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Evidence of Heirship.
does not prevent escheat, or deprive the king of the year, day, and waste: Rob. Gav. b. 2, ch. 4. This custom (except, perhaps, in one or two places)
applies to gavelkind lands out of Kent: Ib. Rent-charges. Rent-charges granted out of lands in gavelkind
before the time of memory, are descendible according to the custom, and so, of course, are rents of modern creation, when incident to the reversion. But whether a rent-charge newly created, and not incident to any reversion, is descendible to the heir at common law, or to the customary heir, has been disputed. Principle seems to be in favour of the common-law heir, but the weight of authority is against his claim. See Randal v. Writtle, 2 Lev. 87; 1 Freem. 105, 345; 3 Ķeb. 165, 214; S. C. 1 Vern. 489, cit., and Rob. Gav. 101. Where one rent-charge is granted out of lands descendible at common law, and lands in gavelkind, on the death of the grantor, the rent shall not be apportioned, but all shall go to the heir at common law : Id. 106. But it is otherwise of a rent-service reserved out of lands of different tenure, for there the reversion being divisible, the rent which is incident to it shall be apportioned: Co. Litt. 148, a., 215 a.; 4 Rep. 120, b.; Dy. 5, a.
Impropriate tithes, issuing out of gavelkind lands, as they derive their origin from the dissolution of the monastries, an event within legal memory, are not, it is clear, within the custom. See Doe d. Lushington v. Bp. of Llandaff, 2 Bos. & Pul., N. R. 491; Sands v. Drury, 4 Gwill. 1569.
The custom of gavelkind prevails with respect to socage lands over almost the whole of the county of Kent, and in a qualified manner over copyhold lands in various parts of the kingdom (ə).
What lands subject to the custom of gavelkind.
(2) In Mr. Robinson's Treatise on Gavelkind (pp. 42 & 49, 3rd ed.), the following places are mentioned, on various authorities, as subject to the customs of descent in gavelkind :
The lands within the fee of Pickering in Norfolk.
137.) The manors of Monmouth, Usk, and Trelleg, and many other
manors in Monmouthshire.
Lands in Kent are presumed to be of gavelkind Evidence tenure; out of it the presumption is the other way: Rob. Gav. 3rd Ed., 54. Lands in Kent formerly Gavelkind. held by knight service, in frankalmoign, or by any other than socage tenure, were not, and of course by the abolition of knight service during the Commonwealth, have not become, subject to the custom; nor
Many places in Shropshire.
Canonbury, and Newington Barrow otherwise Highbury,
both at Islington, in Middleser.
In Mr. Sawkins's note to the same work (3rd edit. p. 391), it is
St. John of Jerusalem, Islington, Middlesex.
Sutton next Woking, in Woking; Little Bookham, in Little
, Gumshall Netley, Shere Vachery, and Cranley, and
Westbury ; Brockham in Betchworth.
parishes of Dorking, Capel, and Ockley, Surrey.
Isleworth Syon ; Ealing, otherwise Zealing ; Acton.
And in the following, the youngest female relations, lineal and
Fulham, in Middlesex.
Sheen; Battersea and Wandsworth; Downe; Barnes ;
Evidence of Heirship.
can anything short of an Act of Parliament alter the tenure of gavelkind lands: Ib. ; see Doe v. Lushington v. Bp. of Llandaff, 2 Bos. & Pul., N. R. 49 (a).
Evidence of Heirship.—Where a person deduces his title as heir general at common law of his father, the evidence required is not only that he is the legitimate son, but the eldest or only son of his parent. Certificates of his parents' marriage, and of his baptism, it is obvious, prove only the former fact; and some evidence should be adduced in support of the negative allegation, that there was no elder son; particularly if, upon the comparison of the dates of the marriage and birth, it seems that the interval between them was such, as to render it probable that there was an elder child; that is, if it exceeded twice the ordinary period of gestation; though the fact that less than such a period intervened is not conclusive in favour of the heirship, as there might have been twins; or the eldest child might have been born, but not procreated, after the marriage. If the alleged heir be a daughter, the negative evidence of course should extend to the fact of her being the only child; as a son, whether elder or younger, would take precedence; and a daughter, whether older or younger,
would be entitled to an equal share. Defect arising
Aliens.--Here may be noticed what formerly from alienage. constituted a defect of title, which sometimes does
not appear on the face of the abstract, namely, that one of the parties through whom the title is deduced is an alien. The attention of the conveyancer is only attracted to the point when the name or address is evidently foreign : and yet, it is obvious
, any person whose name or description might fail to excite suspicion of his not being one of her Majesty's liege subjects, might turn out to be a foreigner; he might not have been an Englishman, either by nativity or parentage. This often occurs
(a) See further as to the custom of gavelkind the 3rd Report of the Real Property Commissioners at pp. 11 et seq.; see also Bro. Ab. Custom, 66 ; Fitzh. Prescription, 52.
in the case of illegitimate children, who, being filii
of Heirship. nullius, are necessarily aliens, if born out of the British dominions ().
