles of '^ ^ purchase, and dies before such purchase be completed, a court of equity will compel such completion in favour of the heir of the purchaser ; the vendor being- considered as atrustee for the vendee; and the estate shall, in the contemplation OF such COURT, be deemed in such pur- chaser from the time of the execution of [23] the articles, so as to be capable of being- devised by such ancestor, or inherita^ble by his heir (A;). c. 19. and Co. Lift. 309. a. note (1), (Harg. & Butl. edit.) and Doug. 283. (k) Preced. Chanc. 320. Greenhill v.' Greenhill & ah 1 Vesei/f 437. Potter y. Potter. 2 Ves. 631. Hinton V. Hinton. Shep. Touchsl. 429, note (2), (edit, of 1791.) 2 Pr. 1^^5.629. Langford v. Pitt. 1 Atk, 572. Green v. Smith. But we must not confound these equitable interests with estates at common-law; for such an interest as mentioned above is incapable of an actual seisin. It is stated from its analogy to the cases preceding it, and not as furnishing a rule for common-law estates. For on the completion of the agreement hj/ conveyance to the heir, such heir would undoubtedly take hy purchase at common-law ; however, he may be considered as being in by a court of equity. See post. c. 5. and Dougl. 771. Goodright d. Alston v. Wells & al. D 2 Thus, 36 ESSAY ON THE Ch. i. Actual seisin Thus, in casc the ancestor takes by pur- Tdescent ^" c H A SE, he may be capable of transmitting the property so taken to his own heirs, without any actual possession in himself; but if the ancestor himself takes by de- scent, it is absolutely necessary, in order to make him the stock or terminus from whom the descent should now run, and so enable him to transmit such hereditaments to his own heirs, that he acquire an act u al SEISIN of such as are corporeal, or what is equivalent thereto in such as are incorpo- ['i.4] real (/) ; or that he exert some act of (/) See '2 Bla. Conim. 209. ch. 14. Gilb. Ten. 12, Co. Litt. 1 1. b. 15. a. 40. a. 239. b. Hale's Hist, of the Comm. Law, 267. ch. 11. Wright's Tenures, 183. and note (9), ch. 3. 3 Rep. 41. b, 42. a. & b. Rat- clifF's case. 8 Rep. 36. a. in Pain's case. Nay's Maxims, 22 — 3. ch. 4. Kitchen oj" Courts, 109. See 3 Wilson, 526. Newman v. Newman. But note: though it be necessary that the ancestor ^esmec?, yet it is by no means required that such seisin continue till the death of such ancestor : for if he had been seised at any time during his hfe, and afterwards disseised, still, if he had not parted with his right or* property, his heir shall inherit, ^ee post. s. 3. See Coke on Fines Read. 19. Tracts, 270. Co. Lift. 237. b. And note, if a seisin be pleaded, it shall be intended a dj/ing seized. See 4 Leon. 97. Paston v. Townsend. ownership ^1. LAW OF DESCENTS. 37 ownership over such as are in reversion or remainder expectant upon an estate of freehold {pi). For though the heir of the person to whom the fine sur cogn. de droit tajitiim, Sec. was levied, or to whom the surrender was made ; though the heir of the party to the exchange who died before entry, of the devisee, of the remainder-man, or , ^ of the purchaser, shall succeed to the he- reditaments of their respective ancestors by [25] descent, though those ancestors had never had any actual seisin ; yet, in order to enable them to turn the descent, and transmit such hereditaments to their own heirs, it is indispensably necessary that such persons, who so succeed by descent, gain an ACTUAL possession, or what is equiva- lent thereto, in the respective premises ; otherwise they shall descend, not to their heirs, (as such,) but to those who shall be able to shew themselves the right heirs of such first purchaser ; without any regard to any intermediate person who was never (/n) Seejpos^. ch. 3. sec. 1. D 3 in 38 ESSAY ON THE Ch. i. in the actual possession of such heredita- ments. : eisininlaw; Immediately on the death of the ances- tor, (whether such ancestor had taken by- descent or by purchase,) or the interme- diate person to whom the estate devolved, (whether such person had an actual seisin or not,) the law casts the estate upon the heir (?0 : And as he has thus the right, it gives him also a presumed possession or ptjigi seisin ; (for I speak now of estates in pos- Or presump- sossiou). Ou the death of the ancestor, as the possession would be otherwise vacant, the law supposes or presumes it to be in the heir; and this presumptive possession or (») See 2 Bla. Comm. 201. ch. 14. 3 Ibid. 168. ch. 10. Co. Lilt. 15. b. 237. a. and b. See 4 Co. 58. a. and b. Case of Sadlers. Gilb. Ten. 18. See also Carihew, 260. Symonds v. Cudmore : and 3 Wils. 526. Newman v. Newman. And such heir immediately becomes tenant to the lord : inasmuch, that if he die before entry, yet a relief shall be paid on his death. See Kitch. 146. a. Fitzh. Air. Relief. 12. and 2 Com. Dig. 402. Copyh. (K. 11.) Co. Lift. 239. b. note (1). See Gilb. Teii. 24. and Watli. N. xxiii. p. 372. and N. xxiv. p. 377. Brooke, Relief, 2. seisin tive seisin. §1. LAW OF DESCENTS. 39 seisin is what is termed a possession or seisin in law. And we must be careful to remark, that Actual seisin, though by this possession or seisin in law in the heir, wrong, re- _ . . -, biits the pre- is, as we have stated it, no more than sup- sumption. posed or presumed ; for if there be an actual possession or seisin, either by right or by wrong, in any other person, such actual possession or seisin 7xbuts the presumption of a seisin in the heir (o). If, on the death of such ancestor, the r^i] hereditaments descending were in lease Seisin in roR YE ARS to any, then the possession of lessee for the lessee for years gives, not a seisin or y« possession in law, but a seisin or possession IN DEED to such heir (p). (o) See Gilb. Ten. 22. 4 Rep. 58. a. and b. Co, Liu. 266. b. note (1), 277. a. Brooke, tit. Dotver, 66. 75. Seisin, 13. See Ploivd. 137. b. 3 Bacon's Abr. Lease, (I. 5.) (p) See the next section ; and ch. 3. s. 1. And the reversioner may, in pleading, say, that he was seised in Jus demesne. See Phirden, 191. and Co. Litt. 15. a. and note (3). D 4 If /ears. 40 < ESSAY ON THE Ch. i. Tenant of ^^ such hereditaments were leased or li- the freehold, niited for life, or in tail, so that an estate of freehold was created, then the seisin orpossession indeed isin suchPAH- Noseishiof tICULAR TENANT (. 366. Kaims's Law Tracts, Tr, iii. p. 106 — 8. Robins. Gavelk. B. 2. c 2. p. 172. 1 Burr. 109. 1 Watk. on Copyh. 260. [408-9. 2d edit] possession 44 ESSAY ON THE Ch. i. possession of the premises ; and not with reference to the interest of the reversioner or remainder-man, or their being placed in the tenancy. Again; the great distinction between suchreversionorremainderexpectant upon a freehold, and an estate of which a per- son may have a seisin in deed or in law, or to which he has only a right, is this': The person in the corporeal possession of the freehold, who is in the perception of the profits, who has the actual possession, has the seisin in deed: the person who has a right of property in the premises, and also a title to enter immediately into them when the possession is vacant, has a seisi?i in LAW. In the former case, the possession is already full, and, therefore, excludes a pre- sumption ; but in the latter, it being vacant, the law presumes it to he in hitn who has right. But if the actual possession be in one person, and another has a title to enter during such possession, he has but a right ; by reason of the actual possession being in such per- [281 ^^"- -^"^j ^^^ ^^^^ case of a reversioner or remainder-man, his title to enter does not arise § 1. LAW OF DESCENTS. 45 arise till after the possession of a right- ful (t) tenant is expered, and not while [29] the possession is in any one else. During the particular estate, the* possession is in the particular tenant ; but it is not till his I)Osscssion be determined that the rever- sioner's title to enter accrues. Now when his interest is determined, the law sup- poses the premises to be vacant : (for if Deforce- the particular tenant continues the posses- ""®" * sion after the estate ended, it would be a deforcement of the reversioner; which being a wrong in the tenant, the law will not presume :) and upon the determina- tion, therefore, of the particular estate, does the title of entry of the reversioner arise ; and the possession being thus sup- posed vacant, the law presumes it to be in him who has title to enter : and thus has he a seisin in law ; for so is his seisin (t) For though the reversioner, &c. may enter on him who intrudes on the death of the particular tenant, and so acquires the torongful possession ; yet, on the expiration of the estate of the tenant, his interest ceases to be a reversion or remainder, and therefore not within our assertion. now, 46 ESSAY ON THE Ch. i. now, and now very properly, called (^u). But then this seisin in law is never in the reversioner or remainder-man as such ; for • as soon as the JDarticular estate is deter- [30] mined, it ceases to be a reversion or re- mainder, and becomes an estate in pos- session (a): and, consequently, a remain- der-man or reversioner cannot strictly be said to be seised 0.9 swc/^, though it is so said in common parlance. And though it is so said, (that he has a seisin in law, even during the continuance of the particular estate,) yet this ideal seisin is not put upon a level with the strict legal seisin in the per- son entitled, when the possession is abso- lutely vacant : for notwithstanding it ap- pears, that of a seisin in law, a widow may have her dower, yet she shall not have dower of the seisin we now mention ; but shall wait for that strict seisin in law which takes place on the deter f/iination of the par- ticular estate, in order not only to be en- dowed, but even to be endowable (?/). (w) Plowd 29. (x) Ploivd. 153—155- (y) Heepost. ch. 3. sec. 1. But No dower of a reversion on a fi-eehold § 1. LAW OF DESCENTS. 47 But to return : If, on the death of the Abator. ancestor, a stranger enters before the heir, and in legal language, abates, then the actual possession of the abator, though by wrong, shall rebut the seisin or possession in law of the heir (z). So, had the ances- . 1-32] tor himself been disseised, and died be- fore a subsequent entry, the actual seisin would be in such disseisee, and the heir have but a right («). But when hereditaments descend, and Release of a stranger abates, yet, though the heir has J^'^-.^ ^ ^ ^^ but A KiGHT remaining, he may release it to such abator (b). So, also, if such he- By a Copy- reditaments be copyhold, and another be (2) Brooke y Dower y 66.75. Seisin, 13. Co. Lift. 1']']. a. Ploicd. 137. b. 3 Bac. Ahr. 406, 401. Lease, Sec. (I. 5.) Ante, p. 26. (g). («) This is implied in the very term disseisin. And see Perkins, sec. 280. and 1 Burroiv, 106. Tavlor d. Atkins V. Horde, and post. sec. 3. Gilh. Ten. 48. Hob. 322. Elvis V. Archbishop of York, & al. (b) Brooke, Descent, 27. See Litt. sec. 448. Co. Lift. 275. 266. a. and b. 5 Coin. Dig. 370. Release, (B. 2.) Touchst. 321.331. 10 Co. 48. Lampett's case. wrongfully 48 ESSAY ON THE Ch. i. [32] wrongfully admitted, the heir may release By tenant in to the persoii SO admitted tenant (c). So, ^^^^ " ' also, an infant of fifteen may release his gavelkind lands to one in possession of the A right not tVeehold id), &c. &c. But though the grantable. ^ ^ '^ right of the heir may be thus released to the person in possession, yetit cannot be given or granted to anij other, it not being in its nature grantable (e). I (r) Co. Liit. 59. a. and note (2), 60. a. 4 Rq). 25. Kite & Quienton. See jF. AT. B. 98. A. See further 2 Com. Dig. 395. Copyh. (I. 1.) 6 Viner's Abr. 74. Copyh. (Z. a.) Co. Copyh. sec. 36. 2 JL-:/: ^2, - /W^ <^ - And note; that the release of a copyholder can only operate by iciiy of extinguishmetit. See Watk. N. Ixix. to Gilb. Ten. 410 — 11. So the person having right may enter, notv/ithstand- ing the admission of the person who is become tenant by wrong. See Watk, Gilb. 191. N. (m.) 457. N. cxxix. {d) See Robins, of Gavel k. b. 2. c. 3. p. 197. (0 Co. Liit. 214. a. 265. a. & N. 266. a. 267. a. 10 Co. 48. a. Lampett's case. Perkins, sec. 280. 8tc. Touchst. 231. But if the releasee have only a possession in law, it will be sufficient. See Litt. S. 447. Gilb. Ten. 49. Co. Litt.1%.^. N. (1). If ^ I. LAW OF DESCENTS. 49 If the heir has such right together with Dower of a 1 . • J 1 • 1 seisin in law. a sewn in law, his widow may claim tier dower, though he die before entry (f) ; - and though that seisin in law abide in him but for a single moment (g). As where lands descend lo an heir wJw is married at [33] the time of the descent cost, and a stranger abates on the death of the ancestor, and, Abator. during the possession of the stranger, the heir dies, his widow shall be endowed (/i). [34] For as the law, immediately on the death of the ancestor, casts the estate on the heir (i), and as the stranger cannot abate till after the death of the ancestor, (for had he entered before, he would not have been (y') Litt. s. 448. 681. Co. Lin. 31. a. 266. b. 358. b. F. N. B. 149. D. Docl. and Stud. dial. ii. ch. 15. Perk. sec. 304. Brooke, Doioer, 66, 7,5, Fitz. Ab. Doiver,pl. 15. (g) 2 B/a. Comm. 132. dj. 8. Cro. Eliz. 503. Broughton V. Randall. Bull. N. P. 118. Fitz. Abr. Dozver, 34. 42. (h) See Perk. sec. 371 — 2. Gilb. Ten. 31. See also Preston on Estates, 546. ch. 7. ; and Brooke, tit. Dower, 75. ( i ) See Gilb. Ten. 31. 2 Blackst. Coiimi. 132. ch. 8. LiiL. bee. 448. Ante, p. 25. (/). £ thq 50 ESSAY ON THE Ch. i. the abator of the heir, but the disseisor of the ancestor,) the seisin, in contemplation of law, is in such heir before the abate- ment of the stranger. For supposing that [35] the stranger had entered the very instant that the ancestor died, yet, as the posses- sion was necessarily vacant before he could have abated, the possession during such vacancy, was presumed by the law to have inbt&nu been in the heir : and the law frequently permits an instant to be cleft asunder; for it tells us, that " in things of an instant there is a priority of time; and the one shall be said to precede the other, al- though both shall be said to happen at one instant', for every instant, says the law, contains the end of one time and the com- mencement of another," &c. {k). But we must not forget, that though it thus cleaves an instant into two p^rts, it gravely informs ns that it does not carry its preten- sions so far as to be able to carve it into three (/). (/i) See Co. Litt. 185. b. 298. a. 1 Co. 76. b. 174. b. Plowd. 258. {I) See 6 Co. 33. a. b. But ^ 1. LAW OF DESCENTS. 51 But if the heir had not been married at Seisin le- ^11 1 butted. the time of the descent cast, and a stranger had abated, and afterwai'ds the heir had married, und died before a subsequent seisin, his wife should not be endowed. For, by the entry of the stranger, his [36] seisin in law is rebutted ; and, therefore, as he has no seisin either in deed or law, (and seised he must be, says Sir Edward Coke (w?), either the one way or the other, during the coverture,) he has only a right remaining in him. And as a seisin, either in deed or in law, is thus essential to give title of dower to the widow, and as the heir has now neither of those seisins, by consequence his widow cannot be dow- able (/?) : as a widow can no more have No dower or • 1 \ 1 curtesy ot a dower of a right (o), than an husband can right. have his curtesy (p). % There (m) On Litf. 31. a. and see Perk. sec. 366. (w) See aiite, p. 26. 30. Brooke, Dower, 66. 75. Lease, 57. Seisin, 13. Co, Litt. 277. a. Plowd. 137. b. Perk. sec. 3G7. (0) Note an error in Wood's Inst. b. 2. cli. 1. s. 5. p. 123. (edit, of 1738.) where it is said, that the wi- dow shall be endowed where the husband has only a E 2 ^'S^^- 52 ESSAY ON THE Ch. i. r3yi There must be a seisin in deed or in law in the husband during the coverture to en- title the widow to dower ; and therefore, as in the case immediately before put, if the stranger had entered before the mar- right. He seems to cite i Inst. 31. a. and b. in sup- port of such assertion. But Lord Coke, neither there, nor elsewhere that I can find, says that she shall be endowed of a right. Indeed, in the very place referred to, he says positively, (as quoted above,) that the husband must be seised, either in deed or in law, during the coverture ; and, therefore, in effect, directly con- tradicts such position : for to say that a person can be SEISED even in law^ of a right, is a contradiction in terms. , In the very next page to that now quoted, Wood teWs us from the same author, (1 Inst. 32. a.) that the wi- dow shall not be endowed of a reversion on an estate for life, "because the husband had neither a seisin in deed or in law." Now if this be a reason why she shall not be endowed of such reversion, it will be a reason also why she shall not be endowed of such right ; since of that also, " the husband had neither a seisin in deed or in law." But Wood's opinion alone is not authority • " though (as C. J. Reeves observes) he generally quotes very fair." See C. J. Reeves's Instructions for the Study of the Law, in the Collectanea Juri- DicA, vol. i. p. 80. (p) See Perkins, s. 457. Co. Lilt. 29. a. and 2 Co. 59. b. riage § 1. LAW OF DESCENTS. riage of the heir, and the heir had died during the abatement, his wife could not be entitled t6 dower, because the heir had no seisin durino; the coverture. So had the heir entered on the death of his an- cestor, and gained an actual seisin, and r^g-i then, during his celibacy, had been dis- seised; and, after such disseisi u,hadin), or no seisin at all in himself, may maintain a writ of right, and allege an actual seisin Espiees. in his ancestor (c). V. Bradburne. Brooke, Ten. p. le Ciirtesie, 5. 9. Doct. and Stud. b. 2. cli. 15. Kitch. 159. b. 1 Co. 97 b. 2 Comm. 127. c. 8. See Preston on Estates, 484 — 9. and Bacon's Ahr. tit. Curtesy of Eng. (C.) sec. 2. pL 2. (j/) Brooke Assets p. Desc. 8. 1 Com, Dig. 422. (Assets, A.) 3 Vin. Abr. (Assets, A.) pi. 3. Doltoris Sheriff, 126. ch. 26. (z) See 4 Co. 9. 10. in Bevil's case. (a) See 4 Co. 9. 10. Litt. s.6Si. And see Ca/n. Dig. Assize (B. 5.) Seisin, (C.) and Viner, tit. Assize. (b) So a. praecipe quodreddat will lie against him on a seisin in law. Bro. Seisin, 13. Preecipe quod reddat. 5. & 38. Siderfin, 58. Wheeler r. Honour. 3 Co. ' 26. (c) See f. N. B. 3 Blackst. Comm. &c. &c. of writ of right. E 4 But 56 ESSAY ON THE Ch. 1. Alleging of seisin by the heir. (Esplees.) By a pur cliaser. [41] But this privilege of alleging a seisin in the ancestor is peculiar to an heir, or one who takes BY descent (d): As in maintaining a writ of right, an actual SEISIN, by taking espiees, is necessary to be alleged ; and as the heir, in the case now under consideration, has not such seisin in himself before entry, the law al- lows him to take advantage of, and plead, the seisin of his ancestor. But as a pur- chaser takes immediately by his own act, he can have no such ancestor in whom to allege such seisin ; for the alleging of such seisin is confined to an ancestor, and has nothing to do with a feoffor, donor, &c. Such purchaser, therefore, in order to maintain such writ, must count upon HIS OWN actual seisin', and if he has had no actual seisin, he cannot maintain it. So if an estate be devised to A. for life, Remainder, with remainder to B. in fee, and B. die in the hfe-time of A.: here the remainder being vested in interest in B. his heir shall inherit, and take it when it falls : but the {d) See Co. Litt. 293. a. 1 Blacht. Term Rep. C. B. Bast. 28 Geo. 3, 1 — 6. Dally v. King. remainder- § 1. LAW OF DESCENTS. 57 reinainder-man cannot maintain a writ of right during the continuance of a prior es- iate of freehold in possession (e), having (hen only an estate in remainder: but the method by which he must recover is l3y A FORMEDOX ( /") ] and in briDging Formedon. which, it is necessary that he allege es- plees in the particular tenant ("•). But althouo'h the estate descendino- to Actual seisin, ihe heir be sufficiently vested in him be- fore his own actual entry or seisin, as to [^2] the purposes alread}' mentioned, yet it is absolutely and indispensably requisite that he be ACTUALLY seised of the heredita- ments so descended, in order to make jiiMSELF the stock of descent or termi- (e) Nor after the determination of that estate till he gain an actual seisin by entry, or otherwise. F- N. B. 217. b. {/) See Fitzherberfs Nat. Brev. 217. Form, en Remaind. 3 B/ackst. Comm. 191. ch. 10. (g) See Di/er, 140. pl.^^i. Brooke, Esplees, 1. 3. 10. Hale on F. N. B. 200. (B.) note (a), page 463. and 214. (A.) note (c), p. 492. antl 6 Co. 3. Markall's case, and Kitch. 126. b. NUS 58 ESSAY ON THE Ch. i. Nus {h), and make such hereditaments transmissible to his own Iieirs. For if he die BEFORE ENTRY OR OTHER ACTUAL SEISIN OR POSSESSION OBTAINED, the brother of the half blood shall succeed to the inheritance, in exclusion of the sister of the whole (i) : as the person now claiming must make himself heir to him who was LAST actuai/LY SEISED by en- try, receipt of rent, presentation to ad- vowson, &c. or to the original pur- chaser, or MESNE GRANTOR, as the casG may require. (b) See ante, p. 25. (/) No7i Jus, sed seisina facit stipitem. See 1 Bl. Comm. 312. ch. 20. who refers to Fleta, lib. 6. c. 2. 5. 2. and see Bract, lib. 2. c. 30. f. Q^. b. Hale^s Com. Law, ch. 11. p. 267. and see Ibid. 261. {fourth edit.) 2 Blackst. Comm. 228. ch. 14. & 312, ch. 20. Litt. s. 8. Co. Litt. 14, 15. &,c. Brooke, DescentfiJ. & 51. Jenk. Cent. 242. pi. 25. Carth. 87-8. § 2. LAW OF DESCENTS. 59 SECT. II. How an actual Seisin may he obtained. [43] In the preceding section we have ob- Obtaining an actual seisin served that ancestors, from whom an inhe- on a descent. ritance can be derived, may be divided into those who have taken by purchase, and those who have themselves succeeded by descent to the hereditaments claimed ; and as to those who have taken by pur- chase, that the firing of the property in the premises conveyed in the person so taking, is sufficient to render them trans- missible to the right heirs of the person in whom the property is so fixed. When a person, therefore, claims by descent from such FIRST PURCHASEE, hc UCCd Only al- lege SUCH FIXTURE OF property; and is by no means obliged to shew an actual SEISIN in the person from whom he claims : but as the requisites to such fix- ture of property are thus relative to a purchase, 60 ESSAY ON THE Ch. i. PURCHASE, and essential to its comple- tion, I think it unnecessaiy, and beside the [44] purport of these pages, to saj any ihing further on this head. I shall, therefore, when speaking of THE MEAXS OF OBTAINING AN ACTUAL SEISIN, confine myself merely (or at least in general) to the means of obtaining such seisin on a descent; or, in other terms, of the means of acquiring such seisin by a person who himself takes by descent, as to enable him to transmit the hereditaments descending ^o his own right heirs. By entry. ^^^^ most commou and direct method , then, of obtaining an actual seisin, when hereditaments descend to a person, and such hereditaments are of a corporeal nature, is to make a n a c t u a l e n t r y in the lands so descended : but as the manner of making such entry is so generally un- derstood, and already so plainly set forth, and as the intent of the following sheets is only to explain what is conceived to be obscure, or to collect into a concise view what ^ 2. LAW OF DESCENTS. 61 what is scattered through the pages of prolixity; and not to tire the reader with tlic needless repetition of that which he may find belter arranged and elucidated elsewhere ; I shall content myself with just tracing the outlines of this doctrine, [45] and shall then refer to those authors who have treated of it more at large. A\'hen an ancestor, therefore, dies, the Sufficient, heir is to enter actually m the lands ; and such entrj^ may be into any part of such lands, and by any part of the person, (as Avhere one entering info an house by- the window, and when iialf out and hah' in, was pulled out again by the heels, the entry Avas adjudged sufficient (r/) — ). And such entry shall give him an actual SEISIN of all such lands whereof such an- cestor died seised, within the same county, and into which he had a right to enter at (a) Et pur ceo qu'il ne purra entrer per le huis, il entra per le fenestre, et quant I'un moitie de son corps ' fuit deins la meason & I'autre de hors, il fuit treit hers ; per q. il port assise : & fuit agarde q. le pit. re- covera. 8 Ass. pi. 25. f. 17. b. and vide Brooke, Sets. 20. and 23. and Entre Cong. 57. and 61. the 62 ESSAY ON THE Ch. i. | the time of such entry made, or which were in the possession ot the same abator : but en- try into lands in one county, or into which he might then enter, or which were in the possession of one abator, will not give him seisin of lands in another county, or to [461 which his right of entry did not till after- wards accrue, or which were in the pos- session of other abators (h). Claim. I^ut however this entry be made, it must be peaceable, and not " wilh strong hand/' For if the heir cannot go peace- ably on the lands, he may go as near to them as he safely may, and there make claim, which will amount to an actual entry (h). {b) See further Fitzh. Abr. Brooke. Littleton. Co. onLitt. Comyns'sDig. Viner's Abridgment. Gilb.Ten. 3 Com. tit. Entry and Continual Claim ; and Co. Read. Fines, Readings 15, 16, 17. Tracts, 263. 1 Leon. 265. If two acres descend, and a stranger abate into one of them, the heir should enter into both ; or, at least, into that acre in which the abatement was made, in the name of both ; for if he should enter into the other in the name of both, it might be doubtful whether it would suffice. See Phwd, Gtuceries^ qu. 142. But § 2. LAW OF DESCENTS. 63 But here it may not be improper to ob- insufficient. serve, that it is not the mere act of going ^*^ " on the lands that will constitute a leo^al entry, sufficient to vest the actual posses- sion in the person who has a right. Thus whenthe disseisor requested the disseisee to go into his cellar to see the antiquity of it, which he did ; yet this was adjudged to have been no entry in the disseisee; so if the disseisor had asked the disseisee to go to the house whereof the disseisin was made, to his daughter's wedding, or to dine with him, or the like: So where the plaintiff went into the house to the jury r^yi on a view to shew evidence, it was ad- judged not to have been an entry in him ; but, in order to constitute a legal entrj^ the person so entering must enter with that intent (c), and express his intent to be such {d). For otherwise, where could be that notoriety of possession which the (c) See Plowd. Comm, 92, 93. See also Co. Litt. H5' b. 368. a. 1 Mod. Rep. 10. Clerk v. Rowell &, al. 6 Mod. 44. Ford v. Lord Grey. (d) Or manifest such intention by some overt act. See Robins. Law of Inherit, ch. 4. p, 33. note (^), edit. 1 755. law 64 ESSAY ON THE Ch. i. lav.' so justly requires in cases of this na- ture ? How could an accidental, or unin- tentional, or secret entry be any evidence to the neighbouring tenants of the right or possession of the person so entering (e) ? But it is not absolutely necessary that the possession be gained by the actual en- try of the very person to whom the lands By guardian descend : It may be gained b\^ the entry '>r lord. . p or possession of the guardian or lord [48] OF THE IN FA NT HEIR ( /') ; Or by the pos- session (e) See 2 Bla. Comm. 209. ch. 14. Glib. Ten. 83. 