Necessity for Policy of the statute. and whilst, therefore, as to corporeal hereditaments, time will not, under this statute, run against the Crown (a), it will, as to rights of an incorporeal nature, and the grantee of the Crown will take subject to the time run.' 'This terminates our view of the title by non-claim, and by prescription, which has, it is feared, occupied more space than in a work of this general character should have been devoted to it. We have treated of the law before the statute as briefly as the nature of the subject would permit, and in so doing have the sanction of Lord St. Leonards, who says: "it is seldom possible to understand a law which repeals a former one, and substitutes new provisions, unless we have a competent knowledge of the law repealed.” Mr. Hayes also states that "the law of limitation is a subject which peculiarly involves an inquiry into first principles." The student will have observed how from the early statutes of Henry III. and Edward I. to the present day, there has been a constant and growing tendency in the legislature to shorten the period which confers title, and decrease the number of disabilities which prevent the operation of a bar. It is obviously proper that some limit should be assigned within which rights should be asserted; and the so doing may be upheld among other grounds, on that of public policy. Mr. Williams on this, remarks: "to deprive a man of that which he has long enjoyed and still expects to enjoy, will be generally doing more harm than can arise from forbidding the person rightfully entitled, but who has long been ignorant or negligent as to his rights, to agitate claims which have long lain dormant (b).” ' CHAPTER XXII. THE PRESENT LAW OF DESCENT (a). civil law and tributions. THE Statute of Victoria, which governs descent since the Conforms to first day of January, 1852, is entirely subversive of the for- Statute of Dis mer system, and is based on the rules of the civil law. In many respects, it bears a close resemblance to the mode of succession to personalty under the Statute of Distributions, which according to Mr. Justice Blackstone (b), is but a restoration with some amendments of the law which prevailed before the Norman Conquest. Many of the decisions on that statute, especially as to the advancement and hotchpot clauses, may be applicable to our present law of descent; but in applying the cases the difference of language in the two Acts must be borne in mind. This Act seems to be copied almost entirely from the revised Taken from Act of the State of New York, and the American decisions New York under that Act, and of the laws of descent of some other of the States of the Union will be found to be of service. Act. cludes estates autre vie, It is to be observed that section 22, expressly includes Statute inestates pur autre vie, and does not include estates-tail: the in fee simple, descent of the latter are governed therefore, as presently but not estates explained, per formam doni. Moreover if the legal estate is tail or in trust. vested in a trustee, then, by section 40, this Act does not apply to effect the descent of the legal estate, though by section 19, the equitable interest of the cestui que trust will descend according to its provisions. Sections 19, 20, 21, should be referred to before considering other sections. Descent is no longer as under the Statute of William to No longer (a) The authors have not thought it advisable to treat of the former law as by the lapse of time since 1851, and the effect of the present Statute of Limitations a knowledge of that law is of little service. (b) Vol. 2, p. 516. trace from purchaser. Do we revert to com. law rule of tracing from person last seised? According as descent is traced from person last seised or per son last entitled will the person who is to take as be traced from the purchaser, or person last entitled; but the language of this section is, that the real estate of any person who shall die intestate, seised in fee-simple, or for the life of another, shall descend, &c. The first question which suggests itself on the language of this section is, whether we are again referred to the rigorous common law rule, which was, that the descent should be traced from the person last actually seised, and that a mere seisin in law did not suffice to constitute a good root of descent, a seisin in deed, or its equivalent, being requisite. Thus in the case of A., an illegitimate child dying seised, leaving his wife and wife's brother, and B. his son, and heir at law, him surviving; assume that B. never was seised, and died intestate: here, at common law, as descent had to be traced from A. as last heir be varied seised, his wife's relations could never take, and the estate would escheat; but had B. entered, his mother or her collateral relative might have taken as heir to her son. Under the Statute of William, in such case there must always have been an escheat, even