possession, of which we have previously spoken, resulted, even before Littleton's time, in the firm establishment of the rule, that descent should in all cases be traced from the person last seised (i). And the seisin which was thus required to make the stock of descent was (as in the case of curtesy) actual seisin, or seisin in deed, not mere seisin in law, or title to possession (k). Thus, if Geoffrey Stiles, the father, had died seised of land of which he was the purchaser, and which descended to John as his heir, and John died before entry, the next claimant had to make himself heir to Geoffrey; but if John had entered and obtained actual seisin, it would then have been necessary to claim as heir, not to Geoffrey, but to John. And the difference was material; because the heir to the person last seised and the heir to the purchaser were not necessarily the same person. If John, for example, died leaving a half-brother, his father's son, the latter might possibly, on John's decease, be next heir to Geoffrey the father; but it was impossible, as the law then stood, that he should be heir to John, descent not then being allowed between those related by the half-blood (1). The rule of which we speak did not make it the less necessary, indeed, that the claimant should be of the blood of the purchaser; for this, in every case of descent, was universally required. But, if he had that qualification, and could make himself heir to the person last seised, he was entitled to succeed, whether he could make himself heir to the purchaser or not; while, on the other hand, his being heir to the purchaser was not sufficient, unless he was also heir to the person last seised. Thus, if John Stiles had purchased land and died actually seised, leaving no other kindred than his father's brother and his own brother of the halfblood (his father's son), the uncle would have been his heir, as the brother (by the rule already noticed) could not have claimed in that character. But, if the uncle had (i) Co. Litt. 11 b. (7) Litt. s. 6. also obtained seisin and died, without other kindred than John's half-brother, the latter would then have been entitled to succeed; for he would have been heir to the person last seised, and of the blood of the purchaser, though not the heir of the purchaser. On the other hand, if John Stiles had inherited land purchased by Geoffrey, who died seised, but had died without obtaining seisin, his half-brother (his father's son) would have inherited, to the exclusion of his uncle, because he was not merely of the blood of the purchaser, but heir to the person last seised (m). It is to be observed, however, that in many cases to trace descent from the person last seised amounted in effect to the same thing as tracing descent from the purchaser. For, where the last owner happened to have been in fact the purchaser of the estate, he would usually also be the person last actually seised. Thus, if it were an estate in possession acquired by feoffment, this implied a real delivery to him of the actual seisin; and supposing it to have been acquired by devise (under the Statute of Wills), or by a conveyance under the Statute of Uses (of the nature of which we shall speak hereafter), the case would be in effect the same, for the actual seisin (so far at least as would suffice to make him the root of descent) would here be transferred to him, without entry, by mere construction of law (n). So if his estate were a reversion or remainder in fee expectant on a term of years, he would be clothed with an actual seisin of the fee, through the medium of the possession of the particular tenant. In all such cases, therefore, if the claimant made himself heir to the purchaser, he would also make himself heir to the person last actually seised; and so would satisfy both the conditions required to make out a descent in fee simple. The new rule of descent discards the antient maxim, (m) Goodtitle v. Newman, (1774) (n) Co. Litt. 111 a, 266 b. 3 Wils. 516. seisina facit stipitem, and establishes that descent shall be traced from the purchaser-a rule simple and uniform, and at the same time easy and certain in its application; while, under the old maxim, it was sometimes difficult to determine what would amount to a seisin sufficient to constitute a stipes. And it was highly unsatisfactory besides, that the right to the succession should in any case depend on so unimportant a circumstance as the omission of the owner to make entry before his death, on the land he had acquired by inheritance. Before we dismiss this first rule or canon of descent, it is, however, well to point out, that the Inheritance Act, 1833, has made special provision for three cases in which it might be questioned who the purchaser actually was. Under the old law, if A. devised lands to the person who, on his (A.'s) death, actually became his heir, for the same estate