c. 106, s. 3. assurance executed after the said thirty-first day of December, 3 & 4 Will. 4, one thousand eight hundred and thirty-three, to the person or to the heirs of the person who shall thereby have conveyed the same land, such person shall be considered to have acquired the same as a purchaser, by virtue of such assurance, and shall not be considered to be entitled thereto as his former estate or part thereof (e). 66 (d) This section of the act is in direct contravention of two old-established Descent and purrules of law, and renders it necessary to bear in mind the distinction be- chase. tween descent and purchase, the two modes of acquiring property. A title by descent is vested in a man by the single operation of law, and by purchase by his own act or agreement. (Co. Litt. 18 b; 2 Bl. Comm. 200, 201.) The latter is thus defined by Littleton, s. 12: Purchase is called the possession of lands or tenements that a man hath by his deed or agreement, unto which possession he cometh not by title of descent from any of his ancestors or cousins, but by his own deed." Lord Coke states that a purchaser is a law term, and imports any estate which is not cast upon a man by act of law, (as descent or escheat,) but which he takes or accepts by conveyance for money or other consideration, vel aliâ quâvis fortuná, or freely by gift. (Co. Litt. 18 a.) The difference between the acquisition of an estate by descent and by purchase consists principally in two points: 1st. That by purchase the estate acquires a new inheritable quality, and is descendible to the owner's blood in general, as a feud of indefinite antiquity. 2nd. An estate taken by purchase will not make the person who acquires it answerable for the acts of his ancestors, as an estate by descent. (Cruise's Dig., tit. XXX., s. 4.) It was a positive rule of law, that a man could not make his right heirs Devise to heir. take by purchase, neither by conveyance at common law, nor by a limita- Law before this tion to uses, nor by devise. (Counden and Clerk's Case, Hob. 30; Pybus v. act. Mitford, 1 Ventr. 372; Co. Litt. 22 b.) The same rule applies to equitable as legal estates (Watk. Desc. 169), and to copyholds as to freeholds. (Roe d. Noden v. Griffith, 4 Burr. 1952; Thrustout d. Gower v. Cunningham, 2 Bl. R. 1048; Fearne, 68.) Before the passing of this act it was a rule of law, that where a testator made the same disposition of his estate as the law would have done if he had been silent, the will being unnecessary was void. (See 4 Real Prop. Rep. 74, 75.) Therefore, if a person devised his lands to his heir at law in fee, it was inoperative, and the heir took by descent, as his better title; so where a man, seised of land in fee on the part of his mother, devised it to the heir on the part of his mother in fee, the heir was in by descent. (Reading v. Royston, 1 Salk. 242; S. C., Prec. Ch. 222; 2 Ld. Raym. 829; Com. R. 123; S. P., 2 Leon. 11; Dyer, 124 a; Plowd. 545; 2 Ves. & B. 190.) Where a devise of lands to the heir at law made no alteration in the nature or limitation of the estate, the heir took not by purchase under the will, but by his preferable title by descent, notwithstanding the will imposed some pecuniary charges on the estate. (Clarke v. Smith, Com. 72; Allen v. Heber, Bl. R. 22; Emerson v. Inchbird, 1 Ld. Raym. 728; Plunket v. Penson, 2 Atk. 292.) Where a man, seised in fee on the part of his mother, devised to his executors for sixteen years for payment of his debts, remainder to his heir on the part of his mother, it was held that the heir took by descent. (Hedger v. Rowe, 3 Lev. 127; see Wms. Saund. 8 d.) And an heir at law was held to take by descent under a devise to him after the death of his mother, charged with the payment of sums of money. (Chaplin v. Leroux, 5 Maule & S. 14.) So under a devise to one for life, or in tail, with remainder to the right heirs of the testator, immediately upon his death the heir took the reversion by descent, and not under the will. (Hob. 30; 10 Rep. 41; Ventr. 