though B. had entered, on its being shown that he inherited, and that A. was the purchaser (a). The hardship in this instance was never removed here, but a remedy was applied in England by 22 & 23 Vic. ch. 35. sec. 19. In such a case, under the Statute of Victoria, the question would be whether the mother could take under the latter part of section 27, as heir to B.; or whether, as B. never acquired seisin, descent would have to be traced from A. as the stirps, and so escheat; for it is apprehended that in such a case the mother could not take under section 36, which is confined to the next of kin to A. under the Statute of Distributions. -instances. Again, suppose A., the purchaser, to grant a life estate and die seised of the reversion in fee, leaving his son B., his father C., and wife D., him surviving: here the reversion (a) Doe, Blackburn v. Blackburn, I Moo. & R. 547, per Parke, B. would descend to the son B.; but if he B. died, pending the life estate, (in which case he would not at common law, for the purposes of descent, have acquired actual seisin), the question would be, under the Statute of Victoria, whether when the estate in reversion became one in possession on the death of the life tenant, the parties claiming, must take A. or B. as the stirps of descent. If A. be taken, then the estate will go to A.'s father, under the first part of section 26; if B. be taken, it will go to the mother of B. under section 27, and not to his grandfather. Statute much A consideration of the above, and other cases put before, will New York show the importance of the question. Section 22, as regards as this. this point, appears to be worded in much the same way as the statute of the State of New York, of 1786. Mr. Chancellor Kent, in reference to that statute, says (a), "the rule of the com- Decision on. mon law existed in New York under the Statute of Descents of 1786, and the heir was to deduce his title from the person dying seised. It had been repeatedly held, that during the existence of a life estate, the heir on whom the reversion or remainder was cast, subject to the life estate, was not so seised as to constitute him the possessio fratris or the stirps of descent if he die pending the life estate, and the person claiming as heir, must claim from a previous ancestor last actually seised. If the estate in fee had been acquired by descent, it was necessary that there should have been an entry to gain a seisin in deed to enable the owner to transmit it to his heir; and therefore, if the heir on whom the inheritance had been cast by descent died before entry, his ancestor and not himself became the person last seised, and from whom the title as heir was to be deduced; but the New York Revised Statutes have wisely altered the preexisting law on this subject." The wording of the New York Revised Statute is: "The (a) Vol. 4, ed. 11, p. 388. The word seised identical of descent. real estate of every person who shall die without devising the same shall descend," &c. And by the interpretation clause, the term "real estate" includes every estate, interest, or right our statute has adopted this interpretation clause (section 19), by which the term "real estate is to include every estate, interest, and right, legal and equitable, held overwise than in trust, in fee simple, or for the life of another. We have however, still retained the word seised in section 22, which is struck out in the Revised Statute of New York. There can be little doubt that by virtue of the comprehenwith entitled sive meaning given to the words "real estate," actual seisin to for purposes is not requisite, and that the word seised in section 22 will be construed as entitled to (a); for the word seisin, in its strict sense, is inappropriate to many rights, interests and estates, which are to descend, and would therefore receive a wider signification appropriate to such rights: moreover by section 9, proof of entry by the heir is dispensed with: still there are no decisions in our courts; our statute differs as explained above, from the American; and that is sometimes taken as law in the courts of the various States which would not be so taken here. Mr. Washburn (b), after stating the rule at common law as to descent of an estate in remainder or reversion dependent on a freehold estate to be as before expressed, says in reference to such an estate, the law is changed in several if not all the United States, and the heirs of a reversioner or remainderman take as absolutely as if their ancestors were actually seised of a freehold in possession, the word seised being equivalent to owning when applied to such an interest; a remainderman or reversioner, therefore, becomes, a proper stock of desc ent, &c."; and he refers to cases in support of this, decided under the Statute of 1786 above-named. If seisin in law, or mere right of (a) Washburn Rl. Prop. Vol. 3, 3rd ed. p. 14, Vol. 3, 3rd ed., P. 14. (b) Washburn Rl. Prop. |