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Richard earl of Cambridge, two; to Edmund duke of York,
I. The first rule is, that inheritances shall lineally descend to the issue of the person who last died actually seised, in infinitum; but shall never lineally ascend (7). To explain the more clearly both this and the subsequent rules, it must first be observed, that by law no inheritance can vest, nor can any person be the actual complete heir of another, till the ancestor is previously dead. Nemo est hæres viventis. Before that time the person who is next in
(n) See the table of consanguinity annexed; wherein all the degrees of collateral kindred to the propositus are computed, so far as the tenth of the
(7) In conformity with this canon, if a son purchase land, and die without issue, and his father and mother be then living, his father or mother shall not (as such) inherit such lands immediately from the son. But, if the father or mother be also cousins to the son, they may (as such) succeed to the inheritance. (Eastwood v. Vincke, 2 P. Wms. 416; and see ante, note (26) to chap. 1).
So, if there be father and two sons, and one of the sons purchases land and dies, his brother shall take the inherit
ance as heir to him, although the fa
civilians and the seventh of the canon-
ther be living. For, though the father
the line of succession is called an heir apparent, or heir Heirs apparent. presumptive. Heirs apparent are such, whose right of inheritance is indefeasible, provided they outlive the ancestor;
as the eldest son or his issue, who must by the course of the common law be heir to the father whenever he happens to Heirs presump- die. Heirs presumptive are such who, if the ancestor should die immediately, would in the present circumstances of things be his heirs; but whose right of inheritance may be defeated by the contingency of some nearer heir being born: as a brother, or nephew, whose presumptive succession may be destroyed by the birth of a child; or a daughter, whose present hopes may be hereafter cut off by the birth of a son. Nay, even if the estate hath descended, by the death of the owner, to such brother, or nephew, or daughter; in the former cases, the estate shall be devested and taken away by the birth of a posthumous child; and, in the latter, it shall also be totally devested by the birth of [ *209] a posthumous son (o) (8) †.
The ancestor must have had actual seisin.
*We must also remember, that no person can be properly such an ancestor, as that an inheritance of lands or tenements can be derived from him, unless he hath had actual seisin (9) of such lands, either by his own entry, or by the
(0) Bro. tit. Descent, 58.
(8) See ante, note (8) to chap. 11.
Seisin of fee-tail, with fee-simple expectant, will not be such a seisin as to
+ Mr. Christian, in his note upon the passage in the text, observes, that "besides the case of a posthumous child, if lands are given to a son, who dies, leaving a sister his heir; if the parents have, at any distance of time afterwards, another son, this son shall devest the descent upon the sister, and take the estate as heir to his brother. (Co Litt. 11. Doct. & Stud. 1 Dial. c. 7). So the same estate may be fre
quently devested by the subsequent birth of nearer presumptive heirs, before it fixes upon the nearest presumptive heir. As if an estate is given to an only child, who dies, it may descend to an aunt, who may be stripped of it by an after-born uncle, on whom a subsequent sister of the deceased may enter, and who will again be deprived of the estate by the birth of a brother."
possession of his own or his ancestor's lessee for years, or by receiving rent from a lessee of the freehold (p): or unless he hath had what is equivalent to corporal seisin in hereditaments that are incorporeal (10); such as the receipt of (p) Co. Litt. 15.
transmit the fee-simple to the heir of the person so seised: (Co. Litt. 14 b. 1 Roll. Abr. 628. Kellow v. Rowden, 1 Show. 245): for he is actually seised of the fee-tail only, though he has power to give, or may forfeit, the remainder in fee. (Hargrave, note (4) to Co. Litt. 14 b. Kellow v. Rowden, 3 Mod. 257).
An entry into parcel of the lands generally, is a sufficient entry as to all the lands situate in the same county. (Co. Litt. 15 a, 252 b).
The possession of a freehold estate by a tenant is the possession of the freeholder. (De Grey v. Richardson, 3 Atk. 470). Whether the same rule applies to copyholds is less clear; in the Anonymous case in Moor, (p. 125, pl. 272; and see Brown's case, 4 Rep. 22), it appears to have been so determined: but, in the Anonymous case in 3 Leon. (p. 69, pl. 106), and in 4 Leon. (p. 38, pl. 103), a contrary doctrine was held; and it was said, that as the possession of a copyholder must be customary, and the possession of his tenant by demise according to the order and course of common law, the possession of the one shall not be said to be the possession of the other.
The entry of a guardian in socage is the actual possession and seisin of the infant who is in wardship: (Goodtitle v. Newman, 3 Wils. 528. Ratcliff's case, 3 Rep. 42): but guardianship in socage only applies to cases of legal estates. To such it is one of the
incidents; but it is not so to equitable estates. (The King v. The Inhabitants of Toddington, 1 Barn. & Ald. 564).