372.) So a devise to the heir at law in fee, with an executory devise over in case he did not attain the age of twenty-one years, was held not to alter the quality of the estate, which he would otherwise have taken as heir; and that he therefore took by descent, and not by purchase. (Doe d. Pratt v. Timins, 1 B. & Ald. 530; sec 1 Jarman on 3 & 4 Will. 4, c. 106, s. 3. Effect of this section upon devise to heir. Limitation to heirs in an assurance. Rule in Shelley's case. Wills, 67, 68; Langley v. Sneyd, 7 Moore, 165; S. C., 3 B. & B. 243; Manbridge v. Plummer, 2 M. & Keen, 93.) A testator, by his will dated in 1809, devised his real estates to trustees, in trust to pay an annuity, and out of the residue of the rents to maintain S. M. (who was his heir) until he attained twenty-one; and on his attaining twenty-one, to convey the estates to him in fee; but if he died under twenty-one, then to J. S. in fee. S. M. having attained twenty-one, it was held that he took the estate by descent. (Wood v. Skelton, 6 Sim. 176.) So a devise after limitations in strict settlement, in default of such issue then to the devisor's next heir at law, was held a limitation of the reversion, and not a contingent remainder to the heir as a purchaser at the time of the failure of such issue. (O'Keefe v. Jones, 13 Ves. 413.) But where a different estate was devised than would have descended to the heir, the disposition by will prevailed, as where the estate was devised to the heir in tail. (Plowd. 545.) So where a man having issue two daughters, who were his heirs, devised to them and their heirs, they took under the will, for by law they would have taken as coparceners, but by the will the estate was given to them as joint tenants. (Cro. Eliz. 451; Com. R. 123; 2 Ld. Raym. 829; Scott v. Scott, 1 Eden, 461, 462, n.; S. C. Ambl. 388; see 6 Sim. 185; Swaine v. Burton, 15 Ves. 371.) Under a devise before this act to trustees, one being the testator's heir at law, upon trust (subject to certain prior estates) for conversion, the trust for conversion being void for remoteness, the equitable reversionary interest thus left undisposed of, results as part of the old use, and descends to the heir in his character of heir, and does not so merge in his legal interest under the devise to him as a trustee, as to break the descent, and constitute him a fresh stock, from which, on his decease intestate, the descent is to be traced. Consequently, upon his decease intestate, before the expiration of the particular estate, the reversionary interest descends on his brother of the half-blood, in preference to his sister of the whole blood, as heir to their common father. (Buchanan v. Harrison, 1. J. & H. 662.) But there may be possessio fratris of a trust as well as of a legal estate, and notwithstanding the heir was merely equitable tenant in fee of the reversion, he may by some act or conveyance in his lifetime, have so dealt with his equitable interest, as to constitute himself a fresh stock of descent, and to entitle his sister to claim as his heir, upon the principle that possessio fratris facit sororem asse heeredem. (Ib.) Under this section an heir to whom lands are devised by the ancestor takes them as devisee to all purposes; and therefore the pecuniary legatees are not entitled to have the assets marshalled as against him. (Strickland v. Strickland, 10 Sim. 374.) And where real estates are devised to the heir, although for certain purposes he takes by descent, yet, as between him and the devisees of other parts of the testator's estates, the estates devised to the former are not to be applied in payment of the debts in priority to the estates devised to the latter. Though the creditors of a testator have a right to resort to the estate devised to the heir in priority to the other devised estates, yet the heir is entitled to contribution from the other devisees to the extent to which his estate may be exhausted by debts. (Biederman v. Seymour, 3 Beav. 368.) It does not seem certain whether this section applies to the case of a devise of copyholds to an heir who disclaims all interest under the will, and enters as heir of the testator. (Bickley v. Bickley, L. R., 4 Eq. 216.) As to a devise of gavelkind lands to an heir as a persona designata, see Thorp v. Owen, and Sladen v. Sladen, ante, p. 445. (e) By a well-known rule, called the rule in Shelley's case (1 Rep. 93; see Parker v. Clarke, 3 Sm. & G. 161, 165), it was established, that where the ancestor, by any gift or conveyance, takes an estate for life, and in the same conveyance an estate is limited either immediately or mediately to his heirs in fee or in tail, the word heirs is a word of limitation of the estate, and not of purchase. Where the subsequent limitation to the heirs follows immediately the estate for