prudence more calculated to excite surprise than this, or more at variance with the natural sense of justice. And it is satisfactory, therefore, to be able to add that it exists no longer; for though it has not been thought convenient to alter the principle of the common law in this particular, the claims of creditors of every class are now effectually secured through the medium of a suit in equity. Yet the redress came late, and by a slow and cautious advance. For first it was confined to the case where the deceased was a person carrying on trade within the meaning of the bankrupt laws, it being provided by 47 Geo. III. sess. 2, c. 74, and afterwards by 11 Geo. IV. and 1 Will. IV. c. 47, that, in a case of that description, the creditors by simple contract should be entitled by a suit in equity, in such manner as therein mentioned, to enforce payment out of the real estate descending on his heir, or devised by his will, and not made subject to the payment of his debts. But now by 3 & 4 Will. IV. c. 104, it is enacted more extensively-that when any person shall die seised of, or entitled to any real estate, which he shall not by his will have made subject to the payment of his debts, such estate shall be considered as assets, to be administered in courts of equity, for payment of his debts as well on simple contract as on specialty. To secure, however, a just priority to those who in his lifetime may have had the precaution to place their claims upon a basis of stronger obligation, it is further provided, that in the administration of assets by courts of equity, under that act, all creditors by specialty in which the heirs are bound shall be paid the full amount of their debts, before any payment is made to creditors by simple contract, or to those claiming on specialties in which the heirs are not bound.

4. Such being the properties of a title by descent, as distinguished from a title by purchase, it becomes important to consider, in any case where they appear to come into collision, to which the preference shall be given by law.

First, then, a man will take by purchase, even lands of which he is the heir, if they have also been limited to him by individual designation under the will of his ancestor; as where a testator devises lands, in fee or in tail, to his "heir," or to the person by name, who at his decease becomes his heir. This has always been the effect of the gift, where it was made with other limitations than the course of descent would direct, as is the case upon every devise in tail; but where the gift was such that the devisee would be entitled by it to an estate in fee, and precisely of the same quality that he would have otherwise taken by descent, the rule was once firmly settled that the descent should take effect, and that nothing should pass under the devise; for the law gave the preference to the descent, as the elder title(s). The contrary rule, however, which is manifestly more consonant with reason and convenience, is now established by the legislature; it being provided by the Inheritance Act, 3 & 4 Will. IV. c. 106 (sect. 3), as to all cases without distinction, “that "when any land shall have been devised by any testator "who shall die after 31st December, 1833, to the heir(t), or to the person who shall be the heir of such testator, "such person shall be considered to have acquired the same as a devisee, and not by descent."

Secondly. A man will take by purchase, lands limited to the "heirs," or "heirs of the body” (eo nomine) of his ancestor, by the conveyance of a stranger, provided the limitation fall not within the rule in Shelley's case (u); otherwise he will take by descent. Thus if the owner of lands conveys them to A. for life, remainder to the

(s) 2 Bl. Com. 242; 2 Saund. by Wms. 7, n. (4); 1 Roll. Ab. 626; Doe v. Timins, 1 Barn. & Ald. 530. This is the reason assigned in the books. It seems probable however that the rule had a feudal object, and that it was intended for the protection of the lord, who would lose the fruits

of seignory, where the heir did not take by descent.

(t) The effect of a devise to the testator's heirs (in the plural) was, before the act, similar to that of a devise to his heir, and seems not to be altered by this enactment.

(u) Vide sup. p. 308.

" heirs," or "heirs of the body," of B., and B. be then deceased, or be then living, but die during the continuance of the particular estate (v), the person who at the time of the conveyance in the first case, or at the time of B.'s death in the second, answers the description of his "heir," or "heir of his body," will take as purchaser; and his estate will be a fee simple, or fee tail, as the case may be; for such words amount not only to a description of the grantee, but to a limitation of the estate which he is to take (w). But if the life estate had been limited to B., with the like remainder, B. himself would then, by the rule in Shelley's case, have taken an estate of inheritance, or in other words, his heir would have taken by descent. And even in cases of the first description, the estate acquired by purchase is anomalous as regards its hereditary quality; the descent being traced not from the purchaser, but from the ancestor named; it being provided by the 4th section of the act just cited, "that when any person "shall have acquired any land by purchase, under a limi"tation to the heirs, or to the heirs of the body of any of "his ancestors, contained in an assurance executed after "31st December, 1833, or under a limitation to the heirs, "or to the heirs of the body of any of his ancestors (or "under any limitation having the same effect) contained " in a will of any testator who shall depart this life after "the said 31st December, 1833, then, and in any of such "cases, such land shall descend, and the descent of it "shall be traced, as if the ancestor named in such limita"tion had been the purchaser of such land”(x).

(v) If B. were to survive A. the limitation in remainder would fail, for want of a person to take; for nemo est hæres viventis, vide sup. p. 358.

(w) Co. Litt. 10 a, 319 b; 1 Rol. Ab. 627; 2 Bl. Com. 241; 1 Prest. Est. 280, 452, 453.

(1) The law was the same before the act passed, in every case where the heirs of the body took eo nomine as purchasers; Fearne, by Butler, 80, 9th edit.