118. and notes. See also Kaims's Law Tracts, ii. &. iii. SuUivaii's Led. lect. 6. p. 58. Da/ri/m. F. P. 224. Sec. (f) Fitzh. Abr. Desc. 12. Brooke, tit. Descent, 19. E/itre Cong. 37. Seisin, \S. Dj/cr, 291 — 2. pi. 69. Co. Lilt. 15. a. and note (4). 29. a. and note (3), Kitcli, of Courts, 110. a, 130. b. 131. a. &c. 3 Co. 42. a. 9 Co. 106. a. 1 Conii/iis's Dig. 433. Assize, (B. 4.) Co. Compl. Copyh. sec. 41. p. 95. Tracts. Noy's Max. 23. ch. 4. 2 Inst. 134. See further, 3 Wils. 516. Case of Newman v. Newman; and 3 Viner's Abr. Assize, (D.) F. N. B. 179. F. And note ; the guardian need not be formally assigned. Sec 3 Wils. 528. Newman v. Newman, 9 Co. 106. a. ^ ^«!*« /^^/t^^c^> ~ .-<» . ai^'^ . 2yy '^/ — ^^ ^^ //. ^ ^— ^^'^'' ' ^^ - §2. LAW OF DESCENTS. 65 session of the ancestor's lessee FOU Tenant of a chattel inte- YEARS, TENANT BY ELEGIT, STATUTE- iggt. mercuant, or statute-staple {g). And So if a stranger enter into the lands of an infant and take the profits, he shall be considered, both at law and in equity, as entering as guardian, and shall be accountable as such. See F. N. B. 118. B. Noy's Max. 38. Co. Litt. 89. a. & b. Sullivan, lect. 13. p. 128 — 9. 1 Atk. 489. Morgan v. Morgan, and 3 Atk. 130. Dormer v. Fortesque. And the entry of such person will make a possessio fratris in the infant. See 7 Durnf. 8f East. 386. & 390. Doe V. Keen. 3 Wils. 516. &c. and Preced. Chanc. 280. Whitcombe v. Whitcombe.. (g) Co. Litt, 15. a. 243. a. 3 Co. 42. a. KitcK. 109. b. 1 Fe«f. 261. Batmore ■«. Graves. 1 Comyns's Dig. 433. Assize, (B. 4.) 5 Ibid. 443. Seisin, (A. 2.) and (C.) 9 Rep. 105. b. Margaret Pbdger's case. Gilb. Ten. p. 158. Co. Copj//«.. s.. 41. Tracts, 95. and Supplem. s. 5. p. 157 — 8. Noy's Max. 23. ch. 4. Moore, 125. ca. 272. Brooke, Seisin, 18. 36. See 3 Atk. 469. De Grey & al. v. Richardson & al. 3"TFi7s. 516 — 528. Newman v. Newman. Jenk, Cent. 242. pi. 25. See 2 Inst. 688 — 9. 6 Rep. 57. b. F.N.B.iyg.V. And this, though the heir dies before the day of payment of rent. See the above references, and par- I ticularly Moore, 126. ca. 272. Co. Litt. 15. a. and I 3 Atk. 4O9. ; F But 55 ESSAY ON THE Ch. i r49l -^^^ ^^ '^^^ POSSESSION OF THE LESSEE FOR YEAES OR AT WILL IS THAT OF Lease by the THE LESSOR (/i)? SO it SeeiUS that the beir before i . entry. ^^^^ But if the ancestor had made a lease for life, re- serving rent, and the heir receive the rent so reserved ; yet such receipt will not make possessio fratris in the heir of such reversion ; it being upon an estate of FREEHOLD. See Co. Liu. 15. a. and note (5); and post. ch. 3. s. 1. And note ; If a common recovery be suffered of lands which are let on leases for years, the recoveror will not have the reversion presently by the judgment, (i. e. will not be in the actual possession by reason of such leases for years), but the recovery must be exe- cuted by writ, entry, or claim. 2 Cruise, 135. ch. 6. cites 1 Co. 94. b. 106. b. and see Moore, 137. 141. j>l.i%i. Shellie's case. See also 2 Lord Ray m. 8^:^. West V. Sutton. If a man recover an advowson, and after the bishop collate for lapse, the same is an execution of the judg- ment, and will make a possessio fratris. P. Moyle. 42 Hen. 6. cited by Anderson, C. J. 1 Leon, 234. See further next note Qi), and 3 Viner, Assize, (D), (h) See before note (g), and ante, sec. 1. p. 27. 1 Com. Dig. 433. Assize, (B. 4.) 5 Ibid. 443. Seisin, (A. 2.) 6 Ibid. 298. Descent, (C. 9.) Kitch. 62. See 3 Wils. Q16 — 28. Buller's N. P. 104. And see also 1 Wils. 176. and 6 Co. 57. a. 59. a. Brediman's case. Co. Litt'. 290. b. note (1). 330. b. note (1). So §2. LAW OF DESCENTS. 67 feeir may make such leases for years or at [50] will BEFORE HIS OWN ENTRY, and SO ac- quire an actual seisin by them ; for it ap- pears, upon the whole, pretty clear, that the possession in law only of the heir is sufficient to enable him to make such leases, without any actual entry by him- self; as where the lands descend to such heir, and his possession be iinrehutted by So if a REMAINDER be limited on an estate for years, the possession of the particular tenant is the possession of the remainder-man. See (^of Freeholds) Litt. sec. 6o. and Co. Litt. 49. a. and b. and 239. b. and note (2). 2 Bla. Comm. 167. eh. 1.1. And see also ^05^. cli. 3. s. 1.; and ante, p.-2i. Of Copyholds, 2 LevinZj 107. 1 Vent. 260 — 1, Batmore v. Graves. 6 Vin. Copyh. (P. b.) (C. e.) pi. 15. 2 Com. Dig. 391. Copyh. (G. 9.) and ante, p. 21. note (lo). So the entry of a devisee for years will make possESsio FRATRis. See Jenk. Cent. 242. pi. 25. See it also in 7 Vin. Ahr. 585. Descent, (K). pi. 34: and 36. and in Co. Litt. 15. a. note (4). See also Dyer, 342. pi. 54. Towers v. Burrows, and Brooke, Feoffm. al Uses, 33. and Descent, 36. Fitzh. Abr. Subpana, 3. 3 Leon. 25. c«. 53. Devise to executors to pay debts, they have achattel interest. See 8 Co. 96. a. Co. Litt. ^2. a. Cro. Eliz. 316. Cordal'scase. 2 Ferw. 403. Hilchins u. Hilchiiis. r 2 the 68 ESSAY ON THE Ch, i. the actual seisin of any other person : but if another abates, so as to 7rhut such pre- sumed or legal seisin, the heir having now neither a seisin in law or deed, and, con- [51] sequently, no possession at all, cannot possibly be able to make any leases of such lands (i). Tenant by AcTUALSEisiN may also be gained by ***^^* the possession of a tenant by copy of COURT- ROLL whether such tenant he for YEARS, LIFE, OR IN FEE iji), For COpy- holds were originally, and yet are in the eye of the law, only tenancies at will; the freehold remaining in the lord (/) : and of (») See Noy's Max. ch. 34. Plowd. 87. 137. 142. 5 Co7n. Dig 443. Seisin, (A. 2.) Bacon's Abr. Lease, (I. 5.) Brooke, Lease, 57. Touchst. 269, 2 Strange, 1086. Berrington v. Parkhurst & al. and see Gilb. Ten. 159—60. See post. 57. a. N. (.<;), of an Entry by Attorney. (k) See 9 Rep. 105. b. 106. a. (Z) See 3 Levinz. 94. See it also in 6 Viner's Abr. Copyh. (A.) pi. 9. Gilb. Ten. 160. 4 Co. 22. a. Brown's case. 23. b. Clarke v. Pennyfather. 2 Inst. 325. Co. j Copyh. sec. 14. Tracts, 11. See 3 Burr. 1273 — 9. I Stephenson v. Hill. See .i § 2. LAW OF DESCENTS. 69 of copyholds there may be a possessio [-52] FRATRis before admission (?w). So the entry of one coparcener, Coparceners, joint tenant, or tenant in com- mon, is sufficient to make possessio See 1 Blackst. Tmcts, Consid.ou Capy. and 2 Cojn. 147. ch. 9. who say.s, that some copyholders have a freehold interest, but not a freehold tenure : (for if they had a freehold tenure, how could they be consi- dered as copyholders ?) But these are usually denomi- nated customary freeholders, and not merely copyhold tenants who hold " at the will of the lord. " See Co. Litt. 59. b. and note (1). 9 Co. 76. b. Combe's case. Carth. 432. Gale v. Noble. 3 Salk. 100. Page v. Smith, and in Dig. Ca. K. B. 433. Estates. 2 Lord Raj/m. 1225. 1232. Crowther v. Oldfield. And see 3 Burr. 1273 — 8. Stephenson r. Hill, where it is said, that the freehold, even of these estates, is in the lord of whom held. See also Calth. Read. 51.54. edit. 1635. (m) Dyer, 291. pi. 69. Lex Custumaria, ch. 17, p. 154 — 6, Cro. Car. 411. Reeve v. Malster. 4 Co. 22. b. Brown's case. 23. b. Clarke v. Pjennyfather. Gilb. Ten. 159. 2 Com. D/g. 379. Copylu (D. 1.) 388. (G. 1 .) 6 Viti. Abr. Copyh. (D. b.) and (C. e.) Co. Copyh. s. 41. Tracts, 94. (see it.) Supplenu s- 6- P- 157- l^itch. Courts, 60. a. 81. b. Moore, 125 — 6. ca. 272. Calth. 64. 87 — 8. For it is the entry and not the admittance which makes a possessio fratris of copyholds. See 1 Freem. 45. Foxer. Smith, and j?osf. p. 63. N. F 3 fratris 70 1ESSAY ON THE Ch. i. [53] FRATRis in the others who did not enter, to the exdusion of the half-blood (?0- So the («) Hoh. 120. Smales and Dale. iVfoore, 868. i)l. 1201. S. C. and see Moore, 546. ca. 729. Hemley V, Brice. See also Di/er, 128. pi. 58. Ballard v. Ballard. Who qucsries, " Si Ventre del eigne Fiiz, (en Gavelkinde Terre), done seisin a les autres ou nemy ? Quod (he adds) est difficile a Vestranger, nt c7'edo." And see Robins, on Gavelk. b. 1. c. 6. p. 113, who ob- serves on this case in Dyer, that the stranger holds in common with the heirs, and must plead and be im- pleaded by a several p;'^cipe : And it is a general rule, he adds, that, where there are several actions, there must be several entries, and, therefore, the entry of the heir will not give seisin to a stranger. But quare as to this : For, though all tenants in common must be impleaded by several praecipes, {Co. Litt. 195. b.) yet it appears, from the cases cited from Moore and Hobart, that where the heir and devisee were tenants in common, the one by descent, and the other by pur- chase, the entry of one alone caused a possessio fratris in the other. See further 1 Lord Raym. 622. Fisher & Wigg, Co. Litt. 373. b. 5 Burr. 2607. Fairclaim d, Empson V. Shackleton. Jenk. Cent. 42. pi. 79. If there are several coparceners, and one only pre- sent to an advowson, it will not put the others out of possession ; but the possession of one, by her clerk, shall be the possession of all ; so that the others may bring a Quare Impedit. Dyer, 259. pi. 20. 2 Imt. 365- § 2. LAW OF DESCENTS. 71 the possession of one is the possession of [54] the others to several other purposes (o). But the entry of one will not vest the es- [^^J tate and possession in the others if it would be for their disadvantage (p). 365. F. N. B. 34. I. U. Bro. Quare Imp. 52. 108. 139. Co. X/«. 243. a. 17 F«w. 405. Presentm. (K. c.)' , And such also seems the law as to joint-tenants, c Inst. 365. Bro, Quare Imp. 3. Co. Litt. 186. b. 17 Viri. 404. Presentm. (K. c.) pi. 1. But see contra; Bro. Quare Imp. 52. F. N. B. 35 W. and Vi7i. uhi sup. Yet the law and the reason of the thing seem in their favour. And it is said to be the same as to tenants in com- mon. See 1 Anders. 63. But quccre as to this : and see 17 Vin. 405. Presentm. (K. c.) pi. 2. and Bro, Present, al Esglise, pi. 1 . (y) See Brooke, Remitter, 16. Seisin, 44. Gilb. Ten. 29. Litt. s. 398. Co. Litt. 243. b. 373. b. Hob. 120. Smale & Dale. Robins. Gavelk.h.l, ch.6; p. 113. " To several purposes," but not to all. See Brooke^ Coparcener, 8. Dyer, 128. pi. 58. Ballard v. Ballard. Gilb. Ten. 28. and next note (p). {p) Brooke, Coparcen.i. Entre Cong. q. Voucher, 23. ^ee Finche's L.h.2. ch. 3. p. 118— 19. and Co. Litt. 253. b. F 4 So 72 Brother- or sister. [56] ESSAY ON THE Ch. i. So THE ENTRY OF A YOUNGER BRO- THER OR SISTER, (although they are but of the HALE-BLOOD,) is the possession of the eldest brother, or other sisters (q). And it seems that such entry will make possEssio FRATRis vEL soRORis in the heir at law, even though it be to the ex- clusion of the very person who enters (r). Bya stranger. And as a posscssiou may,in many cases, be gained by the entry of an indif- ferent PERSON IN HIS NAME, AND TO HIS USE, WHO HAS RIGHT; and this often by mere oral authority, and sometimes even without any expressed authority at all (s) ; so (q) See Gilbert's Tenures, 28. 158. 'Litt. sec. 396. C-o. Litt. 1^2. a. &. b. Plmvd. 306. a. See Hale on Fifz. Nat. Brev. 166. (L.) p. 455. note («). Bull. Nisi Prius, 102. .Jerik. Cent. 242. pi. 25. See it also in 7 Vine/s Abr. 585. Descent (K..)pl. 34. and 36. and in Co. Litt. 15. a. note (4). See also Jeiik. Cent. 42. pi. 79. And the books cited a)ite, N. (u). (r) See Jenk. Cent. 242. pL 25. Ibid. 42. pi. 79. Plowd. 306. And see notes («) and (q) before, and the authors there referred to. (i) Thus an husband may desire any person who lives near where the lands lie, to enter in the name of § 2. LAW OF DESCENTS. 73 Soit seems that THE entry of a person Attorney. PROPERLY DEPUTED vviU be Sufficient to [-^7] give of himself and wife ; and the entry of such person will, itseems, be sufficient to entitle the husband to his cur- tesy (i). So if a person enter, without any previous authority, in the name of him who should enter for condition broken, it will vest the estate in him to whom it was limited on the breach of such condition, so as to maintain an ejectment ; if it be assented to be- fore the day of the demise laid in the declaration (2). So a stranger may enter, and it shall avoid a fine, though levied with proclamations, if the entry be by precedent command, or be afterwards assented to ; but not otherwise (3). So if a person enter for a forfeiture in the name of him in reversion, though without ex- press authority (4). So, generally, if a -person enter in the name of him who has right, even though it be without a precedent command or subsequent assent ; and whether he who has right be an infant or of full age, it shall vest the freehold in him who has such right. (1) Perkins, s. 470. and see s. 464. And see Preston on Estates, 485. (2) See 2 Strange, 1128—9. Fitchett v. Adams. And a verbal assent is sutilicient, (Fitchett &c Adams) ; But it is absolutely necessary that an assent be given. See Cro. Jac. 56. Curties v. Wolverston. (3) Brooke, Entre Cong. 123. 9 Co. 106. a. See Co. Litt. 1:58. a. 1 Cruise, 307. 2 Com. Dig. Claim, (B. 2.) (4) Brooke, Seisin, 21. and see 2 Strange, 1128 — 9. and Brooke, Entre Cong. 123. and Co. Litt. 245. a. 74 ESSAY ON THE Ch. i. give an actual seisin, and make a posses- sio FRATRis in him by whom he is so de- [58] puted (0. But we may observe that pos- SESSIO right (.5). So the possession of the husband is the pos- session of the wife, and e converso (6), &c. &c. &:c, &c. (t) See Lift. sec. 432. Co. Lift. 257. b. 258. a. 9 Co. 75. Combes's case. Gilb. Ten. 37. Plowd. 93. 1 Cruise, 307. See F. N. B. 179. G. p. 414. 4toedit. 1755. Et pur ceo si tielx heires issi seisis par eux, ou par procuratours, ou par baillyfs, ou autres, que en lour nosme serrount mys e. seisine, soient engettes par autres que p. nous de quel age que ils soient, si volons que ils. recoverount par ceste assise, &c. Vide Britt. cap. 42. De Disseisine, 107. a. (232). And, indeed, when we consider that an actual SEISIN is necessary to be given and received by the respective parties, in order to give effect and consum- mation to ?i feoffment, and that such seisin may be taken BY ATTORNEY (i), (constituted by deed) (2), as well (5) Perk. s. 48. Brooke, Seisin, 50. Co. Litt. 245. a. 258. a. (6) 8 Co. 44. a. See Bro. Seisin. 17. Perkins, s. 46. 470. 464. 1 Roll. Abr. 314. Aiourie, (D.) pi. 6. 5 Com. Dig. 444. Seisin, (C.) 5 Co7n. Dig. 167. Pleader, (2 A. 1.) Co. Litt. 29. a. Nofs Max. 82. Post. sect. 3. (1) See Co. Litt. 48, b. 49. b. 52. 2 Comm. 315. ch. 20. 3 Com. Dig. 341. Feoffment, (B. 3.) Kitch. 137. Brooke, Fcqfmenfc, 67. And see 5 Co. 94. b. 95. a. (2) See Co. Litt. 52. a. and note (1.) ; 48. b. and note (2). Kitch. 137. § 2. LAW OF DESCENTS. 75 SESsiOFRATRisis not mucii favoured (u) : and a stricter seisin is requisite to make such well as in person, so as to fix the actual possession in the feoffee ; may it not be asked, Why should not the entry by a person lawfully authorized fix the actual possession in the heir? Why may he not thus receive the seisin necessary on a descent, as well as that which is requisite on a purchase ? Or as well as recover the actual possession of lands of which he had been disseised (3) ? Or as make a continual claim ; which will amount, in many cases, to an actual entry (4) 1 If he can recover the actual possession of lands of which he has been DISSEISED, by attorney, why may he not obtain actual possession, by attorney, of lands whereon a stranger has abated? In either case he has a right and title to enter (5). And if he can thus recover an actual seisin of lands, when such actual seisin is in another, why may he not enter by (m) Per Gould and Blackstone, Justices. 3 Wils. 520. See 3 Atkins, 471. De Grey v. Richardson. 1 Ves. 177. Cunningham v. Moody. 2 P. Wms. 735 — 6. Cowper v. Earl Cowper. And note : It is always intended or presumed, that a person claiming is of the whole-blood, till the contrary be shewn. Kitch. 225. a. and Plowd. 77. a. Trin. 19 Hen. 8. pL 6. fol. 11. b. (3) See Co Lift. 48. b. and note (6). (4) See Litt. s. 432. &c. Co. Litt. 257. (5) Co. Litt. 258. a. and see Ibid, 237. b. 238. Bla. Conmu 175. ch. 10. 76 ESSAY ON THE Ch. i. [59] such possEssio fratiiis than even to maintain a writ of right (i). Act of However, Mr. Robinson conceives that, ownership. • n in all cases, where the heir exercises ANY ACTOF DOMINIONOVER THE INHE- RITANCE, (as by repairing houses, fences, &c. or by receiving rents, see ante, p. 48.) it will amount to an actual entry ( ?/). r60l ^^ have before observed (z), that if an Recovery, elder brother suffer a recovery, and by attorney where the possession is vacant, and so no one to suffer ? If another enter in the name of the heir, is not there an equal notoriety as if he had entered himself? It has been repeatedly said, that an actual ENTRY is necessary to avoid a fine levied with pro- clamations (6) ; and yet we have seen (7) that such entry may be by attorney. (x) See Co. Lift. 281. a. (y) Law of Inheritances in Fee- Simple, &c. 33. note («), ch. 4. cites 1 Leon. 265. and Co. Lift. 15. (s) ^7?^e, sec. 1. p. 18. note(p). (6) See 2 Corn. Dig. 302 — 3. Claim, (B. 1.) 6 Ibid. 260. Crjtisc on Fines, 2(^4.. 1 Strange, 10S6. Berington v. Park- hurst & al. Douglas, 483. Goodright v. Cator. B. N. P. 103. 1 Mod. 10. Gierke r. Rowell. ^Burrow, 1897. Dates d. Wigfall V. Brydon & a/. ; and post. 113. N. (y). Jenkins rf. Harris &c Ux. v. Prichard & al. (7) See p. 57. note (3.) die. § 2. LAW OF DESCENTS. '?r die, AND NO EXECUTION BE SERVED, it will NOT make a possessio fratris in him to cause the sister to inherit, to the exclusion of the half-blood ; for till exe- cution served, the recovery does not operate. If the hereditaments claimed be in- Ofincorpa- CORPOREAL, IT IS REQUISITE, in Ordcr taments. to give seisin of them to the heir, so as to make iiim the stock of descent, THAT HE ACTUALLY RECEIVE THE RENT, PRESENT TO THE ADVOW- soN, &c. (a), (unless such advow- (a) See ante, sec. i . p. 23. And see also Co. Litt. 15. b. F. N. B. 36. (E.) Kitch. 109. It was said by the Master of the Rolls, (Sir Joseph Jekyll), in the case of Penville v. Luscomb, (Moslei/'s Rep. Temp. King. 72.) that, in order to make a. possessio fratris of an equity of redemption on a mortgage in fee, the elder brother should have brought his bill against tlie mortgagee ; or the mortgagee should have paid him the rents and profits. And, therefore, where the fa- ther made a mortgage in fee, and died after forfeiture, leaving a son and a daughter by one wife, and a son by another, and the eldest son died without bringing his bill, his Honour decreed the equity of redemption to the younger brother. son. 78 ESSAY ON THE Ch. t. son, &C. BE APPENDANT Of APPURTE- NANT TO A MANOR, &c. of which hc has already obtained an actual seisin). For though, as we have seen (b), a seisin in law in incorporeal hereditaments will, in some cases, entitle an husband to his [Gl] curtesy, yet it will not be sufficient to turn the descent, but an actual seisin must be acquired. Appendan- If an advowson BE appendant ok cies and inci- dents, appurtenant to a manor, then ac- tual seisin of the manor will (as before hinted) give actual seisin also OF such advowson as its appendan- c Y (c). But if a person be disseised of a manor whereto an advowson is appendant, he may, notwithstanding, present to the advowson before he regain the seisin of (6) Ante, sec. i. p. 39. (c) See Co. Liu. 15. b. note (1) ; 29. a. note (4). 49. a. Gilb. Ten. 18. and F. N. B. 36. (E. and F.) Co Utt. 333. b. 349. b. 3G3. b. Hohart, 126 — 7. Chancellor of Cambridge v. Walgrave. See 1 Strange, 54. Newman v. Holdmyfast. 2 Strange, 1011-^12. Rex V. Episc. LandafF. Moore, 90. pi. 223. Playre v. Crouch 8c «/. Seepos^. sec. 4. the § 2. LAW OF DESCENTS. 79 the manor (d). And as seisin of the prin- cipal is seisin of the accessory, so the re- covery of, or remitter to, the principal, is the recovery of, or remitter to, the ac- cessory also ; but not e converso (e). And. therefore, if another, during such disseisin, usurp such presentation, yet, on his re- mitter to the manor, such usurpation is [62] purged, and he shall be remitted to the advowson also (/"). But though recovery of the principal will restore him to the seisin of the accessory, yet the exercising any act over the accessory will not give him seisin of the principal : and, conse- quently, if A. be disseised of a manor to which an advowson is appendant, and dies before recovery, leaving a son and a daughter by one ventre, and a son by (d) See Co. Litt. 122. b. 307. a. 333. b. F. N. B. 33. Q. Bro. Present, at Esglise. 30. Fitz. Abr. Present, al Esglise. 13. (e) See Co. Litt. 151. b. 152 a. N. (3). 349. Bro. Present, al Esglise,^o. and see also Co. Litt. 15. a. and N. (5). and ante, sec. 1, p. 49. ( f ). (/) See Brooke, Presentemente al Esglise, 31, 32. 1 Lord Raym. 302. Rex v. Bish. of Chester. another, 80 ESSAY ON THE Ch. v, another, the eldest son (g) present to the advowson, but before he recover the ma- nor die, after whose death the j^ounger son enter into the manor, as the now heir of his father, he shall be entitled also to the advowson (subject to his brother's clerk) ; and the presentation of his elder brother shall not sever such advowson from the manor, so as to render it an advowson in gross; nor, consequently, make a pos- sEssio FRATRis to causc the sister to in- herit: but the younger son, on recovering the manor, shall recover also such advow- son as its accessory (Ji). [63] As to the methods of gaining seisin of !i!?iLr^ RENTS AND SERVICES, I mUSt COUtcnt myself with referring to the books cited in the margin ; as the whole would be too much to transcribe, so the insertion of one (g) See Fitzh, Ahr. Quare Impedit. 179. Co. Liti. 333- b. 17 Vin.'^^i. Presentation. (R. a.)p/. 9. (h) See Brooke, Present, al Esglise, 30. Co. Litt. 29. a. and note (4). 306. b. 307. a. 349. b. 363. And see Ibid. 151, 152. and 3 Wils. 526—7. and Trin, 9 Hen. 6. 25. a. part. services. § 2. LAW OF DESCENTS. ^l part, relative to the matter in hand, would be doing injustice to the other (i). If the hereditaments descending be in Reversions on freeholds. REVERSION OR REMAINDER EXPECT- ANT UPON AN ESTATE OF FREEHOLD, the heir may obtain what will be equivalent to AN ACTUAL SEISIN of thcm, SO as to turn the descent and cause a possessio FRATRIS, BY GRANTING THEM OVER FOR LIFE OR IN TAIL. But of tllis mOlC will be said in a future chapter (k). (i) See 4 Co. 8, 9. Bevil's case. Co. Litt. 68. a. 153- ^' 315- ^- LilL Sec 235. Jenk. Cent. 284. pi. 14. Cro. Jac. 142. pi. 20. Brediman v. Bromley. 6 Co. 57. F. N. B. 177. Brooke and Fitzh. Assize. 2 Brownlow, 99. 5 Com. Dig. Seisin, (C). 3 Viner Assize. (k) ^ee post. ch. 3. sec. 1. If A. dies, leaving a son by one wife, and a son and See 3 Leon. a daughter by another, and the widow be endowed of ^9- ^^^® ^ °^' a moiety by the custom, (the lands being copyhold, descendible to all the sons, in the nature of p'avel- kind,) and the two sons be admitted to the reversion of the moiety of which the widow was endowed, and the son by the second wife die, the admittance shall not cause o. possessio f rat ris in him, so as to make his sister take. See 1 Frcem. 45. Foxe v. Smith. So See KUch. note ; it is the entry, and not admittance, which makes ^ possessio fratris in copyholds, G SECT. 82^ ESSAY ON THE Ch. i [64J SECT. III. How an actual Seisin may he defeated. VV HEN a person has obtained an actual seisin of lands, &c. he may again be Disseisin. OUSTED OF THE FREEHOLD (fl), by the wrongful act of another individual ; and this is termed a disseisin. By such disseisin the actual possession is in the dis- seisor, and the disseisee has but a right. A right de- But such right would regularly descend to 3c n iiig. j^^^ j^^.^ ^^ \di\Y, in the same manner as if Half-blood, clothcd with the possession : but if the disseisee had died, and the right descended to his heir, and such heir had died also, leaving a brother of the half, and a sister of the whole-blood, and without having (a) See i Burr. 107. Taylor d. Atkyns v. Horde 8t al. Coiiyp. 701. S. C. Co. Litt. 181. a. Terms de ia Ley. Disseisin. 3 Bla. Comm. 169. ch. 10. And the disseisor gains the fee. See ante, sec. 1 . p. 2. W. (c), ever § 3. LAW OF DESCENTS. 83 ever recovered the possession of the pre- mises; the brother of the half-blood would succeed lo the inheritance, and not the sister of the whole. For such heir having had only a right, and no actual possession or seisin, he could not have turned the descent : So that, on his death, the person [65~\ should succeed who could make himself heir, not to such heir of the disseisee, but to the disseisee himself; he being the person who was last actually seised. For though the disseisin deprived him of the actual possession or seisin, yet it only re- lated to the time of such disseisin made ; and would not have relation to any prior event : so that as he was once actu- ally seised, that actual seisin shall not be ab initio defeated ; but the pedigree shall run, and the claim be made from him, as being so seised. But there is yet a mean by which the Seisin defeat- , . . . ^ , . , edab initio. actual seism or possession oi him who has succeeded to an inheritance may, as to the portion to which such mean shall ex- tend, be not only taken out of him from G ^ the 84 ESSAY ON THE Cli. i. the time of the operation of such mean, but shall be absolutely, and ah initio^ de- stroyed ; and so as to have relation to the estate of a precedent possessor, and ut- terly defeat the seisin or possession of the By dower, persou SO seised : and this is by the en- dowment OF THE WIDOW of such pre- cedent possessor. \P6] ?°hef hus- -^^^ ^y ^^ endowment of such widow, band, (for instance, the mother of the heir,) she is in from her husband, and not from the heir ; and her estate is, as it were, the continuance of that of her hus- band {b.) So that, during her posses- ib) And by reason of this relation to the estate of her husband, it is, that a remainder hmited on an estate in dower, (as where the heir endows his mother, and, at the same time, limits a remainder over to an- other,) is void : for as the particular estate, and the remainders hmited thereon, must form together but one estate, the remainder limited on an estate in dower cannot be good : as the estate in dower arises from, and has relation to, that of the husband, and reference to his death ; and the remainder proceeds from the heir, and arises from the grant made by him : so that such heterogeneous portions can never form one estate. See Plowd. 25. Finche's L.h. 1. c. 3, p. 13. sion § 3. LAW OF DESCENTS. 85 sion (c) of the third * part of such lands Reversion, as her dower, the heir can have no ac- tual SEISIN OF SUCH THIRD, SO aS tO make a possessio fratris. His entry being thus destroyed, and the widow in from her husband, he has only the rever- sion of such third ; and such reversion being on an estate of freehold, he can ["57"] have no actual seisin of it, as we shall pre- ^^^ subject to possessio sently evince. So that if the elder brother fratris. enters, and then endows his modier, and dies, the brother of the half-blood shall ha:\^e the third so given in dower (d). So Dower. (c) The freehold is not in the widow till she enter into the lands assigned, or the seisin be actually deli- vered by the sheriff. See Co. Litt. 32. b. 37. a. N. (1). Hale's MS. Lilt. s. 393. Maintenant apres ceo que la Feme enter et ad le possession de mesme la Tierce part, S)X. Dyer, 278. a. pi. 4. Perk. S. 423. Dr. (5)' Stud. b. 2. ch. 13. Ante, 50. N. (f). B.nd post. 80. 