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The Law of Real Property.
THE LAST SESSION OF PARLIAMENT;
The Further Amendment of the Law.
NOTES AND AN INDEX,
S. ATKINSON, ESQ.
BARRISTER AT LAW,
Law Booksellers & Puhlishers:
WITH respect to the notes in the following pages, it may be proper to observe, that they are drawn chiefly from the Reports of the Real Property Commissioners, and that when reference is made to the 1st or 2nd Report, &c., the reference is to the Reports of the Real Property Commissioners, unless it be otherwise expressed.
The object of the notes is to explain concisely the view which the Commissioners had taken of the previous state of the law, and the amendments which they had thought expedient. These amendments have been generally adopted by the legislature.
It was at one time intended to have attempted an explanation of, and to have given some conjectures as to, the interpretation which might be put upon, some of the more difficult passages of the important enactments contained in the following pages; but it soon became evident that this work would be so extensive in its nature, and so uncertain as to any beneficial result, that little hesitation was felt in abandoning it*.
* As a specimen of the species of illustration here adverted to, the editor feels that no apology is necessary for submitting to the reader the following observations on the 9th sect. of the 3 & 4 W. 4, c. 106-one of the most important provisions in the act foș the amendment of the law of inheritance, - for which he is indebted to his young and very able and intelligent friend, Mr. Geo. Sweet, of Lincoln's Inn.
“ The enactment contained in this section combines, in a considerable degree, the fault of obscurity with that of unnecessary verbiage. The legis
ature, evidently desirous of making itself very clear, has contrived to express itself in language nearly unintelligible. This obscurity arises chiefly from attempting to make a distinction between the cases where the common ancestor is a “male," and where a “ female," as if some great line of demarcation was to be drawn between these two cases; whereas no such intention could have been entertained, nor, in point of fact, does any such distinction exist.
“The great principle established by this act is that which renders the pa
It may be regretted, perhaps, in some cases, that the enactments should have been so elaborately minute, how
rent capable of inheriting from his child, or which in other words declares that the nearest lineal ancestor shall be capable of inheriting from his issue.' This principle, however, if left to its natural consequences, would, in certain cases, have let in the half blood of the child from whom the estate descended, before his brothers and sisters of the whole blood; as where, for instance, the child from whom the estate descended was by a second marriage, there being a son by a former marriage, this son would have taken as heir to his father before the own brother or sister of the child from whom the estate descended, had it not been provided that the issue related by the half blood to the child from whom the estate descended should take in the order of descent after the brothers and sisters of the whole blood, and their issue. This the legislature has expressed by saying that the place in which any such relation by the half blood shall stand in the order of inheritance so as to be entitled to inherit, shall be next after any relation in the same degree of the whole blood and his issue, when the common ancestor shall be a male.' If the act had stopped at the word “issue, it would have expressed all the legislature meant to say, and would have been free from obscurity. But it goes on adding the words marked in italics, and then proceeds thus: “and next after the common ancestor, where such common ancestor shall be a female. Now this contrasting of the case where the common ancestor is a male, with that where the common ancestor is a female, is what gives rise to all the difficulty; it being by no means obvious why the order of descent should be different, when the descent is traced hrough a female, from what it is when
traced through a male. It will be found, however, on looking at the Table of Descents, No. 1, that all this apparent contrast amounts to nothing at all, and that the legislative provision here introduced with so much care, is, in fact, a mere truism, and follows, as a natural consequence, from the principle that the male line of ancestors shall be exhausted before the female line be resorted to, combined with the new principle introduced by the act, that
the parent shall inherit to the child.' Thus, suppose John Stiles to have died seised of an estate, intestate, and without issue, his father Geoffrey (No. 4), would inherit from him. Assuming Geoffrey to have died in like manner, his heir at law would take; now his heir is No. 8, a son by a former marriage to that in which John Stiles, from whom the estate descended, was born; and, consequently, without some specific provision, No. 8, the halfbrother of John Stiles, would have taken before his own brothers Francis(No.5),Oliver, &c. It was necessary, therefore, to provide, that the brothers of the half blood should inherit after the brothers and sisters of the whole blood: but it was unnecessary to say that this should take place when the common ancestor was a male, and not when a female: because the contingency provided for could never arise in the second instance.
“This will be obvious, by remarking, that the descent is not to be traced through a female till the whole line of male ancestors has been exhausted. Let it be supposed, for instance, that the descent has to be traced through Mary Baker (No. 37); her heir must of necessity be of the half blood to the Styles's,
,--no person having any of the blood of the Styles's can be heir to her, they being all exhausted before the estate comes to her in a course
ever excellent the matter or important the object; and in others, perhaps, that legislation should have intermeddled at all, as in the Law of Inheritance, which was so universally understood, and produced little or no practical inconvenience. But, on the whole, with every liberal and rightthinking mind, it must be a subject of great congratulation to see the advance which the acts have made towards a better state of the Law of Real Property, and the prospect which the spirit which has produced them affords, that the blemishes and imperfections which still disfigure and obscure this important branch of our domestic jurisprudence, will speedily be swept away, and mingled with the cobwebs and lumber of bygone ages.
It was anticipated by some persons, that new forms of conveyance would have been introduced by the “Act for the Abolition of Fines and Recoveries." That, however, is not so; the act merely authorizes a tenant in tail to convey as a tenant in fee simple. Such a conveyance, if it be inrolled according to the provisions of the act (sect. 41), will, in the case of an absolute disposition by sale, pass the fee simple (sect. 15); and where the object is merely to grant a mortgage, or lease, or any other special and limited purpose,-as, for instance, where the tenant in tail simply wishes to bar the entail,—its operation will go to the extent necessary to give effect to that special object or limited purpose (sect. 21).
9, Old Square, Lincoln's Inn,
11th Oct. 1833.
of descent, by virtue of the rule giving the priority to the whole series of male ancestors before the female ancestors are looked to ;—there never could, therefore, be any conflict between the
whole and half blood, in tracing the descent through a female; consequently, it was unnecessary to make any express enactment for such a contingency."