which he would have taken by descent, if A. had died intestate, the devise would have been inoperative, and the devisee would have taken, not by purchase, but by descent (o). The contrary rule, however, is now established by the Inheritance Act (sect. 3), which says, that “when "any land shall have been devised by any testator who "shall die after 31st December, 1833, to the heir, or to "the person who shall be the heir of such testator, such "heir shall be considered to have acquired the land as a "devisee, and not by descent:" and accordingly he will now be the purchaser for the purposes of tracing future inheritance. Again, where land was limited by any assurance to the conveying party, or to his heirs, the rule of the common law was, that such grantor, feoffor, or testator acquired nothing by such assurance, but was entitled as of his former estate (p); but it has now been provided by the same section of the Inheritance Act, that 66 when any land shall have been limited by any assurance "executed after the 31st of December, 1833, to the (p) Co. Litt. 22 b. (0) Co. Litt. 22 b; Reading v. Royston, (1703) 1 Salk. 242. 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 of his former estate or part "thereof." Finally, if there be a limitation in an assurance executed after 31st December, 1833, or in the will of a testator who died after that date, to the "heirs " or "heirs of the body" of any one, there, although such person or persons take by purchase (because no estate is limited to their ancestors), yet, by section 4 of the Inheritance Act, in case of future descents, the person whose heirs they are will be treated as the purchaser, until the estate has again changed hands by purchase (q). II. The second rule or canon of descent is, that inheritances shall in the first place lineally descend to the issue of the purchaser in infinitum. [And this principle of placing the lineal descendants first in succession to their ancestor is, under all systems of descent, invariably adopted, and may be said to be of universal obligation or propriety. For the possessions of the parents naturally go, upon their decease, in the first place to their offspring, as those to whom they have given being, and for whom they are therefore bound to provide.] But, when we say that the inheritance will descend to the issue of the purchaser ad infinitum, we must, of course, understand, that the nearer degree entirely excludes the remoter degree which is descended from it. Thus, no grandson can claim as heir to his paternal grandfather, if his (the grandson's) own father be living; although, if his mother be dead, the grandson may well claim to be heir of her father, i.e., his own maternal grandfather. (g) The effect of this rule is, that if land be limited to A. for life, remainder to the heirs of B., B.'s heir, though he takes by pur chase, will not, on his own death [III. The third rule or canon of descent is, that, between persons in the same degree, males are preferred to females; and that, among males, the elder is preferred to the younger, but that females take equally. The preference of males to females is, perhaps, attributable to that imperfect system of feuds which obtained here before the Conquest, especially as the same preference exists in gavelkind; for we find that in the so-called Laws of King Henry the First, it is plainly recognized (1). But its complete adoption is clearly due to the policy of the feudal law, according to which females could never succeed to a proper feud, being incapable of performing those military services for the sake of which that system was established. Nevertheless, our law does not extend to the total exclusion of the female, as the Salic law does; it only postpones them to males. For, though daughters are excluded by sons, yet they succeed where there is no son; our law thus steering a middle course between the actual rejection of females and the putting them on a level with males.] Thus, to take an illustration from our Table (No. II.), on the death of John Stiles, the purchaser, intestate, his eldest son, Matthew, if living, will succeed to the whole. of his estate, whether it be in fee simple or fee tail general. If, however, Matthew be dead, leaving no issue, the whole inheritance will descend on Gilbert. If both Matthew and Gilbert be dead without issue, Margaret and Charlotte will take equally, as co-parceners. But, if either Matthew or Gilbert have left issue, that issue will succeed immediately after the claim of their deceased parent has been proved to be incapable of enforcement, owing to his death. And, among themselves, the same rules of preference will be observed. Finally, if Matthew and Gilbert are both dead, leaving no issue, but Margaret has died, leaving a son, Margaret's son will inherit his (r) LL. Henrici Primi (Schmid), c. 70, s. 21. (The passage is of very doubtful meaning.) |