83. and see Bull, N. P. 104. at bottom. * Note ; the third part of the lands is mentioned here only by way of example ; for what is said, is equally applicable to whatever portion the widow takes. {d) Co. Litt. 15. a. 31. a. 240. b. 241. a. Litt. **• 393- Brooke, Descent, 19. Dower, 87. lOQ. Mordancest. 3. 6. G 3 if • 86 ESSAY ON THE Gh. i. if he enter, endow her, and die, his own wife shall not be endowed of such third (e). Or curtesy. Or if the heir be a daughter, and she enter, and endow her mother, and die, her hus- band shall not be tenant by the curtesy of it(/). So where there are grandfather, father, and son, and the grandfather dies ; the father dies, (either before or after entry,) and the son enters and endows his grandmother ; his and his father's seisin is destroyed ; (and if there had been twenty descents, alienations, or disseisins, thej^ [68] would all be defeated ;) and the son has only a reversion on an estate of freehold, (e) See Co. Litt. 31. a. and b. Brooke, Seisin, 18. 4 Rep. 122. a. Paine's case, cited. F. N. B. 149. H. Perkins, s. 301. 315. And see Fitz. Abr. Doicer, 49. 166. 170. See Fitz. Abr. Doicer, 130. contra, which cites M. 23. Ed. 3. But there is no such case in the printed Yearbook of that terra. But see M. 24. Ed. 3. pi, 18. fol. 32. b. 33. a. and pi. 80. fol. 70. b. 71. a. where it appears that the opinion of the court was, that the widow of the father was in by her baron, and so the seisin of the son, as to such third, defeated. (f) Kitch. Courts, 159. Brooke, Ten. par le Ciir- tesie, 10. as § J. LAW OF DESCENTS. 87 as has been said : for b}?^ the endowment of Mesne seisin the grandmother, every mesne estate was defeated (g). But we must be mindful to observe, that Widow pos- sfssinp" tilt* it is the possession of the Avidow of such third «« third AS HER DOWER (A), that thus de- ^^^''' feats {g) " Ef non alloc." Car mesq. xx. fuer. ssis. pu : la Mort le Bar. unc. Tentr. la Fee. serr. sup. p. le Bar. qnt ele est eins in Estat. de Dow. M. 24. Ed. 3. pL 18./. 33. a. Bro. Mordancest. 3. Co. Litt. 31. a. and b. See 2 IrtsL- 154. Perk. s. 315, 316. 4 Co. 122. Yet this shall not defeat the estate of a bastard eigne; and, therefore, if the bastard die seised, and his issue endow the widow of the bastard, or the widow of the bastard's father, yet the estate in dower shall not have relation so as to defeat the estate of the issue as to such third; for the dying seised of the bastard, and the descent to his issue, estabhshed his title to the whole ; and, being once fixed in the issue, the law will not permit it to be afterwards defeated ; or the legitimacy of the bastard called in question after his decease. 8 Co. 101. b. Co. Litt. 244. a. and vide Gilb. Ten. 29. &c. and Watk. N. xxvi. and 1 Salk. 120. Pride v. Earls of Bath and Montague. (/«) But note : If the heir assigns dower of lands of which the husband was seised, but of which the wife was not dowable, yet she is tenant in doiver of the G 4i lands 85 ESSAY ON THE Ch. i. feats the seisin of the heir. For when she possesses it as her dQuei\ she is i??, as we have said, from her husband, and her es- tate is, as it Avere, the continuance of his: Not as her But if shc possesscs it (either by itself, or wilh the other parts) in any other manner than as her dower, the seisin of the heir will not be thereby destroyed : as if, after [69] the death of her husband (?), and before Acceptance endowment, she accepts a lease for life, or of lease by ' ■»• ' the dowiess. years, of the heir (Jc), For she is now in of lands assigned. Finche, L. b. i. ch. 3. p. 3G. Co. Litt. 34. b. note (9). Hale's MSS. So if the widow be endowed, and afterwards ex- changes with the heir for other lands, yet she is tcna)it in dower of the lands so taken in exchange, and shall be in of them by her husband. Hale's MSS. as above. (i) For if she accepts such lease during the life of the husband, it will be no bar of her dower ; as, while he is living she can have only a title to dower, and not an immediate right. Beside, she being under cover- ture, her acceptance is not conclusive, but waivable after his death. See Jenk. 15, 16. pL 27. {k) Perkins, Dower, s. 350. F. N. B. 149. (E.) Kitch. 160. See Brooke, Doiver, 27. Jenk. Cent. 73. pl- 38. So if she accepted the guardianship of the heir in chivalry, she was barred during his non-age; i. e. 03 while § 3. LAW OF DESCENTS. S9 of her oum estate, which can have no re- lation to that of her husband, so as to co- alesce with, and constitute a continuance of, his estate. And as the heir had gained an actual seisin of the whole, these estates (for life or years) are portions of his inte- rest, and not derived from an interest which was anterior or paramount to his own : so that his seisin will not be thereby defeated ; but the person claiming on his death must make himself heir to him, as of the person last seised. If the lease so accepted by the widow [70] be for her life, it will be an absolute and For life. efFectual bar of her dower for ever: for as she is already possessed of the lands, how can she demand them ^ She cannot de- mand them against herself (/). Besides, as she voluntarily accepted such lease, she shall be estopped and concluded by her own act. If the lease be for years only. For years. ■while the guardianship continued. See Brooke, Dower, I'j. and 42. Hale on F. N. B. p. 3.50. note (h). See further Je7ik. Cent. 15, 16. pi. 27. and 73. pi. 38. (/) Perkins, s. 350. it 90 - ' ESSAY ON THE Ch. i. it seems that she may again demand her dower when such term is expired (m) ; for between the expiration of the term and her own death, (for when we say that the widow may demand her dower after the expiration of the term, it must necessarily be supposed, that she be then Hving ; for otherwise she could not demand it at ail,) there must have been a time when the heir possessed the lands from which she was not then excluded from dem_anding her dower. If, therefore, the widow recovers her dower after the expiration of the term, it seems to follow, from the principles already [71] laid down, that the estate then obtained shall have immediate relation to that of her husband ; so that such her estate will be paramount to the title of the heir, and defeat the seisin he at first gained, and which continued during the term, and put him in the same situation, with respect to such third, as if he had never been seised at all. And in case the immediate im) See F'ltz. Nat. Brev. 149. E, and Kitch. Courts, 160. b. And see also Perk. s. 350. Brooke, Dower, 27. and 42. and ante, p. 69. note {k). heir § 3. LAW OF DESCENTS. 91 heir of the husband had died during the continuance of the term, and the lands had descended to his heir, and if he had left a son and a daughter by one wife, and a son by another, the son by the first wife, being his heir when he died, would, of course, have succeeded to the inheritance. And in case this first son had died also, during the continuance of the term, without issue, the daughter would have inherited the lands : for, as the term existed, the son by the first ventre had a seisin sufficient to make a possESSio FRATRis (;«) ; for as the widow could not yet have recovered her dower, his seisin could not yet have been defeated. But had the lands thus descended to the daughter, and, daring the estate of such [72] daughter, the term had expired, and the widow had recovered her dower, and died in the daughter's life-time; or, during the continuance of the term, the daughter had died, leaving a son; and, in his life, the widow had recovered her dower; now. (r?) See ante, sec. 2. p. 48. though 92 ESSAY ON THE Ch. i. though the daughter was, at the death of her eldest brother, and during the conti- nuance of the term, (while she lived,) the person entitled by law to the estate, and in the actual possession of it; yet, by the recovery of dower by the widow, the seisin of her eldest brother and herself in the one case, and of her brother, self, and son, in the other, shall be destroyed : so that, in the first case, she herself, and in the se- cond, her son, shall be excluded from the inheritance of the third so recovered ; and the brother (or uncle) of the half- blood shall be heir to it (o). Lease to a But if the heir enter on the death of his life by the auccstor, and, before endowment, he lease tlom dower the whole lauds to a stranger for life, is recovered, against whom the widow recovers her dower, and afterwards the heir dies, the sister of the whole-blood shall have the [73] reversion in fee, and not the brother of Posscssiofra- the half-blood : because the heir (or eldest son) had altered the reversion by his lease (o) ^ee post. ch. 3. sec. 1. for tri.f. § 3. LAW OF DESCENTS. 9."^ for life ; and the tenant in dower left the reversion in the lessee {p). So had the heir made such lease aftei- the recovery of the widow, though there remained but a re- version on a freehold in the heir, (as to such third,) yet, on his lease of the whole lands, such reversion would pass (q); and, consequently, by such lease for life of the reversion, a possessio fratris would be made (r). {p) See 8 Co. 35. b. Co. Litt. 15. a. and the books cited. (5) See Plowd. 155. 161. 433. 10 Co. 107. a. and b. Pasmer's case, cited. 1 Leon. 180. Howe Sc Conney. (r) ^eepost. sec. 4. and ch. 3. sec. 1. But had he leased them for the hfe of the lessee, and died before him ; or had he leased them for his own \\ie,liis widow would noty by reason of such aliena- tion, be entitled to dower on the death of the first widow, who recovered against him, of the third as- signed to her. For, notwithstanding the alienation, it would still continue a reversion on a freehold ; and, consequently, not subject -to the dower of his wife. See Bro. Desc. 19. and Seisin, 18. cites 19 Erf. 2. (Vide Pasch. 19 Ed. 2. p. 662. Mayn.) and Fitz.^ Abr. Dower, i66. But ESSAY ON THE Ch. 1. Heir appa- rent taking hy purchase ; against whom the widow [74] But when it is said, that the seisin of the son is destroyed by the endowment of the widow, it must be understood that the son took the estate by descent: And as to the subject of descents, this is suffi- cient to our purpose. But as there is a difference in this respect with regard to dower, between a descent and purchase, and as we have already spoken so much on that head, it may not be improper to notice it here. Thus, if the grandfather had ENFEOEFED the father, or made a GIFT IN TAIL to him, the wife of the father, after the decease of the wife of the o:randfather, should have been endov/ed of the part assigned to the grandmother equally as of the other two-thirds ; because THE PURCHASE OR GIFT that tOOk effcCt IN THE LIFE OF THE GRANDFATHER (before the title of the grandmother was consummated) is not defeated ah initio, but only quoad the grandmother, as to such third. But had the father taken by de- scent, he could not have been entitled till the death of the grandfa- ther ; § 3- LAW OF DESCENTS. 95 T H E R ; at which time the title of the grand- mother was consummated ; and so, on the recovery of it, formed one estate with his. But as the purchase took effect in the Hfe- time of the prandfather, there was a time when the father was seised of the premises so as not to be defeatable by the grand- mother, of which seisin his wdfe might have been endowed ; as ihe grandmother's re- covery of her dower would only relate lo the death of the grandfather ; so that when she recovered it, it would divest or defeat the seisin gained by descent, but not that gained by purchase, saving only [75] as to her onm estate (s). And again : If the wife of the father be Mother en- endowed by the son before the wife of the the gmnd-*^ grandmother, and then the grandmother "^'^^^^'"• recover against the mother, yet it is said that the mother shall enter again on the death of the G;randmother : for the estate for the life of the grandmother was less, in the eye of the law, than the estate for her (0 See Co. Lin. 31.11. and b.and^ Co. 122, a. and b. own [76] ESSAY ON THE Ch. i. own life (t). But if, on the recovery of the grandmother, her estate so recovered shall have relation to that of her husband, and, consequently, defeat the seisin of the father, will it not destroy also the dower of his wife ? As dower is only of such estate of Avhich the husband was seised (?^), does not the dower of the wife depend upon the seisin of the husband ? And if the seisin of the husband be defeated bj the endowment of the grandmother, is it not the same as if he had never been seised at all ? And if he had never been seised at all, how could his widow recover or claim her dower ? If the father had been seised, and then the grand mo dier had been en- dowed, it would certainly have defeated his seisin as to the third assigned ; and, if the father had died in the life-time of the grandmother, he could have had no seisin at all of the third so recovered, his first seisin being thus destroyed ; and conse- (/) See Co. Liit. 31. b. Perkins, sec. 316. (m) Ante, sec. 1 . p. 36, 37. quendy, § 3. LAW OF DESCENTS. 97 quently, his widow could not liave been endowed (.i). The reason given by Perkins (y) for the mother's re-entry on the grandmother's death is, because being endowed by, or having recovered against, the son, she shall now hold against him ; for, by his endowing her, he acknowledged her right, and therefore shall not be permitted to claim against his own act. But as the mother could not be endowed before the father's death, and the grandmother reco- vered against her afterwards, her estate so recovered had relation to that of the grand- father, and so defeated the father's seisin : [77]; so that he having had his seisin destroyed, her holding this as her dower must be con- sidered in a light very similar to that in which she is said to hold in dower where the heir assiofns her a third of lands to o {x) See Co. Litt. 31. a. and note (6); 241. b. 4 Co. 122, F. N. B. 149. H. (j/) See Perkins, sec. 316. " Pur ceo que el fuit endowed de ceo par luy." H which 98 ESSAY ON THE Ch. t. which she had no title {z). Brooke, when speaking of this matter, says, («), that the mother may re-enter on the death of the grandmother, because she was attendant on her. But this attendancy seems rather the consequence than the cause of the existence of the right of the mother in the third assigned to the grandmother. If the mother be endowed by the heir of the third of the whole premises, and the grandmother recover against the mo- ther such third ; and the mother recover against the heir the third of the two re- maining parts, and the grandmother die ; now the widow of the father must re-enter into the whole of the third so recovered by the grandmother ; for if it be a third of such third, the third of such third is un- [78] certain, and so she could not enter without assignment. I suppose, therefore, that her estate in the third of the two remaining thirds becomes, on her re-entry into the (2) See ante, p. 68. note (Jk). (a) Dower f 79. " Car I'ayles fuit attendaunt a luy." third § 3. LAW OF DESCENTS. 99 third recovered by the grandmother, ipso facto void. And this seems to be what is meaned by Brooke, when he notes, that *' the heir may then enter into the second dower; for the mother shall not have both (by The reason then of this case may, per- haps, be as follows : Though the endow- ment of the o;randmother defeated the seisin of the father, and so, in theoretic strictness, in like manner defeated also the dower of his wife, yet this strictness may, perhaps, especially in case of dower, which the law much favours, be deemed too refined, and so disregarded that the estate, being, on the first endowment of the mother, vested in her by the law, or the act of the heir, shall not be absolutely devested in point of interest ; but the es- tate for the life of the grandmother being, in legal consideration, less than the estate for her own hfe, she shall be considered as (h) f)ower, 79. " L'heire poet entrer donque en le seconde dower; car el (la feme le peve) navera ambideux." H 2 having 100 ESSAY ON THE Ch. i. ri^gi having yet a right, an interest, in con- templation of law : so that during the life of the grandmother, the grandmother shall be attendant on her, and not on the heir (as a proof of the continuance of her estate) : and, having thus a subsisting interest, and the possession only being de- tained, she may be allowed, on the death of the grandmother (and in order to pre- vent the expence, &c. of a new endow- ment, her title being already proved or acknowledged) to re-enter into the third so recovered ; when her estate and interest in the third of the two remaining thirds shall become absolutely and ipso facto void; being only given her in consideration of her being deprived of her enjoyment or possession of such the third of the whol^, and for her support during such depriva- tion : and thus the assertions of Coke, Brooke, and Perkins be reconciled: but if we maintain the strictness before specified, (which seems to me to be well- fouuded, and inevitably to follow from the principles before laid down, though per- haps § 3. LAW OF DESCENTS. 101 haps too nice for practice,) I do not per- ceive how the doctrine mentioned, of the mother's re-entry, can be supported as [80] law. But, whatever be the true reason of such re-entry, such re-entry is, according to these authors, strictly legal: and the law is always ready to take advantage of the most trifling circumstance which can tend to the benefit of widows (c), whom it much favours {d). But to return: Thus, by the endow- Curiesy. MENT OF THE WIDOW of a precedent possessor, when the heir takes the heredi- taments by descent, will the seisin of such heir be defeated : curtesy will not admit Admits of no , . mesne seisin. of any mesne seism at all (6) ; otherwise, the consequences of it, as to this point, (c) See antCf sec. i . p. 32. &c. (J) See Co. Liu. 33. 37. 2 P. Wms. 703—4. Banks v. Sutton. Jenk. Cent. 9. p/. 15. 50- P^- 95» 72. pi. 35. Cro. Jac. 111. pi. 8. Smith v. Smith. 393. pi. 5. Herbert v. Binion. (e) See 8 Co. 35. a. and b. Paine's case. Co. Litt. 29. b. 30. a. Litt. s. 394. and Co. Litt. 241. b. 2 Jnst. 154. Termes de la Ley, tit. Curtcsie d'Engleterre. Gilb. Ten. 173. a Bla. Comm. 127--8. ch. 8. H 3 would im ESSAY ON THE Ch. [81] Dowress cannot enter witbout as- signment. would have been the same; it being equally an estate of freehold, and taking effect in reality, as dower does by relation, before any interest be vested in the heir (/). The law does not cast the possession of the es- tate in dower, {i. e, of dower at common law; for with respect to free-bench of COPYHOLDS it is otherwise (g) — ), on the widow [h): nor can she enter without as- (/) See Co. Lift. 29. b. 30. a. 241. b, 8 Rep. 36. a. 2 Bla. Comm. 127. ch. 8. See F. N. B. 194. D. Termes de la hey, tit. Curt. d'Englet. (g) See Hob. 181. Howard 8c Bartlett. and 6 Viner's Ahr. 77. Copyh. (B.b.) Bac. Abr. 470. Copyh. (G.) and 5 Burr. 2787. Vaughan-iii i Mo7i. c. 8. p. 55. who were generally lormidable enough to 1 Marixe'. st. 3. prescrve their fears, and often to endanger C. I, s* *1« their safety, a permanent captain, general, or king, over the particular clans which settled, was requisite. In the Saxon period, there were seven several states or kin o;doms established in this iskmd, which had their respective perpetual chieftains or kings : but as these seven states formed also one general society, a general monarch was also chosen (k). The king re- When the chicf representative of the nadonts to statc, or of the particular kingdom, be- the mihtaiy qq^ij^q permanent, and when the military power. ^ -^ capacity and returns Avere, from the con- (A-) See Camb. Brit, Introd. p. cxxx— i. Speed. b. 7. c. 4. p. 293. 1 Ti/rr, b. 5. p. 254. Bick. Alf. 41. Mill. View Eng. Gov. b. 1. c. 3. p. 52. Bac. on Gov. b, 1. c. 16. Squire, s. 28. and N.(i). s. 29. uud N. (1). s. 66. N. (2). s. 75. and N. (1). 1 Rap. Eng. Hist. 149. 8vo. edit, and vol. 2. p. 140. &c. tinual § 1. LAW OF DESCENTS. 12? tinual wars which in those times pre- vailed, ullimateiy concentred in him as their chief, it was an easy transition to sup- ^n^ as to the pose that the individual held his lands of lands. him to whom he owed his services; and, [101] more especially, as the idea of hereditary succession was then partly received, and, consequently, the chief seemed more self- subsistent than when elected for a transient cause (/). As he thus represented society as to the military power, it was imagined that he represented it also as to the pro- perty of the lands. Hence was it said, that the ultimate property was vested in him, and that the subject held his feud of the king. Not, indeed, that the king then, or ever since, could be supposed, indivi- dually, the ultimate proprietor of the soil any further than as the representative of the society at large: this is evident, were it needful to urge anj^ proof other than (/) See Stuart's Diss, on tlie English Con. pt. 2. s. 1, p. 77. and note; and pt. 3. s. 2. p. 132. The author had not read this valuable work when he wrote the text of the present pages ; though he has shice made fre- quent references tu it iu the notes. that demesnes. 128 ESSAY ON THE Ch. 3. The kings that it cames in itself, from the demesne lands of the king : these, in the times of the Saxons, were considered as the lands of the nation, and unalienable by him without its express consent (m). Among (m) When the kmg had a power of granting feuds, the demesnes were necessarily ahenable, as they were the fund which supphed those grants ; but yet, when the demesnes were reduced so far as to be scarcely suf- ficient for his support, the nation interfered, and pre- vented any further reduction. See Mill. View, &c. b. 1. c. 7. p. 148. and 157. Stuart's View of Soc.in Eur. h. 1. c. 2. s. 1. p. 26 — 8. 1 Tj/rr. Introd. p. Ixyiii. and p. 257. Sub. An. 836. And see 2 Spir. of Laws, b. 31. c. 7. p. 430. F. N. B. 14. D. and Stuart's Diss, part 3. s. 2. p. 144. These demesne lands formed the chief part of the revenue of our ancient kings. William the First had, it is said, 1422 manors, beside other lands. His an- nual revenue, nearly four (some say nine or ten) mil- lions of our present money. Henry VI. had nearly one-fifth of the kingdom in value. See Sulliv. 172. Mod. Univ. Hist. vol. xxxix. p. 61. Fort esq. on Mori. ch. 11. p. 82. ; and see Essay on the Polity of Eng. 8vo. p. 459. note (z). West on Peers, 24. F)e Lolme conceives that it is in consequence of the king's being considered as the universal prophi- ETOR OF THE KINGDOM that he is deemed directly concerned in all offences y and that ybr that reason, 02 PKOSECUTIONS §1. LAW OF DESCENTS. ' 129 Among the ancient Germans, we have [102] seen that the lands were portioned out to Feuds distri- buted annu- the ally. PROSECUTIONS ARE TO BE CARRIED ON IN HIS NAME IN COURTS OF LAW. CoilSt. of Eng. b. 1. c. 5. p. 72. (edit. 1789.) But, with great respect to M. De Lolme, I must beg leave to say, that the circumstance of prosecutions for criminal offences being carried on in the name of the king does )iot appear to be the consequence of his being " looked upon as the universal proprietor of the king- dom." For " the fiction" of his being so considered is founded u^on feudal principles relative to the idea of PROPERTY, and not to that of crimes : for what has the universal proprietorship of this kingdom (for we are not speaking of Japan. See Spir, of Laivs, b. 6. c. 13. p. 124. 8vo. ed.) to do with the punishment of criminal offences ? But that it is in consequence of his being the representative of society as to the execution op ITS laws, or HIM IN WHOM THE EXECUTIVE POWER IS LODGED, that such prosecutions are car- ried on in HIS name. All offences of such a nature are injurious to society; society therefore must punish them : but as society is a mere ens rationis, an ab- stract idea, it must be represented in order to punish : And, as to the executive power of society, the KING is, in this nation, the representative of it ; and, therefore, all prosecutions for crimes are carried on in his name. This idea seems necessary to society, and to have been well understood in most, if not all states ; even in those which are rude — as among the natives of K Africa, 130 ESSAY ON THE Ch. 3. [103] ^^6 individual every year ; when they re- turned again to the state. To have given them Africa, Asia, and America: we find it among the ancient British, Irish, Germans, &c. 8cc. See Leo's Af'ric. b. 3. p. 162. fol. Adair's Amer. Ind. 145. Lamb. Obs. As. Af. and Am. vol. i. ch. 11. p. 117, 118. Spir. of Laws, b. 6. c. 5. and c. 13. See Lord Kaims's Tracts, tr. l. p. 40. Stuart's View of Soc. in Eur. b. 1. c. 2. s. 3. p. 27. and 254. 39, and 256. Falc. Clim. b. 1. c. 18. s. 4. and N. Nor, Antiq. vol. i. c. 8. p. 187. W/ift. Manch. vol. i. c. 8. p. 378, Bacon on Eng. Gov. part 1. c. 40. fol. ) Ti/rr. Hist, of Eng. Introd. p. 126. Camb. Brit. p. 1043 — 4. note. See Eunomiis, vol. iii. p. 289. and vol. iv. p. 193. Laio of Forf, 102. ill. and note. And see Beccaria on Crimes, and Eden's Princ. of Penal Laws. Solon, to the question, " Which is the most perfect popular government?" answered, " That, where an " injury done to any private citizen is such to the " whole body." The whole body therefore should punish; but it should punish by the representa- tive OF ITS PUNITORY POWER. Among our Saxon ancestors, njine was imposed on all criminal offences, even down to that of ederbrece, or, as we now term it, " breaking the close or fence ;'* (quare claiisumf regit ; see 3 Bla. Comm. c. 1 2 . p. 209 — 210.) The fine for which was, by a law of Alfred, fixed at five shiUings. And with us, at this day, all offences denominated crimes are considered as offences cgainstthepubhcor society, § I. LAW OF DESCENTS. 131 them for a longer time would have been [104] dangerous to their military avocations; would society, and prosecuted by the crown : and for all such "^ crimes, down to the lowest trespass vi et armis to the individual, a fine or forfeiture is, in strictness, due. See i Blackst. Comm. c. 7. p. 268. 3 Ibid. c. 8. p. 118. 138. 2 Hawk. Pleas of the Croivn. c. 2. s. 3. Sir Tho. Smith's Com. Wealth of Eng. b. 2. c. 10. and 14. 3 Co. 12. a. Burton's Excheq. vol. i. p. 407. and vol. ii. p. 277. 8 Rep. 59. b. 60. a. So whatever affects the public; as nuisances, restraints of trade, &,c. Thus a dyer was bound that he should not use " his craft" for two years ; and Hull held, that the bond was against the common- law :—" And, by G— d, (said the old Judge,) if the « plaintiff were here, he should go to prison till he « had paid a fine to the king." See 11 Rep. 53. b. Year-book, Pasch. 2 Hen. 5. /. 5- ^' pl- 26. Fitzh. Abr. Impris. pi. 14. All crimes or offences of a public nature are there- fore indictable at the suit of the king, as the king is the representative of the public as to the execution of the laws ; and an indictment is said to be his suit : but for -whatever is of a private nature, the offender is only punishable at the suit of the person injured. See 2 Hawk. P. C. c. 25. s. 3, 4. 4 Comm. c. 15. p. 218.; and 3 Com. Dig. 504—6. Indictment, (D.) and (E.) In- formation, (B.) p. 520. ; and see 4 Bla. Comm. c. 1. p. 2. 