How has it been affected by statute? This assignment is now rendered unnecessary, for by 8 & 9 Vict. c. 112, sect. 1, all satisfied terms which were attendant by express declaration or construction of law on the 31st December, 1845, are to cease and determine on that day, unless made expressly attendant on the inheritance, when they were to afford the same protection as before the Act, and by the 2nd section all terms being satisfied and attendant after the 31st December, 1845, are determined immediately on their becoming so attendant. What was the object of assigning satisfied terms, and what was the Act which affected the law relating to the assignment of such terms? See last answer. CHAPTER X. TITLE IN GENERAL. How may an estate in land be acquired? (i.) By descent or the act of the law, and (ii.) by purchase or the act of parties. What is a title by act of law, and what is included in the term? Where the title is vested in a man by the operation of the law without any interferance of his own; it includes (i.) descent; (ii.) escheat; (iii.) dower; (iv.) curtesy. What is a title by purchase, and what are the various kinds? Where the title is vested in a man by his own act and agreement, it includes (i.) occupancy; (ii.) forfeiture; (iii.) convey ance. CHAPTER XI. TITLE BY DESCENT. What is descent ? The means whereby a man, on the death of his ancestor intestate, acquires a title to his estate, in right of representation as his heir at law. What is the meaning of the maxim Nemo est hæres viventis? and distinguish between an heir apparent and an heir presumptive. "No one can be heir of a living person." An heir apparent is a person who is bound to succeed to his ancestor's estate, assuming he survive, as the eldest son. An heir presumptive is one who would be the heir were his ancestor to die at that particular moment, but who may be ousted by the birth of a subsequent and nearer heir, as in the case of a daughter being postponed to an after-born son. What is the law of descent founded on? On custom, tracing back as far as the reign of Henry II., fairly perfected in the reign of Edward I., and undergoing no change until the Inheritance Act, 3 & 4 Will. IV. c. 106. What is the first rule of descent? and explain the word purchaser. (i.) Descent shall be traced from the purchaser, which word includes every one entitled, who did not inherit. What alteration in the law was introduced by the above rule? The old rule was that the descent was traced from the person last seised; "seisina facit stipitem," being the maxim. What is meant by the term consanguinity, and what are the various kinds? It is the connection or relationship of persons descended from the same stock or common ancestor. It is (i.) lineal where one of the kinsmen is lineally descended from the other; (ii.) collateral where they are lineally descended, not one from the other, but both from the same common ancestor. What is the effect of a devise to a man's heir eo nomine? By 3 & 4 Will. IV. c. 106, s. 3, in case of such a devise by a testator dying after the passing of the Act (31 Dec., 1833), the heir would take by purchase, and not by descent. What is the second rule of descent? (ii.) Inheritances lineally descend to the issue of the purchaser in infinitum. State the third rule. Whence do the law of primogeniture and the preference of males to females derive their origin? (iii.) Children of the purchaser are preferred to their issue, but males to females. Where there are two males of equal degree, the eldest inherits; females all together. The law of primogeniture seems to have sprung from the custom of the Jews, amongst whom the eldest son took a double portion of the inheritance, as also amongst us he had, in the time of Henry I., the principal fee of his father. Again, the inconveniences of splitting the fee were severely felt in cases of titles of nobility; consequently, the eldest son invariably began to succeed. The preference of males to females was probably derived from the feudal system, because no woman could ever succeed to a feud, she being incapable of military service. What is the fourth rule of descent? Distinguish between succession per stirpes and per capita. (iv.) The lineal descendants in infinitum of the purchaser represent the ancestor, that is, stand in the same place as he would have done had he been living, subject, of course, to the last rule. Succession per stirpes is taking by the roots, that is to say, that each branch take the same share as the root they represent. Per capita is taking share and share alike as next of kin of the deceased without reference to the stock of descent. What is the fifth rule of descent; and what alteration has it effected in the law of descent? (v.) On failure of issue of the purchaser the nearest lineal ancestor