CHAPTER X.

INCIDENTS OF TITLE.

HAVING endeavoured to show the nature of the title which the purchaser may call for, we will proceed to consider the various incidents of title which

suggest themselves on the investigation being entered upon.

SECTION 1.

DESCENT ON INTESTACY.

The Rules of Descent.-In the case of deaths intestate since January 1st, 1898, realty as well as personalty is vested in the administrator so soon as letters of administration are taken out (a). Prior to the grant, the legal estate is probably in the heirat-law (b), but the grant of administration relates back to the time of the death of the intestate (c), and a good title cannot be made by the heir until administration has been taken out and the estate has been conveyed to him by the administrator under s. 3 of the Land Transfer Act, 1897. This, however, does not affect the beneficial interest in the property which is regulated by the Law of Inheritance Act, 1833 (d).

(a) Land Transfer Act, 1897 (60 & 61 Vict. c. 65), s. 1. (b) John v. John, [1898] 2 Ch. 576.

(c) In the Goods of Pryse, [1904] P. 301.

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

The rules of descent as to an estate in fee simple are as follows:

Rule 1. Inheritances shall lineally descend to the issue in infinitum of the last purchaser, who is defined by the Act to be the last person entitled to the land, unless it shall be proved that he inherited (e).

Rule 2. The male issue shall be admitted before the female.

Rule 3. Where there are two or more males in equal degree the eldest only shall inherit, but females altogether. Consequently, the issue of the eldest male would take, to the exclusion of the younger and his issue, the younger male and his issue taking to the exclusion of the females, who, on the death of the younger male without issue, would take in equal shares as coparceners. If one of two coparceners dies seised and intestate leaving a child, the whole of her share descends upon the child to the exclusion of the other coparcener (f), and this rule applies equally in favour of her more remote lineal descendants (g).

Rule 4. The lineal descendants in infinitum of a person deceased shall represent their ancestor.

Rule 5. On failure of issue the inheritance shall descend to the purchaser's nearest lineal ancestor.

Rule 6. The father and all the male paternal ancestors of the purchaser and their descendants shall inherit in preference to any of the descendants

(e) 3 & 4 Will. 4, c. 106, s. 1.

(f) Cooper v. France (1850), 14 Jur. 214.
(g) In re Matson, [1897] 2 Ch. 509.

of such lineal ancestor and before any of the female paternal ancestors and their heirs; all the female paternal ancestors and their heirs before the mother or any of the maternal ancestors or her or their descendants; and the mother and all the male maternal ancestors and her and their descendants before any of the female maternal ancestors or their heirs.

Rule 7. A kinsman of the half-blood shall be capable of being heir, and shall inherit next after a kinsman in the same degree of the whole blood, and after the issue of such kinsman when the common ancestor is a male, and next after the common ancestor when such common ancestor is a female.

Rule 8. The mother of the more remote male paternal ancestor and her heirs shall be preferred to the mother of a less remote male paternal ancestor and her heirs.

Rule 9. By the statute 22 & 23 Vict. c. 35, ss. 19, 20, it is enacted that where there shall be a total failure of heirs of the purchaser, or where any land shall be descendible as if an ancestor had been the purchaser thereof, and there shall be a total failure of the heirs of such ancestor, then and in such case the land shall descend, and the descent shall thenceforth be traced from the person last entitled to the land as if he had been the purchaser thereof.

Intestates' Estates Act.-By the Intestates' Estates Act, 1890 (h), a slight variation is made in the rules of descent above stated. This Act only applies to the case of a man dying intestate after September 1st,

(h) 53 & 54 Vict. c. 29.

1890, leaving a widow but no issue. If the intestate's estate (real or personal) does not exceed £500, the widow is entitled exclusively; if it does exceed £500, she has a charge for that amount with interest thereon at 4 per cent. from the date of the death of the intestate. "The widow takes the £500 out and out paramount to everything"; and the residue of the real and personal estate devolves in the usual manner (i). The Act does not apply to a case of partial intestacy (k).

Explanation of Rules of Descent.-From the foregoing it will be gathered, first, that the person last entitled to the inheritance, whether he obtained. possession thereof or not, is the party from whom the descent is to be traced, provided he did not inherit. Such person is styled the purchaser, the legal signification of the word "purchase" being defined by Littleton to be-possession to which a man cometh not by descent (1). Section 3 of the Act provides that a devisee of real estate takes by purchase, even though he may be the heir of the testator (m), and this section applies to the case of a devise to the testator's "right heirs " (n).

Secondly, that the inheritance will descend to the issue of such person in infinitum, the descendant of a person deceased representing the ancestor, the eldest son and his issue taking before the younger

(i) In re Charriere, [1896] 1 Ch. 912.

(k) In re Twigg's Estate, [1892] 1 Ch. 579.
(1) Litt., s. 12.

(m) 3 & 4 Will. 4, c. 106, s. 3.

(n) Owen v. Gibbons, [1902] 1 Ch. 636.

sons and their issue, and the daughters taking in equal shares on failure of the issue of their brothers as coparceners, the share of each daughter descending to her respective heirs.

On the failure of the issue of the purchaser, the inheritance would go to his father, as the nearest lineal ancestor, before the brothers or sisters of the purchaser, who and whose issue would take after the father; the brothers and sisters of the whole blood to the purchaser taking before the brothers and sisters of the half-blood, the latter on the father's side taking next after the issue of the whole blood; and on failure of the issue of the father of the purchaser, the inheritance would continue to ascend thus the grandfather, being the next lineal ancestor of the purchaser, would become entitled in preference to the uncles or aunts or their issue, who would take next after the grandfather of the purchaser, and so on until the male paternal lineal ancestors and their issue were exhausted.

On failure of the male paternal ancestors of the purchaser and their issue, the female paternal ancestors and their issue are next entitled, the mother of a more remote male paternal ancestor and her heirs taking before the mother of a less remote male paternal ancestor; thus the mother of the paternal grandfather and her issue are preferred to the father's mother and her issue.

On failure of the female paternal ancestors of the purchaser and their issue, the mother of the purchaser and her heirs become entitled to the inheritance.