20; 28 and 33; 12 and 25; 8, 9, and 38, 39; 42 and 55; 45 and 50; and 58 and 63. 5. Each male ancestor and his ancestors, whether male or female, and his and their issue, shall be preferred to all other female ancestors and their ancestors, whether male or female, and their issue. The words are, "That none of the maternal ancestors of the person from whom the descent is to be traced, nor any of their descendants, shall be capable of inheriting until all his paternal ancestors and their descendants shall have failed; and also, that no female paternal ancestor of such person, nor any of her descendants, shall be capable of inheriting until all his male paternal ancestors and their descendants shall have failed; and that no female maternal ancestor of such person, nor any of her descendants, shall be capable of inheriting until all his male maternal ancestors and their descendants shall have failed." (Sect. 7.) ute) by which a person taking property by descent may acquire a new estate therein by purchase, and thus, breaking the descent, as it was termed, make himself, for all purposes, the original root of descent. Thus, formerly, if a person taking an estate by descent from his mother did certain acts, and died without, issue, his heir would have been sought among his paternal collateral relations; and now, if a parcener does certain acts, her son may inherit to the whole of her share; or, generally, if an heir does any of the acts referred to, or even acquires his estate originally in a certain manner, he makes himself the purchaser or person from whom the de scent is to be traced. Before the recent statute, in order to break the descent in this manner, the heir must have lost his old estate, and acquired a new estate in the land; and if he merely conveyed away the whole fee, and limited back an estate to himself and his heirs, or to his heirs alone in fee-simple, either at common law, or by way of use, the descent was not changed; for so much as was limited back was the old reversion, and a man could not purchase of himself; à fortiori, if he simply disposed of a particular estate, leaving the reversion in himself. (Co. Litt., 22, b; 3 Lev., 406; 1 B. & Cr., 448; 2 P. Wms., 135.) But if he once allowed the legal inheritance to vest in another, though but for a single minute (unless as a mere release to uses), and subsequently acquired the estate by reconveyance, it was otherwise. (Co. Litt., 12, b; 7 T. R., 103.) If rent was reserved upon a conveyance in fee, this was no part of the reversion, and descended as an estate by purchase; but when a reversion in the land was also reserved, the rent follow6. That the male issue shall be admit- ed the reversion. (Co. Litt., 12, b.) ted before the female. "That where there shall be a failure of male paternal ancestors of the person from whom the descent is to be traced, and their descendants, the mother of his more remote male paternal ancestor, or her descendants, shall be the heir or heirs of such person, in preference to the mother of a less remote male paternal ancestor or her descendants; and where there shall be a failure of male maternal ancestors of such person and their descendants, the mother of his more remote male maternal ancestor, and her descendants, shall be the heir or heirs of such person, in preference to the mother of a less remote male maternal ancestor and her descendants." 7. That when there are two or more males in equal degree, the eldest only shall inherit; but the females altogether. 8. That (subject to the third rule) a parent shall be preferred to his issue; but the issue in infinitum of any person deceased shall represent their ancestor; that is, shall stand in the same place as he would have done had he been living. Under the old law, the heir must have been of the blood of the last purchaser ; and under the new law, the person to take by descent is to be the heir of the last purchaser; but there always have been means (the list of which has been augmented by the recent stat If land inherited ex parte maternâ was So where the condition is incident to a reversion, of course the benefit of it descends with the reversion to the heir ex parte materna. (Moor, 113; Godb., 2; Co. Litt., 215, a.) The descent was not changed by a partition between coparceners, though effected by a conveyance to uses; and even a rent granted for equality of partition descended as if it were annexed to the deficient share in the land. (Co. Litt., 169, b, 177, b; Com. Dig., Parceners (C., 15); 1 Nev. & P., 255.). If only the equitable interest descended ex parte maternâ, and the legal estate was subsequently purchased, the entire descent was changed. (2 Doug., 771; 1 Sim. & St., 55.) If the ancestor devised the estate in fee to his heir, either by name or by description as heir, the descent was not changed, even in the case of copyholds which passed by surrender made in the ancestor's lifetime, and the creation of particular estates or encumbrances, or even of an executory limitation in fee, made no difference. (Lord Rym., 728, 829; 2 W. Bl., 687; 13 Ves., 412; 1 B. & Al., 530; 2 Myl. & K., 93.) But the descent was changed by a devise to the heir jointly with another, or of lands descendible at common law to the heir by the custom of gavelkind, or of the entirety to one of several co-heirs (Plowd., 545, b; 2 Vern.. 732; Harg., Co. Litt., 24, b; 3 Bos. & P., 643), or of an estate descendible ex parte maternâ to the collateral heir ex parte paterna, the devisee in all of these cases not being the heir, in respect of the estate in question. But a devise to the heir and another, as tenants in common, being the same thing as a devise of a moiety to the stranger, did not give the heir his moiety by purchase; although, if the heir could not take under the devise in the same way as he would have taken by descent, it was a purchase; as, where an estate in gavelkind was given to the testator's sons, either with or without words of division; since by the 278 devise they could not take as parceners, but in the one case in common, and in the other jointly. (Goldsb., 88; 1 Sim., 112.) Under the recent statute, however, a devise to an heir, or a limitation in a deed to the grantor or to his heirs, will in all cases confer an estate by purchase on the person taking under such devise or limitation (sect. 3). (10 Sim., 374.) But if the grantor takes the fee as a resulting use, and not by virtue of an express limitation, the statute does not interfere, and the descent is not changed. If land is limited to A. for an estate of freehold, and in the same assurance is contained a limitation to the heir at law, or in tail, of A., this gives an estate of inheritance to A., under the rule in Shelley's case (infra, p. 242); but formerly, where there was a limitation to the heirs at law of A., and no estate of freehold was given to A., the person sustaining the character of A.'s heir at the time appointed for the vesting of the estate, took by purchase; so that, in the case of a limitation in fee-simple, the estate descended to the heirs ex parte paterna of such purchaser, although A. were a woman. But in the case of a limitation to the heirs special of A., the land descended in kind of quasi entail to his heirs and issue generally, and not to the heirs and issue of the purchaser. (Co. Litt., 13, a; Fearne, 82.) Where the land was of gavelkind tenure, the heir at common law took in the first instance by purchase. (Br. Ab., Descent, 59; Co. Litt., 10, a; 1 Rep., 101.) Even a limitation to A. and his heirs on the part of his mother merely gave him a fee conditional on the existence of such an heir. (Co. Litt., 220.) But now, in such cases, the land is directed to descend, and the descent thereof to be traced, as if the ancestor named in such limitation had been the purchaser of such land. (Sect. 4.) CHAPTER XV. OF TITLE BY PURCHASE; AND, FIRST, BY ESCHEAT. PURCHASE, perquisitio, taken in its largest and most extensive Purchase sense, is thus defined by Littleton :a the possession of lands and defined. 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,b1 2 he who own agree. ment. Purchase, indeed, in its vulgar and confined acceptation, is Purchaser is applied only to such acquisitions of land as are obtained by way comes to the of bargain and sale, for money or some other valuable consid- estate by his eration. 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 purchaser,c 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 purchaser; 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, seized in fee, devises his whole estate to his heir at law, so that the heir takes neither a greater nor a less estate by the devise than he would have done without it, [242] he shall be adjudged to take by descent,e even though it be charged with encumbrances ;f this being for the benefit of creditors, and others who have demands on the estate of the an d Lord Raym., 728. e 1 Roll. Abr., 626. Salk., 241. Lord Raym., 728. by way of remainder. The title of a |
