Root of Descent. doubtful, but where the thing is so plain that nobody could doubt you must In ejectment for copyhold premises, the plaintiff claimed as customary Devise of freehold and leasehold lands in Kent, in strict settlement, with an ultimate limitation to the testator's own right heirs; the will also containing a similar disposition of other leaseholds in Kent, not the subject of the suit: it was held, that the common law heir was entitled. (Sladen v. Sladen, 2 Johns. & H. 369; 31 L. J., Ch. 775; 10 W. R. 579.) The custom of gavelkind being, that the lands of an intestate dying without issue are partible amongst his brothers equally, the court will apply all the incidents of descent to that custom, and the descendants of a deceased brother will stand in the same position jure representationis as their respective parents would have occupied; nor does the right of representation stop at the children of a brother by analogy to the Statute of Distributious. Therefore, where a man died intestate and without issue, seised of gavelkind lands, leaving a nephew and two sons of a deceased nephew: it was held, that the latter were entitled jure representationis to the share which their father, if living, would have taken. (Hook v. Hook, 32 L. J., Ch. 14; 11 W. R. 105.) Wood, V. C., said, "the canon of descent applicable to the point is laid down in Clements v. Scudamore, 1 P. Wms. 63, where Chief Justice Holt said, the custom alters the descent by the common law to the eldest son, and carries it to the youngest son generally, and must have all the consequences of a descent.' Accordingly, the right of representation was admitted as a general incident of descent to operate upon the customary rule of preferring the younger son, exactly as it operated in the common law rule, preferring the eldest. The same principle must be applied whether the custom be that of gavelkind or borough-English. You must ascertain what the custom is, and then apply all the rules of descent to the custom so ascertained." (Hook v. Hook, 1 Hem. & M. 43; 32 L. J., Ch. 15, 16.) & 4 Will. 4, c. 106, s. 2. Real estate stood limited to A. B. for life, with remainder to C. D. in fee Tracing descent. simple. C. D. died, living A. B., leaving two aunts, a cousin, the son and heir of another aunt, and two cousins, the daughters and co-heiresses of another aunt, her co-heirs at law. The property became thus divisible into eighths, two to one aunt, two to another, two to the son of another, and one One of the daughters, E. F., eighth to each daughter of the other aunt. died in 1824, living A. B. the tenant for life, leaving I. K. her son and heir 3 & 4 Will. 4, c. 106, s. 2. Right of posthumous heir. at law. The other, G. H., died in 1832, living A. B., the tenant for life, leaving I. K. her nephew and heir. None of these persons had in any way dealt with the property. In 1839, A. B., the tenant for life, died: it was held, that as to the one-eighth which had belonged to his mother, it was not necessary to trace the descent afresh from C. D., to whom the remainder in fee was limited, but that he ought to be considered as standing in his mother's place in respect of that share. (Paterson v. Mills, 15 Jur. 1; 19 Law J., Ch. 310.) By the second section the descent is to be traced from the purchaser whether that purchaser is the person upon whose death the descent takes place, or an ancestor of that person. In every case, therefore, of the death of a person entitled to an estate by descent, the heir of such person is passed over, and the heir of the original purchaser must be sought for. To illustrate the effect of this rule in the case of a descent in coparcenary,-a case of constant occurrence where the custom of gavelkind prevails, and not unfrequent in descents of land held by the ordinary tenure,-suppose A. to have purchased an estate, and to have died intestate, leaving three daughters, B., C., D., who each take a third by descent; B. then dies, leaving two daughters; under the old law, if B. or either of her two sisters had acquired seisin, her two daughters would have taken her third between them; and if neither B. nor her sister had acquired seisin, the descent of the entire estate would, it seems, have been looked upon as remaining open (though this point is by no means clear), and B.'s two daughters would have been entitled to a third as before. But under the present law it has been contended B.'s share alone is the subject of descent, and it descends to the heir of the purchaser, A.; that is, it descends to B.'s daughters, as her representatives in coparcenary with C. and D.; so that B.'s daughters, instead of taking each a sixth, take each an eighteenth only. If one of B.'s daughters were then to die, without doing any act to turn the descent, (and until her majority she could do no such act,) her share would be again subdivided, and her own issue would only be entitled to a one hundred and eighth share of the original estate, if, under these circumstances, the adult daughters of the original purchaser had settled or sold their shares, the representatives of B. would have lost all chance of receiving any equivalent by descent from them. (See 5 Jur. 641, 763; 23 Law Mag. 279; 1 Hayes's Convey. 