Money representing land.

Who is the youngest customary heir.

being taken as a word of purchase and not of limitation (r).

In a case where the heirs to certain gavelkind land had concurred in its sale, it was insisted that the money produced by the sale remained impressed with the character of real property, and that a proportional part of it ought to descend to the heirs in gavelkind; but the claim was rejected as fanciful and untenable (s).

A custom of borough-english, or other similar custom, is not strictly confined to the son who is youngest at the death of the father, for a posthumous son will be entitled to the lands, notwithstanding that the son who was youngest at the death of the father has entered (f); and so also if the son who was youngest at the father's death has died without lineal issue before the succession devolves on him, and if the custom does not extend to collaterals, the descent will be traced from the father, and the son who is youngest at the time of tracing the descent, or if he is not alive his issue, will be preferred. In the case of Reeve v. Malster (u), which referred to copyholds in the manor of Hoe in Suffolk, descendible by the custom to the youngest son of the tenant "dying seised according to the nature of borough-english," a reversion descended to the youngest of three sons who died before the tenant for life without issue. When the reversion came into possession, the question was whether W., the eldest son of the father and also heir-at-law of C. the youngest son, or G., the middle son, should have the land. There was no special extension of the custom to brothers. It was agreed by all the judges that if C. had survived the tenant for life, and had then died without issue, W. would have had the land as heir to C., "because the custom of borough

(r) Roberts v. Dixwell, 1 Atk. 607, 610; Trash v. Wood, 4 Myl. & Cr. 324.

(s) Hougham v. Sandys, 6 L. J. Ch. 67.

(t) Per Brampston, C. J., and Berkeley, J., in Reeve v. Malster, Cro. Car. 410.

(u) Cro. Car. 410.

english extends not to brothers unless there be a special custom found"; but as the question was one regarding a reversion expectant on an estate for life, and as C. had never been seised of the land in possession, and had died without issue during the tenancy for life, two of the judges, Brampston, C. J., and Berkeley, J., were of opinion that G., the middle son, should have the land as if C. had never lived," for he shall make title from his father and take by descent from him who had the seisin of the freehold, and not from any mention of him who had but the reversion expectant on an estate for life, for the custom shall be guided by the rule of the common law, and here there was no possessio fratris." But Jones and Croke, JJ., held that W. had the better title, for the youngest son being the heir in whom the estate vested by custom at the death of his father, it was an inheritance fixed in him, and the custom had its operation and was satisfied in him, and there was an end of the custom, and none could claim after but his heir: "and the youngest son only, who is in esse at the death of his father, shall have it by the custom, and not any other who shall come to be youngest afterwards." But the opinion in favour of the middle son has been sustained in later cases (x). The case of Newton v. Shafto (y) illustrates the same principle. There it appeared that the custom of the manor of Tynemouth is that, if a copyholder dies leaving no son but two or more daughters, the eldest daughter shall have it only for her life, and then it shall descend to the next heir male, and that the wife shall have it for her freebench for life. A copyholder died and his widow entered: the elder daughter died in her mother's lifetime, and then the widow died the Court held the custom good, and that the second daughter should have the land for her life within the custom, for though she was not eldest daughter at the

'(x) Kellow v. Rowden, 1 Show. 244, 249; Clement v. Scudamore, 6 Mod. 120. (y) 1 Lev. 172.

Statute of
Distributions,

descended
customary
estate.

Effect of Inheritance Act, 1833.

death of her father, yet she was at her mother's death, whose estate was a continuance of the husband's estate till her death.

Before leaving this part of the subject, it is necessary to mention that a descended customary estate is not within the provisions of the Statute of Distributions (≈) as to the exclusion of children who have any land by settlement, or have been advanced by portion from the distribution of the personal estate of an intestate. This was decided in the case of Lutwyche v. Lutwyche (a), where it was held that a youngest son, being heir in borough-english of certain lands, should not be obliged to bring the boroughenglish lands into hotchpot before claiming his distributive share of the personal estate of his father, who had died intestate.

