the share which their father, if living, would have taken (»). The right of representation is allowed as a general incident of descents to operate in face of the customary preference of the youngest in the same way as it operates on the common law rule of primogeniture. "The same principle must be applied, whether the custom be that of gavelkind or borough-english. You must ascertain what the custom is, and then apply all the rules of descent to the custom so ascertained" (o).

heirs.

Under the old law of inheritance, a limitation in a deed Linitation to or will to the heirs, or heirs of the body, of A. B., was construed in favour of the heir at common law, though the land were descendible in another course by custom. "The heir (it was said), to have the benefit of a purchase, must not only be heir to a special intent, but the general and perfect heir, the heir at common law; and therefore if lands of the nature of gavelkind are granted or devised to A. for life, remainder to the heirs of B., who has issue four sons, and dies, and afterwards the tenant for life dies, the eldest son of B. shall have the land" (p). But the customary heir was entitled wherever the word "heirs" was a word of limitation, as, to A. B. and his heirs. When it was a word of purchase, as, to the heirs of A. B., the donor was presumed to intend the heir at common law, unless there was something to show the contrary. But if special words are added describing the customary heir, the presumption will fail, and then, though the subject of the gift be common law land, yet the customary heir will be preferred. Accordingly, in Newcomen v. Barkham (9), it was declared by Lord Cowper, L. C., that if one, having borough-english land and also lands at common law, devises the latter to his heir by the custom of boroughenglish, this would be a sufficient description of the youngest son, though not heir at common law, and though the devise

Immediate inheritance between brothers.

Half-blood.

was not of the customary land, but of common law land, and that a like devise to gavelkind heirs would entitle all the sons.

But, under the present law, it seems that the customary heir may take the land in some cases where formerly he would have been excluded. When land is devised to the heir, or person who shall be the heir, of a testator, such heir will take as devisee, and not by descent; and when land is limited by an assurance, other than a will executed after the 31st of December, 1833, to the person who conveys the land or his heirs, such person is considered to have acquired the land as a purchaser by virtue of the assurance, and shall not be considered to be entitled thereto as his former estate (r). And when any person acquires land by purchase under a limitation to the heir or heirs of the body of his ancestor in an assurance executed after the 31st of December, 1833, or under any limitation to the same effect in a will of a testator dying after the same date, the land will descend, and the descent will be traced as if the ancestor named in such limitation had been the purchaser (s).

The effect of the custom of borough-english has also, in certain cases, been altered by the abolition of immediate descent between brothers and sisters (t), and the admission of lineal ancestors into the line of inheritance (u). If a man dies seised of land in borough-english, leaving no issue, with two elder brothers, the younger brother will now inherit as heir to the father; but formerly the elder brother would have inherited immediately, unless there were a special custom extending the peculiar descent to brothers (r).

The exclusion from the inheritance of relations by the half-blood under the old law was formerly considered to be a special inconvenience in lands of the nature of gavelkind

(r) 3 & 4 Will. IV. c. 106, s. 3.
(s) Ibid. s. 4.

(t) Ibid. s. 5.

(u) Ibid. s. 6.

(x) See Reeve v. Malster, Cro. Car. 410 (where there was no question of possessio fratris), and Clement v. Scudamore, 6 Mod. 120.

or borough-english, or subject to similar customs. In borough-english lands it was noticed "that if the youngest son by a second wife should take, the eldest son by the former wife would afterwards be excluded from the succession, which seems a great anomaly altogether" (y). But now the half-blood is admitted to the succession next after the relation of the whole blood in the same degree where the common ancestor is a male, and next after the common ancestor if a female (z).

niences of

In the appendix to the First Report of the Real Pro- Inconveperty Commissioners will be found notices of the following descent to inconveniences which arise from the continuance of the youngest. custom of borough-english, many of which are, of course, equally noticeable in the case of lands subject to other special customs of descent:-The youngest son is often a minor when the father dies; during the minority the land is inalienable, and often mismanaged, and in the case of a trust estate of borough-english lands a reference to the Court is often rendered necessary; it is difficult to ascertain the limits of the land covered by the custom, and sometimes difficult to show the nature and extent of the custom clearly enough to satisfy a purchaser; there is considerable ignorance and forgetfulness of the particular lands subject to it, so that in many cases, contrary to the intention, an estate settled as an entire estate has descended to different persons, the freeholds to the eldest son, and the copyholds to the customary heir; and generally, from the greater likelihood of long minorities, additions to the number of trustees and cestuis que trust on the same property, uncertainties respecting boundaries and customs, &c., land subject to special customs of descent, whether freehold or copyhold, is often rendered difficult to sell or to manage properly (a).