314, 5th ed.; 1 Jarm. & Byth. Convey. by Sweet, 139, 140.) The subject of descent amongst coparceners is much discussed in 10 Jur. 71-75, 112, 132, 160, 173. Although lands have actually descended in the first instance to the person who was heir of the party last seised at the time of his decease, yet, if a nearer heir is afterwards born, property will shift to the nearest heir who subsequently comes into being. (See Rider v. Wood, 1 Kay & J. 644 ; Cru. Dig. Descent, Ch. III. s. 14.) A. being seised of real estate died, leaving his sisters his presumptive co-heirs, his wife being enceinte of a son, who was born subsequently. The rents from the ancestor's death having remained unreceived by the co-heirs: it was held, that their seisin being gone on the birth of the posthumous child, they were not entitled to so much of the intermediate rents as they had not received before the birth of the heir. (Goodale v. Gawthorne, 2 Sm. & G. 375; 18 Jur. 927; 23 Law J., Ch. 878.) But if during the period of the qualified heirship and seisin in the sisters they had entered and received the rents, as they might have done, they would have been entitled to retain such rents. (Ib.; Doe v. Clarke, 2 H. Bl. 399.) It has been decided by Wood, V. C., that a posthumous heir is entitled to the rents of a descended estate only from the date of his birth, whether the prior rents have been actually received or not, the principle being that the qualified heir is entitled to the rents which accrue before the birth of the posthumous heir, whether actually received before that time or not. (Richards v. Richards, 1 Johns. 754; 6 Jur., N. S. 1145.) DEVISE TO HEIR-LIMITATION TO GRANTOR. 3. That when any land shall have been devised, by any testator who shall die after the thirty-first day of December, one thousand eight hundred and thirty-three, to the heir or to the person who shall be the heir of such testator, such heir shall be considered to have acquired the land as a devisee, and not by descent (d); and when any land shall have been limited, by any assurance executed after the said thirty-first day of December, one thousand eight hundred and thirty-three, to the person or to the heirs of the person who shall thereby have conveyed the same land, such person shall be considered to have acquired the same as a purchaser by virtue of such assurance, and shall not be considered to be entitled thereto as his former estate or part thereof (e). (d) Under this section an heir to whom lands are devised by the ancestor takes them as devisee to all purposes; and therefore the pecuniary legatees are not entitled to have the assets marshalled as against him. (Strickland v. Strickland, 10 Sim. 374.) This section of the act is in direct contravention of two old-established Descent and purrules of law, and renders it necessary to bear in mind the distinction be- chase. tween descent and purchase, the two modes of acquiring property. by descent is vested in a man by the single operation of law, and by purA title chase by his own act or agreement. (Co. Litt. 18 b; 2 Bl. Comm. 200, 201.) The latter is thus defined by Littleton, s. 12: "Purchase is called the possession of lands or tenements that a man hath by his deed or agreement, unto which possession he cometh not by title of descent from any of his ancestors or cousins, but by his own deed." Lord Coke states that a purchaser is a law term, and imports any estate which is not cast upon a man by act of law, (as descent or escheat,) but which he takes or accepts by conveyance for money or other consideration, vel aliâ, quâvis fortunâ, or freely by gift. (Co. Litt. 18 a.) It was a positive rule of law, that a man could not make his right heirs take by purchase, neither by conveyance at common law, nor by a limitation to uses, nor by devise. (Counden and Clerk's case, Hob. 30; Pybus v. Mitford, 1 Ventr. 372; Co. Litt. 22 b.) as legal estates (Watk. Desc. 169), and to copyholds as to freeholds. (Roe The same rule applies to equitable d. Noden v. Griffith, 4 Burr. 1952; Thrustout d. Gower v. Cunningham, 2 Bl. R. 1048; Fearne, 68.) The difference between the acquisition of an estate by descent and by purchase consists principally in two points: 1st. That by purchase the estate acquires a new inheritable quality, and is descendible to the owner's blood in general, as a feud of indefinite antiquity. 