Page images

S 35. The fifth canon or rule of descent is sth Canon.

Collateral " That on failure of lineal descendants or issue of the

Descents. “ person last seised, the inheritance shall descend to “ his collateral relations, being of the blood of the « first purchaser, subject to the three preceding 66 rules.”

S 36. It is a maxim of the common law that no The Heir person can inherit an estate, unless he is defcended must be de

scended from from the first purchaser, or original acquirer of it. the first Pur

chaser. This rule is to be found in the Grand Coustumier of Normandy, ch. 25. from whence it was introduced here, and is plainly derived from the feudal law; for when feuds first became hereditary, no person could succeed to a feudum novum but the lineal descendants of the person who first acquired it, who was called the perquisitor. So that if a person died seised of a feud of his own acquiring, without leaving issue, it did not go to his brothers, but reverted to the donor. If it was a feudum antiquum, that is, if it had de. scended to the valsal from his ancestors, then his brothers, or such other collateral relations as were descended from the person who first acquired it, might succeed.

Ś 37. Thus Lord Hale says, if the son purchases Hil. c. vi. land and dies without issue, it shall descend to the heirs of the part of the father; and if he has none, then to the heirs on the part of the mother; because though the son has both the blood of the father and of the mother in him, yet he is of the whole blood of the mother ; and the consanguinity of the mother are


confanguinei cognati of the son; and of the other side, if the father had purchased lands, and it had descended to the son, and the son had died without issue, and without any heir of the part of the father,-it should never have descended in the line of the mother, but escheated. For, though the consanguinei of the mother were the consanguinei of the son, yet they were not of consanguinity to the father, who was the purchafer. But if there had been none of the blood of the grandfather, yet it might have resorted to the line of the grandmother ; because her confanguinei were as well of the blood of the father, as the mother's consanguinity is of the blood of the fon. Confequently also, if the grandfather had purchased lands, and they had descended to the father, and from him to the son ; if the son had entered and died without issue, his father's brothers or sisters, or their descend. ants; or, for want of them, his great-grandfather's brothers or fisters, or their descendants; or, for want of them, any of the consanguinity of the great-grandfather, or brothers or sisters of the great-grandmother, or their descendants, might have inherited. For the confanguinity of the great-grandmother was the confanguinity of the grandfather. But none of the line of the mother or grandmother, viz. the grandfather's wife, should have inherited, for that they were not of the blood of the first purchaser. And the same rule, è converso, holds in purchases in the line of the mother or grandmother. They shall always keep in the same line that the first purchaser settled them in.

S 38. When

$ 38. When the feudal rigor was in part abated, a 2 Comm.221. method was invented to let in the collateral relations of the first purchaser to the inheritance by granting á feudum novum, to hold ut feudum antiquum, that is, with all the qualities annexed, of a feud derived from his ancestors : and then the collateral relations were admitted to succeed even in infinitum, because they might have been of the blood of the first imaginary purchaser.

§ 39. In imitation of this rule, it has long been 2 Comm.222. established, that every acquisiton of an estate in fee fimple by purchase, is considered by the English law as a feudum antiquum, or feud of indefinite antiquity; and therefore the collateral kindred of the grantee, or descendants from any of his lineal ancestors, by whom the lands might have possibly been purchased, are capable of being called to the inheritance.

S 40. But Sir William Blackstone observes, that Idem. when an estate hath really descended in a course of inheritance to the person last feised, the strict rule of the feudal law is still observed ; and none are admitted but the heirs of those through whom the inheritance hath paffed ; for all others have demonstrably none of the blood of the first purchaser in them, and therefore shall never succeed.

§ 41. Thus where lands descend to a person on the Descenes ex part of the father, none of his relations on the part et Materna, of his mother can inherit them; and vice verfa, where Inft. 12 «.

Hale v. 2. lands 120.

Parte Paterna

lands descend to a person from his mother, nò rela. tion on the part of his father can inherit them.

[blocks in formation]

$ 42. Inheritances of this kind cannot be created by any act of the parties ; for if a perfon gives lands to another, to hold to him and his heirs, on the part of his mother, yet the heirs on the part of the father Shall inherit. For no man can create a new kind of inheritance not allowed by the law; and therefore the words—“ On the part of his mother,” are void.

What Ads will alter the Descent.

S 43. Where a person is feised in fee by defcent ex parte paterna, or ex parte materna, there are many acts which may be done by such a person that will operate so as to make him a new purchaser of the estate, by which means it will be considered as a feud of indefinite antiquity; and will by that means become descendible to his heirs general, whether of the paternal or maternal line.

[ocr errors][merged small]

§ 44. Thus Lord Coke says, if a man be seised of lands as heir of the part of his mother, and maketh a feoffment in fee, and taketh back an estate to him and to his heirs, this is a new purchase; and if he dieth without issue, the heirs of the part of the father shall inherit. Mr. Hargrave has observed on this passage that Lord Coke must be understood to speak of two distinct conveyances in fee. The first passing the use as well as the possession to the feoffee, and so compleatly divesting the feoffor of all interest in the land; and the second regranting the estate to him.

$ 45. If

$ 45. If a person feised ex parte materna makes a i Inft. 12 b. feoffment in fee, reserving a rent to himself and his heirs, this rent will go to the heirs ex parte paterna ; because the feoffment in fee was a total disposition of the land ; and the rent was acquired by purchase.

S 46. The renewal of a lease being considered as a new acquisition, the person renewing becomes a purchaser, and the descent is thereby altered.

$ 47. Elizabeth Mafon having purchased a lease for Malony. Day,

Prec. ia Cba. three lives, died leaving Mary her daughter and heir, 319. an infant. Two of the lives being dead, the guardians of the infant, out of the profits of the estate, took a new lease, to the infant and her heirs, during three new lives, and afterwards the infant died without iffue.

The question was, whether this leafe should descend to the heirs of the infant ex parte paterna or materna.

It was contended that it should go to the heirs ex parte materna, being a renewal only of the old lease, and under the old trust. And if the infant heir had died without issue, before the renewal, living the fur: viving cestui que vie, there had been no question of it; and so ought this new lease, being renewed out of the profits of the old leafe.

But it was answered and resolved by the Master of the Rolls, that this new lease was a new acquisition, and vested in the daughter, as a purchaser, and there


« PreviousContinue »