CHAPTER V. tween limitation to heirs of the grantor, and heirs of a stranger. vise to the testator's heirs. the heirs of B. were preceded by the limitation to him of a particular estate of freehold of the same quality, legal or equitable, the limitation to his heirs would then operate, by force of a well-known rule of law (r), as a limitation to himself and his heirs; whereas, in the case of a limitation to the heirs of A., the grantor, it is wholly immaterial whether there be any such prior limitation to him or not, since he, in respect of his former ownership, will always take the benefit of the limitation to his heirs, though now, by force of the statute (s. 3), he Effect of a de- will take it as a purchaser. The legal import of a limitation by will to the heirs or right heirs generally, (as distinguished from a devise to the individual heir), of the testator, which does not appear to be altered by the act, is equivalent to a declaration of intestacy as regards the estate to which it applies (s). We may conclude this branch of the subject by suggesting, that, in the case of a living ancestor, the limitation should always be expressly to him and his heirs, whether grantor or stranger, notwithstanding he should take a particular estate of freehold of the same quality under the same assurance; unless the intention requires that the heirs should be entitled as substantive takers ascertained by that designation (t). Suggestion as to limiting di rectly to the an cestor, when he js the object. Descent as between brothers and sisters, to be immediate. The statute next enacts, that the descent between brothers and sisters, which, by a technical rule of the old law, was immediate (u), so that it was unnecessary to name the common parent in deducing the title, shall be traced through such parent; so that, of course, the brother of the half-blood of the last owner, where the father was the purchaser, will be entitled as claiming through the father (s. 5). (r) Post, Illustrations, V. (t) Ante, 297; post, Illustra tions, V. (u) See Collingwood v. Pace, Bridg. by Bann. 410. CHAPTER V. the lineal an preference to males. The statute then proceeds to make a more important alteration, not only by admitting the lineal ancestors, Admission of who stood altogether excluded, to the succession, but by cestry; admitting the direct ancestral stock in preference to the collateral branches. Thus, on failure of lineal descendants, we are to inquire 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 giving the male ancestral line throughout; paternal ancestors and their descendants inheriting before maternal ancestors and their descendants; male paternal ancestors and their descendants before female paternal ancestors and their descendants, and male maternal ancestors and their descendants before female maternal ancestors and their descendants (s. 7); and the much controverted question (x), whether the line of the father's mother, or that of the father's paternal grandmother, should be preferred, is at length decided by the legislature in favour of the latter (s. 8). The narrowness of the old law was more strongly Admission of censured for its exclusion of the half-blood, than for its exclusion of the ascending line, because, in the former case, the hardship was more obvious, and its occurrence !" wife & in sou by his 2. the slde son entered as her to the Father less rare. This ground of complaint is also removed; the passion of the son made his and every relation of the half-blood is permitted to such word to inhe but if heldest son did he ente ceed next after any relation in the same degree of the the of the half blood may entitled ashen to the father whole blood and his issue, where the common ancestor is a male, and next after the common ancestor, where the law. otthilden common ancestor is a female; so that, after exhausting & tumaini trendo the half-blood. Cous a The new (2) 2 Black. Comm. by Christ. 240, n. (17). See Davies v. Lowndes, of the half blood nel nowher 5 Bing. N. C. 161, 7 Scott, 22. entitled on his chitect, other decease as her to the father 5.W. Cliam R. Prop". 89. CHAPTER V. the brothers and sisters of the whole blood on the part of the father and their issue, we are next to inquire for the brother of the half-blood on the part of the father; but the brother of the half-blood on the part of the mother is postponed to the mother (s. 9). Descent may be traced through persons at tainted. Tables of de scent. Periods of commencement of the new law. The old law re mains as to The only remaining imputation on the old law is removed by another enactment, which permits descent to be traced through an attainted person (y), who has died antecedently to the descent (s. 10). The effect of those provisions of the new law which extend the range, and vary the order of succession, will be best understood, and, indeed, can only be understood, by an attentive comparison of the present with the former lines of descent as indicated in the tables (≈). Attention to dates is material, for an heir, to take by descent from a person who died before the 1st of January, 1834, and an heir to take by purchase under a deed executed before the 1st of January, 1834, or the will of a testator who died before that day, (whether, as to the heir taking by purchase, the ancestor was living on or after the same day, or not), must be traced according to the old law (s. 12). The law of inheritance, as regards lineal descent to the aliens, &c., and issue of the purchaser, or as regards aliens (a), denizens, or bastards (b), has undergone no alteration, and partible and other peculiar descents have been retained. as to peculiar descents. The new law extends to in But the provisions of the act extend generally to every heritable pro- species of property real and personal, of whatever tenure perty generally. (y) See 54 Geo. 3, c. 145. (b) See Doe v. Blackburn, 1 Mood. & R. 547, as to the operation of the act, where the person last entitled inherited from an illegitimate father, and died without issue. or quality, if descendible or transmissible to heirs, in CHAPTER V. of the act. The policy of making any material change in the set- General merits tled law of inheritance, has already been questioned. Nor can the alterations actually made, be entirely approved. This act has elicited the following remarks :— "The act does not provide generally for the want of possession in an heir, nor does it appear to have been necessary to do so, because, as the descent is to be traced from the purchaser, it is indifferent whether the person last entitled was in actual seisin or not, for his seisin, if it existed, would not affect the descent, which is not to be traced from him. This direction, that in every case the descent is to be traced from the purchaser, should never be lost sight of. It was intended to abolish the rule requiring seisin altogether, and to enact that estates should pass to the heirs of the person who last died entitled, although he might not have had seisin (e). But at that time it was not in contemplation to trace the descent from the purchaser, the adoption of which plan rendered the proposed rule unnecessary. It would, however, have been more simple, and would have broken in less upon our CHAPTER V. CREDITORS. 3 & 4 Will. 4, c. 104. (Royal Assent, 29th Aug. 1833). Real estates subjected to the simple contract debts of the de ceased owner. habits of tracing a pedigree, if the original plan had been adhered to, and the descent had still been traced from the last owner, and there seems no sufficient reason for preferring the whole blood to the half-blood amongst collaterals in the ascending line: the preference was right enough as between brothers and sisters of the last owner, where he bought the estate and was a purchaser in that sense, but in every other case, perhaps, it would have been simpler and better to have abolished the distinctions between the whole and the half blood, and more particularly as the act itself enlarges a man's capacity to take in the character of a purchaser. For if a man takes through his father by devise, which is now made to invest him with the character of a purchaser, the estate, on his death intestate and without issue, will go to his sisters of the whole blood in exclusion of the brothers of the half-blood, and so in the ascending scale to his aunt of the whole blood in preference to his uncle of the half-blood; whereas if the estate had descended to him from his father, who was the purchaser (which, but for this statute, it would have done, although devised to him), the brother of the half-blood would, under the act, have been preferred to the sisters of the whole blood, whilst the father's sisters of the whole blood would have taken before his brother of the half-blood (f).” THE ACT TO RENDER FREEHOLD AND COPYHOLD ESTATES ASSETS FOR THE PAYMENT OF SIMPLE AND (g) CONTRACT DEBTS, constitutes the freehold, customary-hold, and copyhold estates, of every deceased proprietor, not charged by his will with the payment of his debts, assets, to be administered in equity, for the payment of his debts, as well simple contract as specialty. But preference is (f) 2 Sugd. V. & P. 10th ed. 236. (g) Sic-Dele "AND.” |