The lineal ancestors are the common stock, from whom the next ancestor must spring. 1 Sid. 196. 1 Ventr. 423. 1 Lev. 60. must be his next collateral kinsman, either personally or jure representationis. On failure of issue of the person last seised, the inheritance descends to the other subsisting issue of his next immediate ancestor. Thus, if John Stiles dies without issue, his estate descends to Francis his brother, or his representatives, he being lineally descended from Geoffrey Stiles, John's next immediate ancestor, or father (m). On failure of brethren or sisters and their issue, it descends to the uncle of John Stiles, the lineal descendant of his grandfather George, and so on in infinitum(m). The lineal ancestors, though incapable themselves of succeeding to the estate (m), are yet the common stocks from which the successor must spring; yet with us it is not necessary to name them in making out the pedigree or descent; for the descent between two brothers is held to be an immediate descent(n), and, therefore, title may be made by one brother to or through another, without mentioning their common father(n). 12 Mod. 619. If Geoffrey Stiles has two sons, John and Francis, Francis may claim as heir to John, without naming their father Geoffrey (n); and so the cousin of Francis may claim as cousin and heir to Matthew the son of John, without naming the grandfather, viz. as son of Francis, who was the brother of John, who was the father of Matthew (n). But though the common ancestors are not named in deducing the pedigree, yet the law still respects them as the fountains of inheritable blood; and, therefore, in order to ascertain the collateral heir of John Stiles, it is necessary to recur to his ancestors in the first degree; and if they have left any other issue besides John, that issue will be his heir. On default of such, we must ascend one step higher to the ancestors in the second degree, and then to those in the third, and fourth, and so upwards in infinitum, till some couple of ancestors be found who have other issue descending from them, besides the deceased, in a parallel or collateral line. From these ancestors, the heir of John Stiles must derive his descent; and in such derivation, (m) But now by 3 & 4 Wm. 4, c. 106, in descents, since December, 1833, every lineal ancestor is capable of being heir to any of his issue, and in every case where there shall be no issue of the purchaser, his nearest lineal ancestor shall be his heir, in preference to any person who would have been entitled to inherit, either by tracing his descent through such lineal ancestor, or in 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. (n) But now by section 5 of 3 & 4 Wm. 4, c. 106, in descents since December, 1833, no brother or sister shall be considered to inherit immediately from his or her brother or sister, but every descent from a brother or sister shall be traced through the parent. the same rules must be observed with regard to sex, primogeniture, and representation, that have before been laid down with regard to lineal descents from the person of the last proprietor. The heir must be the nearest kinsman of the whole blood; that is, he that is derived, not only from the same ancestor, but from the same couple of ancestors (o). Thus, the blood of John Stiles being composed of those of Geoffrey Stiles his father, and Lucy Baker his mother; therefore, his brother Francis, being descended from both the same parents, has entirely the same blood with John Stiles; or he is his brother of the whole blood. But if, after the death of Geoffrey, Lucy Baker, the mother, marries a second husband, Lewis Gay, and has issue by him, the blood of this issue, having only half the same ingredients with that of John Stiles, is only the brother of the half-blood, and for that reason they shall never inherit to each other (o). So if the father has two sons, A. and B., by different wives, these brethren are not brothers of the whole blood, and therefore shall never inherit to each other, but the estate shall rather escheat to the lord (o). If the father dies, and his lands descend to his eldest son A., who enters thereon, and dies seised without issue, still B. shall not be heir to this estate; because he is only of the half blood o A. the person last seised (p): but it shall descend to a sister, if any, of the whole blood to A.; for in such cases the maxim is, that possessio fratris facit sororem esse hæredem (q). Yet, had A. died without entry, then B. might have inherited: not as heir to A. his half brother, but as heir to their common father, who was the person last actually seised. The crown may however descend to the half blood of the preceding sovereign, so that it be the blood of the first monarch or purchaser, as it did from Edw. 6, to