2 Strange, 788— 92. Rex. v. Curl. 3 Burr. 1698. Rex V. Storr. Ibid. 1706. Rex v. Atkins. Ibid. 1731 • Rex V. Bake 8c al. K 2 Though 132 ESSAY ON THE Ch. 3. [105] would have diverted their thoughts and Agriculture ^^re too much to aOTiculture and the and the arts. ^ arts. Though .THE KING is, in this nation, considered as its chief magistrate ; (see 2 Hawk. P. C. ch. 1 . s. 1 .) yet he has delegated his judicial power wholly to his Judges (unless it be when he is considered as pre- siding in his supreme court of parUament, (See 12 Co. 63. Case of Prohibitions del Roy.) or upon appeals). To suppose him to be at once the prosecutor and judge would be absurd : (See 1 Spir. Laws, b. 6. c. 5. ; and 2 Hawk. P. C. ch. 1. s. 2.) AiKTwas he to be a Judge in any other suit, it would preclude an appeal : for to whom can we appeal from supremacy itself? " But (says the celebrated Father Paul) appeals are necessary ; as it \Vould be tyranny to subject any one to the opinion of a single judge, who might thereby oppress him at will. Sovereign princes, therefore, (he adds,) do not pass sentence themselves, that the persons condemned may have the benefit of appeals." (See Ms Rights of Sovereigns, c. 3. p. 45 — 51.) And althouo;h the court of king's bench be con- sidered as peculiarly the king's court, he being sup- posed to sit there in person, as he once actually did : (See 2 Burr. 851 — 2. Sulliv. 300. lect. 32. DaU rymphy 275. See Squire^ p. 182. N. (1). 1 Rob. Cha.Y. s. 1. p. 370. (z). In Scotland the king sat in person so lately as the reign of James VI. Dahymple^ F. P. 284. (See Kaims's Tracts, 299, 300.) and the style of the court still being coram ipso rege: (See 3 Bla. Comtn. c. 4. p. 41.) yet the judges of "the court" give the judgment, and not the king. And therefore " a writ §1. LAW OF DESCENTS. 133 arts(w). But yet agriculture was ne- [106] cessary; and therefore they were annu- ally assigned (o.) To give them for a kss time would not have afforded them an op- portunity to have gathered the fruits of their labours — to have reaped what they had sown. But when they had acquired lands in the states they had conquered ; a writ of error lies from this court into that of parUa- ment : yet this does not involve in it the absurdity of an appeal to a superior power than that of the king himself; for still it is to him in parliament : and not under an idea that the house of lords is, in such judi- cial capacity, superior to the monarch, who is himself the fountain of justice. (See 12 Rep. 64 — 5.) (n) Vide Cas. de Bello Gall. lib. vi. c. 20. See Lowtnan on the Civil Gov. of the Hebrews, c. 4. p. 56. 2 Bla. Comm. 55. c, 4. and Stuart's Diss, part 1. sec. 3. Falc. dim. b. 6. c. 1. s. 1. p. 272. and N.*. Squire, s. 14, 15, 16. Davys, 3. 4. a. 49. b. (0) Among the ancient Irish the divisionof lands was usually made on the death of each tenant. See Davys' s Uep. 49. &c. Stuart's Djss. part 1. s. 3. p. 35. N, (12). and View of Soc.inEur. b. 1. c. 1. s. 1. p. 152. N.(i). So that they were continually changing their situ- ation. See Davys, 34. a. 49. 8ic. Stuart's Diss. 32. N. (8). View, 24. 251 . In Peru the lands were allotted annually. 2 Rob. Amer. b. 7. p. 312. (4to. ed.) K 3 when 134 ESSAY ON THE Ch. 3. when they had obtained the habitations [107] they were compelled to seek ; when the turbulency of the times permitted, and the blessings of agriculture, and of the rem- nants of the arts which they discovered among the people they had subdued, had excited them to seek more permanent dwellings, they required interests of a longer duration ; and the reason for their annual change of situation had now, in a manner, ceased. Estates at It is not to be supposed, that persons used to annual possessions would have been contented with estates at will (p). And as they came over with a view of obtaining " a local habitation, ^^ it is most probable that the Saxons, &c. who then shared the conquered lands, had each an interest of a longer, and not of a sJiorter duration. Those, indeed, who then so obtained lands, might have dealed them out again to their followers or relatives, &c. for a less estate — for a year or at will. But, ip) See Sullivan's Led, lect. 5. p. 50. (2d edit.) however, 4 1. LAW OF DESCENTS. 135 however, it seems pretty clear, that soon Feudsbecome ^fter their settlement in the conquered states, feuds became for the life of the feoffee or donee. And, since the comple- tion of that celebrated system in this island by William the First, if not long prior to [108] that event, an estate for life, either of the donee or of some other person, seems to have been thought the least estate which a soldier, or freeman, could accept of, as such, in 2i feudal or military capacity. But though the tenant had an estate for Dominium life, or in fee, still the ultimate property was considered as vested in the king, and the tenant had but the dominium utile, or the rightof possessing or enjoying the lands so given. The possession of the land Seisin in the • I- • 1 1 J 1 • X J. freeholder. was m mm who had such interest for life, or some greater estate, but could not be in him who had a less interest. Hence Livery of livery of seisin was necessary at the ^"^^"* creation or transfer of an estate of free- hold ; but was not given on the creation of a less estate. The Freeholder had K 4 the 136 ESSAY ON THE Ch. 3. Giib.Ten.13. the FEUDAL possession; and if he had granted his estate for years or at will, yet Az5 possession was still considered as existing; Lessee for and the enjoyment of the lessee was ihat of baiiitiofthe the lessor : the lessee being considered in freeholder. ^^ ^^|^^^ j.^.|^^ ^l^^^^ ^^ ^j^^ baiUfFor Servant of the freeholder, and accountable to him for the profits of the lands at a cerlain and [109] stated sum (q.) And hence also is it, that no other is said to be seised of property in lands but he who has a freehold estate. He who is a lessee is only said to be possessed ; and that not properly of the land, but of the term of years (;•.) ^ He, therefore, who has a freehold is said to be seised, and to have the feudal pos- , session; and, e converso, he who has the seisin, or feudal possession, has the freehold; for such is the definition of , a freehold estate (s.) (q) See Mill. View of Eng, Gov. b. i. c. 5. p. 86. Gilb. Ten. 30—49. Co. Lift. 239. b. note (2); and 331. a. N. (1). 2 Blackst. Comm. 141. ch. 9. Gilb. Hist. Feud. MS. p. 49 — 50. (r) See 2 Bla. Comm. 144. c. 9. (5) See Ibid. 104. c. 7. and the authors there quoted and referred to ; and Co. Litt. 230. b. note (1). And ^ 1. LAW OF DESCENTS. 137 And hence arises the distinction in our Freehold and chattel inte- law between a f r e e h o l d and a cii a t t e l rest. interest: As the possession of the lessee is that of the lessor, the feudal seisin remains in the tenant of the free- hold ; and if he has a descendible estate, it will devolve on his death to his own heirs, as of the person last seised: but if the descendible estate be expectant [110] upon a precedent freehold, the feudal seisin is in such precedent tenant ; and, consequently, There can be no mesne seisin of a Reversion on o . . a freehold, REMAINDER OR REVERSION expectailt ^^ ^ ^. -* Not subject Upon an estate of freehold, so as to to possasio make a possessio fratris (0, while •^'^'^ "** such remainder or reversion continues in a regular course of descent (u). (t) See ante, c. i. s. 4. p. 85. Nor shall the descent of such remainder or reversion take away an entry, or put him who has right to his action. Co. Lilt. 239. b. 243. a. 244. a. Noj/'s Max. 35. ch. 16. FincJie's L. b. 2. c. 3. p. 120. 1 Co. 134. b. 8 Co. 101. b. Gilb. Ten. 22. (m) For if it be granted over, it vests immediately in the grantee ; and makes him the stock of descent : and, in such case, the person afterwards claiming by descent, must make himself heir to such purchaser. See Hale's Comin. Law, 269. ch. 11. But 138 ESSAY ON THE Ch. 3. But as such remainder or reversion may be sold, devised, or charged, by the per- son entitled to it (a), the descent of it may be changed by the exertion of certain acts of ownership; as by granting it over for term of life, or in tail (?/). For the exertion of such acts of owner- ship is equivalent to the actual seisin of an estate which is capable of being re- duced into possession by entry. For, as an actual entry is not practicable in the case of such reversion or remainder, the alienation of them for a certain estate is sufficient to turn the descent : such grants being (before the statutes 4 & 5 Anne, c. 16.) always attended with attornment, the notoriety of them and the consequent alteration of the tenant, were deemed equal to the actual entry on a descent, or (x) Brooke, Disc. 30. Estates, 24. 40. Scire Facias, 126. Co. Lift. 14. b. and N. (4). 309. a. 2 Bla. Comm. 175. 2 Co. 61. a. Perk. S. 88. Kitch. 153- a* Touchst. 238. 242. 253. 1 Ves. 175. 177. Cunningham v. Moody. 2 Atk. 206. Kinaston v. Clarke. Gilb. Rents, 23. (y) See ante, ch. 1. s, 3. p. 73. and s. 4. p. 85. livery § I. LAW OF DESCENTS. 139 livery of seisin on a gift or sale of an estate in possession ; such attornmeat being ori- ginally coram paribus, and in later days sufficiently attested (;2). And for this reason, a reversion could not be granted over to take effect infuturo any more than an estate in possession (a). Thus where A. was tenant for life, with remainder to trustees for preserving con- tingent remainders, with remainder to the first and other sons of A. in tail, with re- mainder to the heirs of the body of A., with remainder to the right heirs of the father of A. (who was the devisor) ; and A. made a lease and release to B. in trust for the payment of his debts, &c. and levied a fine of the lands, but suffered no recovery ; it was held by Lord Hard- wicKE, that A., by such conveyance, (z) See Plowd. 25. 152. Gilb. Ten. 81. Co. Litt. 309. a. Touchst. 253. Sulliv, Led. iig. 2 Bla. Comm. 317. (a) Plowd. 155. 483. 8 Co. 74. Brooke, Grants, 60. 2 Bla. Comm. 165. and see another reason in Plowd. 155. b. and 197. b. had 140 ESSAY ON THE Ch. 3. had altered the course of the descent of the reversion, so that it should go to the heir of A. of the whole-blood {b). And this principle, that a remainder or reversion on a freehold will admit of no mesne seisin, while it continues in a course of descent, and such acts of ownership have not been exerted, presents a solution of the question, Whether a remainder or reversion on a freehold shall be subject to the debts of the tnesne remainder-man or reversioner ? In Robinson v. Tonge (c), it is said of an advowson, that " as it may be sold, Sec 2 Atk. and conies to the heir by descent, it is 2o6.Kinaston i i • i i i i i^ V. Clark. reasonable it should be assets. Now, though a remainder or reversion on a freehold may be sold, yet it may not come to the heir by descent from the very person who contracted the debt : And (6) 9 Mod. 363. Stringer v. New. (c) 3 Fr. Wms. 401. therefore, § 1. LAW OF DESCENTS. 141 therefore, a distinction should be made between extending it in the debtor's Hfe- time (as he has power over it), or in the hands of his devisee (as the remainder or reversion is devisable, and the devisee claims under him who contracts the debt). And it should seem that, if judgment be had in the debtor's life-time, it will bind the property*, though no execution be taken out till the property descend to others : But where no judgment be had in * Judgment by a mesne reversioner shall bind, but not a bond. See 4 Vin. 451. Charge (A), pi. 17. GifFard v. Barber. LR. C. R. R. R. A. I. R. (the elder) tenant for life; — C. R. and /. R. in tail : — reversion in /. R. (the elder) in fee. I. R, (the elder) entered into a bond : — R. R. bound, as having assets from his father /. R. (the elder). Kellow V. Rowden, Carth. 126. So note /. R. (the elder) was not a mesne but original reversioner, and as R. R. had the reversion as heir to the very person who made the bond, he could not plead Riens per Discent. So in Kinaston v. Clarke, 2 Alk. 204. In Tweedale v. Coventry, i Bro. C. C. 240, Sir R. W. devised the reversion to pay debts. the 142 ESSAY ON THE Ch. 3. the debtor's life-time, and the stock of descent be not changed by such mesne, it should seem that the person taking such remainder by descent would not be subject to the debts of a mesne remainder-man or reversioner; as he would not take by descent from hitn, but from the original donor ; and so paramount the mesne's charges (d). But if no such act of ownership be exerted by the mesne remainder-man or reversioner ; or if such remainder or reversion be not taken in execution for the debt or other act of the mesne owner; such remainder or reversion cannot be subject to possessio fratris, dower (e), or curtesy (/). {d) See Bro. Assets, pi. 19. and see also 1 Brow. C. C. 240. Marchioness of Tweedale v. Earl of Coven- try & al. and Pasch. 24. Ed. 3. 47. (A). Bro. Execut. 143. Recov. 13 Fitz. Abr. Recov. 14. (e) Bro. Estates, 67. Fitz. Abr. Dower, 55. 166. 8 Co. 96. a. Perk. S. 315. 317. 330. 340- 445." F. N. B. 150. A. Fhiche's Law, b. 2. c. 3. p. 125. Cro. Eliz. 316. Cordal's case. Co. Litt. 31. a. 32. a. and b. 35. a. and b. Kitch. 160. b. (J) Bro. Ten. par le Curtesy, 4. 10. Perk. S. 467. Dyer, 357. pi. 44. Co. Litt. 29. a. and b. Fmche's L. b. 2. c. 3. p. 125. Kitch. 159—160. And, § 1. LAW OF DESCENTS. 143 And, therefore, if land be given in tail, Reversion on , , • • /- • 1 1 , an estate tail. and the reversion in lee-simple descend or come to the tenant in tail, yet, during the [H^] estate-tail, he cannot be seised of such re- version so as to make a posse ssio fra- TRis : As where a person, having issue a son and a daughter by one wife, and a son by another, gave his land to his eldest son in tail: the father died, and the fee descended to the eldest son, who after- wards died without issue : and it was held, that the youngest son should have the land, and not the daughter, by reason that it was in reversion, and not vested in pos- session in the eldest son, during the estate tail : as it is a possessio fratris which makes the sister to inherit, and not a [113] REVERSIO FRATRIS (g). Thus, (g) Brooke, Descent, pi. 13. 30. Scire Facias, 126. Estates, 6. Garde, Sy. Fitz. Ahr. Descent, pi. r^. 9, 10, 11. Assize. 327. Dyer, 89 — Qo.pL 1 — 6. and 325. pi. 38. Kitch. 109. a. 110. a. 153. See 3 Co. 42. a. Dyer, 325. jA. 38. Plowd. 230. Co. Lilt. 11. b. 14. a. and b. 15. a. 191. b. Ferk. s. 88. F. N. B. 196. K. 220. D. Noy's Max. 23. ch. 4. Carth. 126. Kellow & Rowden. Gilb. Tew.. 13. ' 1 Vesey, 144 ESSAY ON THE Ch. 3. Thus, while the estate-tail continued, he could not be actually seised of the reversion I Yeseify 1 74. Cunningham v. Moody. And see the case of Jenkins on demise of Harris and wife against Prichard and others, in 2 Wils. 45. And note, that that case is mis-reported in Wilson: as it was really determined, it directly supports the doctrine here laid down. It was determined in favour of the daughter hy the second ventre. Indeed, the facts as stated in Wihony (and which are there truly stated,) together with the reasoning of the court, must have led to this conclusion ; and the judgment is most evidently mis-stated or wrongly printed *. In a note of this case, as taken by Mr. Serjeant Hewitt when in court on the argument, the adjudica- tion is thus given : Jenkins on demise of Harris and wife, 1 *ri thlS case it was againit > clcarly agreed, that by Prichard and others. J the settlement of 1 7 1 6 David Smith was tenant for life ; his wife was tenant in tail, with the reversion in David Smith. And thereupon two points were made. 1st. Whether that reversion in fee descended upon the two daughters of David, viz. Ehzabeth by his first wife, and Ann by his second wife, in such manner as that upon the determination of the estate-tail, which descended upon EUzabeth, and from her upon her son, • [See this error noticed also by Lord Alvanley, Ch. J* 3 Bosanq, & Pull. 658.] and 4 1. LAW OF DESCENTS. 14,5 reversion in fee-simple, so as to turn the descent ; for he could not be seised of both ^ ill and expired by his death without issue, it should go ifi moieties, viz. one moiety to Ann, and the other to the heirs of EUzabeth? or, whether it should not go all to Ann as heir to her father, who was last actually seised of the reversion ? 'idly. Whether an actual entry was not necessary to have been made by the lessors of the plaintiff before the bringing of this ejectment, in order to avoid the fine levied by Job Gilbert and his wife 1 As to these two points, upon full argument, the Judges were of opinion : 1 St. That though the reversion descended upon the two daughters of David on his death, yet they were not actually seised of that reversion during the conti- nuance of the estate-tail, but the same was expectant thereon. And as whoever takes by descent must take as heir to him who was last actually seised, therefore Ann took the reversion wholly as heir to her father. And as to this, i Inst. 14, 15. and Kelloio and Rowden in Carthew and Shower, were held to be authorities in point. 2dly. The Judges held that as this fine was stated in the case to be a fine without proclamations, an ac- tual entiy was not necessary to avoid it ; and that they would not carry the necessity of an actual entry to avoid a fine one jot further than it had been carried in the case of Dormer and Fortescue, which was on a fine with proclamations, and not on a fine merely at common-law without proclamations, as this was : 1 Wherefore 146 ESSAY ON THE Ch. 3 in possession at one and the same time ; and an estate-tail will not merge in a fee Qi), ApresPossi' But had lie become tenant after pos- hilitk. . • 1 1 SIBILITY OF ISSUE EXTINCT, it WOUld have been otherwise. For though, as to some respects, the estate-tail may be said to have continued after possibility, &c. in [114] the tenant during his life ; yet, in other respects, it in a manner ceased, and the K tenant or donee would have been quasi tenant for life only ; when such his estate Merger. would merge in the fee, which would then become executed in possession, and, consequently, be subject to posse ssio FRATRIS, dower, AND CURTESY ; aS in the following cases : Wherefore the postea was dehvered to the plaintiff. And that such was the judgment in this case, the Author of this Essay was also assured by a son of the person under whom the defendants claimed, and who, in consequence of such decision, refunded the mesne profits of the estate in question. (A) Plowd. 230. 296. 2 Co. 61. a. 8 Co. 74. b. 75. a. Kitch. 153. &c. Perk. s. 88. 2 Bla. Comm. 177. ch. 11. Lan4s § 1. LAW OF DESCENTS. 147 Lands devisable by custom were given Subject to •^ , . possessio to husband and wife in special tail, the fratris. remainder to the husband in fee ; the hus- band devised such remainder to the wife, and died without issue : the heir of the husband entered, and was ousted, and then brought assize, and was barred, in that THE FEE WAS VESTED IN THE WIFEj AND HER FRANK-TENEMENT MERGED; for she was tenant in tail after possibiliti/, &c. (i). So where lands were given to husband To dower, and wife in special tail, with remainder to the heirs of the body of the husband ; the wife died without issue had between them, and the husband took another wife, [115] and died; and it was held that the se- cond wife SHOULD be endowed (A-). So (^) Brooke, tit. Devise, 42. Co. Liti. 28. a. 11 Co. 80. b. in Lewis Bowles's case, and the books referred to in (k) and (/) in the two following pages. (A;) Vide mi 50. Ed. III. /. 4. pi. 9. And see also Fitz. Ab. Doiver, 52. Bro. Dower, 2^. Perk. S. 338. and Kilch. 161. b. where the same L 2 case 148 ESSAY ON THE Ch. 3. To curtesy. So where lands were given to husband and wife in special tail ; remainder to I. in tail; remainder to the right heirs of I. The husband died without issue, his wife surviving, who was now become tenant after possibility, &c. and afterwards she took another husband, and had issue, when I. died without issue, the wife being his right heir, who afterwards died : and it was held that the second husband SHOULD BE TENANT BY THE CURTESY : for when the fee descended to the wife, she was tenant after possibility of issue extinct, and the freehold was merged or absorbed in the fee ; and so the wife had the fee in possession (/). [116] If the heir enter, and his entry be Reversion on DEFEATED by THE ENDOWMENT OF HJS estate in dower. ^^^^ ^g ^ited. And note, that in the French edition of the latter writer of 1592, it is correctly stated. But in many of the English editions, (p. 322. of 1675. 317. of 1656, 8cc.) it is erroneously said that the second wife shall not be endowed ; which error I find also in some of the French editions. (I) Brooke, Estates, 25. Tenant par le Curtesie, 4. ; and Kitchen, 159. b. MOTHER,^ § 1. LAW OF DESCENTS. 149 MOTHER, he can have NO ACTUAL seisin of the REVERSION OF THE THIRD PART, while such part continues in dower Qn). Nor can he have any actual seisin of in curtesy. lands of which his father is tenant by the curtesy (n); nor of such as are Foriif«. expectant upon a lease, or other estate, for life (o). Thus when there is an anterior estate of [117] freehold, the actual seisin i^ in the pos- sessor of such estate ; and, consequently, I (m) See ante, ch. i . s. 3. p. 66. Brooke, Descent, 19. Kitch. 109. a. 159. b. Brooke, Teti.parle Curtesie, 10. Gilb. Ten. 27. Co. Litt. 241. b. (n) See ante, c. 1. s. 3. p. 80. See Litt. s. 394. Co. Litt. 241. b. F. N. B. 194. D. and E. and see 2 Inst. 301. and 3 Co. 23. b. (0) Brooke, Descent, 28. Done, 55. Estates, 67. Kitcheti, 109. b. Cro. Car.^i 1—12. Reeve & Malster. Cro. Eliz. 315—16. 8 Co. 96. a. Co. Litt. 239. b. 241. b. Gilb. Ten. p. 15—19- Co. Litt. 11. b. 14. a. note (6). 1 7. b. and note (4). 3 Co. 6. b. See Ibid. 42. a. See 1 And. 31. pi. 74. and 1 And. ^s^. pi. 322. F. N. B. 197. b. and 9. b. Robins, on Gavelk. b. 1. c. 6. p. 105. Moore, 868. pi. 1201. Smales & Dale. Nofs Max. 23. c. 4. Cartk. 128. Kellow ScRowden. Jenk. 2^2. pi 25. j and 1 Ves. 176. Cunningham v. Moody. L 3 the 150 Executory devise. Contingent fee. ESSAY ON THE. Ch.3. the person entitled to an interest expectant thereon cannot possibly be said to be ac- tually seised thereof on a mesne descent (p). When ONE estate in fee-simple, therefore, is limited on another, by way of executory devise, it must fall under the same rule; and the descent of the contingent fee cannot allow of ANY mesne seisin wliich might turn such 'descent {q). Estates in re- " Thus the principles which apply to version and ^^ dcsccut of an estate in possession, possession. do not apply to the descent of an estate in remainder or reversion expectant on an estate of freehold : but they apply when the particular estate is only for years; a tenant for years being consi- dered merely as the bailiff of the freeholder, and to hold the possession for him {r)." (p) See ante, c; i. s. i. p. 27. (q) See the next section, p, 122. (r) Note (2) to Co. Litt. 239. b. (Hargrave and Bvitler's edit.) See also «n^e, ch. 1. s, 2. p. 48.; and this sect. p. 108, § 2. LAW OF DESCENTS 151 SECT. II. [118] To whom he must make himself Heir, who claims where there has been no Mesne Seisin, mesne seisin. In the last section we have seen that there ^o can be no mesne seisin of any estate ex- pectant upon a freehold, when such estate continues to descend, and the particular acts of ownership have not been exerted ; and, therefore, it must inevitably follow, that there can be no mesne heir (as such) capable of turning the descent. He who First pur- claims, must, consequently, make him- ^ ^^^^' self heir to him in whom such estate first vested by purchase ; or, in case such acts of ownership have been exerted, to the person w^ho last exerted them : thus, as in a case before put («), if a gift in tail be made, and the reversion descend to the eldest son (by a first ventre) of the donor; Half-blood. (a) See the last section, p. 112, L 4 which 152 ESSAY ON THE Ch. 3. which eldest son, being also tenant in tail, dies, leaving a sister of the whole, and a brother of the half-blood ; the brother of [119] the half-blood shall succeed to the rever- sion, and not the sister of the whole. The reason of this is evident : the reversion descends, on the death of the eldest son, not to the right heirs of such eldest son, (for such eldest son was never actually seised of the reversion, but of the estate- tail on which it was expectant,) but to the right heirs of the father, or of the person who made the gift, or of him to whom limited, given, &c. And therefore, as the younger son (by the second ventre) was, on the death of the eldest (by the first ventre), the right heir of their common father, the donor (for he was of the whole- blood to him, and, being a male, shall be preferred to an elder female, and so take place of his sister (b)—) such younger son (6) See ante, c. 2. p. 88. canon ii. 2 Bla. Comm. 212. ch. 14. and On Descents, 21. Hale's Com. Law, a62. ch. 11. Robinson on the Law of Inheritances in Fee-simple, 38. ch. 5. See Litt. s. 8. and post, next sect. p. 124. • shall ^ 2. LAW OF DESCENTS. 153 shall succeed to the reversion as well as to the estate-tail (c)» When, therefore, a reversion or remain- Heir of the der expectant upon an estate of freehold chLer" continues in a course of descent, without [120] such acts of ownership exerted, such rever- sion, &c. still continually devolves, on the death of each particular heir, to the person who can then make himself heir to the donor or purchaser, without any regard to the very heir of the precedent person who succeeded to it by descent ; till, when the particular estate is determined, it ulti- mately vests in possession in him, who, at such determination, is the right heir of such donor, purchaser, or original remainder- man. For as there was no intermediate person actually seised of such reversion or remainder, no one could, as we have said, be the mean of turning its descent, and becoming a new stock or terminus; but (c) See ante, ch. i. s. 4. p. 86. (/)• [See also, as to the half-blood succeeding, 3 Bos. 4f Pull. 643. Doe d. Andrew v. Button, ^post [124.] (g).] • such 154 ESSAY ON THE Ch. 3. such stock must yet be the donor, pur- chaser, or remainder-man, and must so continue (if no alienation be made) till such estate shall become vested ijj^ pos- session ; and, consequently, it will be absolutely necessary to prove on every de- volution a descent, not from the immedi- ate predecessor who took hy descent^ (for Avith him, as such, we have now nothing to do,) but from the donor, purchaser, or " original remainder-man. Whoever, there- [121] ^oie, can make himself heir to such do- nor, &c. will be entitled to the inherit- ance in reversion or remainder, though expectant, but yet not so as to be capable of transmitting it to Ms otm right heirs, (as such,) except by granting it over (d), till it becomes vested in possession, by the determination of the particular estate which supported it, or whereon it was ex- pectant, (when it would cease to be a re- version or remainder,) in him who should be, at that time, the right heir of the donor, &c. which person would then be- (d) See a«^#, last sect. p. 110. * come ^ 2. LAW OF DESCENTS. 155 come the stock of descent, and him from Avhom the future pedigree must run (e), on his obtaining an actual seisin of it (/ ). So alsowith respect tocontingencies and [122] ^ 1 • 4 r^ Cuatingen- executory devises : thus on a devise to o. ^^^^ ^^^ in fee ; but if he happened to die under the executo.y age of twenty-one years, leaving no issue, then to P. in fee : after the decease of the testator, P. died in the Hfe-time of G. who afterwards died under the age of twenty-one, and without issue : it was held, that the lands vested in P/s heir at law, npon the happening of the contin- gency, (viz. on the death of G. under age, and without issue,) but that the interest, (e) See Feaime's Conting. Rem. 449. (3<1 edit.) Co. Liu. 11. b. 14. a. and N. (6). 14. b. 15- a. 3 Co. 42. a. Cro. Car. 411-12. Reeve & Malster. 8 Co. 96. a. 1 Co. 95. 99. Plo^d- 56. 113. 485. 