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any possibility be heirs, the law takes no notice: and therefore we have [255] seen, that an alien elder brother shall not impede the descent to a natural-born younger brother. But in attainders it is otherwise for if a man hath issue a son, and is attainted, and afterwards pardoned, and then hath issue a second son, and dies; here the corruption of blood is not removed from the eldest, and therefore he cannot be heir: neither can the youngest be heir, for he hath an elder brother living, of whom the law takes notice, as he once had a possibility of being heir; and therefore the younger brother shall not inherit, but the land shall escheat to the lord: though had the elder died without issue in the life of the father, the younger son born after the pardon might well have inherited, for he hath no corruption of blood. So if a man hath issue two sons, and the elder in the lifetime of the father hath issue, and then is attainted and executed, and afterwards the father dies, the lands of the father shall not descend to the younger son for the issue of the elder, which had once a possibility to inherit, shall impede the descent to the younger, and the land shall escheat to the lord. Sir Edward Coke in this case allows," that if the ancestor be attainted, his sons born before the attainder may be heirs to each other, and distinguishes it from the case of the sons of an alien, because in this case the blood was inheritable when imparted to them from the father: but he makes a doubt (upon the same principles, which are now overruled) whether sons, born after the attainder, can inherit to each other, for they never had any inheritable blood in them.

Upon the whole it appears, that a person attainted is neither allowed to retain his former estate, nor to inherit any future one, nor to transmit any inheritance to

p Co. Litt. 8.

q Dyer. 48.

r Co. Litt. 8.

s 1 Hal.P. C. 357.

9 Ninth edition reads, "the principles before-mentioned."

his issue, either immediately from himself, or mediately through himself from any remoter ancestor; for his mheritable blood, which is necessary either to hold, to take, or to transmit any feodal property, is blotted out, corrupted, and extinguished forever: the consequence of which is, that estates, thus impeded in their descent, result back and escheat to the lord.

[256] This corruption of blood, thus arising from feodal principles, but perliaps extended farther than even those principles will warrant, has been long looked upon as a peculiar hardship: because the oppressive parts of the feodal tenures being now in general abolished, it seems unreasonable to reserve one of their most inequitable consequences; namely, that the children should not only be reduced to present poverty (which, however severe, is sufficiently justified upon reasons of public policy), but also be laid under future difficulties of inheritance, on account of the guilt of their ancestors. And therefore in most (if not all) of the new felonies created by parliament since the reign of Henry the eighth, it is declared that they shall not extend to any corruption of blood: and by the statute 7 Ann. c. 21. (the operation of which is postponed by the statute 17 Geo. II. c. 39) it is enacted, that, after the death of the late pretender, and his sons, no attainder for treason shall extend to the disinheriting any heir, nor the prejudice of any person, other than the offender himself: which provisions have indeed carried the remedy farther, than was required by the hardship above complained of; which is only the future obstruction of descents, where the pedigree happens to be deduced through the blood of an attainted ancestor.

Before I conclude this head, of escheat, I must mention one singular instance in which lands held in feesimple are not liable to escheat to the lord, even when their owner is no more, and hath left no heirs to inherit

them. And this is the case of a corporation; for if that comes by any accident to be dissolved, the donor or his heirs shall have the land again in reversion, and not the lord by escheat [see note 47, page 398]; which is perhaps the only instance where a reversion can be expectant on a grant in fee-simple absolute.* But the law, we are told, doth tacitly annex a condition to every such gift or grant, that if the corporation be dissolved, the donor or grantor shall re-enter; for the cause of the gift or grant [257] faileth. This is indeed founded upon the self-same principle as the law of escheat: the heirs of the donor being only substituted instead of the chief lord of the fee: which was formerly very frequently the case in subinfeudations, or alienations of lands by a vassal to be holden as of himself; till that practice was restrained by the statute of quia emptores, 18 Edw. I. st. 1. to which this very singular instance still in some degree remains an exception.