life, it then becomes executed in the ancestor, forming, by its union with the estate for life, one estate of inheritance in possession; but where such limitation is mediate and another estate inter venes, it is then a remainder vested in the ancestor who takes the freehold, not to be executed until after the determination of the preceding mesne estate. (1 Barn. & C. 243.) There is a long series of decisions on this rule. (See Fearne, Cont. Rem., 10th ed., pp. 28-201.) In order to understand this section of the act, it is necessary to observe that when a person has an interest in lands and grants a portion of that interest, or, in other terms, a less estate than he has in himself, the possession of these lands will, on the determination of the granted interest or estate, return or revert to the grantor. (Com. Dig. Estate (B. 10, 11, 12, 31); 2 Bl. Com. 175; Co. Litt. 22 b; Plowd. 151; Watk. on Conv. 120.) An estate in rerersion is therefore the residue of an estate left in the grantor, to commence in possession after the determination of some particular estate granted by him (Co. Litt. 22), or the returning of the land to the grantor or his heirs after the grant is over. (Ib. 142.) A reversion is never created by deed or writing, but arises from construction of law, whereas a remainder can only be limited by deed or some other assurance. It is a rule that a grantor cannot enable his heir general to take a remainder as purchaser, under a limitation to his heirs, but where the limitation is to the right heirs of the grantor, the use so limited is construed to be the old use, and will be executed in him as the reversion in fee, and not as a remainder. (1 Rep. 129 b, 130; Godolphin v. Abingdon, 2 Atk. 57.) As where a man granted to A. B. with remainder to his own heirs male, such heirs took by descent. (Wills v. Palmer, Bl. R. 687; 5 Burr. 2615.) Before the above act it was a general rule, that where a party seised in fee conveyed lands to the use of himself for life, with remainder to others for particular estates for life or in tail, with an ultimate limitation to the right heirs of the grantor, such limitation was inoperative, as he continued seised of the reversion as part of his former estate, which was consequently descendible in the same line as it would have been if no such conveyance had been made. (Read v. Morpeth, Cro. Eliz. 321; Moore, 284; 2 Rep. 91 b.) So where a man seised in fee levied a fine to the use of himself and his wife for life, remainder to the use of the right heirs of the settlor, the ultimate limitation did not create a remainder, but the interest undisposed of remained in the grantor as part of the reversion, as if that limitation had been omitted. (Bingham's case, 2 Rep. 91.) This doctrine is exemplified by the case of The Marquis of Cholmondeley v. Clinton, (2 Mer. 173; S. Č., 2 B. & Ald. 625; 2 Jac. & Walk. 1; 1 Dowl. N. S. 299; 4 Bligh, N. S. 1), where the Earl of Orford, in a conveyance to uses, reciting that he was desirous that certain estates derived from his mother's family should remain in the family and blood of Samuel Rolle, his maternal grandfather, in consideration of natural love and affection to his relations, the heirs of S. Rolle, and to the intent that the said estates might continue in the family and blood of his late mother, on the side of her father, settled them to the use of himself for life, remainder to the heirs of his body, for default of such issue as he should appoint, and for default of appointment to the use of the right heirs of S. Rolle; and at the time of the settlement, the Earl of Orford was himself the right heir of S. Rolle: it was held, that this ultimate limitation did not give an estate by purchase to the heir of S. Rolle, but that the estate, on the death of the settlor without issue, descended on his heirs general. (See Locke v. Southwood, 1 My. & Cr. 411.) 