inherits, assuming there be no issue of a nearer lineal ancestor existing. An ancestor was never capable of being heir before the introduction of this rule of descent; the land would formerly have escheated rather than it should ascend. If A. dies intestate and without issue, leaving only a sister, two sons of a deceased sister, and one son of a deceased younger brother, who would be A.'s heir-at-law? and state the rule of descent which governs the answer. The son of the deceased younger brother. Because the father of A. would be next in succession to A.; in case of the father's death his issue would represent him, and males and their issue would be preferred to the females and their issue. What was the reason that originally inheritances were never allowed to ascend? Because of the feudal law. Feuds or fees were held in three ways: (i.) as a feudum antiquum; (ii.) as a feudum novum; (iii.) as a feudum novum ut antiquum. In the first instance, as the son was presumed to have inherited from his ancestor, the father must have been dead before the fee could have passed by him to the If it was a feudum novum the ancestor could not succeed to it, because of the feudal maxim, Hæreditas nunquam ascendit, founded on the rule that the heir must be of the blood of the son. purchaser, and on the fact that the lords did not wish for decrepit vassals. If it were a fee of the third class, viz., ut antiquum, he would be excluded by the reason first mentioned. State the sixth rule of descent. (vi.) Among lineal ancestors of the purchaser the paternal line is preferred to the maternal, whether of the purchaser himself or of any ancestors, male or female. What is the seventh rule of descent, and what branch of the inheritance does the rule embrace? (vii.) Assuming the ancestor mentioned in the fifth rule to die before the purchaser, his issue represent him in infinitum, in the same manner as the issue of the purchaser; but inasmuch as this rule embraces collateral relations, those of the whole blood are preferred to those of the half. State the seven rules or canons given in the Commentaries as applicable to all ordinary descents taking place on a death on or after 1st of January, 1834. (i.) Descent shall be traced from the purchaser. (ii.) Inheritances lineally descend to the issue of the pur- (iii.) Children of the purchaser are preferred to their issue, but (v.) On failure of issue of the purchaser, the nearest lineal (vii.) Assuming the ancestor mentioned in the fifth rule to die What alteration has been effected by the latter rule? This last rule introduced considerable alteration, because previously the half blood could never inherit; the lands would have escheated rather. Explain the meaning of the old maxim, "Possessio fratris facit sororem esse hæredem." If a man married twice and had a son and a daughter by his first wife and a son by the second, and died intestate, and then his eldest son entered, became seised, and died without issue, the daughter of the first marriage would originally have been heir, because she was whole blood to the person last seised, in preference to the son by the second marriage. Of course this is not the case now. The son by the second wife, who is equally of whole blood to the father, who is assumed to be the purchaser in this case, naturally succeeds, as descent is now traced from the purchaser, and not the person last seised. How can a man acquire land by purchase under a limitation to "the heirs" or "heirs of the body" of one of his ancestors? A conveyance of lands to A. for life, with remainder to the "heirs" or "heirs of the body of B.," B. being either then deceased or dying during the continuance of the particular estate. Whoever was the heir of B. at the time of the conveyance or at his death, took a remainder by purchase; but by the 4th section of 3 & 4 Will. IV. c. 106, if the conveyance be dated after, or the will be of a testator who died after 31st December, 1833, the land descends, and the descent is traced as if the ancestor named had been the purchaser. John Smith died since 1st January, 1834, entitled to land of which he was the purchaser. State the order in which his relatives in the table below would take his land by descent. First to Henry his eldest son, secondly to Jane, Henry's daughter, thirdly to Richard his second son, fourthly to Maria and Sophia his daughters, equally as co-parceners, fifthly to Geoffrey Smith his father, sixthly to Francis his eldest brother, and seventhly to Thomas his next brother. How has 22 & 23 Vict. c. 35, s. 19, affected the law of inheritance? By enacting that where there is a total failure of heirs of the purchaser (under which circumstances the land would formerly have escheated) the descent is to be traced from the person last entitled, as if he had been the purchaser. |