It seems, that, if a father maketh a lease for life, or gift in tail, and dieth, and his eldest son dieth in the life of the tenant for life, or tenant in tail, his younger brother, though of the half blood, shall inherit; because the tenant for life, or tenant in tail, is seised of the freehold, and the eldest son hath nothing but the reversion expectant. Therefore, the youngest son shall inherit the land, as heir to his father, who was last seised of the actual freehold. And albeit a rent had been reserved upon the lease for life, and the eldest son had received the rent, yet the younger brother shall inherit; because the seisin of the rent is no actual seisin of the freehold of the land. (Co. Litt. 15 a, and Mr. Hargrave's note 5 thereto. Amys v. Cowley, Aleyne, 89). This must be borne in mind, in qualification of one of the instances of seisin mentioned in the text.
(10) See ante, note (6) to chapter 2, and also chap. 3, with the notes thereto. Of a dignity there can be no seisin, nor any possession but such as descends; and therefore there cannot be any possession to affect the descent. (Ratcliff's case, 3 Rep. 42. Lord Grey's case, Cro. Car. 601).
Seisin of a manor is good seisin of an advowson, common, &c. appendant or appurtenant thereto. (Hargrave's note 1 to Co. Litt. 15 b; and ante, notes
Where there is none that can
rent, a presentation to the church in case of an advowson (q), and the like. But he shall not be accounted an ancestor, who hath had only a bare right or title to enter or be otherwise seised. And therefore, all the cases which will be mentioned in the present chapter, are upon the supposition that the deceased (whose inheritance is now claimed) was the last person actually seised thereof. For the law requires this notoriety of possession, as evidence that the ancestor had that property in himself, which is now to be transmitted to his heir. Which notoriety had succeeded in the place of the antient feodal investiture (11), whereby, while feuds were precarious, the vassal on the descent of lands was formerly admitted in the lord's court (as is still the practice in Scotland) and there received his seisin, in the nature of a renewal of his ancestor's grant, in the presence of the feodal peers: till at length, when the right of succession became indefeasible, an entry on any part of the lands within the county (which if disputed was afterwards to be tried by those peers), or other notorious possession, was admitted as equivalent to the formal grant of seisin, and made the tenant capable of transmitting his estate by descent. The seisin therefore of any person, thus understood, makes him the root or stock, from which all future inheritance by right of blood must be derived: which is very briefly expressed in this maxim, seisina facit stipitem (r).
*When therefore a person dies so seised, the inheritance first goes to his issue: as if there be Geoffrey, John, and the land escheats Matthew, grandfather, father, and son; and John purchases
take by descent,
to the lord.
(q) Co. Litt. 11.
(r) Flet. 1. 6, c. 2, s. 2.
(6) and (7) to chap. 3). But the law is
descend to his half brother, as heir to the person last seised, and not to his sister of the whole blood. (1 Burn's Eccl. L., 11).
(11) See ante, note (17) to chap. 4.
lands, and dies; his son Matthew shall succeed him as heir, and not the grandfather Geoffrey: to whom the land shall never ascend, but shall rather escheat to the lord (s) (12).
(s) Litt. s. 3.
(12) Our author tells us, that the negative part of this canon is "founded on good legal reason;" but, it is conceived, that hardships equally repugnant to common feeling and to common sense may flow from it. By its operation, if any one dies intestate, without issue, (or kinsmen of the whole blood), but leaving a father, (and, perhaps, a numerous family of brothers and sisters by the same father, but by a different mother), his lands must escheat. If the same person had left an uncle him surviving, that uncle might have succeeded to the inheritance, and then the father might, eventually, as heir to the uncle, by a precious involution, have taken that which he could not derive from his own son. (See ante, note (26) to chapter 1). Ought such a canon to be retained. Even if it were admitted, (and see ante, note (21) to chapter 1, that it may at least be questioned), that "all rules of succession to estates are creatures of civil polity and juris positivi merely;" still it should seem sophistical thence to argue, that rules established in support of one system of civil polity ought to be held sacred, when that system has given way to another, under which, whatever convenience (real or supposed) there may once have been in those rules, that has ceased; but the harsh and painful consequences, and those alone, remain in full operation. It is certainly competent to the municipal law of any country to mark out the path of descent; but, as certainly, (notwithstand
ing our author's contradictory declaration and able apology), injustice is done to individuals when the line is arbitrarily traced, so as to violate private natural feelings, without thereby securing an equivalent public advantage. The feudal rule in question, as our author fairly acknowledges, is not only in opposition to the Jewish law, and to the refined code of Roman jurisprudence, but also to our own old Saxon laws: and it would be very difficult to prove the utility of preserving some disjointed fragments of feudality, merely because they may possibly have contributed to the strength, or even have been essential component parts of the feudal edifice, whilst that was entire. The devolution of personal property is directed by rules to which, generally speaking, unsophisticated reason and natural feeling willingly subscribe: (see post, chapter 32, pp. 515. et seq.): why should the descent of real property be controlled by another and very different set of rules? It is not asked why these latter ever were established; the occasion of their introduction we have learned from our author's fourth, fifth, and sixth chapters, and it may be admitted they were necessary to support in its vigour the system of feudal tenure; but, why are they allowed still to disfigure our code of laws regulating the descent of real property?
It is hoped that the commissioners now engaged in an investigation of the laws of real property, to whose