3 & 4 Will. 4, c. 106, s. 3. Limitation to heirs of grantor strued as a reverformerly consion. If a man, seised as heir on his mother's side, made a feoffment in fee to Alteration of line the use of himself and his heirs, the use, being a thing in confidence, would of descent. have followed the nature of the lands, and would have descended to the heir on the part of the mother. (Co. Litt. 13 a; Godbold v. Freestone, 3 Lev. 406.) And it was the same if the limitation had been by fine and recovery; it was still the ancient use; and there was no difference whether upon the conveyance of an estate any part of the use resulted by implication of law, or whether it was reserved by express declaration to the party from whom the estate moved. (Abbot v. Burton, Salk. 590. See Stringer v. New, 9 Mod. 363.) But that rule held only where lands came by descent, and not where a person took by purchase. But as by a common recovery suffered of an estate tail, the recoveror acquired an absolute estate in fee simple, derived out of the estate tail; if a tenant in tail by purchase under a S. G G 3 & 4 Will. 4, c. 106, s. 3. marriage settlement, made by his ancestor ex parte materna, with the reversion in fee by descent ex parte materná, suffered a common recovery to the use of himself in fee, such estate would have descended to his heirs general ex parte paterná; for the recovery did not let in the reversion in fee, but a new estate was thereby acquired by purchase, totally different from the old estate. (Martin v. Strachan, Str. 1179, Nolan's ed., S. C., Willes, Rep. 444; 1 Wils. 66; 6 Br. P. C. 319; 5 Term Rep. 104.) The last rule was held to be applicable to copyholds. (Roe d. Crow v. Baldwin, 5 Term Rep. 104.) But if a tenant in tail by purchase, with the reversion in fee ex parte materná, levied a fine, the land descended to his maternal heirs; (Simmonds v. Cudmore, Salk. 338; 1 Show. 370;) for the tenant in tail, by levying a fine, acquired a base fee, which merged in the reversion, of which the tenant was seised ex parte materná, and descended in the same line. One of two parceners aliened his moiety in fee, whereby the alienee and the remaining parcener became tenants in common; afterwards, by deed of partition between the alienee and the remaining parcener, the land was divided by metes and bounds, and each of them took a moiety in severalty. The question was, whether by that deed the parcener took anything as purchaser, so as to break the descent ex parte materna and to let in the heir ex parte paterna, on the death of the parcener. It was admitted, that if the deed of partition had been between the parceners themselves, the descent would not be broken. (Com. Dig. Parcener, C. 15.) It was held, that the line of descent through the second parcener was not broken by the conveyance, but that his moiety passed to the heirs ex parte materná. (Doe d. Crosthwaite v. Dixon, 5 Ad. & Ell. 834; 1 Nev. & P. 255.) Where a man has an equitable estate ex parte paternâ or ex parte materná, and afterwards, by descent or otherwise, acquires the legal estate, the equitable estate will merge in the legal, and the descent will be according to the legal title. (Goodright v. Wells, Dougl. 771, 2nd ed.; Wade v. Paget, 1 Br. C. C. 363; Selby v. Alston, 3 Ves. 339; Lyster v. Mahony, 1 Drury & Warren, 243; and see Goodright v. Searle, 2 Wils. 29; Goodtitle v. White, 1 New Rep. 383; 15 East, 174; 3 Prest. Conv. 325, 340.) But where an infant died seised of an equitable estate which had descended ex parte maternâ, his incapacity to call for a conveyance of the legal estate, (by which the course of the descent might have been broken,) was held not a sufficient reason to induce the court to consider the case as if such a conveyance had actually been made; it not being, according to the terms of the trust, any part of the express duty of the trustees to execute such a conveyance. (Langley v. Sneyd, 1 Sim. & Stu. 45.) A devise of all the testator's residuary real estate to trustees in fee upon trust to pay the rents to A. for life, and after his death upon trust to convey the same residuary real estate to such person as should answer the description of the testator's heir at law breaks the descent of the real estate which had descended to the testator ex parte materná, and vests it in his heir at law according to the common law as equitable devisee. Wood, V.