Before the Naturalization Act, 1870, aliens could Aliens. only purchase lands before denization, subject to the right of the Crown at any time to assert its prerogative to them. The claim of the Crown extended to leaseholds, except as regards habitations of alien merchants during their lives and residence within the realm (see 32 Hen. 8, c. 16, s. 13); and an alien could not protect himself by taking a convevance in the name of a trustee.
But now, by 33 Vict. c. 14, s. 2,
“Real and personal property of every description may be taken, acquired, held, and disposed of by an alien, in the same manner in all respects as by a natural-born British subject; and a title to real and personal property of every description may be derived through, from, or in succession to an alien, in the same manner in all respects as through, from, or in succession to a naturalborn British subject." This enactment does not, however, affect dispositions made before the passing of the Act (12th May, 1870).
Naturalization (which could formerly only be by NaturalizaAct of Parliament) gives to an alien and his issue all the rights of a natural-born subject, except those of filling certain offices, and of taking grants from the Crown, &c. (12 & 13 Will. 3, c. 2; 1 Geo. 1, st. 2, c. 4, s. 2), a restriction which is sometimes removed in favour of eminent persons, by a temporary repeal of the statutes creating it, and enables the alien to inherit to any of his ancestors, and to transmit lands to his children, being naturalborn subjects, though born before the Act of Naturalization: Co. Litt. 129, a. 8, a. stat. 33 Vict. c. 14, s. 7, an alien who has resided in the United Kingdom, or has been in the service
(6) It seems that an alien might always take chattels real as administrator or executor, because he has them in autre droit (Caron's or Carron's case, Cr. Car. 9, pl. 6, cit. 1 Vent. 417; 2 Vin. Ab. 260, pl. 19): although he may not be guardian in socage : Per Hale, C. B., 1 Vent. 417.
As to the application of the English law respecting aliens, to the East Indies, and other conquered countries, see The Mayor of Lyons v. East India Company, E. F. Moore, 175. In the East Indies aliens may hold land. Ib. B.
Evidence of Heirship.
of the Crown for not less than five years, and intends, when naturalized, either to reside in the United Kingdom or to serve under the Crown, may apply to one of Her Majesty's principal Secretaries of State for a certificate of naturalization. An alien to whom a certificate is granted becomes entitled to all political and other rights, powers and privileges, and subject to all obligations of a natural-born British subject, with this qualification, that he shall not, when within the limits of the foreign state of which he was a subject, previously to his obtaining his certificate, be deemed to be a British subject, unless he has ceased to be a subject of that state, or in pursuance of a treaty. This Act is not retrospective (Sharp v. St. Sauveur, L. R., 7 Ch. 343) and takes effect from 12th May, 1870.
Denization by grant from the Crown (c) has no retrospective operation, otherwise than by way of confirmation of any estate the alien may have already acquired : Fourdrin v. Gowdry, 3 Myỉ. & K. 383, supra. It does not give inheritable blood, or cnable the denizen to take land at all by inheritance, except under the Inheritance Act, as heir to his children born after the denization: nor, therefore, at common law, could any descent be traced through him: Collingwood v. Pace, 1 Vent. 413, 419. And if a denizen purchase land, his son born after denization, it is said, by Lord Coke, shall inherit, and not an elder son born before, although a natural-born subject, rather than go to whom the land shall escheat; so that a denizen had in fact no heirs besides his own children born after denization, and their issue: Co. Litt. 8 a; Com. Dig. Alien (D. 2). See Collingwood v. Pace, 1 Vent. 413.
By stats. 1 Will. & M., sess. 1, c. 26; 13 Ann. c. 13, s. 1, Roman Catholics and their trustees are disabled from presenting to any benefice; and the presentation to livings south of the Trent, vested in such persons, is given to the University of Oxford; that to livings north of the Trent to Cambridge; and
(c) The powers of the Crown in this particular are not affected by the Naturalization Act, 187 but as aliens under that Act enjoy more extensive privileges than they could obtain by denization, such grants are likely to become obsolete.