489. Brooke, Descent, 2. and 58. Done, 5. ^nd 21. .We Fac. 126. Cro. Elk. 334-5. Frederick v. Fredenck. Dyer, 129. pl G^- Bonvil v. Payne. See 2 Corn. Dig. 402. Copyh.(K. 11.) Slf^id. .51. Descent (C. 2.) Robinson on Gavelki^id, Appendix, (last page but two.) Kitch. 109. b. 1 Ves, 174- Cunningham v. Moody. (/) See ch. 1. sec. 1. p. 23, and 42. . ^^^.^^ ESSAY ON THE Ch. 3. while it was contingent, did not so attach in G. who was heir at law to P. on her de- cease, as to carry it on his death to his heir at law, who was not heir at law to P. but that it vested in that person who was HEIR AT LAW TO P. (the lirst purchaser) AT THE TIME OF THE CONTINGENCY HAPPENING (g). SECT. (g) See 2 Wils. 29. Goodright and Searle; and cited also in Fearne on Contingent Rem. 448. (3d edit.) And see Cro. Car. 410 — 13. Reeve & Malster. Hobart, 33. Counden & Gierke. Flowd. 485. 489. 3 Com. Dig. 51. Descent, (C. 2). 2 Hughes's Abr, 1484. tit. Possessio Fratris; and compare with Brooke f Done, 8.; and Co. Litt. 298. a. [So where /. A. devised all his lands to S. A. (his son by the first venter) when he should come to the age of 21 years, but if he should die before he came to that age, and D. A, (the testator's daughter by the second venter,) should be then living, he gave the same to her when she should attain 21 years : testator died leaving no other children, and then S. A. died under age and without issue : it was held, that on the death of S. A. the inheritance vested in D. A. his sister of the half- blood, in preference to his uncle of the whole-blood. 3 Bos. &; Pull. 643. Doe d. Andrew v. Hutton. So also upon a devise to the testator's wife B. of all his real and personal estate, &c. in trust for the education and maintenance of his only daughter M. till ^ tabj.e of descents o § 3. LAW OF DESCENTS. 157 SECT. III. Explanation of the Table of Descents. x OR the more fully elucidating the doctrines inculcated, and in order to shew at one view the different manner in which an estate vested in POssESSioisrandone INREMAINDER OR REVERSION EXPECT- ANT UPON A FREEHOLD would desccnd, I have subjoined a table or calendar, which I will now proceed to explain. till she arrived at the age of 21 ; and in case of ilf.'s death before she arrived at 2 1 , then a devise of the whole of his said estates and effects to B. his wife ; the Court held, that M. the daughter took a present limited fee, either by descent or by implication under the will, upon the contingency of her dying under 21 ; and that B. the mother took an executory devise in fee, which upon her death before the daughter attained 21, descended to the daughter; and that the daughter afterwards dying before she attained 21, such executory interest, which did not unite with nor was merged or extinguished in the fee which she had er parte patema during her life, descended to her heirs ex parte materna. 15 East. 174. Goodtitle c/. Vincent V. White, and see 2 'New Rep. 383.] Suppose [123; 158 ESSAY ON THE Ch. 3. Descent of a Suppose then an estate given to Henrr aTe^hofd/" Warden in tail, with remainder over in fee to Benjamin Brown. On the death of Benjamin Brown, the remainder would descend, 1st, to his eldest son, (by Anne Lee,) William Brown ; and from him, 2dly, to his eldest son, (by Sarah Watts,) Isaac Brown. Isaac dying without issue, we must again seek the right heir of his father William, as the representative of his grandfather Benjamin ; for Isaac, having never been actually seised, could not transmit it to his own heirs (as such). [124] Now we find that William Brown left a daughter by his first wife, and a son by his second ; these his children are both in the same degree ; but the }■ ounger being a son, and so more worthy of blood, he (George) shall (3dly) succeed to the inheritance in exclusion of his elder sister (a). George dying without issue, we must again seek the heir of his grandfather, which now undeniably is (4thly) Lucy. Lucy dying (a) See the last tsect. p. 119. (b), likewisi? §3- LAW OF DESCENTS. 159 likewise without issue, whereby her fa- ther's issue are extinct, we must still in- quire for the heirs of the remainder-man, whom we now find to be (5Lhly) John Brown (his son by his second wife). The remainder then descends from John to (6thly) his eldest son Edmund ; and from him to (Tthly) his only son James. James dying without issue, we must once more seek the heir of the remainder-man ; whom we find among the yet living issue of John. John leaving a daughter by one wife, and a son and daughter by an- other, the remainder descends (8thly) to Henry his son by Frances Wilson, as of the woi^thiest sex : but he dying without [125] issue, we again seek the heir of Benjamin, and find that John left two daughters also by different wives ; these daughters being in the same degree, and both equally the children of their common father, through whom they derive their title to inherit {b), shall (h) Sisters of the half-blood cannot suc- ceed as heirs to each other ; but they may succeed as the 160 ESSAY ON THE Ch. 3. shall (9tlily) succeed as parceners. One of these daughters dying without issue in the the heirs of their common father, being equally his children. Si vero habuerit quis plures uxores, & ex qualibet earum filiam vel filias, oranes filise erunt pares ad hefeditatem patris, eodem modo ac si omnes essent ex eadem matre. Glmivill. Lib. 7. c. 3. Poterit etiam quis habere plures fihas de una matre, et plures de alia, et sic sint omnes participes, et capaces haereditatis paternse descendentis, quantum ad haereditatem paternam descendentera, non erunt tamen participes et capaces quantum ad perquisitum fratris vel sororis qui fuerint de eadem matre. Bract. Tr. 1. lib. 2. cap. 30. s. 3. fol. 66. b. Si Titius plures filias reliquerit de una matre vel di- versis genitas, omnes pariter vocandse sunt ad succes- sionem &, ad capacitatem hsereditatis paternse, &. erunt pro uno hsBrede quamvis animae diversae. Fleta. lib. 6. cap. 1. s. 17. Pluralite de femmes, sicome est de soers parceners, l.ql.q. elessoientengendres d.une mere, ou d. plusurs, q. se profrent. toutes en leu de un heire, & nule ne est plus receyvable d. autr. ne nule ne purra estr. autry heire. Brit. Cap. 119. De Success. See also M. 19. Ed. II. p. 628. Mayn. FitzL Abr. Disc. 13. Quare Imped. 177. Bro. Desc. 20. 27. Mordanc. 43. Seisin, 42. jP. N. B. 36. E. 197. G. Dyer, 291. b. pi. 69. 325. pi. 38. Kitch. 109. b. 1 10. a. Hale's Comm. Law, 264.. N. (x). 266. ch, 11. Robins, on Inherit. 36. c. 5. 2 Bl.Comm. 231. ch. 14. Calth. § 3. LAW OF DESCENTS. I6j the life-time of the other, the other shall then succeed to the whole ; for she does not claim as heir to her deceased sister, but as the now only heir of her father. But the siu'viving sister dying also without issue, we pursue our old inquiry, and ask again for the heir of Benjamin the re- mainder-man : and as his male issue is now extinct, and as he left two daughters, (by different wives,) we find that they or their issue shall next inherit (lOthly) as heirs to him. On their death, or that of their [126] issue, whereby the descendants of the re- mainder-man are become extinct, we must yet seek his right heir ; and this we find to be (llthly) Bridget Brown, his sister of the whole-blood. For though the half- Half-blood. blood succeed equally with the whole Calth. 87. — 8. and the case of Jenkins d. Harris and wife V. Prichard & al. ante, 113. N. (g). The same law as to sons or daughters in gavelkind. 8 Mod. 208. Turner v. Turner. Rohins. Gavelk. b. 1. c. 6. p. 100 — 105. 1 Freem. 45. Foxe v. Smith. And see also Robim. b. 1. c. 3. p. 37. where a cus- tom is noticed for lands to descend to, and be partible among, brothers by the first ventre only, to the ex- clusion of those by a second. See too Co. Litt. 140. b. M among 162 ESSAY ON THE Ch. 3. among the descendants of Benjamin^ according to the worthiness of sex, or pri- ority of birth ; yet, such remainder being legally vested in Benjamin, he alone is the person from whom it must be claimed, and to whom the person claiming must make himself heir : for those whom we have called the half-blood among his de- scendants, are only of the half-blood to each other, but are equally derived from himself. But those of the half-blood above him, being not (by the terms) derived from the same couple of ancestors as he himself is, cannot possibly succeed as heirs ^0 him. And, therefore, though Timothy Brown is the right heir (on the death of Benjamin and his issue) to Joseph Brown, their com- mon father ; yet it is not his heir that we seek, but the heir of Benjamin ; and as he is not the heir of Benjamin, (being but of [127] the half-blood to him,) he shall not succeed to the remainder; but such remainder shall descend to Bridget, his sister of the whole-blood : but in case she die without issue, it shall then go (12thly) to Thomas Brown, § 3- LAW OF DESCENTS. 163 Brown, her uncle; and the issue of Joseph, by Emma Atkins, be excluded, as they can never be the right heirs of Benjamin, the first purchaser, from whom it must still be claimed. On the death of Thomas without issue, the remainder shall (ISthly) go to his uncle, Daniel Brown ; and not to his brother, Joseph Brown; because Thomas having been never seised, it would not on his death go to his heir, but to the heir of Benjamin; and Joseph being the ftither of Benjamin, could never be (as such) his heir (c): And Stephen, not being derived from the same couple of ancestors as Benjamin, shall not succeed. From Daniel it shall (14thly) go to Abraham, the son of Edward and Barbara Brown. But had itbeen an estate IN POSSESS ION, Descent of an it would have descended very differently, ^^l^^ P'^'" It would then have gone from Benjamin to (I.) William; then to (II.) Isaac; and from Isaac to (III.) Lucy Brown; who being the person now last actually seised, (supposing the persons entitled continually (c) See Show. 246. M 2 to 1(54 ESSAY ON THE Ch. 3. to have gained an actual seisin,) is be- come THE STOCK OF DESCENT; and therefore we must now seek for the heir [128] of her, and not of Benjamin. Her father, William Brown, left issue a son, (George,) by his second wife ; but this son being but of the HALF-BLOOD TO LucY, shall never inherit as heir to her, though the land should escheat to the lord (J). We then must go one step higher; and here we find (IV.) her aunt Susannah to be her heir of the whole-blood: Susannah dying without issue, the estate again devolves; and as we suppose her to have been actually seised, we must find out who is now heir to her: and this we discover to be (V.) George Brown, the son of her brother William, who, though of the half-blood to Lucy, is of the whole-blood to Susannah, and, therefore, shall inherit to her (e). And now all the issue of his grandfather Benjamin, by his first wife Anne Lee, being extinct, we must go to (VI.) Bridget, id) Vide Mich. 5 Ed. II. p. 147—8. Mayti. .(e) See Litt. sec. 8. the § 3. LAW OF DESCENTS. l65 the daughter of Joseph and Ehzabeth Brown ; for the issue of Benjamin by Jane Smith, being of the half-blood to George, shall never inherit as heirs to H I M. But Bridget succeeding, and having been actually seised, we must now have recourse to her heir; and this Ave [129] find to be (VII.) John Brown, the son of Benjamin by Jane Smith; for, though of the half-blood to George, he is lineally, descended from the only brother of the whole-blood to Bridget, and shall, there- fore, (as the elder issue of Benjamin are now extinct,) succeed to her (/). From John it descends to (VIII.) Edmund; and from Edmund to (IX.) James ; and from James to (X.) his aunt Penelope; and from Penelope to (XI.) her aunt Catherine : for though the issue of her father, John Brown, by Frances Wilson, are but oi the half- blood to Penelope, yet they are the now-only representatives of John, who was the brother of the whole-blood to Catherine; and, therefore, the estate (/) See Litt. sec. 8. M 3 shall 56 ESSAY ON THE Ch. 3. shall descend from her to (XI I.) Henry Brown ; and from him to (XIII.) Felicia; and she being the last of the issue of her grandfather Benjamin, we find Thomas, the son of Philip and Esther, to be (XIV.) HER heir: for as to Bridget, the daughter of Joseph and Elizabeth, it has already passed her; and Timothy, the son of Joseph and Emma, is but of the half- blood to Felicia, and therefore shall [130] NOT succeed to her ; but he shall succeed as heir to Thomas, being the now-only son of his brother Joseph (his brother of the whole-blood). From Timothy (XV.) it goes to (XVI.) Daniel ; and from Daniel to (XVII.) Stephen; and from Stephen to (XVIII.) Abraham Brown and his issue, &c. As it was the principal intention of the Author, when he compiled this work, to connect what other writers had incidentally treated of, or to explain what they had left in obscurity, he contented himself with tracing, in the annexed table, the descent § 3. LAW OF DESCENTS. 167 descent of a reversion or remainder on a freehold, and that of an estate in posses- sion, in the paternal line only of the pur- chaser. The succession as to the maternal line he conceived as sufficiently marked out in the learned pages of our elegant commentator; and, therefore, thought it unnecessary to detail what he has ad- vanced. But, as it has been suggested that it would render his scheme more com- plete by tracing such descent through the maternal line also, he has been induced to add the following remarks. On the extinction of the issue, and also of the paternal heirs, of Benjamin Brown, the remainder or estate in possession, for the descent of either must, in this respect, be perfectly the same, would go to the right heirs of (XIX. & 15.) Barbara Finch ; on their failure, to those of (XX. & 16.) Margaret Pain ; and, on default of her heirs, to those of (XXI. & I?.) Esther Pitt ; and, for want of such, to those of (XXIL & 18.)EhzabethWebb, themother M 4 of 158 ESSAY ON THE Ch. 3. of Benjamin. The rule always being to give the preference to the paternal line, and not to have recourse to the maternal till the paternal be exhausted. In tracing the paternal line, we begin with the father of the person last seised, or first purchaser, and proceed upwards through the grandfather, great-grand- father, &c. as far as the line can be pur- , sued. When the heirs on this part can be no longer discovered, we begin with those of the wife of that paternal ancestor rdth whom our discoveries ended, and continue, in a contrary direction, proceeding dawn- wards to the heirs of the mother : Thus it first goes to (11.) Bridget; then to (12.) Thomas; then to (13.) Daniel; then to (14.) Abraham, &c. ; but if we seek the heir of Benjamin in the maternal line, we begin with (15.) Barbara ; then proceed to (16.) Margaret ; then to (17.) Esther; and then to (18.) Elizabeth. As a purchaser takes his feud ut anti- qmim, § 3. LAW OF DESCENTS. ' I69 quum, it is presumed to have descended paternally (g) ; and, therefore, it has been determined that the brother of the grand- mother shall succeed before that of the mother (h). So, if no heir can be found to his great-grandfather, and the estate in question cannot be proved to have strictly descended from the great-grandmother, the law will not presume that it descended from her, but that it came from the great- grandfather's father; but if his issue be extinct, it will still seek for the paternal heir, and suppose that it came from the father of the latter; but when it can trace such paternal heir no further, it must, necessarily, have recourse to the female line: And as it is with Edward Brown (see the table) that its presumption ceases, it must there begin with the ma- ternal heirs. It uniformly preferred the male line to the female; the father to the mother; the grandfather to the grand- mother, &c. ; so here in Barbara Finch (g) See post, ch. 5. (A) Plowd. 444. Dyer, 314. a. pf. 95. Clere u. Brook. such 170 ESSAY ON THE Ch. 3. such preference ends. It presumed it to have descended to Edward, paternalhj; but it can trace his paternal line no further ; it, therefore, considers it as coming from Barbara. In other terms, as the estate cannot he proved to have come to Benjamin Brown from his mother Elizabeth, it is presumed to have descended from hi?, fa- ther^ Joseph. To Joseph, indeed, it might have come from his mother, Esther ; but as it cannot be shewn to have done so, it is supposed to have come from Philip. To him it might possibly have descended from Margaret; but this not appearing, it is supposed to have been derived fromRobert. To Robert it might have descended from his mother, Barbara ; yet the presumption is in favour of his father^ Edward Brown. But as the pedigree or line of the Browns can be no further traced, it is presumed to have come from Barbara Finch ; and, con- sequently, as there is no one to carry the presumption from her, her heir shall be considered as having title to the premises. If no heir of Barbara can be found, the presumption is in favour of, and remains with, § 3. LAW OF DESCENTS. 171 with, Margaret Pain : if her heir cannot be discovered, it is then in favour of Esther Pitt ; (for Dinah Ward was not an ancestor of Benjamin Brown the remainder-man, or person last seised; and, therefore, it could not have descended to him from her^. If no heir can be found to Esther, it shall go to that of Elizabeth Webb ; as no other person can shew the probability to preponderate in his behalf; (Emma Atkins being in the same predicament with Dinah Ward), The question, however, whether the line of the father's mother, or that of the father's paternal grandmother, should first succeed to the inheritance of the son ? has been a matter of much contro- versy; and, therefore, calls for a more particular investigation . We are informed by Tlowden (/), in his report eft" the case of Clere v. Brook, that Mr. Justice Manwoodc affirmed that the (i) Comm, 450, former 172 ESSAY ON THE Cli, 3. former line should be preferred ; and in a note which is subjoined to his report of that case, he also tells us that he after- wards put the question to Mr. Justice Manwoode in the presence of Mr. Justice Harper ; and again, severally, to Mr. Jus- tice Mounson and Sir James Dyer) and that they were all of opinion, that the brother of the father's mother should first take: though the reporter has, at the same time, taken care to add that many were of a contrary opinion; namely, that the brother of the father's paternal grandmother ought to have been preferred. The doctrine, however, of Mr. Justice Manwoode has been adopted by Lord Bacon (k), by Sir Matthew Hale (I), and by the Lord Chief Baron Gilbert (tn) ; while the contrary position has been main- tained by Mr. Robinson (n), and Mr. Jus- tice Blackstone (0). (k) Elements, I. p. 3. Tracts, 37. edit. 1737. (/) Hist. Comm. Law, 268, &c. edit. 1779. (w) Ten. 19. (w) Law of Inherit, in Fee-simple, ch. 6. &0. (0) 2 Comm. 238. ch. 14. The ^3. LAW OF DESCENTS. 173 The arguments of the latter writer were, however, controverted by an anonymous author, in a pamphlet, which appeared in the year 1779, entitled, '' Remarks on the Laws of Descent; and on the Reasons assigned by Mr. Justice Blackstone for re- jecting, in his Table of Descent, a point of doctrine laid down in Plowden^ Lord 5acow, and Hale (p)J' In a note to a late edition of the Commentaries, Mr. Justice Black- stone was vindicated by Mr. Professor Christian ; and Mr. Professor Christian has, in his turn, been charged with inconsis- tency^ in his defence ; and the tenets, both of the author of the Commentaries and his annotator, have been again denied by the same anonymous writer, in another pamphlet, which has recently made its appearance under the title of " Remarks on the Inconsistency of the Table of De- scents, projected by Mr. Professor Christian, in the twelfth edition of the Commenta- ries, with the doctrine laid down by Sir (p) This will be referred to as the " First Pamphlet." William 174 ESSAY ON THE Ch. 3. William Blackstone, and by every writer on the Law of Descents." Now it is, indisputably, laid down as law, That, in the case of a purchase, (and, in our instance, Benjamin Brown took the remainder by purchase,) the paternal line shall always be preferred to the maternal; and that the heirs on the part of the mother shall never succeed till those on the part of the father be exhausted {c[) : That the father has two immediate bloods in him ; viz. the blood of his father, and the blood of his mother (r) : And That a person taking lands by purchase in fee-simple, shall take them as a feud of in- definite antiquity (s). These principles present a solution of {q) Lilt. s. 4. and Co. Litt. 12. a. and b. (r) Co. Litt. 12. a. vide Remarks, (First Paraph- let,) 8. (s) Wnght's Ten. 17. 180. 2 Bl. Comm. 220, &c. this ^3. LAW OF DESCENTS. 175 this question on which there has been such a contrariety of opinion; and, if the consequences of these principles be im- partially and dehberately pursued, we shall, I think, be soon led to certainty on a point as to which, one would have sup- posed, even ingenuity itself could not have suggested a doubt. If a purchaser, therefore, die without issue, we are to seek for his heir among the issue of his father : if none of those re- main, we ask for those of his grandfa- ther : if none of those are to be found, we pursue our inquiries among the issue of the great-grandfather ; and so on ad infi- nitum ; or, according to the annexed table, the issue of Joseph and Elizabeth Brown shall first take ; then the issue of Philip and Esther ; then those of Robert and Margaret; and, lasdy, the issue of Edward and Barbara Brown {t). And we will sup- pose (0 For the more easily consulting the Table of Mr. Justice 176 ESSAY ON THE Ch. 3^ pose, that we can trace the male paternal line of Benjamin Brown, the purchaser, no further than to Edward, his paternal grandfather's paternal grandfather. The question, therefore, will now be, Who is the next heir of Benjamin Brown? — The brother of Barbara Finch, (the paternal grandfather's paternal grandmo- ther) ; the issue of David and Grace Pain, (the brother of the paternal great-grand- mother, or Mr. Justice Blackstones Class No. 10.) ; or the issue of Walter and Sarah Pitt, (the brother of the paternal grand- mother, or Mr. Justice Blackstone's Class No. 11.) ? Justice Blackstone, the following list of corresponding names is subjoined : Benjamin Brown, ... John Stiles, Joseph and Elizabeth Brown, - GeofFery and Lucy Stiles, Philip and Esther Brown, - George and Cecilia Stiles, Robert and Margaret Brown, - Walter and Christian Stiles, (Their issue. Class No. 8.) Edward and Barbara Brown, - Richard and Ann Stilei, (Their issue, Class No, 9.) David and Grace Pain, - - William and Jane Smith, (Their issue, Class No. 10.) Walter and Sarah Pitt, - - Luke and Francei Kempe, (Their issue. Class No, 11.) But ^ 3. LAW OF DESCENTS. 177 But, ill order to come immediately to the question, we will suppose our inqui- ries, as to the male paternal line, to end in Philip Brown, the paternal grand- father; rather than in Robert Brown, the paternal grandfather's father, or in Ed- ward, the paternal grandfather's paternal grandfather. Now, we find, according to the position we have noticed, that Philip Brown was composed of the bloods both of his father and mother ; that of his father we suppose exhausted ; but that of his mother remains in the issue of David and Grace Pain, (or in the Class, No. 10). It appears there- fore, most evidently, from the authoritie;* cited, that the blood of Robert is uut tx- hausted; and, consequently, we must seek for his heir in his unexhausted blood, or in the issue of David and Grace Pain, (or in the Class, No. 10). Lord Coke says, expressly, that " the father has two im- mediate bloods in him — the blood of his father and the blood of his mother. Both these, bloods are of thk part of the Zv^ father: 178 ESSAY ON THE Ch. 3. father: and both these bloods of the part of kis father must be sPENTjZ^e/bre the heir of the hJood of the paj't of the mother shall in- herit {u)." And it is acknowledged by Lord Hale {x), that the collaterals of the father's mother, of the father's grand- mother, and of the father's great-grand- mother, are of the blood of the FATHER. If, then, the paternal great-grandmo- ther be of the blood of the father, she must, of consequence, be of the blood of the paternal grandfather, or of Philip Brown; and consequently, also, as the paternal line of Philip is supposed extinct, it should seem that the next heir must be found in his maternal blood, or in that of Margaret Pain, or in the Class, No 10. Again : As the feud is held ut antiquum, it is supposed to have descended to the pur- chaser from his ancestors; and, as thepa- (m) Co. lAtt. 1 2. a. and b. {x) Com. Law, 271. ternal § 3- LAW OF DESCENTS. I79 ternal blood is always preferred, to have descended to him paternally. Now, if it had actually descended in the paternal hne, (and an actual descent is, by the very .terms, presumed (y) — ), it may be consi- dered as having been once actually vested in the purchaser's paternal ancestors; and, consequently, it may be supposed to have actually descended from the most remote. Now, if we suppose it to have actually de- scended from Philip Brown ; that we can trace the paternal line no higher than Philip ; that the blood of Philip was com- posed of the bloods both of his father and mother ; and that his father's blood is ex- hausted; the brother of his mother, (or the Class, No. 10), must certainly be the heir to the premises : and the brother of Esther Pitt, (or the Class, No. 11), can- not possibly be entitled, while any of the former Class, (No. 10), be in existence. If the presumed descent is not \o be con- sidered as an actual one, when compatible ( j/) And see Wright, 180. 2 Bl. Comm. 212, N 2 with 180 ESSAY ON THE Ch. 3. with the end of the presumption, there is no meaning in terms. As the law, there- fore, presumes, that the feud descended paternally, such feud must be considered as having actually done so, while the con- sideration will answer the end for which such presumption was adopted. If it will not answer that end, the presumption, as to its paternal descent, ceases; and the law will deem the feud to have descended maternallif, rather than it should escheat to the lord of the fee {z). Hence it admits the heirs of the mother of the purchaser, when those of the father are no longer to be found. As the heirs on the part of the father are to be preferred, or, in other terms, as the feud is presumed to have descended to the purchaser from his father, the law in- quires (in case of the death of the pur- chaser without issue) for the heir of the father; as he who ought to inherit to the father, ought, pursuant to an ancient (z) Pasch. 49 Ed. III. pi. 5. fol. u. b. 12. a. axiom, § 3. LAW OF DESCENTS. 