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ence of issue merely preventing a lapse (q). The issue need not be the issue in existence at the devisee's death, but may be any issue, as for instance a grandchild of the devisee, who shall be living at the testator's death (r).

The Wills Act does not extend to wills made before Extent of Act. January 1st, 1838, unless re-executed, re-published or revived since that date, and does not extend to an estate pur autre vie of a person dying before that date (8).

devisee.

A devisee cannot recover possession if he has disclaimed Disclaimer by taking any estate in the land devised (t), but a mere disclaimer of title under the will, when he relies on a higher and better title, does not prevent him recovering (u). If he acts as executor or trustee under a will he is not thereby prevented from disclaiming a devise under such will (x).

Any deed which sufficiently shows an intention to disclaim is enough (y), and probably a mere parol disclaimer is sufficient (z), but in any case it must be a clear and unequivocal disclaimer of the land (2).

2. By Legatee of Leaseholds.

A plaintiff claiming leaseholds as legatee must prove Legatee claiming the probate of the will (a), and not the original will as in leaseholds. the case of freeholds, and also the assent (b) of the executor

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What he must

prove.

Assent of executor.

Title of personal representatives to leaseholds.

Title of executors.

to the bequest. Until such assent the term does not vest in the legatee, but in the executor. By the assent the term is vested in the legatee as from the death of the testator (c). The assent of one of several executors is sufficient, and one of several executors can assent to a bequest to himself (d). Assent to the bequest of a particular estate in a term is an assent to the bequest in remainder (e). Assent before probate is good, even though the assenting executor die without proving, provided that probate is ultimately taken out (ƒ).

3. By Executors and Administrators.

Executors and administrators are in law assignees of the leasehold estates of the testator or intestate. They can recover possession of any lands or tenements whereof the testator or intestate died possessed or entitled for a term of years (g) or as tenant from year to year (h), provided that the term still continues, and that there has been no assent to a bequest thereof (i).

An executor derives his title from the will itself, and the property vests in him from the death of the testator (k). He may commence an action to recover possession before probate, but the probate, being the only proper evidence of his title, must be produced at the trial (l).

(c) Saunders's case, 5 Co. Rep.
12 b.; Doe v. Guy, 3 East, 120.
(d) Townson v. Tickell, 3 B. &
Ald. 31, 40.

(e) Stevenson v. Liverpool, L. R.,
10 Q. B. 81.

(f) Wnis. Exors. 251 (9th ed.); Johnson v. Warwick, 17 C. B. 516.

(g) Doe v. Wheeler, 15 M. & W. 623.

(h) Doe v. Porter, 3 T. R. 13;

Doe v. Wood, 14 M. & W. 682;
Doe v. Bradbury, 2 D. & R. 706.

(i) Doe v. Tatchell, 3 B. & Ad. 675; Johnson v. Warwick, 17 C. B. 516.

(k) Woolley v. Clark, 5 B. & Ald. 744.

(1) Pinney v. Pinney, 8 B. & C. 335; Webb v. Adkins, 14 C. B. 401; Thompson v. Reynolds, 3 C. & P. 123.

One executor

may recover

Any one executor may bring an action to recover possession (m); or all may join in bringing the action whether possession. they have proved or not (n); it is not necessary that all

who have proved should join in bringing the action (m).

An administrator derives his title from the letters of Title of administrator. administration, and cannot, therefore, commence an action before the letters have been granted (0).

autre vie.

Freeholds pur autre vie, if not disposed of by will and Estates pur if there is no special occupant, pass to the executor or administrator (p).

be proved

An executor or administrator must prove that the interest What must of his testator or of the intestate was a chattel interest; the probate of the will or grant of administration; and the death of the testator or intestate (9).

(m) Doe v. Wheeler, 15 M. & W. 623.

(n) Creswick v. Woodhead, 4 M. & G. 811; Walters v. Pfeil, M. & M. 362.

(0) Pratt v. Swaine, 8 B. & C. 285; Woolley v. Clark, 5 B. & Ald. 744; Morgan v. Thomas, 8 Exch. 302; Phillips v. Hartley,

3 C. & P. 121; Williams' Exors.
p. 342 (9th ed.).

(p) Wills Act, 7 Will. 4 & 1
Vict. c. 26, s. 6. See App. B,
p. 325. Williams' Exors. p. 601
(9th ed).

(g) Metters v. Brown, 1 H. & C. 686.

Old law.

Inheritance
Act, 1833.
Purchaser."

CHAPTER XV.

BY HEIR-AT-LAW.

BEFORE the Inheritance Act, a person who claimed as heir-at-law, or through an heir-at-law, must have proved that the ancestor from whom he claimed was actually seised of the land, or, in case of a remainder, was the person in whom it first vested by purchase (a). rule of law was that seisina facit stipitem.

The

The Inheritance Act (b) has now altered this rule as to seisin in all descents since 1833. Land now descends in all cases to the heir of the last purchaser (c). Purchase is "possession to which a man cometh not by title of descent" (d). The last purchaser is the last person who had a right to the land, who did not acquire his right by descent (e), i.e., by reason of consanguinity (ƒ); and it is immaterial whether he obtained possession of the land or not (ƒ).

The person last entitled to the land is to be considered. to be the "purchaser," unless it is proved that he took by descent (g). When it is proved that the person last entitled took by descent, then it is to be considered that the person from whom he inherited was the "pur

(a) 3 Co. Rep. 41b; Watk. on Descent, 120; Ingilby v. Amcotts, 21 Beav. 585, 593.

(b) 3 & 4 Will. 4, c. 106.

(c) S. 2; see App. B, p. 317; Ingilly v. Amcotts, 21 Beav. 585,

(d) Lit. s. 12.

(e) S. 2; see App. B, p. 317. (f) S. 1; see App. B, p. 316; Bickley v. Bickley, 4 Eq. 216,

220.

(g) Ss. 1, 2; see App. B, p. 316.

chaser" (g). In like manner the last person from whom the land is proved to have been inherited is, in every case, considered to be the "purchaser" until the contrary is proved (g).

heir.

The heir of a testator to whom the land is devised by Devise to will now acquires the land by purchase (h), though formerly, under similar circumstances, he would have taken it by descent, and not by purchase (2). Probably an heir to copyholds, who disclaims all interest as devisee, and takes the lands as heir-at-law upon a lapse, still takes by descent (k).

The whole share of a coparcener dying intestate leaving Coparceners. issue descends to that issue, and not to the heir of the person from whom the coparcener inherited (1).

Escheat.

A person who acquires land by escheat, partition (m), or Partition. enclosure, by the effect of which the land becomes part of, or descendible in the same manner as, other land acquired by descent, is not a purchaser (n).

Inclcsure.

A person who conveys lands by any assurance (o) to Conveyance by one to himself, or to his heirs, is considered to have acquired himself or them as purchaser, by virtue of the assurance (p); but his heirs. otherwise a person who has inherited does not convert himself into a purchaser, so as to make himself the stock of descent, unless he has absolutely conveyed the land away, so as to divest himself of all interest in it, and has

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