Upon the death of a copyholder intestate the heir Estate of tho (a) R. P. Comm. 1 Rep. App.

(y) R. P. Comm. 1 Rep. App.

heir before admittance.

immediately becomes the tenant, and may act as owner, as against all the world except the lord, before he has been admitted. "Admittances upon surrender," says Lord Coke, "differ from admittances upon descents in this, that in admittances upon surrender nothing is vested in the grantee before admittance no more than in voluntary admittances; but in admittances upon descents the heir is tenant by copy immediately upon the death of his ancestor, but not to all intents and purposes; for, peradventure, he cannot be sworn of the homage before, nor maintain a plaint in the nature of an assise (b) in the lord's court before, because till then he is not complete tenant to the lord, no further than the lord pleases to allow him for his tenant. So that to all intents and purposes the heir, till admittance, is not complete tenant, yet to most intents, especially as to strangers, the law takes notice of him as of a perfect tenant instantly upon the death of his ancestor, for he may enter on the land before admittance, take the profits, punish any trespass done upon the ground, surrender into the hands of the lord to whose use he pleases, satisfying the lord his fine due upon the descent, and by estoppel he may prejudice himself of his inheritance" (c).

In no other case, it may be mentioned, can a person who is not in the customary seisin bind his future estates by way of estoppel (d), and so a surrender by a mere heirapparent of a copyholder in the lifetime of his ancestor will not estop the heir of such surrenderor from claiming against the surrenderee (e). An heir may devise copyholds descending to him, although he has neither been admitted nor has paid the lord's fine upon the descent (f). In cases

(b) Abolished by 3 & 4 Will. IV. c. 27, s. 36.

(c) Co. Copyh. s. 41; Brown's Case, 4 Rep. 21 a, 22 b; Clarke v. Pennifather, 4 Rep. 23 b.

(d) Doe d. Blacksell v. Tomkins, 11 East, 185.

(e) Goodtitle d. Faulkner v. Morse, 3 T. R. 365.

(f) Wright v. Banks, 3 B. & Ad. 664; King v. Turner, 1 Myl. & K. 456; Doe d. Perry v. Wilson, 6 N. & M. 809.

of copyholds of inheritance, the heir of a copyholder may, before admittance, enter upon the land and take the profits, and, as against all persons but the lord, may bring an action to recover the land, or for trespass by a stranger (g), and after admittance may bring trespass against the lord for acts done before the admittance (). He may make a customary lease (i) for the period warranted by the custom, and generally act as owner, except as against the lord. "All these incidents seem almost necessarily to attach, because the lord might not hold a court for a considerable time after the death of the former tenant, and if the heir could not do these things he would not have the full enjoyment of the estate "(k). If the heir dies before admittance his heir may enter and take the profits, and may sue for trespass before his admission (); and in the like case his widow will have her freebench (m), and the husband of an heiress dying before admission will have his customary estate by the curtesy (n). If the customary estate is not an estate of inheritance, but one to which the tenant is admitted during the joint lives of himself and the lord, with a tenant right of renewal, the heir will have no estate before admittance, even after entry; and so, before admittance, he cannot bring an action to recover the land against a stranger (o). "I conclude," says Lord Coke, "that an admittance is principally for the benefit of the lord to entitle him to his fine, and not much necessary for strengthening the heir's title; then will some say, if the benefit which the heir shall receive by the admittance will not countervail the charges of the fine, he will never

(g) Doe d. Taylor v. Crisp, 8 A. & E. 779; Doe d. Hamilton v. Clift, 12 A. & E. 566.

(h) Barnett v. Guildford (Earl of), 11 Exch. 19.

(i) Bullock v. Dibley, Moo. 596. (k) Per Cur. in Doe d. Hamilton v. Clift, 12 A. & E. 566, 572.

(1) Clarke v. Pennifather, 4 Rep. 23 b.

(m) Watk. Descents, 49; Gilb.

Ten. 288.

(n) Doe d. Milner v. Brightwen, 10 East, 583.

(0) Doe d. Hamilton v. Clift, 12 A. & E. 566; Doe d. Dand v. Thompson, 13 Q. B. 670.