veyed or transferred at law or in equity; and every word import- 3 & 4 Will. 4, ing the singular number only shall extend and be applied to c. 106, s. 1. several persons or things as well as one person or thing; and Number and every word importing the masculine gender only shall extend gender. and be applied to a female as well as a male.

(a) The leading objects of this act are:

1st. To alter the root of descent by tracing the descent from the person last entitled, unless it be proved that he took by descent, thus superseding the rule that the descent should be traced from the person who last died actually seised.

2nd. To declare that the heir of a testator taking under his will shall be considered as taking as devisee, and that under a limitation to a grantor or his heirs, such person shall be considered as a purchaser.

3rd. To declare that brothers and sisters shall not inherit immediately from each other, but that every descent from them shall be traced through the parent.

4th. To enable the lineal ancestor to inherit from his issue in preference to collateral relations. Thus, on failure of lineal descendants of the last owner, inquiry is to be made for the father, and not for the brother or sister, nephew or niece; for the grandfather, and not for the uncle, aunt, or cousin, ascending in the first instance to the immediate parent, and then again descending to his issue, as in a course of transmission from him; and so, as to every more remote lineal ancestor and his issue, in each degree. But preference is given to the male ancestral line throughout.

5th. To make the half-blood capable of inheriting next after any relation in the same degree of the whole blood and his issue.

6th. To allow descents to be traced through persons who have been attainted.

The report of the Commissioners of Real Property will explain the general object of the alterations made by this act, and for further information on the important subject of the law of descents, the reader is referred to 2 Bl. Comm. 200, 240; Bl. on the Law of Descents; Watkins and H. Chitty on Descents; Bac. Abr. and Com. Dig. Descents; Hale's Hist. C. L. 206—

248.

The objects of the

act.

"The rules which govern the transmission of freehold estates of in- State of the law heritance at common law, on the decease of an absolute proprietor, in the of descents before absence of express disposition by him, are (for the most part) well under- the new act, stood, and appear to be well suited to the habits and feelings of the

people.

By these rules an estate descends to the eldest or only son, or his descendants, if he should be dead, leaving issue, and next to the second and other sons, according to priority of birth, and their descendants; in default of sons and their descendants, it descends to daughters in equal shares, if more than one, and to the descendants of any deceased daughters, such descendants taking the share which would have gone to the parent if living.

"When there is no lineal descendant, the estate goes to the eldest or only brother of the whole blood, that is, who was born of the same father and mother as the deceased proprietor, and to his descendants, if he should be dead, leaving issue, and to the other brothers in succession and their descendants. If there be no brother or descendants of a brother, the sisters of the whole blood succeed in equal shares, and the descendants of deceased sisters, such descendants taking their parent's share as before.

"In case of the failure of brothers and sisters and their descendants, it becomes necessary to inquire whether the deceased proprietor took the estate himself by inheritance, or whether he acquired it immediately by a deed or will, or, in technical language, was a purchaser.

"In the former case the heir is to be sought in the family from which the estate descended to the deceased proprietor, that is, either on the father's side or on the mother's side, as it happened; in the latter case the law gives the preference to the relations on the paternal side, but if there

S.

G G

3 & 4 Will. 4, c. 106, s. 1.

Exclusion of the ascending line.

Preference of the paternal line.

Question with

stocks on the

paternal side,

be none such, then it directs the inheritance to go to the relations on the maternal side.

"Here occurs a rule, drawn from feudal principles, which is at variance with ordinary feelings and notions, and has been long considered unjust; every lineal ancestor of the deceased proprietor, whether near or remote, is excluded from immediately inheriting. An estate may pass to the younger brother of the father, and upon his death it may pass to the father as his heir; but rather than go at once to the father or the mother of the deceased proprietor, the law directs it to escheat, that is, to fall, as for want of an heir, to the lord of whom the land was holden, that is, in most cases, to the crown. [By the 6th section of the act 3 & 4 Will. 4, c. 106, post, p. 463, the lineal ancestors are admitted.]

"In default, however, of lineal and immediate collateral heirs and their descendants, the inheritance is to be traced through the nearest ancestor, that is, the father, unless it be a maternal inheritance, and if it be a maternal inheritance, the mother, and it will pass to his or her eldest brother of the whole blood or his descendants, and the other brothers in succession and their descendants: and if none such, to sisters of the whole blood and their descendants in equal shares as before. In failure of this line, the next more remote ancestor on the same side is made the stock in the same manner, and then the next more remote, and so on; the rule being still observed, that the paternal line has the preference in ascending from the first purchaser, and that up to the first purchaser the inheritance must be traced back through the line of ancestors by which it descended.

"If heirs in the pure male line ascending from the first purchaser should fail, then, in compliance with a rule above stated, a female ancestor, or some ancestor of a female ancestor, is to be made the stock; and first, it is a rule that such female ancestor is to be taken on the paternal side, if any such can be found; and therefore the brother of the paternal grandmother (the father's mother) is preferred to the brother of the mother of the deceased proprietor, he having been the first purchaser.

"Here sometimes, though rarely, occurs a point about which a difference of opinion has existed for a long series of years.