We may now consider the alterations which have been introduced into the customs of special descent by the Inheritance Act, 1833, which applies to all descents and titles to inherit by reason of consanguinity arising after the 1st of January, 1834 (b); with an exception as to the effect of assurances made before that date, and the wills of persons dying before that date (c).

Before the Act the descent was in all cases to be traced from the person last seised, that is, the person who was in possession by himself or his tenant for years, or in the case of a freehold lease the person who had received the rent, or who had exercised some act of ownership. But now the descent in all cases is to be traced from the purchaser, that is, 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 other land acquired by descent (d); and to prevent unnecessary tracing of pedigrees, the person last entitled is

taken to be the purchaser in the absence of proof that he inherited, and so with regard to each preceding step of the pedigrees (e); and a person is deemed to have been the last entitled, if he had a right to the land, whether or not he obtained the possession or receipt of the rents and profits. If there is a total failure of heirs of the purchaser, or of the ancestor from whom descent is to be traced where property is descendible as if an ancestor had been the purchaser, the descent must be traced from the person last entitled (ƒ).

The rule as to descent being traced from the purchaser is not to be taken as altering those special customs of descent which are restricted to the case of a tenant dying seised of the land (g).

In the case of a reversion expectant upon a life estate Descent of reversions, there is no purchaser, unless there has been an alienation &c. of the reversion since its original limitation; and where there has been no such alienation, the rule always was, "that it descends to the heir of the person who created it, and this even though it were created by will, in which case the testator from whom it descends never held it, and the same rule holds where a person having a remainder or reversion by descent makes a lease for life, and thus creates a new reversion, for this will descend to his own heir" (h); and the Inheritance Act, 1833, has not altered the rule (i).

parent.

The rule that descent shall be traced from the purchaser, Issue repreor in the case of a reversion from the person who created senting it, has sometimes come into apparent conflict with the rule that in cases of descent the issue shall represent their parent. Thus, if a reversion or remainder of gavelkind lands, while expectant on a life estate, were to descend to several sons of whom one died leaving issue, and if the

(e) Sect. 2.

(f) 22 & 23 Vict. c. 35, ss. 19, 20. (g) Muggleton v. Barnett, 2 H. & N. 653.

(h) Burt. Comp. s. 306; Doe d. Andrew v. Hutton, 3 B. & P. 643.

(i) Paterson v. Mills, 19 L. J. N. S. Ch. 310.

rule as to tracing descent were taken literally, the issue of the deceased son would have to share with the surviving sons the portion which would have been taken by the deceased son; but in such a case it is held that the rule of representation is to be preferred, and that it is not necessary to trace the descent afresh, but the issue will be taken for every purpose as standing in the place of their parent. "It seems that the meaning of the Act was to leave the law of inheritance, in cases absolutely plain, just as it found them, and only to lay down rules where there was any doubt existing" (k).

The rule of representation applies to all customary descents of copyholds, and of freehold lands subject to special customs. Thus where the custom was, that if a man died without male issue, his eldest daughter should have the land, and the tenant had no issue male but several daughters, the eldest of whom died in the lifetime of her father, leaving issue a daughter, it was held that the granddaughter was within the custom, and should have the land by descent upon the death of her grandfather (1). Again, where A. had five sons, the youngest of whom died in his lifetime leaving issue a daughter, and afterwards A. purchased borough-english lands, and died seised thereof, and his fourth son entered, it was held that the daughter of the fifth son should inherit by right of representation (m). So with gavelkind lands, the issue of a son or a collateral heir will stand in the place of the parent, "nor does the right of representation stop at the children of a brother by analogy to the Statute of Distributions," as was in one case suggested. Where a man died intestate and without issue, seised of gavelkind land, leaving a nephew and two sons of a deceased nephew, it was held that the latter were entitled by right of representation to

(k) Per Shadwell, V.-C., in Cooper v. France, 19 L. J. N. S. Ch. 313, 314.

(1) Godfrey v. Bullock, 1 Ro. Abr.

623; see Locke v. Colman, 1 Myl. & Cr. 423.

(m) Clement v. Scudamore, 6 Mod.

120.