181 axiom (a), to inherit also to the son ; for, in the consideration of ihe present ques- tion, we have nothing to do with the half- bJood. Now, if the feud be presumed to have descended to the purchaser from his father, and his father has left no issue, the next inquiry is, How did the father inherit it ? If he inherited it from his inother, it must be so proved; and if it be not so proved, it will be presumed to have descended to him from his father; as the presumption is in favour of the male line. On the presumption that it descended from the grandfather, and that the grand- father has left no issue, the question will then be, From whom did he inherit it? Here the presumption again returns, That /ie inherited it from his father, or Robert Brown. But, according to our suppo- sition, the male paternal line, or that of (a) Mich. 12 E(L IV. pi. 12. foL 14. h. and see 2 BL Comm. 220. and 239 — 240. N 3 Broun, 182 ESSAY ON THE Ch. 3. Bromi, can be no further traced than to Philip ; the law then will presume that the feud descended to Philip maternally^ and, consequently, from Margaret Pain; and, consequently, the next heir to the pre- mises must be her brother, or the Class, No. 10. Again: As the antiquity of tlie feud is merely presumed, no particular ancestor can be absolutely precluded from being the stock of the descent. The first presump- tion, indeed, is that the feud had de- scended from the male ancestor; but it might, by possibility, have descendedfrom a female : it might have descended from the mother, or grandmother; the great- grandmother, or great-great-grandmother : All these lines, therefore, shall, in their turn, succeed to the inheritance of the son, on the extinction of the line which the law first enables to succeed. Now the son might, by possibility, have inherited the feud from his mother, his grandmother, §3- 1-AW OF DESCENTS. 183 grandmother, great-grandmother, ) L7V^ s. 4. Co. Litt. 12.; and see ante, cli, 2. jDOte (a), and art. vii. king Ch. 5. LAW OF DESCENTS. 225 king (c) — ) to institute a new kind of in- heritance not allowed by the law {d). Supposing (c) Bro. Pate files S^ Gr antes le Roy, 104. Hob. 224. 1 Co. 43. b. Lord Lovel's case, cited ; and next note {d). ( ^^' customs are that lands shall descend to all the sons, or to the youngest of them ; and have nothing to do with a PURCHASE, which such remainder evidently is : and, consequently, being without the custom, it is the province of the common-law to point out the person who shall now take as heir. See Jiro. Q Desc. 226 ESSAY ON THE Ch. 5 [149] Supposing then au estate descending ea: parte maienia, we will inquire what will be Desc.Qg. Done,^ii. Co.Litt. 10. a. Hob. ^i. 1 Co. 101. a. . 103. a. and see Robins, on Gavelk.h. I. c. 6. p. 117.; and 1 Atkins, 607. Roberts v. Dixwell ; and Preced. in Chanc. 464. Brown v. Barkham. Davy's Rep. 31 . a. Kitch. 86. a. And when the law ascertains who shall take a re- raamder, we must be careful to recollect that it is taken BY PURCHASE. For tliough tliis is in itself so evi- dent, yet we may, perhaps, from want of sufficient attention, be led to suppose that if there are more than one who are heirs at law to the person described, " they shall take such remainder as they would have succeeded to an inheritance : for, notwithstanding we must thus have recourse to the law of descents to ascertain the persons who are to take, yet, whefi they are once ascertained, we have nothing further to do with it; for the persons then take as purchasers. And, therefore, if a remainder be limited to the right heirs of A. and A. die during the particular estate, leaving several sons ; as the law declares the eldest only to be his heir, the eldest only shall take such remainder. See Co. Litt. 220. a. 1 Co. 104.; and 1 Strange, 42. Brown v. Barkham. But in case A. had died, leaving two daughters, as the law considers them both as his heir, they shall both take ; but as they take as purchasers, they shall not have it in parcenary, (for to do this they must have taken bi/ descent., Litt sec. 254.) but ^5 joint-tena7}ts, or Ch. 5. LAW OF DESCENTS. 227 be sufficient to break such descent, and [150] • , What sh " ^^ ^ break tli g^- descent. cause the estate to go in future to the heirs ^^^^^ li,l or as tenants in common. See 3 Leon. 14. case 32. Stowell V. Earl of Hartford ; and see also Hob. 33. Counden & Gierke. Brooke, Descent, 24. and Done, 2 1 . Co. Litt. 163. b. So if A. had had three daughters, and the eldest of them had died, leaving several sons ; the second leav- ing two daughters ; and the youngest be living ; and then the remdimdevvest : we must inquire who were then (for it matters not who were before, (at his death,) or who might be thereafter. See ante, ch. 4. p. 135.; and Brooke, Done, 21.) the right heirs of A.? And these we find to have been the eldest son of the eldest daughter, the two daughters of the second, and the youngest daughter herself: these, therefore, should take the remainder, and they should take it in equal portions as joint- tenants. For though had they suc- ceeded as to the inheritance of A. they would have taken per stirpes, and not per capita (the eldest son one-third part, the two daughters one other third part between them, and the aunt the other third) ; yet such would be the manner in which they would have taken BY DESCENT, and not that in which they should take BY PURCHASE : for being then all equally the heirs of A. they all equally answered the description given ; and, consequently, all were equally entitled to take ; and, where more than one take together, b^ purchase, it must be either in joint-tenancy or common. And note : In bequests of personal property to " the Q 2 relations" 228 ESSAY ON THE Ch. 5. [151] e.T parte patet-na. — And, in order to effect this purpose, the estate must be made to fix relations'* or " next of kin," of any one, the statute of distribution furnishes the rule as to the objects of the bequest, i. e. ascertains the persons comprehended in those terms ; but when they are ascertained, the statute ceases to be a rule : And the persons taking shall take per capita, though the act might, in a similar case, order the distribution of the effects of an intestate to be made according to their stocks or roots. See Cas, Temp. Talb. 251. Thomas v. Hole. Free. Chanc. 401. Roach V. Hammond. 1 Atk, 470. Harding v. Glyn. 1 Pr. Wms. 327. anonymous; and see Mr. Cox's N. (1) to 2 Pr. Wms. 385. Blackler v. Webb, and the books by him cited. " Issue." 3 Ves. Jun. 257. Davenport v. Hanbury. And see post, (Of persons taking by devise.) So if a gift be made in tail, or for life, to N. with remainder over to the right heirs of P. and M. their right heirs shall take as joint-tenants or as tenants in common. Bro. Done, 0.1. Joint-ten. 12. Formedone, 30. See F. N. B. 219. B. Co. Litt. iSt?. a. 1 Fearne, 460. When, therefore, a remainder is limited to the right heirs of any one, (who takes no estate himself,) the words " the heirs" are only as a descriptio personam ; and, consequently, the person taking must answer .such description. If it be limited of lands in Ga- velkind or Borough English, " to the right heirs of A." without any thing farther; the heirs of A. at COMMON' Ch. 5. LAW OF DESCENTS. 229 jfix in the person taking by purchase ; [152] or, in other terms, the estate descending must COMMON-LAW (for we have now nothing to do with the custom) shall take. But if a devise be (though of lands at common-laio) to " the heirs of A. according to the custom of Borough English," or " of Gavelkind," this being as a descriptio persona, the person taking must answer it: and the i/oungest son, in the first case, and all the sons in the latter, shall take : but still they must take as purchasers. See Preced. in Chanc. 464, Brown r. Barkham. Jlohins. on Gavelk. h. 1. c. 6. p. 117. and Co. Litt. 10. a. note (4). And note also a difference between a limitation to ]^qs.l ot ^^ the heirs of A." and to " the next of blood." For blood. the latter limitation has nothing to do with the laws of descent : as the "heir of A." may be one person, and " the next of his blood" another. Thus where a remainder was limited " propinquio- ribus de sanguine puerorum" of the devisor, who left two sons and a daughter ; the spns had no children, but the daughter had two daughters ; it was held, that neither the sons nor the daughter should take, for they were pueri, and wot propinquioribus de sanguine puero- rum; but that the two daughters of the daughter should take for their lives ; and if there had been also sons of sons or daughters, they should all have taken together; but that children born after the remainder vested should take nothing. For that the nearest of degree in blood should take, and the ivorthiest in order ©f descent ; the words here importing no respect of Q 3 dignity,, ^30 ESSAY ON THE Ch. 5, [153] must be destroyed or extinguished, and the estate which is to descend to the paternal dignity, but of proximity of blood. 30 Ass. 47. and 30 Ed. 3. 27. Brooke, Done, 21. Descent, 24. Hob. 33. Co. Litt. 10. b. and note (2). So if a remainder be limited to " the next of blood of A." who has two sons, B. and C. and dies : B. has two sons, D. and E. and dies: the eldest son of B. has issue and dies : E. shall take, in exclusion of the issue of D. though such issue is the heir at law to A. Co. Litt. 10. Kitch.Bd. a. So if A. had had two sons, and the eldest had issue and died ; the younger son should have had the re- mainder, and not the issue of the eldest : for the youngest was nearer of blood to A. than th^ grandson. JBrooke, Done, 21. So if A. had a father and uncle, and died without issue, the father, and not the uncle, should take : for the father is next of blood to the son. Litt. s. 3. Co. Litt. io» b. 11. a. note (1); and 3 Rep. 40. b. So if he had had a father and a brother, the father should take : for the father is nearer in proximity than a brother. 1 Vent. 414. CoUingwood v. Pace. 3 Co. 40, So had he a brother of the half-blood, and an uncle of the whole, the brother of the half-blood should take : for he is nearer in degree than the uncle. See 1 Vent. 424. CoUingwood -y. Pace; and see also Show. Cases in Parliam, I oS — 10. Watts & al. v. Crooke; and 2 Pr. Wms. 735. Cowper v. Earl Cowper. But Ch. 5. I^AVV OF DESCENTS. 231 paternal heirs, must be an estate entirely iietv. But to particularize the several cases in [lo4] which it has been determined when the Words of heirs shall take by descent, and when V^y of unittation. purchase, would be beside the intention of the present work. Nor shall I presume to mark the precise line of distinction through all its meanders, " Hooks, angles, crooks, and involutions wild," which separates the " words of purchase*' But if a remainder descends, the descent shall be according to the nature of the lands; as if lands in Descent of a gavelkind or Borough English be limited to A. for remainder, life, with remainder to B. iii fee ; and B. die in the ?' ^^^^''f/o" !•/• • r> * 1 1 -1 • • T^ 1" gavelkind. hietime or A. : here, the remamder vestmg m B. his heirs take it, on his- death, hy descent-, and all the sons, (in the one case,) or the youngesty (in the other,) shall succeed to it. It is scarcely necessary to add, that it is the same as to a reversion descending. See Dyer, \2S. pi. 58.; and Robins, on Gavelk. b. 1. c, 5. p. 78. and authors referred to by him; and Co. Litt. 2i. b. 23- a. 3 Pr. Wms. 6^. Chester v. Chester ; and see 6 Viner's Abr. 194. Copyhold, (C. e.) pL 16. (cites 1 Freem. 45, pi. 55. Fox &- Smith, which see). Semb. Contra. But qume as to that case. Q 4 from 232 ESSAY ON THE Ch. 5. from '' words of limitation;'^ (but which, it is remarked, have been very good clients in Westminster-hall (e) — ). Yet, in order to enable us more easily to discriminate between these celebrated terms, and as- certain the requisites to fix an estate de- scending ex parte materna in the heir, as a purchaser, I will endeavour to lay down some certain rules or principles (/), which [l55] may serve as guides in this pursuit, which is certainly as important, as it fre- quently is difficult and arduous. And instead of crowding the margin with re- ferences to the numerous cases wherein " words of purchase'' and " words of hmitation" have been the objects of discussion, or descending to the minutiae of the subject, I shall content myself with laying down a few such principles, and (e) 2 Eunomus, 41. (f) Lord Mansfield, in the case of Long v. Laming, (2 Burroiv, 1106,) said, " It is to be la- mented that questions of this kind have occasioned so much litigation and expence ; the best way to settle them it to reduce the matter j if possible, to some certain RULES." citing Ch. 5. LAW OF DESCENTS. ^35 citing a few such cases, and then refer to such authors as shall appear to be suf- ficient to establish what I assert. First then, a person shall take by pur- whenaper- son shall take CHASE when he takes an estate which never by purchase. vested or attached, or might have vested or attached, in the ancestor. As if a son buys (which is the vulgar acceptation of the term purchase) an estate to him and his heirs (g). So if a remainder be limited by a Heirs gene- ral stranger to the right heirs of A. and A. have no estate in the premises himself: thus, if there be baron and feme, who have issue a son, and lands are letten for life, with remainder over to the heirs of the feme; before which remainder falls, the baron and feme die; the son shall take as [156] A PURCHASER ; and if he die withoutissue, his heirs on the part of the father (or (g) See Litt. sec. 4. baron) 234 ESSAY ON THE Ch. 5- baron) shall inherit, and not those on the part of the mother (or feme) — (h). Thus when an estate is Hmited by a stranger to the right heirs of a person who takes no estate himself , his heir necessarily takes by purchase; as there is nothing in the ancestor, there is nothing to descend. Heirs special. But if the limitation had been to the HEIRS SPECIAL of a pcison who took no estate himself, and in whom such remain- der could not even attach, yet, it is said, that the heirs special shall not take abso- lutely by purchase; but then it is as clear, that they shall not take absolutely by de- scent. It is indeed a kind of neutral estate, which we scarcely know how to term. Sometimes the person taking this uncouth non-descript is said to take by purchase; at others by descent; then again by neither, but in an intermediate manner (k) Co. Liu, 13. a. and 298. a. between Ch. 5. LAW OF DESCENTS. 235 between both ; and by Sir M, Hale (i) it is called — and called, says Mr. Fearne (A;), with einphatical accuracy — " a qiuisi entail/' But where an estate is limited to, or [157] remains in, the ancestor, and another is ^^^®" ^ p^J' ' ^ son shall take limited to his heirs general or special, such by descent. estates shall, in many cases, coalesce ; or, at least, the latter be considered asjixed in the ancestor ; and the heirs shall be in BY DESCENT. As, " whe7i the ancestor, by any gift or Limitation conveyance, takes an estate of freehold, and fixing in the in the same sift or conveyance an estate is li- ^"^^^^^^^ ; ■^ ^ »^ viae post. mited, either mediately or immediately, to his heirs, in fee or in tail, the words, " the heirs," are words of limitation of Ruiem „ _ _ Shell y's case, THE ESTATE, AND NOT WORDS OF ^ PURCHASE (I)." (i) Hale's MSS. in Not. (6). Co. Litt. 14. a. (/c) Conting. Rem. v. i. p. 108 — 1 13. [82. 5th edit]. (I) Rule in Shelly's case; 1 Co. 104.; and sec of this rule, ante, ch. 1. s. 1. p. 17. and authors there referred to. And, 236 ESSAY ON THE Ch. 5. And, in order to illustrate this rule and assist us in determining when such words (the heirs) shall be considered as words of purchase, and when as words of limit- ation, I shall speak, first, as to the creation of such estates ; and, secondly, as to the estates themselves. » - Estates co- alescing. And first, as to the creation of such estates : — [158] By what conveyance. Both estates must be limited by, or derive their existence from, Tii^ same conveyance; or the estate in the ancestor be in him as a portion undisposed of, of the estate moving from him, and by him so limited. For if an ancestor have an estate for Hfe, and an estate be limited of the same lands to his heirs by another conveyance, the heirs shall, notwithstanding, take by pur- chase, and NOT BY DESCENT (w). (m) See the rule in Shelly's case, before ; and 1 Lord Raym. 37. Moore and Parker ; and see Fearne, 55. (3d edit.) 95. (4th edit). [71. 5th edit.] So Ch. 5. LAW OF DESCENTS. 237 So if it be limited to A. for life, with remainder lo the heirs of B., and A. grant his estate to B., the estates will not co^ alesce; but the heirs shall be in by pur- chase {n). So where husband and wife were seised of a copyhold to them and the heirs of the husband; the husband, after a surrender to the use of his will, devised it to the heirs of the body of the wife, if they should attain to the age of fourteen years: The court agreed, that the devise did not operate as a remainder; for although the wife had an estate for hfe, yet this was a new devise to take place after her death, and not a remainder joined to her estate (0). So where the father settled lands on his son for life, retaining the reversion to him- self, and afterwards devised themtotheheirs male of such son; the estates did not unite; (n) See preceding page, note (jn). (0) 1 Levinz, 135. Snow v. Cutler; and cited in Feame, 55. (3d edit.) vol. i, p. 96. (4th edit.) [7;?. 5tli edit.] but [159] 2S8 ESSAY ON THE Ch. 5. but the heirs male took the entail by pur- chase (p). Power. But it seems that if lands be limited to A. for life, and, after A/s decease, to such uses as B. shall appoint, and B. appoint to the heirs of A., that these estates shall coalesce. For B. being merely an instru- ment, when he appoints the estate the ap- pointee is i?i from the grantor; and the estate so appointed arises, has its exist- ence, and takes effect, from the deed by which such power was created; which, in the case put, was the same which limited the estate for life to A. (^). ^ -, And this, though the person executing ^ such power hmit it subject to the payment (p) Doug. 487 — 509. Doe V. Fonnereau. But see ante, p. 156. See also 2 Burr. 873. Goodman 8c al V. Goodright. Ca. Temp. Talh. 262. Lady Lanes- borough V. Fox. {q) See Co. Litt. 299. b. note (i). (Harg. and Butler's edit.) and Fearne, vol. i. p. 99. (4th edit.) [74. 5th edit,] 2 Atk. 565, and 568. Gook v. Duck- icnfield ; and see 2 Yes. 78. D.uke of Marlborough V. Lord Godolphin. of Ch. 5. LAW OF DESCENTS. 239 of debts (for if the quality of the estate be not changed, the charging it with in- cumbrances will not alter the descent, as we shall presently see). As where a mother settled an estate to herself for life, remainder to trustees for a term of years; remainder to her son for life; remainder to trustees to preserve con- tingent remainders; remainder to the first and other sons of such son, in tail-male; remainder to the heirs of his body gene- rally ; and in default of such issue, to such uses, &c. as she should by deed or will appoint. The mother, by her will, ap- pointed to her said son (who was her heir at law) in fee, subject to debts. The son afterwards died without issue : and he was adjudged to have taken by descent, and not hy purchase', and consequently, such estate would descend on his death to his heirs e^ parte materna (r). Secondl}^ (;•) 2 Burr. 879. Hurst and another v. Earl of Winclielsea and othors; and Co, Utt. 12. b. note ('2). For 240 ESSAY ON THE Ch. 5. What estates. Secondly, as to the estates themselves: 1st, Both le- First, the estates must be both legal, gal, &c. or both equitable. [161] And, therefore, if the estate of the an- cestor be legal, and that to his heirs be equitable, or vice versa, they cannot co- alesce; for being of different natures they cannot make one estate (5). As, to the use of trustees during the life of A. upon trust to permit him to take the profits; remainder to the heirs of the body of A.; the estates will not unite; For a will made in pursuance of a power is to be taken and construed as a common devise ; and conse- quently, if the will would give in either case the same estate as the heir would have taken without it, he shall be in by descent. See 1 Just. Blackst. Rep. 187—8. (s) See Fearne on Conting. Rem. 34. 81. (3d edit.) 68. 165. vol. i. (4th edit.) [52. 113. 5th edit.] In illus- trating this rule, the references are chiefly made to this invaluable work ; as most of the cases are there elaborately considered and referred to. but Ch. 5. LAW OF DESCENTS. 241 -♦'■ but the heirs shall be in by pur- chase (t.) Secondly, They ?nust be both pjree- 2diy, Both HOLD. (See the rule in Shelly's case before.) For if it be limited to the ancestor for years, with remainder to B. in tail; re^ mainder to the right heirs of such ances- tor; the right heirs shall take by pur- chase, when the remainder vests (w). Thirdly, The subsequent limitation to the ri62"] irs must be confined to those who takes a particular estate. heirs must be confined to those of the ancestor 3diy, Estate •^ "^ to the heirs. For if it be to feme for life, with re- mainder to the heirs of the bodies of baron and feme, the heirs of their bodies shall be (0 Ibid. 34. (3d edit.) 68. (4th edit.) [52. Butl. ed.] and see 2 Durnf. and JEasfj 444 — 451 . Silvester v. Wilson. (m) Co. Litt. 319. b. 1 Co. 104. a. Fearne, 33. 253- (3d edit.) 65. 482. (4th edit.) vol, i. [50. 330. Butl. ed.] and post. p. 165. R in 242 ESSAY ON THE Ch. 5, in BY PURCHASE and ^OT by descent; for the freehold was in the feme alone {x). This necessarily follows from what has been said : If the remainder be not confined to the heirs of the person taking a parti- cular estate, then the remainder is, in some degree, to the heirs of a person who does NOT take a particular estate', and conse- quently not within our assertion : for t e rule goes upon the supposition of the an- cestor's taking an estate himself. And al- though one ancestor does (in the case above) take such estate, yet the remainder is not merely to the heirs of such single ancestor, but to the heirs of both; and therefore cannot attach singly in the par- 'ticular tenant. [163] But if the heirs be confined to those of the (x) See 2 Bia. Rep. 728. 731, 732; Frogmorton d. Robinson v. Wharrey; and see Fearne, 29. 46. 83. (3d edit.) and 44. 85. 177. (vol. i, 4th edit.) [37. 65. 120. Butl. ed.] and see Co. Litt. 219. a. note (3); and 2 Dumf. 4* East, 435. in the case of Denn v. Gillot. perso?i Ch. 5. LAW OF DESCENTS. 243 persons taking a particular estate, it matters 4t^i7- "To trip finpp^t^oT'^ 7iot 7!)hether the estates of the ancestors be several {so they all take) or joint', nor Joint and whether the remainder over he to the heirs of all, or only of some, or one, of such an- cestors. As to baron for life, remainder to feme for life, remainder to the heirs of the bodies of baron and feme, it seems^ though the estate tail is not executed in them because the limitations did not cor- respond with each other, that yet it vests in them as a remainder; (and it is said, that on the death of one, it shall merge the particular estate of the survivor, and then become executed in possession;) and, con- sequently, the heirs of their bodies shall take by descent {y). To baron and feme, and the heirs of the {y) 1 Fearne,^\. 43. 81. (4th edit.) [35. 37. 63. Butl. ed.] and see the case of Webb v. Webb. 2 Fern. 668. K 2 body 244 ESSAY ON THE Ch. 5. body of the baron, is an estate-tail, executed sub modo (z.) So to baron and feme for their lives, with remainder to the heirs of their bodies; f 164] the estate-tail is executed, and the heirs are in BY DESCENT (o). 5thiy, Deter- Nor IS it of coiisequence whether the estate S)solute.^^ ^0 the ancestor be such as may possibly deter- mine in the lifetime of such ancestor or not. As to a widow during widowhood, or to baron and feme during their joint lives, remainder to the heirs of the body of the widow or feme; though she could not have had an heir of her body before her (z) 1 Fearne, 24. 26. (3d edit.) and 34. 38. 41. (4th edit.) [31.33. 36. Butl. ed.] and pos^. p. 166. See Dyer, 9. pi. 22. Hale on F. N. B. 142. B. N. (b). cites 28 Ed. III. f. 93. {a) See the case of Roe v. Aistrop, 2 Blackst. Rep. 1228.; and Fearne, 28. 46. (3d edit.) and vol. i. p. 40. 81 . (4th edit.) [35. 63. Butl. ed.] But to baron and feme jbr the life of the feme, remainder to the baron' in tail, remainder to the right heirs of the baron ; feme survives, — tail not executed. See Bro. Tit. Tenure^ pi. 54. death, Ch. 5. LAW OF DESCENTS. 245 death, yet she might have married in the first case, or the husband might have died in the other, before that event; yet the estate- tail was executed (b). Nor whether the estate of the ancestor be ethiy, By . J. ,. r implication. expressly given, or arise by implication oj law. As if A. seised in fee, covenant to stand seised to the use of his heirs male by his second wife ; A. takes an estate for his own hfe by impHcation, and the estate-tail is executed in him (c). But (6) Bro. Est. 76. Di/er, 9. j^i- 22. Fearne, 24. (3d edit.) vol. i. p. 34- (4^^ edit). [31. Butl. ed^] (c) 1 Vent. ^'ji. Pybus and Mitfbrd ; and Fearne, 30. (3d edit.) 49. (4th edit). [40 & seq. Butl. ed.] Note ; though the case of Pybus v. Mitford has been questioned, and even denied to be law, (see 7 Vin. 597. Descent (I), pi 38. in marg.) ; yet the doctrine as laid down in the rule is correct. And though what is said in the case of Southcott v. Stowell, (2 Mod. i\\. and 2 Vern. 735.) may be thought to invalidate the instance given, yet the rule stands unimpeached ; there being other cases directly in support of the doctrine. ?>ee Penhay v. Hurrell, 2 Vern. 370. Wills v. Palmer, u 3 '^J-^'- 246 ESSAY ON THE Ch. 5. [165] But* here we must observe, that when a limitation is eocpressly made of the freehold during the ancestor's life, such express estate rebuts an implication. As where A. conveyed lands to trustees and their heirs, in trust, during his life, to permit him to receive the profits ; re- mainder to the first and every other son of his then-intended marriage, in tail-male: and, for want of such issue, to the heirs of his body generally ; with remainder to himself in fee. The express estate to the trustees, during his life, precluded an im- plied one in A.; and, therefore, it was adjudged that the heirs of his body were in by purchase (d); But if the Hmitations of the freehold be such as may determine during the life 2 J. Bl. Rep. 687. and 5 Burr. 2615. 1 Atk. 596. Fearne, 17. 30. 32, &c. (3d ed.); and 27. 50. 54, 8ic. (4th ed.) [25. 40, 8cseq. Butl. ed.] See 22 Vin. 283. Uses, (A. b.) pi. 2 in marg. {d) Carth. 272. Tippin v. Cosin; and Fearne, 32. (3d. ed) and 52. (4th ed.) [43. Butl. ed.] of Ch. 5. LAW OF DESCENTS. 247 of the grantor, and no express estate be limited to him, the use will result to him for life in remainder expectant upon such precedent uses, and his heirs shall be in bi/ descent (e). Though the determination within the lifetime of the grantor, of any estate limited to others shall not, it seems, be presumed, if such determination must be effected by their wrongful act; as by the forfeiture or surrender of trustees (/). But, if the freehold be passed to trus- tees and their heirs, and then any limita- tion be made, though only for years, to the grantor, which must take effect by transmutation of possession out of the seisin of the trustees, such express limita- tion to the grantor shall prevent his taking an estate for life by implication (g). (e) See 2 J. Bl. Rep. 687.; and 5 Burr, 2615. Wills ?;. Palmer; and i Fearne, 54, &c. [44 & seq. Butl. ed.] (/) Carth. 272. Tippin v. Cosin. (g) See 2 Lord Raym. 854. Adams v. Terre-tenants of Savage. \ Fearne, ^0. [42. Butl. ed.] R 4 If 248 ESSAY ON THE Ch. 5. If the use limited to others than the grantor, be limited only for years, and no use of the freehold be limited till the grantor-' s death, the use of the freehold, as undis- posed of till that period, seems to fall within the doctrine of resulting uses ; and so the ancestor have an estate by implica- tion to which the limitations to his heirs may attach {h). And it seems that an estate may so re- sult, or arise by implication, in the case of a trust, as well as of a legal estate {i). But it is said that implication shall not be permitted in a surrender of copyholds, though it may be in a will of them {k). Nor is it of moment whether the estates to diate or im- t^^^ ancestor and the heirs be mediate or imme- mediate* {h) See Fearne, Qi. (3d ed.) 49, 50. 