the male paternal line, the mother of a more remote paternal ancestor and her descendants are preferred to the mother of a less remote paternal ancestor and her descendants. (8.) When the tracing of the descent has entered upon the female line, the same rule applies so often as it becomes necessary to change from male ancestors to female. (28.) N. B. This rule declares the law, which had once been much in controversy, in accordance with the opinion expressed by Blackstone. (2 Blackst. Com. 237, 238.) For an account of the controversy and an acute vindication of Blackstone's view, see Watk. Desc. 171– 198. The following rule is due to 22 & 23 Vict. c. 35, 219, and is entirely novel : 9. If there should be a total failure of heirs of the purchaser, the descent will thenceforth be traced from the person last entitled to the land, as if he had been the purchaser. The same rule applies, where land is descendible as if an ancestor had been the purchaser, upon a total failure of heirs of such ancestor. (44) This total exclusion of the half blood from the inheritance is looked upon as a strange hardship, page 228. The exclusion of the half blood seems to rest upon a notion of relationship quite different from any we now entertain, but which is by no means unreasonable, if we rightly comprehend it. It is that all inheritance must be traced to the same marriage to the same pair of ancestors, not merely to a single common ancestor. In the direct line this, of course, has no meaning: descent can never be of the half blood. But in collateral lines it makes a broad distinction. Each couple have a separate progeny, and the connection between them is not legally significant: it is only an accident, so to speak. "To be of the blood of G. is either to be immediately descended from him or to be descended from the same couple of common ancestors. Two persons are consanguinei who are descended from the same two ancestors. The heir and ancestor must not only have two common ancestors with the original purchasers of the estate, but must have two common ancestors with each other; and therefore if the son purchases lands, and dies without issue, and it descends to any heir on the part of the father, if the line of the father should afterwards become extinct, it cannot pass to the line of the mother." (Christian, citing Hale's History of C. L. p. 246; Y. B. 49 Ed. III. 12.) Blackstone himself has shown that a kinsman of the whole blood is derived from the same couple of ancestors (text, p. *227); and it seems singular that he should have overlooked the bearing of this on the exclusion of the half-blood, and followed Wright's very inconclusive explanation of it as a mere rule of evidence. But Blackstone could know nothing of the many illustrations of the true force of that principle in the Germanic law of the continent first made known by recent study; such as the rule requiring a father to divide property with his children by first wife, before proceeding to a second marriage, etc. CHAPTER THE FIFTEENTH. OF TITLE BY PURCHASE, AND FIRST BY ESCHEAT. Purchase, perquisitio, taken in it's largest and most extensive sense, is thus defined by Littleton; the possession of lands and tenements, which a man hath by his own act or agreement, and not by descent from any of his ancestors or kindred.* In this sense it is contradistinguished from acquisition by right of blood, and includes every other method of coming to an estate, but merely that by inheritance: wherein the title is vested in a person, not by his own act or agreement, but by the single operation of law.† Purchase, indeed, in it's vulgar and confined acceptation, is applied only to such acquisitions of land, as are obtained by way of bargain and sale, for money, or some other valuable consideration. But this falls far short of the legal idea of purchase: for, if I give land freely to another, he is in the eye of the law a purchasor; and falls within Littleton's definition, for he comes to the estate by his own agreement, that is, he consents to the gift. A man who has his father's estate settled upon him in tail, before he was born, is also a purchasor; for he takes quite another estate than the law of descents would have given him. Nay even if the ancestor devises his estate to his heir at law by will, with other limitations or in any other shape than the course of descents would direct, such heir shall take by purchase. But if a man, seised in fee, devises his whole estate to his heir at law, so that the heir takes a 12. b Co. Litt. 18. c Ibid. d Lord Raym. 728. 8 8 Previously, "is." + Cited, 7 Ind. 609; 46 Miss. 395; 3 Or. 464; 18 Nev. 47. - Quoted, 68 Ind. 68; first sentence, 96 Ill. 535. Cited, 21 Iowa, 546. neither a greater nor a less estate by the [242] devise than he would have done without it, he shall be adjudged to take by descent, even though it be charged with incumbrances; 19 for the benefit of creditors, and others, who have demands on the estate of the ancestor.* If a remainder be limited to the heirs of Sempronius, here Sempronius himself takes nothing; but, if he dies during the continuance of the particular estate, his heirs shall take as purchasors. But, †if an estate be made to A for life, remainder to his right heirs in fee, his heirs shall take by descent: for it is an antient rule of law, that wherever the ancestor takes an estate for life, the heir cannot by the same conveyance take an estate in fee by purchase, but only by descent.ht And, if A dies before entry, still his heir shall take by descent, and not by purchase; for, where the heir takes anything that might have vested in the ancestor, he takes by way of descent. The ancestor, during his life, beareth in himself all his heirs; and therefore, when once he is or might have been seised of the 5 lands,5 the inheritance so limited to his heirs vests in the ancestor himself: and the word "heirs" in this case is not esteemed a word of purchase, but a word of limitation, enuring so as to increase the estate of the ancestor from a tenancy for life to a fee-simple. And, had it been otherwise, had the heir (who is uncertain till the death of the ancestor) been allowed to take as a purchasor originally nominated in the deed, as must have been the case if the remainder had been expressly 1 Rep. 104. 2 Lev. 60. Raym. 334. 1 Rep. 98. e 1 Roll. Abr. 626. f Salk. 241. Lord Raym. 728. g 1 Roll. Abr. 627. h 8 i Co. Litt. 22, 9 Ninth edition inserts, "this being." 5 Previously, "land." 8 Previously spelt, "encrease." *Cited, 3 Port. 459; 29 Am. Dec. 270. t-t Quoted, 14 Ind. 595. - Quoted, 14 Ind. 595. Cited, 3 Md. 545; 56 Am. Dec. 768; 13 Pa. St. 351; 53 Am. Dec. 476; 24 Miss. 363; 2 Yeates, 413; 3 Call, 60. limited to Matthew or Thomas by name; then, in the times of strict feodal tenure, the lord would have been defrauded by such a limitation of the fruits of his signiory, arising from a descent to the heir.* What we call purchase, perquisitio, the feudists called conquest, conquæstus, or conquisitio:1 both denoting any means of acquiring an estate out of the common course of inheritance. And this is still the proper phrase in the law of Scotland:m as it was among the Norman jurists, who stiled [243] the purchasor (that is, he who brought the estate into the family which at present owns it) the conqueror or conquereur." Which seems to be all that was meant by the appellation which was given to William the Norman, when his manner of ascending the throne of England was, in his own and his successors' charters, and by the historians of the times, entitled conquæstus, and himself conquæstor or conquisitor; signifying that he was the first of his family who acquired the crown of England, and from whom therefore all future clains by descent must be derived though now, from our disuse of the feodal sense of the word, together with the reflexion on his forcible method of acquisition, we are apt to annex the idea of victory to this name of conquest or conquisition: a title which, however just with regard to the crown, the conqueror never pretended with regard to the realm of England; nor, in fact, ever had.p The difference in effect, between the acquisition of an estate by descent and by purchase, consists principally in these two points: 1. That by purchase the estate acquires a new inheritable quality, and is descendible to the owner's blood in general, and not the blood only of some particular ancestor. For, when a man takes an estate by purchase, he takes it not ut feudum patero Spelm. Gloss. 145. 1 Crag. l. 1. t. 10. 18. m Dalrymple of feuds. 210. n Gr. Coustum. Gloss. c. 25 pag. 40. *Cited, 36 Cal. 332; 31 Ga. 751. |