2nd. An estate taken by purchase will not make the person who acquires it answerable for the acts of his ancestors, as an estate by descent. (Cruise's Dig. tit. XXX., s. 4.) descent or by Where under a devise the whole fee is not exhausted, the reversion Heir taking by results to the testator as part of his old estate, and the heir takes it by descent and not by purchase. Therefore, under the law of inheritance, as it existed prior to this statute, if the heir had died intestate, without being seised of such resulting interest, the descent must have been traced from the ancestor. (Buchanan v. Harrison, 8 Jur., N. S. 965; 31 Law J., Chan. 74.) The court will not allow any legal interest existing in the heir to prevent the devolution of the equitable interest in the course in which it would pass if the legal interest were separate. Therefore, where the heir was seised of the legal estate as trustee under his ancestor's will, and the ultimate trust in the fee failed for remoteness: it was held, that his legal estate did not so unite with his beneficial interest as to constitute a seisin of the latter. (Ib.) 3 & 4 Will. 4, c. 106, s. 3. Devise to heir void. There may, however, be a possessio fratris of an equitable as well as of a legal estate, and any dealing by the heir with his beneficial interest in the reversion will be sufficient to constitute a seisin; so that on his death intestate a sister of the whole blood will be entitled to the exclusion of a brother of the half-blood. (Ib.) Before the passing of this act it was a rule of law, that where a testator made the same disposition of his estate as the law would have done if he had been silent, the will being unnecessary was void. (See 4 Real Prop. Rep. 74, 75.) Therefore, if a person devised his lands to his heir at law in fee, it was inoperative, and the heir took by descent, as his better title; so where a man, seised of land in fee on the part of his mother, devised it to the heir on the part of his mother in fee, the heir was in by descent. (Reading v. Royston, 1 Salk. 242; S. C., Prec. Ch. 222; 2 Ld. Raym. 829; Com. R. 123; S. P., 2 Leon. 11; Dyer, 124 a; Plowd. 545; 2 Ves. & B. 190.) Where a devise of lands to the heir at law made no alteration in the nature or limitation of the estate, the heir took not by purchase under the will, but by his preferable title by descent, notwithstanding the will imposed some pecuniary charges on the estate. (Clarke v. Smith, Com. 72; Allen v. Heber, 1 Bl. R. 22; Emerson v. Inchbird, 1 Ld. Raym. 728; Plunket v. Penson, 2 Atk. 292.) Where a man, seised in fee on the part of his mother, devised to his executors for sixteen years for payment of his debts, remainder to his heir on the part of his mother, it was held that the heir took by descent. (Hedger v. Rowe, 3 Lev. 127; see Wms. Saund. 8 d.) And an heir at law was held to take by descent under a devise to him after the death of his mother, charged with the payment of sums of money. (Chaplin v. Leroux, 5 Maule & S. 14.) So under a devise to one for life or in tail, with remainder to the right heirs of the testator, immediately upon his death the heir took the reversion by descent, and not under the will. (Hob. 30; 10 Rep. 41; Ventr. 372.) So a devise to the heir at law in fee, with an executory devise over in case he did not attain the age of twenty-one years, was held not to alter the quality of the estate, which he would otherwise have taken as heir; and that he therefore took by descent, and not by purchase. (Doe d. Pratt v. Timins, 1 B. & Ald. 530; see 1 Jarman on Wills, 67, 68; Langley v. Sneyd, 7 Moore, 165; S. C., 3 B. & B. 243; Manbridge v. Plummer, 2 M. & Keen, 93.) A testator, by his will dated in 1809, devised his real estates to trustees, in trust to pay an annuity, and out of the residue of the rents to maintain S. M. (who was his heir) until he attained twenty-one; and on his attaining twenty-one, to convey the estates to him in fee; but if he died under twenty-one, then to J. S. in fee. S. M. having attained twenty-one, it was held that he took the estate by descent. (Wood v. Skelton, 6 Sim. 176.) So a devise after limitations in strict settlement, in default of such issue then to the devisor's next heir at law, was held a limitation of the reversion, and not a contingent remainder to the heir as a purchaser at the time of the failure of such issue. (O'Keefe v. Jones, 13 Ves. 413.) But where a different estate was devised than would have descended to the heir, the disposition by will prevailed, as where the estate was devised to the heir in tail. (Plowd. 545.) So where a man having issue two daughters, who were his heirs, devised to them and their heirs, they took under the will, for by law they would have taken as coparceners, but by the will the estate was given to them as joint tenants. (Cro. Eliz. 431; Com. R. 123; 2 Ld. Raym. 829; Scott v. Scott, 1 Eden, 461, 462, n.; S. C., Ambl. 388; see 6 Sim. 185; Swaine v. Burton, 15 Ves. 371.) (e) By a well-known rule, called the rule in Shelley's case (1 Rep. 93; see Parker v. Clarke, 3 Sm. & G. 161, 165), it was established, that where the ancestor, by any gift or conveyance, takes an estate for life, and in the same conveyance an estate is limited either immediately or mediately to his heirs in fee or in tail, the word heirs is a word of limitation of the estate, and not of purchase. Where the subsequent limitation to the heirs follows immediately the estate for life, it then becomes executed