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c. 106.

3 & 4 W. 4, of inheritance, or estate for any life or lives, or other estate

transmissible to heirs, and to any possibility, right, or title of entry or action, and any other interest capable of being inherited, and whether the same estates, possibilities,

curred where the course of descent of an inherited estate, the title to which was equitable, has been changed by the accident of the mere legal estate (that is, what may be called the fictitious estate of the trustee) descending from the other line of ancestors, and absorbing the equitable estate. An additional inconvenience arises from the occasional nicety of the distinction between strict descent and purchase, according to the technical sense of the latter word, a circumstance which sometimes makes the channel of descent a matter of question. It has been proposed to remedy these inconveniences, by considering every person who dies owner of an estate of fee simple, as the stock from whom alone the inheritance is to be traced as if he had been first purchaser. It is apprehended, however, that such a rule would occasionally produce very objectionable consequences. Thus, if an heiress died under age, leaving a child who should also die under age, and without issue, the estate would necessarily be carried from her family to the family of her husband. This proposal, therefore, is not recommended as a general rule.

It has, however, occurred to us, that a person devising or settling an estate in fee simple, might be allowed to direct that the donee or devisee should take the estate as if it had come to him from a particular ancestor, that an estate for instance might be given to a man and his heirs on the part of his mother. The attempt to create limitations of this nature as been frequently made; the law now forbids such limitations in grants of estates in fee simple, although it al

lows them on the creation of estates tail. We incline to the opinion that allowing them in the former case would be a reasonable enlargement of the power of absolute proprietors, and would diminish the inconveniencies produced by the technical distinction between inheritance and purchase. This is the case in which we think the distinction between the whole blood and half blood of the purchaser may be abolished.

We think that especial regard should be paid to the blood of the first purchaser in a case which will be liable to occur in consequence of the admission of the half blood to inherit. If an estate should descend from a purchaser to his half brother, it might happen that the heirs of the second brother would be strangers in blood to the first, and the heirs of the first brother (at the death of the second) strangers in blood to the second; this would be the case if the common parent were illegitimate, and the second brother should die without issue, and there were no other brother or sister, or the issue of such; and it might be the case under other circumstances. We propose to provide for the case by directing the inheritance to pass to the heir of the first purchaser, when the heir of the last proprietor shall not be also heir of the first purchaser. We further think that the last proprietor may be treated as if he had been first purchaser, in the rare case in which the line from which the estate descended to the last proprietor has failed, for the purpose of admitting to the inheritance his other relations, rather than let it escheat. It may seem superfluous to

rights, titles, and interests, or any of them, shall be in pos- 3 & 4 W. 4, session, reversion, remainder, or contingency; and the words, if the purchaser,” shall mean the person who last “The puracquired the land otherwise than by descent, or than by any escheat, partition, or inclosure, by the effect of which the land shall have become part of or descendible in the same manner as other land acquired by descent; and the word, descent” shall mean the title to inherit land by · Descent." reason of consanguinity, as well where the heir shall be an

c. 106.

chaser."

legislate for cases like these, which may appear very unlikely to occur in practice; they are found, however, to occur in consequence of the quisition of estates by persons of illegitimate birth who have in law no relations but their own descendants, or by the descendants of such, and in consequence of the loss of evidence of pedigree in families of mean condition or origin.

5. SEISIN OF ANCESTOR.

A rule of law, founded on feudal principles, and expressed in the legal maxim, seisina facit stipitem, directs that inheritance is to be traced from the person who last died actually seised, that is, who was in possession, by himself, or a tenant for years, or had received some rent (in the case of a freehold lease), or had exercised some act of ownership; thus, if the right to an estate descended to a person who himself died without having taken possession, or having had it by construction of law, the inheritance is to be traced, not from such person, but from the person who died possessed. This law produces many anomalous consequences; it makes it sometimes a matter of chance whether a whole sister or a half brother of the person who last died entitled, or whether a father, or an uncle, or more remote relation of the person who last actually enjoyed the property, shall inherit; and it may happen that one part of a

family estate, having been in the oc-
cupation of a tenant, shall go one way,
another part, as to which the posses-
sion may have remained vacant ring
the time of the person last entitled,
shall go another way.

Owing to the
circumstances that some species of
property, as, reversions and advowsons,
do not admit of taking actual posses-
sion, though an act of ownership has
the effect of taking possession, and
that, on the other hand, in most cases
which admit of possession, and as to
equitable estates, the law creates con-
structive possession, these anomalies
are sometimes inevitable; moreover,
occasionally nice and doubtful ques-
tions arise as to the fact of actual or
constructive possession. The rule it-
self appears not to be grounded on
any solid principle; and, though the
inconveniencies arising from it will be
lessened by admitting the half blood
and the lineal ancestor to inherit, it is
proposed to abolish it, and to enact
that estates shall pass to the heirs of
the person who last died entitled, al-
though he may not have had seisin.

It appears expedient to extend all the above proposed rules to the inheritance of lands held by tenures or customs different from the general tenure of free and common socage, as copyhold lands and customary freeholds, and lands held in ancient demesne, and borough english and gavelkind lands, and also to descendible freeholds.--1st Rep. pp. 9—18.

c. 106.

ants."

last entitled.

