Except, however, in the case of copyholds, the claim of the creditors will now, in the case of death after the 31st December, 1897, be directed against the personal representatives of the deceased, in whom his real, as well as his personal, assets will vest (k); and it will be only in the event of premature distribution of the estate, that any question of the direct liability of the heir or devisee can be raised. In any case, of course, this liability will be limited, as before, to the assets derived by the heir or devisee from the deceased; and the Land Transfer Act, 1897 (1), expressly provides that, as between the real and personal representatives of the deceased, the liability of their respective assets to satisfy the claims against the estate shall remain unaffected by its provisions. Estates tail are not, of course, responsible for the debts of a deceased tenant-in-tail, other than the Crown debts mentioned in the Act of 1541 (m). || (k) Land Transfer Act, 1897, s. 1. (1) S. 2 (3). (m) 33 Hen. 8, c. 39, s. 50; Anderson's Case, (1597) 7 Rep. 21 a. CHAPTER XII. OF TITLE BY ESCHEAT. [ESCHEAT signifies chance or accident; and the term is applied to the chance or case of the owner of an estate in fee simple dying without having disposed of it, and leaving no lawful heir behind him to take it by descent. In this case, by the doctrine of escheat, the estate results back, by a kind of reversion, to the original grantor or lord of the fee (n). And here it is to be observed, that the land so escheating afterwards follows the lord's seignory, as being a fruit thereof. If therefore the lord was entitled to the seignory by purchase, the land escheated will descend to his heirs general; but if by descent, it will be inheritable only by such of his heirs as are capable of inheriting the seignory (0). In order to complete his title by escheat, it is necessary that the lord perform an act of his own, by entering on the lands and tenements so escheated, or commencing an action to recover them. If he fail to do so, or do any act that amounts to an implied waiver of the escheat, as by accepting rent of a stranger who usurps the possession, his title is barred (p). The law of escheat is founded upon this single principle, that the inheritance of land held in fee simple having failed, it must become what the feudal writers denominate feudum apertum, and must result back again to the lord of the fee, by whom (or by those whose estate he hath) it was given. Escheats have been frequently divided into those propter defectum sanguinis, and those propter delictum tenentis; the n) Co. Litt. 13 a. (p) Co. Litt. 268 b. (0) Inheritance Act, 1833, s. 1. [one sort, if the purchaser should actually die without an heir, the other, if his blood be attainted (q);] for, as the law until recently stood, a person attainted could have no lawful heir. Owing, however, to recent changes, escheat propter delictum tenentis is now almost unknown; and a very few words will suffice to describe it. I. Escheats propter defectum sanguinis. By the law, as it now stands, an escheat of this kind can only take place on the total failure of the heirs of the person last entitled to the estate, i.e., the person on whose decease the descent has occurred. For, although the Inheritance Act, 1833, made the purchaser the stock of descent, and, consequently, allowed escheat on failure of his heirs, yet, as we have seen, the Law of Property Amendment Act, 1859, provides that, on failure of the heirs of the purchaser, the person last entitled shall be deemed the purchaser for the purposes of descent. If he were actually the purchaser, the statute of 1859 is, of course, inoperative. But if he were not, then all his heirs will be entitled to succeed before the lord claiming by escheat. Sometimes, however, though there are actual, or natural heirs of the person who is treated as the stock of descent, they are not "lawful" in the strict sense, and cannot, therefore, inherit the estate, or prevent an escheat. The persons who are thus under disability to take as heirs may be classed as follows: 1. [A monster, which hath not the shape of mankind, but in any part evidently bears the resemblance of the brute creation, hath no inheritable blood, and cannot be heir to any land, albeit it be brought forth in marriage; but, although it hath deformity in any part of its body, yet if it hath human shape, it may be heir (r). 2. Bastards are incapable of being heirs. Bastards, by our law, are such children as are not born of lawful wedlock, or within a competent time after its determination. (r) Ibid. 7 h. (2) Co. Litt. 13 a, [Such are held to be nullius filii, the sons of nobody, the maxim of the law being, "qui ex damnato coitu "nascuntur, inter liberos non computantur" (s). And bastards, being thus the sons of nobody, have in them no inheritable blood, consequently, none of the blood of the purchaser, real or fictitious. And therefore, if there be no other claimant, the land shall escheat to the lord. By the Roman Law, which has been adopted in many modern States, the subsequent marriage of a man with the woman by whom he had had a bastard, made the latter legitimate. But this rule has never been adopted in England. And, although the foreign rule is recognized in English Courts, in certain cases, for purposes of succession to personal property (t), it is a well-established doctrine of English law, that no English land can be inherited by any person not born, or at least conceived, in wedlock (u). There is indeed one instance in which our law has shown bastards some little regard; and that is usually. termed the case of bastard eigné and mulier puisné. This happens when a man has a bastard son, and afterwards marries the mother, and by her has a legitimate son, who in the language of the law is called a mulier, or, as Glanvil expresses it in his Latin, filius mulieratus (x); the woman before marriage being concubina, and afterwards mulier. Now here the eldest son is bastard, or bastard eigné, and the younger son is legitimate, or mulier puisné. If then the father dies, and the bastard eigné enters upon his land, and enjoys it till his death, and dies seised thereof, and the inheritance descends to his issue; in this case, the mulier puisné and all other heirs (though minors, married women, &c.) are totally barred of their right (y). And this-1. As a punishment on the mulier (8) Ibid. 8 a. (t) Re Goodman's Trusts, (1881) 17 Ch. D. 266. (u) Birtwhistle v. Vardill, (1840) 7 Cl. & F. 895. (x) L. 7, ch. 1. (y) Litt. ss. 399, 400. [for his negligence, in not entering during the bastard's life and evicting him. 2. Because the canon law (following the civil) did allow such bastard eigné to be legitimate, on the subsequent marriage of his mother. And therefore the laws of England (though they would not admit either the civil or canon law to rule the inheritances of this kingdom), yet paid such a regard to a person thus peculiarly circumstanced, that, after the land had descended to his issue, they would not unravel the matter again, and suffer his estate to be shaken. And these rules as to the bastard eigné applied also when a man had two daughters, the elder of whom was a bastard, and they both entered peaceably as co-parceners (3) But if the mother was never married to the father, the bastard eigné had no title at all (a). As bastards cannot be heirs themselves, so neither can they have any heirs but those of their own bodies. For all collateral kindred consists in being derived from the same common ancestor; and as a bastard has no legal ancestors, he can have no collateral kindred. And therefore if a bastard purchase land, and die owner thereof without issue, and intestate, the land shall escheat to the lord of the fee.] 3. Aliens also were, till recently, incapable of taking by descent (b). And therefore, if a man left no other relations but aliens, his land escheated to the lord. Moreover, aliens could not hold real estate by purchase; for land purchased by an alien could be at once claimed by the Crown, on office found (c). And as they could neither hold by purchase nor take by inheritance, they could have no heirs, because they had nothing for an heir to inherit. [Moreover, at one time, aliens could not be the channels (2) Co. Litt. 244 a. This passage about the bastard eigné has been retained, out of respect for former editors. But there is grave doubt whether it is law at the present day. Descent being no longer traced from the person last seised, |