61. (4tli ed.) [42. 48. Butl. ed.] (i) See 1 Atk. 596 — 7. in the case of Hopkins al. Dare v. Hopkins. {k) See 1 Brownl. 127. Allen & Nash. Cro. Car. 366. Seagood ScHone. 1 Fearne, 200. (3d ed.) 416. (4th ed.) [276. Butl. ed.] 1 Watk. Copyh. 115. [181. 2ded.] diate. Ch. 5. LAW OF DESCENTS. 249 diate. (See the rule in Shelly 's case, be- fore). As to A. for life, remainder to the heirs of his body; or to A. for life, remainder to B. for life, remainder to C. in tail-male; remainder in tail general ; remainder to [I66] ihe right heirs of A. (/). Nor whether the estate to the heir he such 8th!y, Vest- ., ., , . ing or not (IS must 7iecessarui/, or may possibti), vest in vesting. the ancestor or not: for though there he an utter 'impossibility of its ever so vesting at all, yet if it attaches in him as a contingent Attaching. remaiiuler, the heir shall be in by descent. As to A. and B. during joint lives; or to husband for life, remainder to wife for life ; remainder to the heirs general or special of the one dying Jirst, or of the survivor: though (/) Trin. 11 Hen. lY.fol. 74. b. pi. 14. Fitz. Abr. Feofmente, pi. 109. Co. Litt. 22. b. 319. b. Jenk. Cent. 248. pi. 38. See 2 Atk. 57. Godolphin V. Abingdon; and 247. Colson v. Colson. And Douglas, 506. note; and Fearne, 21. 25. (3d edit.) and p. 30. 102. (4th edit.) [28, 32. Butl. ed.] the 250 ESSAY ON THE Ch. 5. the limitation over is only a contingent remainder, yet it attaches in the ancestor, and the heir shall be in by descent (m). But this rule applies only to those cases in which the estate to the hei?- is limited by WAY OF REMAINDER, and docs iiot citeud to those in which the estate to the heir' is a CONDITIONAL LIMITATION (??). For, as the particular estate and the remainders over are but so many portions of the same estate, they shall, when they attach in the same person, as before no- ticed, be so united as to cause the heirs to be in by descent. But the nature of a conditional limitation is essentially different from this. The con- ditional limitation is 7iot a portion of the estate first created, but a new one to take place on a specified contingency on which (m) Co. Lift. 378. b. 1 Broini's Chanc. Cases, 584. Appendix. Highway 8c al. v. Banner & al. ; and see 1 Fearne, 32. 38. 133. 521. (4th edit.) [30. 33. 95. 356. Butl. ed.] and Co. Litt. 191. a. note (1). (Harg. and Butl. ed.) and Ibid. 26. a. 8 Preston on Shelly's case, 6^. (n) I Fearne, 414. 416. [275,-6. Butl. ed.] the Ch. 5. LAW OF DESCENTS. 251 the prior one is utterly to cease ; these, therefore, are incapable of coalescing, since they cannot exist together. A remainder is to commence when the particular estate is, from its very nature, to determine; it is, as it were, a conti- nuance of the same estate: it is a part of the same zi)hole. A conditional limitation is not the continuance of the estate first limited, but is entirely a different and se- parate One ; it is not to commence on the determination of the first, but the first is to determine when the latter commences ; it is the commencement of the latter which rescinds and destroys the former, and not the ceasing of the former which gives existence to the last. The particular estate and remainders are, in fact, (as the very terms imply,) but one and the same estate. The estate first appointed and the conditional limitation are separate and distinct estates (0). (0) See 1 i^eame, 9, &c. 414.416. [14, &c. 275,-6. Butl. ed.] Sand, on Uses, 182, &c. As 252 ESSAY ON THE Ch. ,,. As to EXECUTORY DEVISES, they may be divided into two classes. The first con- sists of those cases in which there has been a prior disposition of the whole fee; and the second, of those in which there has been no prior limitation made of the estate. The first class falls immediately within the observations we have made with res- pect to conditional limitations. And as to the second, the very nature of the limi- tations it embraces is that there be no par- ticular estate to support them ; for if there he a particular estate, they are not executory devises but re?nai7iders (p) : as if a limita- tion be to the unborn son of A.: in these cases, there being no particular estate, there can, of necessity, be none with which the executory limitation can unite. Estate to the But as to fl remainder, we may here re- the'anceatir. mark, once for all, that whenever an an- cestor takes the requisite particular estate, the (jy) See ante, 134. N. (a). aubsequent Ch. 5. LAW OF DESCENTS. 253 siihsequent limitation to his heirs general or special, is hy the law pixed in such an- cestor; and if the subsequent limitation to the heirs be unconditional, it then Dests in such ancestor; and if immediate also, [167] (as to A. for life, with remainder to the heirs of his body,) it then is executed in him in possession: ii \l he mediate, (as to A. for life, remainder to B. for life, remainder to the heirs of the body of A.) the subsequent limitation to the heirs is a remainder vested in the ancestor, SUB MODO, hut not to he executed in him in possession till the determination of the mesne estate. But if the subsequent limi- tation be contingent, (as to the heirs of the ancestor dying first,) then it attaches in the ancestor as a contingent remainder: And if such contingency happen in the lifetime of the ancestor, it then becomes vested in him : and, consequently, in all these cases the heirs shall take by descent (5). (9) See Fi.tzh. Feoffment, pi. 109. Relief e, 4. Bro. Done. 11. Estates, 6. Relief e, 2. See Kitc/i. 146. a. Co. Litt. 319. b. 345. a. 1 Harg. Law Tracts, 497, 499» 500- 503- ; and 1 Feame, 37—8. and 104. 108. • (4th edit.) [33. 77, 79, Bull, ed.] j4nd 254 ESSAY ON THE Ch. 5. gthiy. Copy- j^nd what has been said applies as well to holds. , / V COPYHOLDS as to freeholds (r). lothly, Le- ^^ also as Well to LEGAL estates by de- gal estates by , 7 7 / v devise. VISE as 01) deed (5). iithiy, So also as to trusts executed, or com- pletely declared, and so as to take effect immediately under the deed or will ori- ginally creating the trust; with respect to which, the same construction prevails as in the cases of legal estates {t). But as to trusts executory, or to be car- ried into execution by some future act, as those in which the limitations are imper- fect and something is left to be done by the trustees in the first place, and, se- (r) See 1 Strange^ 487. Smith v. Triggs; and JPgame,43.49. (3d edit.) 79.88. (4th edit.) [60. 67,-8. Bull, ed,] (s) Fearne, 57. (3d edit.) 96. (4th edit.) [72. Butl. ed.] And see 3 Atk. 294. Warrick v. Warrick; 1 Harg. Law Tracts, 502. ; and 3 Pr. Wms. 259. Atkinson v. Hutchinson. (t) See Ca. Temp. Talh. 19. Lord Glenorchy v. Bosville. 1 Fearne, 171. 190, &c. [117. 128. Butl. ed.] 2 Ves. 655. Garth v, Baldwin. condarily. Ch. 5. LAW OF DESCENTS. 255 condarily, by a court of equity ; they are moulded by the court as best to answer the intent of the person creating them (w). (Though, where it does not violate such intent, the same rule is applied even to trusts executory as to legal estates {x) — ). And, therefore, the words " heirs of the [I68] body" are frequently taken as words of Words of PURCHASE, if applied to trusts, when they would not be so if applied to legal estates ; and when so taken, are generally con- strict settle- strued to the first and other sons, &c. in strict settlement (y). Thus, (a) Ca. Temp. Talb. 19. 1 Fearne, 167, &c. 190. 201. 205. 2i7,&c. [114. 128. 135. 142. &c. Bull, ed.] 1 Atk. 608. Roberts v. Dixwell; anfd see Bagshaw & Spenser in Collect. Jurid. 412. (x) 2 Ves. 655. Garth v. Baldwin. 1 Fearne, 184. 204, &c. [124. 135. &:c. Butl. ed.] (y) This construction is chiefly applicable in the cases of marriage articles. For as, in marriage articles, a provision for the issue appears to have been the chief end in view, a court of equity will often consider them as purchasers, (1 Pr. Wms. 145. Bale & Coleman; and 291, Seale Sc Seale,) and decree a strict settlement in the children ; in order to prevent one of the parents only from frus- trating 2o6 ESSAY ON THE Ch. 5. Thus, when a particular estate of free- hold is in the ancestor, the subsequent limitation trating that intent, by destroying the entail which might otherwise have taken place in the parent, ac- . cording to its legal construction. And, therefore, where there is no danger of such end beijig so defeated, a court of equity will not inter- fere, but suffer the words to have their legal operation, and the entail to remain in the parent ; as where the wife is made tenant in tail of lands moving from the husband. 2 Ves. 358. Howell v. Howell. 2 Atk. 477. in the case of Green v. Eakins & al. 1 Fearne, 131, &c. 162, 8cc. 2 Pr. "Mf^ms. 356, note. But it seems that this rule will not hold as to copy- holds ; the stat. 11 Hen. 7. c. 20. not extending to them. See 2 Cruise, 158. 2 Ves. 358. note. For where the power of altering such trusts has been vested in both parents, the court has refused to inter- fere. 2 Ves. 358. Whateley v. Kemp, (cited) 1 Fearne, 132, &c. [94. &c. Butl. ed.] So where a strict settlement appeared to have been manifestly contrary to the intent of the parties. 2 Ves. 358 — 9. 1 Fearne, 135, &c. [97. gee. Butl. ed.] Nor will the court interfere where a settlement has been made by the parties suhsequently to the articles, but before the marriage : for the settlement will, in such case, be considered as a new agreement, and so controul them. Ca. Temp. Talb. 20. Legg v. Gold- wire. 1 Fearne, I s^. [107. Butl. ed.] 1 Pr. Wms, 356, note. Unless such settlement be expressly alleged to have been made i?i pursuance or performance of the articles; so Ch. 5. LAW OF DESCENTS. 257 limitation Lo Ins heirs general or special shall be fixed in such ancestor, and the heirs so that the presumption of a new agreement be done awav. 1 Pr. Wnis. 123. Honor -y. Honor. 2 Ibid. 349. West V. Erissey; and 356, note. Ca. Temp. Talh. 20. Legg-j;. Goldwire. 1 Fearne, 138, 8cc. [98, &c. Butl. ed.] But where the settlement is made after marriage, the court will set up the articles against the settlement. 3 Atk. 371. Hart v. Middlehurst. Ca. Temp. Talb. 20. Legg V. Goldwire. Ibid.,i'j6. Streatfield v. Streatfield. 2 Atk. 39. Glanville v. Payne. Yet where other property of a parent is limited to any of the issue, and the issue so provided for bring a bill for carrying the articles into strict settlement, the person so bringing the bill shall, in many cases, be put to election before the court will decree the execution of them. Ca. Temp. Talb. 176. Streatfield v. Streat- field. See 2 Atk. 39. Glanville v. Payne. But if there were no articles entered into previously to marriage, there can, of necessity, be none to con- troul a settlement made afterwards ; and where there are not articles as well as a settlement, the court will not construe words which make a legal estate-tail in the parent, to the first and other sons, &c. 3 Atk. 294. Warwick v. Warwick. 2 Atk. 39. Glanville v. Payne. Unless, indeed, there is a direct declaration in the recital of the settlement that it was the intention of the parties to make a provision for the issue, by se- curing the premises settled, for their benefit, in which case the court will effectuate such intention by de- creeing* a strict settlement, if the words of the deed S would 258 ESSAY ON THE Ch, 5, i2thiy, uiti- heirs in by descent ; and so also when tio^nto'tiir ^^^^ ultimate limitation is to the heirs ge- heirs of the nevol grantor. would otherwise give an estate-tail to the parent, and enable such parent, at law, to defeat the provision for the issue, contrary to the recited intention. But where the recital to assure the lands is in general terms, or expressly, to settle them " to the uses thereinafter men- f Honed" a court of equity will not interfere, but suffer the words to have their legal effect. See 3 Brown's Cham. Ca.i']. Doran v. Ross. 1 V^es. Jun. 57. S. C« and 170. Payne v. CoUyer ; and see 2 Ves. 358. Howell V. Howell; and Cowper, 12. Moore v. Magrath. And note; that, in case of articles, it is not enough that they be recited ; they must also be pro- duced. A)nbler,s^5' Cardwell v. Mackerill; and 1 Fear7ie, 159. [109. Butl. ed.] Nor will a strict settlement be decreed in favour of collaterals, unless it should be apparent, from the cir- cumstances of the case, that they were included in the considerations ; for the intention of such articles seems prima facie to be only to provide for the issue of the marriage ; or unless the articles be decreed as to the persons first claiming ; in which case the court will decree in their favour also ; as it always executes ar- ticles in toto, or not at all. See 1 Mod. 533. Osgoode V Stroud. 2 Pr. Wms. 245. S. C. 2 Ibid. 594. Vernon V. Vernon. 1 Ves. 73. Stevens v. Trueman. 3 Aik. l86. Goring v. Nash. But, as the chief view of the court is to secure a provision for the issue independently of the parent, it will decree an execution in favour of the children of the Ch. 5. LAW OF DESCENTS. 259 neral {z) of the grantor or devisor, or any undisposed of portion of the estate continue in the party covenanting to convey, and for whom that parent was morally obhgated to provide, although such children be not the issue of the very marriage in con- sideration of which the articles were entered into ; as those of a former, or of a future, marriage : or where a father covenants to settle lands on the marriage of his son, with remainder over to a daughter and the heirs of her body, it will carry the articles into execution in favour of the issue of the daughter ; since the father was morally obliged to provide for her also. See the cases last cited; and, particularly. Goring &Nash. 1 Ves. 216. and i Alk. 265. Newstead & al. v. Searles & al. Coivper, 710. Doe d. Watson v. Routledge. There is no difference between articles and trusts executory in wills. See 1 Fearne, 166, &c. [113. Butl. ed.] See also Ca. T. Talb. 3. and 2 P. Wms. 47i&478.N.(i). Nor will equity decree a strict settlement, even in the case of articles, against purchasers for a valuable consideration and without notice. 3 Atk. 291 . War- wider. Warwick. 1 Fearne, i56,&c.[io8,&c.Butl.ed.] But a settlement, though made after marriage, by a person not indebted at the time, will be good against subsequent creditors. 1 Atk. 15. Russell & al. v. Hammond & al. Ibid. 265. Newsted v. Searles. 1 Ves. 1 1 . Lord Townshend v. Windham 2 Brown's Chanc. Ca. 90. Stephens v. Olive. Cowper^ 705. Doe d. Watson v. Routledge. (z) See/)os^, 179. of a deed, 8cc. s ^ him 260 ESSAY ON THE Ch. 5 him, his heirs shall succeed thereto by de- scent, though THE ANCESTOR HIMSELF TAKE 720 PARTICULAR ESTATE. For SUCh [169] ultimate limitation will still be in him as a reversion (a). And as to this, the rule is, that Portion un- Whatever portion of the estate (6), or use (c), disposed of ispartofthe or trust (d), IS NOT DISPOSED OF, re^/zm/2s old estate. ^-^ the person who disposes', and will de- scend to his right heirs: for being part of the OLD ESTATE, it shttll continue to go as if no disposition at all had been made ofit; i. e. if it had descended from the mother, to (a) See 1 Fearne, 66. (4th edit.) [51. Bull, ed.] (b) 3 Pr. Wms. 63. Chester v. Chester. Ca. Temp. Talh: 44. Hopkins z;. Hopkins. 1 Atk. 581. S. C. Butl N. (1). to Co. Litt. 271. b. S. C. Preced. Chanc. 542. Emblyn v. Freeman. (c) Co. Litt. 23. a. 271. b. and N. (1). (c?) 3 Pr. Wms. 21. Cruse v. Barley, and N. (1) 2 Vern. 644. Hobart t\ Countess of Suffolk. Ca. Temp. Talb. 165. Robinson t). Comyn§; and 254 — 8. Mansell v. Mansell. 2 Atk. 150. Lloyd v. Spiller. 1 Ves. 108. Arnold r. Chapman; Hopkins v. Hop- kins ; and Emblyn v. Freeman; ubi sup. See also 8 Durnf. 8c East,efC^*j. Challenger v. Sheppard. the Ch. 5. LAW OF DESCENTS. 261 the heirs of the part of the mother, and vice versa. And this although a particular estate or sum be expressly given or limited to the ^ heir at law : as if lands are devised to trus- -^ ^^^' tees to sell, and, out of the sale-money, C^*^ ^ to pay one hundred pounds to the heir at /J^S *»^ law, yet he shall have the undisposed-of surplus also. So, if an estate for life be devised to the heir, he shall have the re- version too (e). But if no further disposi- tion be made than to the heir for his life, the fee descending shall merge the life, estate (/').. As if a person, seised ex parte matema,. devise or grant in tail, the reversion will remain in him, and shall descend to his maternal heirs (g), (e)' Preced. Chanc. 162. Randall v. Bookey. 1 Pr^ Wms. 390. Starkey v. Brooks. (/) See 3 Leon. 26. Ca. 53. Cro. Jac. 260. Wood V. Ingersole. (g) See 2 Inst. 335. Litt.s. 19. j and Co, Litf. 22. b. and 2 Bla. Comm. ch. 7. p. 112. S 3 So ^^ 262 ESSAY ON THE Ch. 5. So if he, after several mesne estates, limit the ultimate " remainder" to his own right heirs; for it is not a remainder, though it be called such, but the reversion, which shall descend as before (h). And this although such ultimate limita- tion be provisionally made : as if the ances- tor covenant to stand seised, or make a feoffment, to the use of his wife for life, with such ultimate limitation to his own right heirs ; with a proviso that if the wife be disturbed by the heir, or any claiming under him, then to the use of the wife and her heirs. For such limitation to his own heirs is void as a remainder ; being part of the old estate, to which the heir shall succeed by descent (i). (A) See Jenk. Cent. 248. pi. 38. Bro. Liveri/, <5r Oust le Main. 61. Ten. 21.; and 2 Atk. 57. Godol- phin V. Abingdon. 2 Co. 91. b. Bingham's case ; and cases there cited. So of copyholds ; see 1 Walk. Copj/h. g^. [149. 2d edit.] (i) See Moore, 742. pi. 1022. Barton's case; and see Dyer, 124. pi. 38. Cro. Eliz. 919. Haynsworth V. Pretty. And eh„ 5. LAW OF DESCENTS. 263 And note; that where the ultimate [170] limitation of the wife's estate was to the right heirs of the wife, with a proviso for the wife to dispose of it *' as she should think fit/' it was held to be only a new qualification of the old estate, and not an alteration of it till such new qualification should he executed (k). But if an estate be to A. for Hfe, with " ^^''" j" the singula! remainder to " the next heir male'' of A, number, in the singular number, and words of LIMITATION BE GRAFTED THEREON, such heir shall take by purchase: the words " next heir male" being only ex- pressive of the person who should take, or as a descriptio persona (I), (k) Abbot V. Burton, 1 1 Mod. 181. ; and in 14 Vin> Heir, (W. 2.) pi. 6. p. 289. (Z) See Archer's case, 1 Co. 66. ; and see further, Feame, 102. 294. (3d edit.) and 2129. 548. (vol. i. 4th edit.) [i 50. 374. Butl. ed.] Powell on Devises, 363. Godbolt, 155. pi. 207, Robins, on Gavelk. b. l. c. 6. p. 95 — 7. 2 Strange^ 731 . Goodright d. Lisle v. Pullin & al. ; and see Harg. note (4) to Co. Litt. 8. b. and authors there referred to ; and 1 Harg. Law Tracts, 505 — 7«» and 2 Burr. 1110. Doe d. Long v. Laming. See also Moore, 593. Gierke v. Day. s 4 And 264 ESSAY ON THE Ch, 5. And we may observe, on this point, that, when an estate for life is limited to a per- son, and another is limited over to his heirs, or issue, if it should appear that by the words heirs or issue was meaned a cer- tain or particular person, with relation to the time when such limitation should take place, (as the death of the tenant for life,) then such words shall be words of purchase; but if the testator intended to compre- hend, b}^ such words, a class or denomina- tion of heirs, and intended to embrace them indefinitely, then they shall be words of limitation {m). Resulting ^q qJ^q if the entire use resuks; he being then in of his ancient use. use [171] For the use follows the nature of the land from which it springs; " as the shadow follows the body/' And, therefore, if a person, seised of (m) See Harg. Law Tracts, 561. 1 Bro. Ch. Cas. ao6. Jones v. Morgan. land Ch. 5. LAW OF DESCENTS. 265 land as heir on the part of his mother, make a feoffment, or levy a fine, siir cog- iiizance de droit come ceo, ^-c. without de- claring the uses to which it shall enure, the use results; and the heirs on the part of the mother shall succeed {n). So the resulting use of gavelkind- lands shall descend to all the sons; and of lands in Borough-English to the youngest (0). > So a resulting use of copyholds shall follow the customary descent (p). So also of a trust (q). And, as the use shall follow the descent, so shall it result also according to the (») Co. Litt. 12. b. N. (2). 13. a. N. (2). 2 Co. 58. a. Beck with's case ; and post, 181. 185—7. (0) See Robins. Gavelk. 78 — g. b. 1. ch. 5. and authors by him cited. Bro. Feoff m.al. Uses, -^2. •, and see 2 Ves. 300. Fawcett v. Lowther. {jp) See Fawcett v. Lowther, ubi sup. See 22 Vin. Uses, {Y. a.) pi. 6. 1 Watk. Copyh. 215. [328. 2d ed.] {q) Fawcett v. Lowther; and 22 Vin. Uses, (D). pi. 7. Watk. Copyh. ubi. sup. quantity 266 ESSAY ON THE Ch. 5, quantity of the estate which the grantor or grantors had before in the lands: as if there are two joint-tenants for Hfe, with the remainder over in fee to one of them, the use shall so result; and they shall con- tinue in in the same manner. So of tenant for life and reversioner (r). Trust. Incidents follow the reversion. So if the ultimate limitation of a trust he to the right heirs of the person creating it^ such heirs take by i>esct.nt, while such trust continues: for trusts are subject to the same rules, as to descents, as legal es- tates (s). But if such heir gain the legal estate by descent or purchase, such trust estate becomes extinct (^). And as the ultimate limitation (or re- (r) 2 Co. 58. a. Beckwith's case. 1 Co. 126. b. Chudleigh's case. (s) 2 Pr. Wms. 713. Banks 1). Sutton. 736. Cowper V. Earl Cowper. 2 Bla. Comm. ch. 20. p. 337. ; and see 1 Atk. 596. Hopkins v. Hopkins. 2 Atk. 57. Godolphin v. Abingdon. Ca. Temp. Talb. 3. Lord Glenorchy v. Bosville. it) See the case of Doe on dem. of Balch v. Putt, in Dougl. 771. and post. 181, &c. version) Ch. 5. LAW OF DESCENTS. 267 version) of an estate shall thus descend to the heirs of the part of (hat parent from whom it came, so shall its incidents: as, from the very nature of the thing, the incident shall follow, and be ruled by, its prin- cipal. And, therefore, if A. seised in fee ei* Rent. parte materna makes a gift for life, or in tail, reserving rent, and dies without issue, the rent shall go to his heir on the part of his mother (/<). So if he had had a rent-seek, and a dis- [172] tress was afterwards granted to him and Distress. his heirs, the distress should go with the rent, as an incident to it, to his heirs ea: parte materna (1). So if he has a house ex parte materna. Estovers. and one grant to him that he and his heirs shall have competent estovers to be burned in such house ; these, though a new pur- (m) Co. Litt. 12. b. nioApost. (x) 8 Co. 54. a.; and Co. Litt. 12. b. chase, 268 ESSAY ON THE Ch. 5. chase, shall go with the house, as appur^ tenant to it, to his heirs of the part of his mother (?/). Condition. But a condition, it is said, shall not go to the heirs of the part of the mother, for it is not an incident: and, therefore, if such estate had been granted on condition, the heir ex parte paterna should have taken advantage of it; but the heir ex parte MATERIA might have entered on him^ and enjoyed t!he estate {z). [173] Thus, so long as the estate which is de- rived ex parte materiiacoiiTi'^VESi so long shall it DESCEND to the maternal heirs; but ifsuch estate be made to fix by purchase in him who is heir ex parte materna, the estate so fixed shall descend to his heirs 071 the part of his father, as before asserted. (i/) 8 Co. 54. a. (2;) Co. Litt. 12. b. Plowd. 57. a. (where Montague, C. J. calls this " a cunning case.") But indeed the doctrine seems justly questionable. See Robins, on Gavelk. b. 1. c. 6. p. 121. and note. We Ch. 5. LAW OF DESCENTS. 269 We will now, therefore, proceed to in- '^^^^^^ s^,^^' change the quire what act of the person, seised ei parte descent from matenia, will fix the estate so derived, in to the pater- himorhis heirs by purchase, and, con- "^^l'"^- . sequently, change the descent to. the pa- ternal Hne? A7id to effect this, he inust acquire, or New estate. give, A NEW ESTATE : for if the person taking be in, in any wise, of the old one, he is not in as a purchaser : and, there- fore, its descent will not be changed. As if the heir enter for condition broken , old estate. he is in of the 0LT>€state,a,nd, consequently, BY DESCENT (a). We will, therefore, consider the opera- [174] (a) See Jenk. Cent. 2^g. pL 40. Co. Lift. 12. b. 76. a. and 202. a. and b. 1 Co. 95. a. 99. a. F. N. B. H3- Q. So of a copyholder who surrenders on condition ; on its being broken, or fulfilled, (as the case may be,) he may enter, and shall be in in statu quo j^rius, with- out a new admission or tine. See Co. Copyh. s. 56. Tracts, p. 128. Kitch. Courts, 123, a. (Fr. edit.) ■Calih. 60. tion 270 ESSAY ON THE Ch. 5. tion of his devise, his deed, his fine, and his recovery. Devise. And, first, as to A DEVISE. And as to this, the law is, that When it shall Whe7i a pcrsoii devises such lands to his not alter the . , 7 . descent. right hcirS, WITHOUT CHANGING THE TENURE OR QUALITY OF THE LANDS, although he charge them with debts or other incumbrances, yet the heir shall be in by descent; and the lands shall go, on hi^ death without issue, to his heirs onthepart OF his mother (&): for descent is fa- voured in law. (h) Lord Raym. 728. Emerson v. Inchbird. Ibid. 829. Reading v. Rawsterne, or Royston. Comym's Rep. 123. Ca. 86. S. C. Ibid. 72. Ca. 45. Clarke V. Smith. 1 Stra. 1270. Aliens. Heber. 1 Blackst. Rep. 22. S. C. 2 Atk. 290. Plmikett v. Penson. 2 Burr. 879. Hurst & al. v. Earl of Winchelsea &«/. 2 Bl. Comm. 241 — 2. ch. 15. Co. Litt. 12. b. N. (2). Dyer, 124. pi. 38. 3 Leon. 26.; and see fmther, Com. Dig. Devise, (K). and Viner, Devise, (P. c.) Wherever the heir could take the same estate without the will, the devise shall not operate. See Dyer, 133. b. pi. 6. per Saunders, C.J. [See also 1 Barnew. 4r Alders. 530. Doe d. Pratt & al. v. Timins &. al.] And Ch. 5. LAW OF DESCENTS. 271 And it is the same as to copyholds, notwithstanding they pass by surrender; for such surrender, and the consequent ad- [175] mission, will ?iot make a new estate (c). And the old cases, (1 Cro. l6l.) that if a man devise to his heirs in fee upon con- dition, the heir shall take by purchase; and the opinion in 2 Mod. that if a man devise to his heir, paying 20/. the heir shall take by the will, and not by descent; are (said to be) unintelligible and ill-re- ported. For if a man devise lands to his heiVj CHARGED WITH A RENT- ISSUING OUT OF THEM, the heir shall take by de- scent (d). And it is not in the election of the heir (c) See 1 Strange, 487. Smith v. Trigg; and Fearne, 49. (3d edit.) 87. (4th edit.) [67. Butl. ed.] See also Hurst v. Morgan, E. 28 Geo. 2. 1755, in Chanc. & on Ceriif. from B. R. 27 Nov. 1759. 1 Watk. onCopi/h.iQ^. 