Mary, and from her to Elizabeth, who were of the half blood to each other; and, in estates tail, where the pedigree from the first donee must be strictly proved; half blood is no impediment to the descent. The seventh rule is, that in collateral inheritances, the male In collateral (>) But see now ante, note (1) to this chapter. In descents since December, 1833, the hal blood is entitled to inherit in the order mentioned therein. (p) Now altered, in descents since December, 1833; see note (1) to this chapter; but the text is still law in descents previous to that time. (q) The intention of the act was to put an end to the necessity of an actual seisin in the purchaser, and the doctrine of a possessio fratris is at an end; for the act provides, as we have seen, for the half blood, without allowing it to be excluded by such a possession."-Sugden's V. & P. 10th ed. v. 2, p. 236. inheritances, the male stocks to be preferred, unless the lands descend from a female. Litt. s. 4. Origin and intent of this rule. But where lands descend from the mother's side, no relation by the father's side, as such, can be ad.. mitted. stocks shall be preferred to the female, that is, kindred derived from the blood of the male ancestors, however remote, shall be admitted before those from the blood of the female, however near, unless where the lands have in fact descended from a female (r). Thus, the relations on the father's side are admitted in infinitum, before those on the mother's side are admitted at all; and the relations of the father's father, before those of the father's mother, and so on. This rule appears to have been es tablished, in order to effectuate the rule of collateral inheritance, that every heir must be of the blood of the first purchaser; for, when such purchaser was not to be discovered after a long course of descents, it was judged more likely that the lands should have descended to the last tenant from his male, thar from his female ancestors; and therefore, the inheritance was traced back through the male line, and given to the next reltions on the father's side, the father's father, and so upwards. Put whenever the lands have notoriously descended to a man from his mother's side, this rule is totally reversed; and no relation of his, by his father's side, as such, can ever be admitted to them; because he cannot possibly be of the blood of the first purchaser. And so, e converso, if the lands descended from the father's side, no relation of the mother, as such, shall ever irherit. And if they descended to John Stiles from his father's mother, here not only the blood of his mother, but also of his father's (r) By the new law, in descents since December, 1833, in lineal ascending, ard in collateral inheritances, the male stocks are preferred to the female; but the maleancestors themselves, as well as kindred, derived from their blood however remote, are admitted before female ancestors, as well as before kindred derived from the blood of female ancestors, however near, unless where the lands have in fact descended from a female; therefore, the act declares (s. 7) that none of the maternal ancestors of the person from whom the descent is to be traced, nor any of their descendants, shall be capable of inheriting until all hispaternal ancestors and their descendants shall have failed; and also that no female patemal 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; 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. And it must be borne in mind that (by s.8) where there shall be a failure of male paternal ancestors of the person from whom the descent is to be traced, and their descendants, the mother of his more remote male paternal ancestor, or her descendants, shall be the heir or heir of such person, in preference to the mother of a less remote male paternal ancestor, or aer descendants; and where there shall be a 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. This last provision, Sir Edward Sugden observes (V. & P. 10th ed. v. 2, p. 235), “adopts Blackstone's well-known view, which it is conceived is the true rule." father is excluded. And if they descended from the mother or CHAPTER XV. OF TITLE BY PURCHASE AND FIRST BY ESCHEAT. purchase. PURCHASE, perquisitio, taken in its largest and most extensive Definition of sense, is the possession of lands and tenements, which a man has by his own act or agreement, and not by descent from any of his ancestors or kindred. In this sense it is contradis- Litt. s. 12. tinguished from acquisition by right of blood, and includes every other method of coming to an estate but merely that by inheritance (a): whereby the title is vested by the single opera- Co. Litt. 18. tion of law. If a man seised in fee devises his whole estate to his heir-atlaw, so that the heir takes neither a greater nor a less estate by the devise than he would have done without it, he shall be adjudged to take by descent (b), even though it be charged with incumbrances; this being for the benefit of creditors (c) and What is a taking by purwhat by de chase, and scent. 