curtesy. of the wife, and this notwithstanding a direction to pay the rents to her Tenant by the separate use (Morgan v. Morgan, 5 Madd. 408; Hearle v. Greenbank, 3 Atk. 715; Pitt v. Jackson, 2 Br. C. C. 51; Follett v. Tyrer, 14 Sim. 125). So where there was a devise of freeholds to trustees upon trust to stand possessed thereof unto and to the use of a married woman, her heirs and assigns for ever, for her separate use (Appleton v. Rowley, 8 Eq. 139; contra, Moore v. Webster, 3 Eq. 267). But a disposition by a wife of her separate property, either by deed or will prevents an estate by the curtesy (Cooper v. Macdonald, 7 Ch. Div. 288). Where an equitable estate in fee descended on a married woman, the court, by virtue of her equity to a settlement, settled the estate on her during her life, but held that the possible estate, by the curtesy of her husband, could not be interfered with (Smith v. Matthews, 3 D. F. & J. 139). Adverse possession, commenced before the equitable estate of the wife begins, by a party claiming by a title paramount to the trust, who retains possession until after the death of the wife, will prevent any title by the curtesy (Parker v. Carter, 4 Hare, 400). The husband may be excluded in equity by an express declaration, that, upon the death of the wife, the inheritance shall descend to the heir of the wife, and that the husband shall not be tenant by the curtesy (Bennett v. Davis, 2 P. Wms. 316); although a partial exclusion from the enjoyment of the property will not have that effect (5 Madd. 412). By the Fines and Recoveries Act, 1833, s. 22 (ante, p. 283), an estate by the curtesy qualifies a person to be protector of a settlement. As to the statutory powers of leasing and sale, given to a tenant by the curtesy, see S. E. Act, 1877, sect. 46; S. L. Act, 1882, sect. 58, sub-s. 1 (viii.), post. Powers of tenant by the curtesy. c. 106, s. 1. Meaning of words in the act. "Land." THE INHERITANCE ACT, 1833. 3 & 4 WILL. IV. c. 106. An Act for the Amendment of the Law of Inheritance. § 1. Interpretation...374. $2. Root of Descent...377. [29th August, 1833.] $ 3. Effect of Devise to Heir, or Limitation to Grantor...379. $4. Effect of Limitation to Heirs as Purchasers...382. § 5. Brothers and Sisters...382. § 6. Lineal Ancestors...382. $$ 7 and 8. Male Line Preferred...383. $9. Half Blood...384. § 10. Attainted Blood...385. § 11. Commencement of Act...386. 3 & 4 Will. 4, BE it enacted, that the words and expressions hereinafter mentioned, which in their ordinary signification have a more confined or a different meaning, shall in this act, except where the nature of the provision or the context of the act shall exclude such construction, be interpreted as follows (that is to say), the word "land" shall extend to manors, advowsons, messuages, and all other hereditaments, whether corporeal or incorporeal, and whether freehold or copyhold, or of any other tenure, and whether descendible according to the common law, or according to the custom of gavelkind or borough-English, or any other custom, and to money to be laid out in the purchase of land, and to chattels and other personal property transmissible to heirs, and also to any share of the same hereditaments and properties or any of them, and to any estate 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, rights, titles, and interests, or any of them, shall be in possession, reversion, remainder, or contingency; and the words "the purchaser" shall mean the person who last acquired 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 "The purchaser." dants." other land acquired by descent; and the word "descent" shall 3 & 4 Will. 4, The leading objects of this act are: gender. The objects 1st. To alter the root of descent by tracing the descent from the person of the act. 2nd. To declare that the heir of a testator taking under his will shall be 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 (sect. 5). 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, and 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 (sects. 6, 7, 8). 5th. To make the half-blood capable of inheriting next after any relation in the same degree of the whole blood and his issue (sect. 9). 6th. To allow descents to be traced through persons who have been attainted (sect. 10). The report of the Commissioners of Real Property will explain the Report of general object of the alterations made by this act; and for further infor- R. P. Commation on the important subject of the law of descents, the reader is missioners. referred to 2 Bl. Comm. 200, 240; Bl. on the Law of Descents; Watkins and II. Chitty on Descents; Bac. Abr. and Com. Dig. Descents; Hale's Hist. C. L. 206-248. 46 The rules which govern the transmission of freehold estates of in- State of the heritance at common law, on the decease of an absolute proprietor, in the law of absence of express disposition by him, are (for the most part) well under- descents stood, and appear to be well suited to the habits and feelings of the before 3 & 4 people. W. 4, c. 106. "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, 3 & 4 Will. 4, such descendants taking the share which would have gone to the parent if living. c. 106, s. 1. Exclusion of line. 66 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 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 the ascending 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 Inheritance Act, 1833, post, the lineal ancestors are admitted.] Preference of the paternal line. Question with respect to female stocks on the 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. "According to some authorities, when a female stock on the paternal side 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. Acpaternal side. cording 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, "On failure of relations on the paternal side of the first purchaser, the 3 & 4 Will. 4, maternal line is let in, that is, the mother of the first purchaser is con- c. 106, s. 1. sidered as the stock, and her ancestors, first on the paternal and then on Heirs must the maternal side, as before. It is to be observed, that on failure of heirs be of the of the last proprietor on the side af the first purchaser, the estate does not blool of the pass to the heirs of the last proprietor on the other side, but escheats as first purbefore, so that an estate descended to the deceased proprietor from his chaser. mother can never pass to his collateral relations on the father's side. "It has been laid down, in the above statement, that collateral rela- Exclusion of tions, in order to be let in to inherit, must be of the whole blood of the the halfblood. 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.' Equitable estates are subject to the same rules of descent as legal (2 P. Equitable Wms. 668; 1 Rep. 121 b; 4 Rep. 22; 2 Eden, 258; 1 Sand. Uses, 217, estates. 3rd ed.; Trash v. Wood, 4 M. & C. 324). traced from considered 2. In every case descent shall be traced from the purchaser; Descent shall and to the intent that the pedigree may never be carried always be further back than the circumstances of the case and the nature the purchaser, of the title shall require, the person last entitled to the land but the last shall, for the purpose of this act, be considered to have been owner shall be the purchaser thereof, unless it shall be proved that he inherited to be the the same, in which case the person from whom he inherited the purchaser, same shall be considered to have been the purchaser, unless it shall be proved that he inherited the same; and in like manner proved. 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. unless the contrary be Where there shall be a total failure of heirs of the purchaser, 22 & 23 Vict. or where any land shall be descendible as if an ancestor had been c. 35, s. 19. the purchaser thereof, and there shall be a total failure of the heirs of such ancestor, then and in every such case the land shall descend, and the descent shall thenceforth be traced, from the person last entitled to the land, as if he had been the purchaser thereof (Law of Property Amendment Act, 1859, s. 19). The last preceding section shall be read as part of the 3 & 4 Will. 4, c. 106 (Ib. s. 20). The law before this act was as follows:-On the death of A. entitled to Law before a fee simple interest in land which he had acquired by purchase (that is, act. by conveyance or devise-see for an example of a purchaser acquiring by devise, Doe v. Thomas, 3 M. & Gr. 815) descent was traced from him whether he had obtained actual seisin or not. But where A. had himself acquired the land by descent, the rule was that in the case of corporeal hereditaments in possession, descent was traced from him if he had obtained actual seisin: otherwise it was traced from the next preceding ancestor who had obtained seisin: if none, from the last purchaser. In the case of corporeal hereditaments held for an estate in remainder or reversion, and also in the case of incorporeal hereditaments, acts of ownership were treated as equivalent to actual seisin so as to constitute A. the |