-C., said, "the whole estate is devised away from the heir at law, and the trustees are left to deal with the legal fee simple, and to convey it to such person as should answer the description of the testator's heir at law. The expression 'heir at law' is somewhat strong, but independently of that, the fact of the testator having divested the inheritable quality of the estate by breaking the descent entirely and giving the estate to the trustees, and leaving them to find out the heir, has put them under an obligation to look upon the heir as a persona designata, and they cannot regard the inheritable quality of the estate, but they must find out the person who answers the description of heir at law of the testator. I think that there is not any authority precisely in point, but the principle must be, that when once the descent is broken by a devise of the whole fee simple to trustees upon trust to convey it to the testator's heir, they are bound to convey it to the person who is heir of the testator according to the common law." (Davis v. Kirk, 2 Kay & J. 391, see pp. 393, 394.) A lady entitled to realty as heir of her maternal grandfather, by settlement, conveyed it to the use of trustees upon trust for herself and her heirs until marriage, and then upon trust for herself for life with subsequent trusts for the issue, and in default of issue upon trust, in case she died in her husband's lifetime, for the person or persons who would on her death have become entitled in case she had died intestate and without having been married. She died before her husband without issue: held, that the settlement did not break the previous line of descent, and that under the ultimate limitation the heirs ex parte materná took, and not the heirs general. (Heywood v. Heywood, 13 W. R. 514.) A. conveyed customary freeholds which he had inherited from his mother to B. absolutely, and B., after surrender and admittance, executed on the same day a deed of declaration of trust for such person as A. should by deed or will appoint, and in default for A. and his heirs, this process being necessary, according to the custom, to give A. the power of devising. A. died intestate: held, that the descent had not been broken, and that the heir ex parte maternâ was entitled. (Nanson v. Barnes, L. R., 7 Eq. 250.) 3 & 4 Will. 4, c. 106, s. 3. LIMITATION TO HEIRS AS PURCHASERS. limitations to the cestor, the land shall descend as if the ancestor had chaser. been the pur 4. When any person shall have acquired any land by pur- where heirs take chase under a limitation to the heirs or to the heirs of the by purchase under body of any of his ancestors, contained in an assurance executed heirs of their anafter the said thirty-first day of December, one thousand eight hundred and thirty-three, or under a limitation to the heirs or to the heirs of the body of any of his ancestors, or under any limitation having the same effect, contained in a will of any testator who shall depart this life after the said thirty-first day of December, one thousand eight hundred and thirty-three, then and in any of such cases such land shall descend, and the descent thereof shall be traced as if the ancestor named in such limitation had been the purchaser of such land (ƒ). (f) When the words "heirs male of the body," &c., operate as words of purchase, that is, when they do not attach in the ancestor, but vest in the person answering the description of such special heir, they appear to have a sort of equivocal or mixed effect. For though they give the estates to the special heir originally, and not through or from his ancestor, yet the estate which he so takes has such a reference to the ancestor, as to pursue the same course of succession, in the same extent of duration or continuance through the same persons, as if it had attached in and descended from the ancestor. (Fearne, Cont. Rem. 80.) Thus, under a limitation to the heirs male of the body of B. (where no estate is in or given to B. himself), though it originally attaches in his heir male under that special description, and so far operates as words of purchase, yet it not only gives such heir an estate in tail male, without any express words of limitation to the heirs male of his own body, but such an estate tail as will, on failure of his issue male, go in succession to the other heirs male of the body of B. in the same course as if the estate tail had descended from B. himself. (Mandeville's case, Co. Litt. 26. See Vernon v. Wright, 4 Jur., N. S. 1113; 2 Drew. 439; Southcot v. Stowell, 1 Mod. 226, 237; 2 Mod. 207, 211; Wills v. Palmer, 5 Burr. 2615; S. C., 2 Bl. R. 687; Wrightson v. Macauley, 14 Mees. & W. 214; Winter v. Perrott, 9 Cl. & Fin. 606.) BROTHERS AND SISTERS. 5. No brother or sister shall be considered to inherit immediately from his or her brother or sister, but every descent from a brother or sister shall be traced through the parent (g). Brothers, &c. shall trace de scent through their parent. |