There is one more incapacity of taking by descent, which, not being productive of any escheat, is not 9 properly reducible to this head, and yet must not be passed over in silence. It is enacted by the statute 11 & 12 Will. III. c. 4. that every papist who shall not abjure the errors of his religion by taking the oaths to the government, and making the declaration against transubstantiation, within six months after he has attained the age of eighteen years, shall be incapable of inheriting, or taking, by descent as well as purchase, any real estates whatsoever; and his next of kin being a protestant, shall hold them to his own use till such time as he complies with the terms imposed by the act. This incapacity is merely personal; it affects himself only, and does not destroy the inheritable quality of his blood, so as to impede the descent to others of his kindred. In like manner as, even in the times of pop9 Ninth edition reads "strictly."

t Co. Litt. 13.

*Cited, 20 Wend. 502.

ery, one who entered into religion and became a monk professed was incapable of inheriting lands, both in our own" and the feodal law; eo quod desiit esse miles seculi qui factus est miles Christi; nec beneficium pertinet ad eum qui non debet gerere officium." But yet he was accounted only civiliter mortuus; he did not impede the descent to others, but the next heir was entitled to his or his ancestor's estate.

These are the several deficiencies of hereditary blood, recognized by the law of England; which, so often as they happen, occasion lands to escheat to the original proprietary or lord.'

NOTES OF THE AMERICAN EDITOR CHAPTER XV. (45) Escheat. . . . may seem to fall more properly title by descent than title by purchase, page

under 244.

• ...

The difficulty which has been found, not by Blackstone only, but by many later writers, in assigning escheat to a particular class of titles, arises from the fact that it is not, strictly speaking, a title at all. No new estate is given by it. The lord or king who takes possession by escheat on the termination of a fee-simple is, or stands in place of, the person (feoffor) by whom that fee-simple was first created; and he claims under his former title, and not under that of the escheat. He is in the same position, as to this, with the landlord who retakes his land when a tenant's term expires. "When there is no longer any tenant, the land returns by reason of tenure to the lord by whom, or by whose predecessors in title, the tenure was created." (A. G. of Ontario v. Mercer, 8 App. Cas. 722.) (Only the word "tenure" here is used in different senses in this short extract. If "sub-tenure" were the word used in the last line it would be clear.)

Escheat resembles a reversion; but the latter can only

u Co. Litt. 132.

w 2 Feud. 21.

take place after an estate less than a fee-simple, while escheat always follows the end of a fee-simple, never of a less estate. It is produced by act of the law, and thus differs from all other cases of purchase; but it differs also from descent, because the lord is not seised, like the heir of the same estate which the ancestor had, but of one paramount to it. He comes in, not in the per but in the post.

It is this connection with tenure that requires the limitation of escheat to legal estates in land. The equitable estate of cestui que use or cestui que trust being only "collateral to the land" and not a tenement cannot escheat, as was correctly held by the equity judges in Burgess v. Wheate, 1 Eden, 177, against the dissent of Lord Mansfield, the head of the common-law courts. (See, also, Sir George Sand's Case, 2 Freem. 129; Henchman v. Att'y-Gen. 3 Mylne & K. 485; Taylor v. Hayzarth, 14 Sim. 8; Beale v. Symonds, 16 Beav. 406.) But in 1884 the rule was changed by the Intestate Estates Act, 47 and 48 Vict. c. 71, section 4, extending the law of escheat to equitable estates in land, and to any estate, legal or equitable, in incorporeal hereditaments. In America there are weighty opinions in favor of the same holding, without the aid of statute, upon the general change in the nature of equitable estates, and of the doctrine of escheat now to be mentioned.

At common law there was no such thing as escheat to the sovereign, state, or king, as such. When the king took an escheat, it was only as the lord of whom it was holden. But after the statute of quia emptores forbade the creation of new tenures by subjects it became in every century more difficult to determine who was the immediate lord of whom a fee was holden. And as all land was holden mediately or immediately of the king, the result was to give every escheat, not shown to belong to some mesne lord, to the king. In the older states of the Union there might also be

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