Assur

3 & 4 W. 4, ancestor or collateral relation, as where he shall be a child

or other issue; and the expression, “descendants” of any " Descend- ancestor shall extend to all persons who must trace their

descent through such ancestor; and the expression, "the “ Person

person last entitled to land,” shall extend to the last person who had a right thereto, whether he did or did not obtain the possession or the receipt of the rents and profits there

of; and the word, “assurance,” shall mean any deed or ance."

instrument (other than a will) by which any land shall be Number conveyed or transferred at law or in equity; and every and gender. word importing the singular number only shall extend and

be applied to several persons or things as well as one person or thing; and every word importing the masculine gender only shall extend and be applied to a female as well

as a male. Descent

II. And be it further enacted, That, in every case, shall always descent shall be traced from the purchaser; and to the be traced from the intent that the pedigree may never be carried further back purchaser,

than the circumstances of the case and the nature of the but the last owner shall title shall require, the person last entitled to the land shall, ed to be the for the purposes of this act, be considered to have been the purchaser, purchaser thereof, unless it shall be proved that he incontrary be herited the same; in which case, the person from whom he proved.

inherited the same shall be considered to have been the purchaser, unless it shall be proved that he inherited the same; and, in like manner, the last person from whom the land shall be proved to have been inherited shall, in every case, be considered to have been the purchaser, unless it shall be proved that he inherited the same.

III. And be it further enacted, That, when any land tled under shall have been devised by any testator who shall die after take as de- the thirty-first day of December, one thousand eight hunvisee, and a

dred and thirty-three, to the heir or to the person who the grantor shall be the heir of such testator, such heir shall be conshall create

sidered to have acquired the land as a devisee, and not by

descent; and, when any land shall have been limited by any by pur

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 con

Heir enti

limitation to

or his heirs

an estate

chase.

c. 106.

the ancestor

the pur

sidered to have acquired the same as a purchaser by virtue 3 & 4 W. 4, of such assurance, and shall not be considered to be entitled thereto as his former estate, or part thereof.

IV. And be it further enacted, That, when any person Where. shall have acquired any land by purchase under a limita

heirs take

by purchase tion to the heirs, or to the heirs of the body of any of his under limiancestors, contained in an assurance executed after the the heirs of said thirty-first day of December, one thousand eight hun-their ancesdred and thirty-three, or under a limitation to the heirs or shall desto the heirs of the body of any of his ancestors, or under cend as if any limitation having the same effect contained in a will of had been any testator who shall depart this life after the said thirty-chaser first day of December, one thousand eight hundred and thirty-three, then and in any of such cases such land shall descend, and the descent thereof shall be traced as if the ancestor named in such limitation had been the purchaser of such land.

V. And be it further enacted, That no brother or sister Descent of shall be considered to inherit immediately from his or her

brothers,

&c., how brother or sister, but every descent from a brother or sister traced. shall be traced through the parent.

VI. And be it further enacted, That every lineal ancestor Lineal anshall be capable of being heir to any of his issue; and in every case where there shall be no issue of the purchaser, preference his nearest lineal ancestor shall be his heir in preference to

persons any person who would have been entitled to inherit, either claiming

through by tracing his descent through such lineal ancestor, or in him. consequence of there being no descendant of such lineal ancestor, so that the father shall be preferred to a brother or sister, and a more remote lineal ancestor to any of his issue, other than a nearer lineal ancestor or his issue.

VII. And be it further enacted and declared, That none The male of the maternal ancestors of the person from whom the line to be

preferred. descent is to be traced, nor any of their descendants, shall be capable of inheriting until all his paternal ancestors and their descendants shall have failed; and also that no female paternal ancestor of such person, nor any of her descendants, shall be capable of inheriting until all his male paternal ancestors and their descendants shall have failed;

cestor may be heir in

to collateral

H н

c. 106.

3 & 4 W.4, and that no female maternal ancestor of such person, nor

any of her descendants, shall be capable of inheriting until all his male maternal ancestors and their descendants shall

have failed. The mother VIII. And be it further enacted and declared, That, of more re

where there shall be a failure of male paternal ancestors of mote male ancestor to the person from whom the descent is to be traced, and their to the mo- descendants, the mother of his more remote male paternal ther of the ancestor, or her descendants, shall be the heir or heirs of male ances- such person, in preference to the mother of a less remote tor.

male paternal ancestor, or her descendants; and where there shall be à failure of male maternal ancestors of such person, and their descendants, the mother of his more remote male maternal ancestor, and her descendants, shall be the heir or heirs of such person, in preference to the mother of a less remote male maternal ancestor, and her

descendants. Half blood,

IX. And be it further enacted, That any person related if on the

to the person from whom the descent is to be traced by the part of a male ances- half blood, shall be capable of being his heir; and the place tor, to in

in which any such relation by the half blood shall stand in herit after the whole the order of inheritance, so as to be entitled to inherit, blood of the same de

shall be next after any relation in the same degree of the gree; if on whole blood, and his issue, where the common ancestor the part of a female shall be a male, and next after the common ancestor ancestor, after her.

where such common ancestor shall be a female; so that the brother of the half blood on the part of the father shall inherit next after the sisters of the whole blood on the part of the father and their issue, and the brother of the half blood on the part of the mother shall inherit next after

the mother. After the X. And be it further enacted, That, when the person death of a from whom the descent of any land is to be traced shall tainted, his have had any relation who, having been attainted, shall may inherit. have died before such descent shall have taken place, then

such attainder shall not prevent any person from inheriting such land who would have been capable of inheriting the same, by tracing his descent through such relation, if he had not been attainted, unless such land shall have escheated in consequence of such attainder before the first

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