2d edit, and 1 Bartiew. ^ Alders, ^^o. Doe d. Pratt & al. v. Timins & a/.] (d) Clark and Smith, Comyns's Rep. 72. ca. 45.; and Cro. Eliz. 833. pL 2. and 919. pi. 14. Hayns worth V. Pretty, Ace. to 272 ESSAY ON THE Ch. 5. to be in by purchase or by descent ; for the law casts the descent on him immedi- ately on the death of the ancestor, and the devise is absolutely void. Besides, could the heir, by his election, have taken by purchase, he would have defeated his lord of many emoluments of his seigniory, and deprived the specialty creditors of his an- [176] cestors of the fund which was answerable for their demands : for till the statute of JVilL 3. the devisee was not chargeable, and even that statute does not affect our present subject (e). Indeed, the cases on this point go apparently upon the supposition that the heir has no election ; and consider the devise as absolutely void, as having " no operation at all,'' and not as being depen- • dant upon the will of the heir ( /'). But (e) See 2 Strange, 1270, Allen v. Heber; and see also 1 Lord Rat/m. 728. Emerson v. Inchbird ; and 2 Burr. 1106. Longv. Laming. (J') See the cases of Reading and Royston, and Allan V. Heber, ante and post. ; and Hob. 30. 1 Freem. 248. pi. 263. Brittane v. Charnock; and see Poivell on Dew /^2']. 430. 1 Strange, ^^\. Smith v. Triggs. 3 Leon. Ch. 5. LAW OF DESCENTS. 273 But if the devisor alter the estate, When it •^ sluiU. AND LIMIT IT DIFFERENTLY FROM WHAT IT WOULD HAVE DESCENDED TO THE HEIR, the heir shall take, of course, by purchase; it being another estate; which must descend from such heir, as the first purchaser, to his heirs on the part OF HIS father (g). And, therefore, if a person seised in fee devise his lands to his eldest son in tail, the son, though heir at law shall take by l-^''* J purchase; for it is a different estate from that which would have descended to him(/i). And if the devisor had been seised ex parte materna ; or if a mother had so de- vised to her son ; as the devisee would take ^Leon. 118. Ca, 167. Bashpool's case. 4X^0^.35. S. C. and see Butl. Continuation of Harg. N. (1). to Co. Litt. 64. a. (Sect, v. (3) — ). (g) Seethe references in note (i), p. 174. (h) Trin. 3 Hen. VI. pi. 1. fol. 46. a. Plowd. 545. b.; and see the case of Wills v. Palmer, 2 Bla. Rep. 687.; and 5 Bun. 2615. t such 274 ESSAY ON THE Ch. 5. such entail as a purchaser, should he afterwards suffer a recovery, the fee so effected would descend to his heirs on the part OF HIS FATHER (i). So whenever a person, seised in fee, devises an estate to his heir at law and limits a i^emainder over, the heir shall take by the devise and be in hy purchase (A:). But if, on the other hand, he had devised the particular estate to a stranger and the re- mainder over to the heir in fee, the heir should be in hy descent (/). Note then, the difference when the heir takes a particular estate and the ultimate limitation be to a stranger, and when the particular estate be to a stranger and the ultimate limitation to the heir at law. The estate taken by descent must be the old fee; but the ultimate limitation to a (i) See post. p. 1 87. ; and case o/'Martin v. Strachan, 1 Wils. 66. (k) See Bro. Devise. 4. and 41. ; and ante, Case of Wills and Palmer. (/) Ante, p. 169. 174. stranger Ch. 5. LAW OF DESCENTS. 275 stranger necessarily prevents the prior one to the heir from being a fee ; and, conse- quently, that so taken by the heir must be a different one from that which was in the ancestor. Whereas, if the ultimate limi- tation be to the heir at law, it must be part of the old fee, undisposed of; the devise being void ; as conveying the same estate (in point of quality) as that which would have descended to him, and which was once in the ancestor (m). So, in the case of an executory devise ; the heir at law shall take the estate by de- scent until the contingency. arise; for until that event, the fee is not affected; and, consequently, the same estate which was in the ancestor devolves to the heir (n). So if a person has several daughters, who would be his heirs at law, and devise to them in fee, they shall take as pur- chasers. For though they would have (m) Ante, p. 175 — 6. (n) Antef p. 1 34. ; and •post. 1 79. T 2 succeeded 276 ESSAY ON THE Ch. 5. succeeded to him as his heir, yet that would be in parcenary ; whereas here thej take in joint-tenancy or common (0). So where A. having two daughters, (one of whom died, leaving a son,) devised his [178] land to the son of his deceased daughter; the son took as a purchaser. For, " by this devise there was an alteration of the estate; for if the land had descended^ both the daughters would be but one heir, and would take as coparceners : but when a devise is made of all to one, or the son of one, of the daughters, then the devisee (0) Cro. Eliz. 431. p/. 36. ; and see Godb.^Qi, 363. ca. 455. Taylor & Hodgskins; and ante^ p. 150. note( 164 — 5.; and the case of Wills v. Palmer in 2 Bla. Rep. 687. ; and 5 Burr. 2615. ; and 1 Fearne, 54, &c. (4th edit.) [44, & seq. Butl. ed,] (c) See ante, p. 169. (d) Co. Litt. 22. b.; 2 Bla. Comm. 175. ch. 11. reversion Ch. 5. LAW OF DESCENTS. 285 reversion left, he has not granted all. [1811 If, therefore, a person grants to A. and his heirs for ever, (in fee-simple,) he can have no reversion left in him; and so anj estate limited afterwards to him or his heirs must be a new estate, and taken by pur- chase. As if A. seised ex parte materna, make a Feoffment feoffment in fee, and take back an estate feoffment." to him and his heirs ; this is a new pur- chase : and if he die without issue, his heirs on the part o/' his father shall in- herit (e). " But this must be understood of two Use. distinct conveyances in fee : the Jirst passing the use as well as the possession to the feoffee, and so completely devesting the feoffor of all interest in the lands ; and the second re-granting the estate to him." (e) Co. Litl. 12. b.; and see Brooke, Liv. Sf Ouster le Maine, pi. 6i. " For' 286 ESSAY ON THE Ch. 5. " For if in the first feoffment the use had been expressly limited to the feoffor and his heirs, or if there was no declaration of uses and the feoffment was not on such consideration as to I'aise an use to the feof- fee, and consequently the use resulted to [182] the feoffor ; in either case he is in of his a7icie7it use^ and not by purchase (/)/' But I conceive that, before the statute of 27 Hen, VIII. c. 10., it was by no means requisite that the use should pass to the feoffee on the feoffment, so the legal estate was devested out of the feoffor. For though the use was not conveyed by the first feoffment to the feoffee, but resulted or was expressly limited to the feoffor or his heirs, yet, that on the re- (/) Hargrave's note (2) to Co. Litt. 12. b.; and see Co. Litt. 13. a. and 22. b. Serjeant Carthew's Readings on the haw of Uses, in the Collect. Jurid. vol, i. p. 370. 376 — 7.; and see also •» Co. 58. a.; and Brooke, Liv.^- Ouster le Maine, 61. — Fine to A. to the use of him and his heirs, to make him tenant to pracipe for suffering a recovery, which was to enure to the use of the Cognizor and his heirs : — the old use. See 2 Sa//c. 491. Abbott v. Burton. And see 5 Dumf. Sc East, 107. in note. enfeoffment Ch. 5. LAW OF DESCENTS. 287 enfeofffnent by the feoffee, the feoffor would have been in of a new estate, and so the line of descent have been changed (g). jFor, although such use so limited or re- sulting to the feoffor, even before the sta- tute (h), would have been the ancient use^ yet if the legal estate was afterwards con- veyed to the cestui/ que use, it would have, certainly, vested in him bi/ purchase, and have gone to his paternal heirs. For, though the use was the old use, the legal estate would have been a new one ; it having before passed entirely from the feoffor. And, on the re-conveyance to him, the old use would have been extinct: in the same manner as a conveyance of the legal estate by a trustee would, at this day, vest in the cestui/ que trust as a purchaser, and extinguish his equitable interest; as we are about to notice. Thus, if an estate, descended ex parte (g) See Carthew, 141. Rice v. Langford; and see also Hale's Comm. Law, 269. ch. 11.; and 3 Ves. Jun, 339- 342. Selby v. Alston. (A) See 1 Co, 100. b. materna, 288 ESSAY ON THE Ch. 5. materia, be conveyed to A. and his heirs, to the use of him and his heirs, upon cer- tain trusts; and the ultimate hmitation of such trust be expressly made, or a portion be unlimited, and so result to the person conveying, or his heirs, such trust, so li- mited or resulting, will be part of the old estate, and go to his heirs by descent (i). For though the grantor thus devests him- self both of the legal estate and the use (k), yet the beneficial interest appertains (when not otherwise disposed of) to the person who would have been entitled to the legal estate if it had not been conveyed (/); in (i) See Bro. Feoffm. al. Uses, pi. 32. 22 Vin. 185. Uses, (D). For trusts are subject to- the same rules, as to descents, as legal estates : See 2 Pr. Wms. yi^. Banks v. Sutton. Ibid. 736. Cowper v. Earl Cowper. 2 Bl. Coram, 337. ch. 20. See also Rep. Temp. Talb. 3. Lord Glenorchy v. Bosville. 1 Atk. 596. Hopkins v. Hopkins. Qi) 1 Atk. 589. 591. Hopkins v. Hopkins; and Ibid. 622. Hawkins v. Chappel &. al. Rep. Temp. Ta/6. 165. Robinson v.Comyns. Ca;-^. 272. Tippen V. Cosin. Comyns^s Rep. 242. Daw v. Newborough. (/) See ante, p. 169, (d). and Co. Litt. 272. b. 2 Fes. 304. Fawcett y. Lowther. CarMeu;, 141. Rice V. Langford. the Ch. 5. LAW OF DESCENTS. 289 the same manner as the use would have done before the statute on the conveyance of the le^al estate. And as a trust now is what a legal estate then was(?w), it must follow that, as such use, whether ex- pressly limited or resulting, was the an- cient use, a thing collateral and annexed in privity to the estate of the land, and to the person touching the land (?/), and so, as it were, a portion of the old estate, such trust, so limited or resuldng, must be a portion of the old estate also. But, if such trust estate descend ex parte materna^ and the legal estate be afterwards conveyed to the cestuy que trust, he shall take such legal estate by purchase; and, consequently, it shall go, on his death, to his' heirs on the part of his father: and the trust estate shall merge in the legal when they both become fixed in him. (w) 2 Atk. 150. Lloyd v. Spillet ; and see Co. lAtt. 172. b.; and Butl. note (2.) to Co. Litt. 171. b. 1 Atk. 591 . Hopkins v. Hopkins. 2 Bla. Comm. 336. ch. 20. Carthew, 141. Rice v, Langford. (w) Co- Litt. 272. b. U As 290 ESSAY ON THE Ch. 5. As where a woman conveyed an estate to trustees in trust to permit her to receive the profits during life; and {after several mesne iimitations of such trust) in trust for her right heirs. The trust descended: [185] ^^^ afterwards one who was her heir, as to a moiety of the premises, had the legal estate conveyed to him by the trustee: and it was held that the legal estate vested in him by purchase, and that it should descend to his heirs on the part of the father, and could not follow the old use (0). For as to heirs e.v parte patenia vel ma- ierna, it does not appear that an heir of (0) See the case of' Doe on Dem. of Balch v. Putt, or Pott, in Dougl. 773, 774. 777.; andpost. 191. So, before the statute of uses, if a person enfeoffed another to the intent to pay his debts, and then to re-enfeoff his own heirs; upon such enfeoffment, the heir should not have been in ward ; and, con- sequently, would have been in by purchase. See Brooke, Garde, 5. Thus, whether we consider this to have been an use or trust, (See Sanderson Uses, g. 14. 18.) yet we see that, on the re-conveyance of the legal estate to the heir, it vested in him as a purchaser. one Ch. 5. LAW OF DESCENTS. 391 one sort has been ever held, even in equity, to be as a trustee for an lieir of the other ; but, when the legal and trust estates concentre in the same person, the trust estate becomes absorbed in the legal (p). And, upon the same principles, it should seem that if lands be mortgaged i?ifee, and, after forfeiture, be re-conveyed to the heir at law, although the heir at law took the equity of redemption by descent, yet that the legal estate must, on such re-convey- ance, vest in him as a purchaser (q) ; and, consequently, go to his heirs on the part of his father : for a mortgagee is, till fore- closure, considered, even in equity, as a bare trustee for the mortgagor, as to the inheritance of the premises (r) ; and we have shown above, that, on the conveyance {p) See Dougl. 779.; and posL 191. See also Cas. Temp. Talb. 164. Sir John Robinson v, Comyns. {q) See the case of Benson v. Scott as reported in 12 Mod. 49. and 7 Durnf. &; East, 103. Doe d. Harman & Ux. v. Morgan. (r) 1 Atk. 606. U 2 of 2^^ ESSAY ON THE Ch. 5- of the legal estate by a trustee to the cestuy que trust, such legal estate shall vest in him by purchase ; when his equitable interest will be merged. And here it may not be altogether use- less to remark, that a consideration is not - requisite to change the descent from the maternal to the paternal line ; as in the cases of feoffment and re-enfeoffment ; — Fine sur done, grant, &> render, &c. (5). '^*^^' If a person so seised make a feoffment IN FEE, reserving a rent to him and his heirs, the rent shall go to his heirs ex parte paterna {t). But otherwise of a rent reserved on a grant of such estate for life or in tail (w); for, on such grant, the reversion was left in the grantor, which must descend to his (s) See 2 Atk. 150. Lloyd v. Spillet. Bro. Garde, 5. 93.; and Carth. 141. Rice v. Langford. (0 Co. Litt. i2.b. (m) Cq. Litt. 12. b. and ante, p. 171. («). heirs Ch. 5. LAW OF DESCENTS. 293 heirs on the part of his mother ; and the rent [184] shall follow such reversion as its incident: but when the grant was in fee ^ there was no such reversion to which it could attach; and, consequently, it must be considered substantively as a riew estate* So if A. having a lease to her and her Lease for heirs for lives, devise it to her daughter, and afterwards the lease be renewed ; this last is a new lease, and, as such, shall descend to the heirs on the part of the father {x). Thirdly, as to 'a fine. Fine. A FINE levied by tenant in tail affects 7iot the reversion or remainders oveVy WHEN IN ANOTHER PERSON (?/). [ But if HE HAS THE PEE IN HIMSELF, (x) Precedents in Chancery, 319. Mason v. Day; and 1 Atk. 480. Pierson v. Shore. iy) (So they claim within the time prescribed.) 1 Cruise, 208. Co. Litt. 372. a. u S the 294 ESSAY ON THE Ch. 5. the fine extinguishes the estate tail, and brings the inversion into possession {z). And, consequently, this being the old fee, if it had descended ex parte materna before the levying of the fine, it must do [185] so afterwards ; as the fine does not affect it otherwise than by bringing it into pos- session : (2) 1 Cruise, 274. Carth. 257. 261. But this must be understood of a fine with procla- mations : for a fine ivithout proclamations, though it will work a discontinuance, will not destroy an estate tail. See 3 Co. 86. a. Bull. N. P. 229. 1 Cm. 151. Though a fine shall be intended to have been levied with proclamations till the contrary be shown. 3 Co. 86. b. But if this intendment be rebutted, then it will be necessary to prove the proclamations, (as they must be proved to bar a stranger). Bull. N. P. 229. And note ; that the statute 4 Hen. 7. c. 24. does not extend to fines levied in courts of ancient demesne; and, therefore, though fines levied there will cause a discontinuance, they will not bar an entail, unless by special custom. 1 Salk. 339. Hunt t). Bourne. Jenk. Cent. Sy. pi. 68. Cruise on Fines, 93, 175. 2 Watk. Copyh. 41. [43. 2d ed.] Unless Ch. 5' LAW OF DESCENTS. 295 Unless it be a fine sun done, grant, Grant Sp o P .p . , Render. cc render: jro7' if a j}erson, seised ex PARTE MATERNA, kvi^ SUCH TINE, it will operate as a feoffment and re-enfeoff- 9jient, and give him a new estate; zihich shall, consequently^ descend to his heirs on THE PART OF HIS FATHER (a). But it must be observed that, although on a fine siir done, grant, & render, the uses rendered to the cognizor are new uses, because the estate has passed to the cog- nizee; yet, as such fine is a double fine, comprehending*^ the fine sur cognizance de droit come ceo, &c. and that sur concessit,\ the cognizee takes his estate by the fine sur cognizance, &c. and the estate or uses so rendered hy him, is a portion of, or are served by, that estate; and, therefore, in case such estate be not wholly rendered to the cognizor or a stranger, but a part be also limited to the cognizee or his heirs, such part is a portion of the estate so (a) Carth. 140. Rice v. Langford. Byer, 311. pi 84. u 4 taken 296 ESSAY ON THE Ch.^5- taken on the fine co?ne ceo, &c. ; and, con- sequently, the uses so limited on the fine sur concessit to the cognizee or his heirs, are not new uses, but must be considered a& his old reversion : as if a fine be levied to baron and feme and the heirs of the baron, and they grant and render, by the same fine, the same tenements to the cog- nizor for the term of the life of the baron, remainder to a stranger for life, with re- mainder to the heirs of the baron; the heirs of the baron shall take by descent, and not by purchase ; the portion, so ul- timately limited, continuing in the baron as his reversion, and not rendered by the cognizor, as the estate taken by him is rendered by the cognizee (b). So if the render be in tail, {L e. of a portion only of the estate,) the cognizee shall have the reversion to his own use (c). ih) SeeDj/cr, 237./>/. 31. Bromley v. Bennet ; and Pasck. 15 Ed. 3. there cited. (c) See Moore, 46. pi. 138 ; per Dyer, quod Benlows &; outers Sergeants Concesserunt. The Ch, 5. LAW OF DESCENTS. 297 The fine siir done, grant, ^ render, is, Sur cogni- however, the only sort of fine which ' gives A NEW estate: for if a person, seised ex parte materna, levies a fine sur cognizance de droit, come ceo. Sec, and either makes no declaration of the uses, or declares it to be to the use of himself and his heirs, the lands will still descend €3: parte materna ; because it is still the old use ; which, consisting in trust and confi- dence, will follow the nature of die land, and will descend as the land would have descended if no alteration had beenmade: and it is totally immaterial whether the use be expressly declared upon such fine, [186] or permitted to rise by implication (J). Fourthly, as to a recovery. . Recovery. A common recovery is now considered is a common „ assurance. merely as " a form of conveyance, or (d) 1 Cruise, 'J 1. And see also Cart h. 140 — 1.; Chetwynd on Fines, sec. 12. p. 84. and JSarne^, 467. Armstrong d. Neve & al. v. Woolsey & al. common 298 ESSAY ON THE Ch. 5. common assurance (e) ; and, therefore, if no uses be declared, nor any raised to the recoveror, its operation is the same, as to this point, as a feoffment or fine. Each of these conveyances passes a fee (/.) ; but the fee effected by either is immediately Use. to the use of the person conveying (if such appears the intention of the parties (g) — ); and as he is thus in of his ancient use, and the statute uniting the possession to it, he is considered as in of his old estate; and, consequently, the descent remains as before. ri87l Thus if a person, seised ex parte materna By tenant in jjj- ^j^^^ suffers a recovery, and no uses be de- clared, nor any consideration appear to raise them to the recoveror, the use results; or if the uses be declared to the recoveree and (e) See 1 Wils. 73. 1 Burr. 115, 116. 1 Co. 15. b. Cro. Jac. 643. |jZ. 3. Hob. 28. (f) See 1 Burr. 92.; and ante, Of Feoffment and Fine, p. 179. 184. And see Hob. 322 — 3. (g) See Gilb. Rep. 17. and note; and Dougl. 26. his Ch. 5. LAW OF DESCENTS. 299 his hem, he is in of 11 is old estate, which shall continue to descend as if' no recover ij had been suffered {h). But, if A TENANT IN TAIL, Sciscd hy By tenant in [188] descent ex parte materna, suffer a reco- very, the fee effected hy such recovery shall descejid to his heirs on the part of his MOTiiBW^ but if he took tub estate tail by purchase, or by descent ex parte paterna, the fee so effected shall go to his heirs ON the part of his father: and this whether the lands be freehold or copyhold (i). (A) 1 And. 127. pi. 173. Dowlman's case. Hob. 27. 9 Co. 7. b. Dowman's case. Dj/er, 146. pL 70, 71. Villers & Beaumont. 2 Brownl. 171. Rowles v. Osborne. Cro. Jac. 643. Ferrers & al. v. Fermor & al. Gilb. Rep. 16. 18. l Atk. 9. in Stapilton v. Stapilton, 9 Mod. 172. Lord Derwentwater's case, 1 Wils. 74. (i) 1 Wils. 66. Martin d. Tregonwell v. Strachan & al. 4 Broivn's Ca. in Pari. 486. S. C. 5 Durnf. Sf East, 104. Roe d. Crow v. Baldwere &a/. If 300 ESSAY ON THE Ch. 5. [190] If a fine and recovery be for a parti- One convey- ^ular Durpose, the several deeds, fine, and recovery, shall be considered as one CONVEYANCE, and neither be permit- ted, by its peculiar properties, to operate to the destruction of the intent of the parties (A:). As where baron and feme covenanted to levy a fine of lands descended to the feme from her mother, which was levied ac- cordingly, and a recovery afterwards suf- fered; it was held, that the deed, fine, and recovery made but one conve3^ance ; that the estate moved originally from the COGNIZOR, (which, in this case, was the conveyance. 16. Vin. 138. (A;) 1 Co. 75. Cromweirs case. 3 Atk. 748. Parsons 2!!L!"5J1 ^' Freeman. Gilb. Rep. 17. Lord Altham v. Earl of Anglesea. Cro. Jac. 643. Sir John Ferrers & al. v. Sir Richard Fermor Sl al. 2 Burr, 1131. Selwyn v. Selwyn. 1 J. Blackst. Rep. 222. 251. S. C; and 1 Rid, 605. Hoe d. Noden v. Griffith. 5 Burr. 2787. Vaughan d. Atkins v. Atkins. feme) : Ch. 5. I^AW OF DESCENTS. 301 feme {I) — ): and that what the cogiiizor figxl had not parted with was still in such cog- nizor ; and, therefore, so much as was not declared of the uses upon the recovery was still to the old use ; the nature of the common recovery being but as an instru- ment for raising the use {m). And lastly, when the legal estate Merger of , ,...., the equitable descends in jee-simple ex parte materna, estate inthe and the equitable estate ex -parte ^''o^^' paterna, or vice versa, the equitable By descent of the legal estate shall merge in the legal; fee; and both shall follow the line through tijJiich the legal estate descended {n). So (/) 2 Co. 57. b. Beckwithe's case; 77- b. Crom- well's case ; and Dougl. 44, 45. Hurd v. Fletcher & al. (m) Abbot V. Burton, 11 Mod. i8i.; and in 14 Vin. Abr. Heir, (W. 2.) pL 6. Co)n. Rep. 160. S. C; and see 5 Com, Dig. 582. Uses, (D. 2.) and 2 Co. 58. b.; and CVo. Jac. 643. pi. 3. (w) DougL 771 — 780. Goodright lessee of Alston V. Wells &: al. 1 Brotv. Ch. Ca. 363. Wade v. Paget. 3 Ves. Jun. 126. Philips v. Brydges; and Ibid. 339. Selby V. Alston. So 302 ESSAY ON THE Ch. 5. By purchase. So also if the equitable estate had de- scended ex parte materna, and the heir had the legal estate by purchase, the equitable estate would merge and be utterly extinguished in the legal; which would, [192] of course, go to the heirs on the part of the father (0). Pnttrnai And, by WiLLEs, J. " whcu the ques- f^J!^' ^^^^ ^^ between those of the paternal and So the possession of lands was incompatible with an use issuing out of them ; and, therefore, on the cestuy que use's accession to the lands, the use ceased, and was absorbed in the legal estate. Plowd. 44. And it is said that, if one have lands on the part of his father*, and a rent out of the same lands on the part of his mother, the rent will become extinct; and cannot be revived or divided, though he die without issue. 18 Fzwer, 495. Rent, (T.) ^j/. 9. See Co. Lift. 149. b. (0) Dough 771. Goodright d. Alston 1;. Wells &a/. and Doe d. Balch v. Putt, or Pott, cited ; and ante, 182. * In fee : — For if tenant for life purchase a rent in fee, it will only he suspended during his life. See Lib. Assiz. 209. b. pi. 1,5. » those Ch. 5. LAW OF DESCENTS. 303 those of the maternal Une, the law always gives the preference to the former (p)." And, by Buller, J. as " where two Two titles. titles unite, the party shall be in of the best,'" and as the clear legal fee-simple is, in these cases, the best, the party shall therefore be in of it ( xm IH2 ' xn Grrairndcj 65. X 2 '^ 308 APPENDIX. Hotchpot . And note; when distribution is made among children, they must bring their advancement into hotchpot, as by the act is directed (/). Great-grand- If there be no grandchildren surviving children. ^^^^ inteslatc, then the great-grandchildren (III) (111) shall take equally per- capita; and so . on ; the lineal descendants of the intestate in injimtum, being preferred to ail ascen* dants or collaterals (w). Father. (IV) If the intestate leave no children, or representatives of them, the father (IV), if living, shall take in exclusion of the mother, brothers, and sisters, &c. {n). in the case of Lloyd r Tench. 3 Pr. Wms. 50. in the case of D'Avers v D'Ewes. 1 Pr. Wms. 459. Bower V. Littlewood. i Aik. 454. Durant v. Presto- wood. 2 Black. Comrn. 517. ch. 32. (/) Sfat. 22 St 23 Car. 2. c. 10. s. 5. {m) See the Stat. Car. 1. 1 Com. Dig. 273. Ad- ministration, (H.) cites Rai/m. {Sir Thomas), 500. 1 Pr. Wms. 27. 1 Atk. 457, 458. 2 Pr. Wms. 346. (rt) 2 Bh. Comm. 516. ch. 32. If APPENDIX. . 309 If the ftither be dead, the (V) mother, Mother and . . . 1 n brothers arid brothers and sisters ot the intestate, shall listers. ^ take equally (o) : as if there be a mother ^^^ and four brothers or sisters, each shall take a fifth (p). So if some, or all, of such brothers or Representa- sisters die, leaving children, such children shall stand m loco 'parentis: as if there be a widow, mother, and the children of a deceased only brother, the widow shall take her moiety, and the mother and the children of the brother shall have each a fourth; i, e. the mother one fourth, and the children the other; for the children take quasi by representation {q). But this right of representation, being Among col- (o) Stat. 1 Jac, 2. c. 17. s. 7. 2 Bl. Comm. 516. ch. 32. ^ ^^^.^^^^. -^- (p) See 1 Strange, 710. Keihvay v. Keilway. 2 Pr. Wms. 344. S. C. (q) tSee Stat. 1 Jac. 2. c. 17. s. 7. 2 Pr. Wms. 344. Keilway v. Keilway. 1 Atk. 455. Stanley v. Stanley. X 3 among 310 APPENDIX. among collaterals, shall not extend furthei than brothers or sisters children (? l. i^iother If there be no brother, sister, cr ck scendant of such brother or sister, tl-.e mother shall take the whole; sh^ having been entitled before the statute 1 Jac, 2-, though there were brothers or sisters; and that statute does not take awa;/ her right but only as to them and their issue {s) : for to a grandson of a brot ler, who miist claim in his own right, th mother shall be preferred {t). Mother-in- gyt notc; a mother-in^aw shall tkke law alone. nothing (w). (r) 1 ^^^457- Stanley V. Stanley. ^^aJf^ .ZSo ^ (s) See the Stat, and 2 Black. Camm. 516. ch. 32. U Viner, 196. (Executor, Z. 12.) Jackson «. Piude- home. 1 Atk. 457. Stanley v^StarJey. {t) Seethe Stat, andpost. And see also 1 Ath./^sj. Stanley v. Stanley. (m) 2 Pr. Wms. 216. Duke of Rutland v. Duchess of Rutland. If APPENDIX. 311 If there be no mother, the brothers Brothers and and sisters take equally; their children nomotber^'^^ standing in loco parentis (a). But note ; representation among collaterals ends with such children: for if there be a brother's grandson and a sister's son, the sister's son shall exclude the grandson, who shall take nothing (y). So a living uncle shall ex- clude a deceased uncle's son {z). If there be neither brother nor sister, Next of kin. nor children of a brother or sister, then distribution shall be made, without pre- ference, to those, whoever they may be, who are next in des-ree of kindred to the intestate. And the degrees of kindred shall be According to , ..11 , V the civil law, computed according to the civil law (a). \ (x) See the Stat. Car. 2. 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