in the ancestor, forming, by its union with the estate for life, one estate of inheritance in possession; but where such limitation is mediate and another estate intervenes, it is then a remainder vested in the ancestor who takes the freehold, not to be executed until after the determination of the preceding mesne estate. (1 Barn. & C. 243.) There is a long series of decisions on this rule. (See Fearne, Cont. Rem., 10th ed., pp. 28-201.) In order to understand this section of the act, it is necessary to observe, that when a person has an interest in lands and grants a portion of that interest, or, in other terms, a less estate than he has in himself, the possession of these lands will, on the determination of the granted interest or estate, return or revert to the grantor. (Com. Dig. Estate, (B. 10, 11, 12, 31); 2 Bl. Com. 175; Co. Litt. 22 b; Plowd. 151; Watk. on Conv. 120.) An estate in reversion is therefore the residue of an estate left in the grantor, to commence in possession after the determination of some particular estate granted by him (Co. Litt. 22), or the returning of the land to the grantor or his heirs after the grant is over. (Ib. 142.) A reversion is never created by deed or writing, but arises from construction of law, whereas a remainder can only be limited by deed or some other assurance. It is a rule that a grantor cannot enable his heir general to take a remainder as purchaser, under a limitation to his heirs, but where the limitation is to the right heirs of the grantor, the use so limited is construed to be the old use, and will be executed in him as the reversion in fee, and not as a remainder. (1 Rep. 129 b, 130; Godolphin v. Abingdon, 2 Atk. 57.) As where a man granted to A. B. with remainder to his own heirs male, such heirs took by descent. (Wills v. Palmer, Bl. R. 687; 5 Burr. 2615.) Before the above act it was a general rule, that where a party seised in fee conveyed lands to the use of himself for life, with remainder to others for particular estates for life or in tail, with an ultimate limitation to the right heirs of the grantor, such limitation was inoperative, as he continued seised of the reversion as part of his former estate, which was consequently descendible in the same line as it would have been if no such conveyance had been made. (Read v. Morpeth, Cro. Eliz. 321; Moore, 284; 2 Rep. 91 b.) So where a man seised in fee levied a fine to the use of himself and his wife for life, remainder to the use of the right heirs of the settlor, the ultimate limitation did not create a remainder, but the interest undisposed of remained in the grantor as part of the reversion, as if that limitation had been omitted. Bingham's case, 2 Rep. 91.) This doctrine is exemplified by the case of The Marquis of Cholmondeley v. Clinton (2 Mer. 173; S. C., 2 B. & Ald. 625; 2 Jac. & Walk. 1; 1 Dow, N. S. 299; 4 Bligh, N. S. 1), where the Earl of Orford, in a conveyance to uses, reciting that he was desirous that certain estates derived from his mother's family should remain in the family and blood of Samuel Rolle, his maternal grandfather, in consideration of natural love and affection to his relations, the heirs of S. Rolle, and to the intent that the said estates might continue in the family and blood of his late mother, on the side of her father, settled them to the use of himself for life, remainder to the heirs of his body, for default of such issue as he should appoint, and for default of appointment to the use of the right heirs of S. Rolle; and at the time of the settlement, the Earl of Orford was himself the right heir of S. Rolle: it was held, that this ultimate limitation did not give an estate by purchase to the heir of S. Rolle, but that the estate, on the death of the settlor without issue, descended on his heirs general. (See Locke v. Southwood, 1 My. & Cr. 411.) 3 & 4 Will. 4, c. 106, s. 3. Reversion. Alteration of line If a man, seised as heir on his mother's side, made a feoffment in fee to the use of himself and his heirs, the use, being a thing in confidence, would of descent. have followed the nature of the lands, and would have descended to the heir on the part of the mother. (Co. Litt. 13 a; Godbold v. Freestone, 3 Lev. 406.) And it was the same if the limitation had been by fine and recovery; it was still the ancient use; and there was no difference whether upon the conveyance of an estate any part of the use resulted by implication of law, or whether it was reserved by express declaration to the party from whom the estate moved. (Abbot v. Burton, Salk. 590. See Stringer v. New, 9 Mod. 363.) But that rule held only where lands came by descent, and not where a person took by purchase. But as by a common recovery suffered of an estate tail, the recoveror acquired an absolute estate in fee simple, derived out of the estate tail; if a tenant in tail by purchase under a marriage settlement, made by his ancestor ex parte maternâ, with the reversion in fee by descent ex parte maternâ, suffered a common recovery to |