1 Roll. Abr. 626. (a) By 3 & 4 Wm. 4, c. 106, s. 1, in descents since December, 1833, the words, "the purchaser," shall mean the person who last acquired the land otherwise than by descent, escheat, partition, or enclosure, and see note (a) in the last chapter, p. 174. (b) By 3 & 4 Wm. 4, c. 106, s. 3, when any land shall have been devised by any testator, who shall have died after 31st December, 1833, to the heir of such testator, such heir shall be considered to have acquired the land as devisee, and not by descent; and when any land shall have been limited by any assurance executed after 31st December 1833, 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) By 3 & 4 Wm. 4, c. 104, when any person shall die seised of or entitled to any real estate, whether freehold or copyhold, which he shall not by his will have devised, subject to the payment of his debts, the same shall be assets for the payment of the Salk. 241. Ld. Raym. 728. 1 Roll. Abr. 627. 1 Rep. 104. 2 Lev. 60. Raym. 334. 1 Rep. 98. Co. Litt. 22. others who have demands on the estate of the ancestor. If a remainder be limited to the heirs of A., here A. himself takes nothing; but if he dies during the continuance of the particular estate, his heirs shall take as purchasers. But if an estate be made to A. for life, remainder to his right heirs in fee, his heirs shall take by descent; for it is an ancient rule of law, that whenever the ancestor takes an estate for life, the heir cannot, by the same conveyance, take an estate in fee by purchase, but only by descent. And if A. dies before entry, still his heir shall take by descent and not by purchase; for where the heir takes anything that might have vested in the ancestor, he takes by descent. The ancestor, during his life, bears in himself all his heirs, and therefore, when once he is or might have been seised of the lands, the inheritance so limited to his heirs vests in the ancestor himself; and the word "heirs" in this case is not esteemed a word of purchase, but a word of limitation, enuring so as to increase the estate of the ancestor from a tenancy for life to a fee simple (d). debts of such person, as well on simple contract as on specialty; but in the administration of assets by courts of equity under this act, all creditors by specialty, in which the heirs are bound, shall be paid the full amount of the debts due to them, before any of the creditors by simple contract, or by specialty, in which the heirs are not bound, shall be paid any part of their demands. (d) The most remarkable rule relating to this subject is that called the rule in Shelley's case, which may be thus stated: That wherever an estate of freehold is given, and by the same conveyance, or will, an ulterior estate (whether immediately following the first, or subject to other remainders intervening), to the heirs of the same person, this ulterior estate vests in that person himself in the same manner, as if it had been expressly given to him and his heirs. Hence it is said, that the word "heirs" is a word not of purchase, but of limitation, i. e. of description of estate; the word of purchase or description of person who is to take the estate being suppressed and understood; but if the estate of freehold had been given, not to A., but to another person, as B., the remainder to the heirs of A., would have been contingent (for no one has an heir while he lives), and would vest by purchase if it vested at all in the person who was heir of A. at his death. It follows from this rule, that if lands be given to A. for his life, with remainder after his decease to his heirs, A. may dispose of them at his pleasure; but his whole interest lies in livery, and not in grant; for his estate for life merges in his immediate remainder in fee, and he is to all purposes actual tenant in fee simple. The application of the rule is sometimes aided by the doctrine of resulting uses. Thus, if on any conveyance the first limitation of the use be to the heirs of the body of the grantor (words indicative of an estate tail, and therefore not nugatory, like the gift of the fee simple to his own heirs), the use resulting to him for his life unites with this limitation, and makes him immediate tenant in tail. If the limitation to the heirs of the grantor's body be preceded by an estate to any other person for a term of years, however long, for his life, or even in tail, there will still be a resulting use to the grantor in remainder for his life, and thus he will become upon the whole matter, tenant in tail |