66

According to some authorities, when a female stock on the paternal side respect to female is to be introduced, proximity of blood is to have the preference, and consequently collateral relations of the paternal grandmother are to be preferred to collateral relations of the paternal great grandmother. According to other authorities (and this is the doctrine maintained by Mr. Justice Blackstone in his Commentaries), the pedigree is still to be traced up as far as possible on the paternal side through males, and the female ancestor of the remotest male ancestor is to be preferred as a stock to the female ancestor of a less remote male ancestor, the paternal great grandmother to the paternal grandmother.

Heirs must be of the blood of the first purchaser.

Exclusion of the half-blood.

"On failure of relations on the paternal side of the first purchaser, the maternal line is let in, that is, the mother of the first purchaser is considered as the stock, and her ancestors, first on the paternal and then on the maternal side, as before. It is to be observed, that on failure of heirs of the last proprietor on the side of the first purchaser, the estate does not pass to the heirs of the last proprietor on the other side, but escheats as before, so that an estate descended to the deceased proprietor from his mother can never pass to his collateral relations on the father's side.

"It has been laid down, in the above statement, that collateral relations, in order to be let in to inherit, must be of the whole blood of the person from or through whom they are to derive their claim.

"Thus a brother of the deceased proprietor by the same father, but a different mother, cannot inherit to the deceased proprietor, whether he took by purchase or descent. The estate will rather escheat, and the same is the case with an uncle, half-brother of the father, and so on. This rule, like that which excludes the lineal ancestor, has long been felt to rest on no sound principle, and to be hard in its operation.

"We think that both these rules may be taken away, without introducing any uncertainty into the law of inheritance, or materially impairing its symmetry."

And, 1st, As to the Ascending Line.

3 & 4 Will. 4, c. 106, s. 1.

Ancestor to come

"It appears desirable, that the lineal ancestor should be let into the succession in such order as to infringe as little as possible on the present rules, in when his issue and to found the new rule upon some principle already established, making would have init agreeable, so far as may be, to the feelings of the people, and to the heritited by the general policy of the law of inheritance. This we think may be best done old law. by introducing the ancestor wherever the descendants of such ancestor would be entitled according to the present rules; the ascending line would thus come in immediately after the descending. If the purchaser of an estate died without issue, and intestate, leaving a father, that father would take before the brothers or sisters or their descendants; and if there were neither father nor brothers or sisters, or their descendants, a surviving grandfather would take before uncles or aunts. Conformity in the laws regulating different species of property is desirable, with a view to the better general understanding of the law. Accordingly one recommendation of this rule is, that it would make the transmission of real property, in one case, conformable to the law now long established for the transmission of personal property, which, in case of the intestacy of a person dying unmarried and without issue, goes exclusively to the father as next of kin-a law which it is believed has not been found inconvenient, nor considered unfair or objectionable. The father, too, as the general dispenser of the family property, seems the fittest person to have the control over whatever is to devolve by law upon some part of his family.

"By a technical rule of pleading, the descent from one brother or sister to another has been hitherto considered immediate, and in the opinion of some persons it would be better to consider that as a substantial rule, and to prefer brothers and sisters to the fathers: this, however, would be introducing an anomaly, especially if the principle were not followed up by postponing generally the ancestor to his descendants, the grandfather, for instance, to the uncle. [Sect. 5 of act 3 & 4 Will. 4, c. 106, post, p. 463.]

"It may be argued in support of such proposal, that the ancestor, who is likely to be advanced in life, may be expected to be less capable of making a discreet disposition of his property, that he may be tempted unfairly to divert it to his issue by a different marriage, or even to make some disposition altogether capricious and unreasonable; but the dependence of children on their parents is acknowledged to be salutary, and when it is considered that the proposed change of the law will only come into operation in the absence of express disposition, and therefore it may be presumed, for the most part, where no strong reason was felt by the deceased proprietor for making a disposition, the general good of the family seems likely to be best consulted by vesting the property in its head, rather than in any of the younger members, and, as already observed, less violence will thus be done to the general system of the law of inheritance.

Descent between brothers and sisters not to be

immediate.

"The same reason we consider should prevail against a plan which has Ancestor not to been proposed, of giving to the ancestor an interest during his life only."

2nd. As to the Half-Blood.

"We think it advisable that no distinction should exist between the whole and the half-blood, except that preference should be given to the whole blood of the first purchaser, as between his kindred in equal degree or their descendants, with the exception of a single case afterwards mentioned. "The following reasons seem to us sufficient for putting the whole blood and the half-blood on an equal footing, with the above exception. "1st. One ancestor only of any couple of ancestors being the person from or through whom the inheritance descends, it seems needless to have any regard to the other ancestor. Thus if land descend from the father to the eldest son, there seems no reason why it should not pass from him to the second son, whether born of the same or another mother.

"2nd. The rule is recommended by the principle of conformity already suggested, as in the transmission of personal estate, the whole blood and

be restricted to a life estate.

Whole blood of first purchaser to be preferred only between kindred in equal degree.

Reasons for restricting the preference of

whole blood.