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aforesaid: but if they both died without issue of their own bodies, then immediately to the right heir at law and his heirs forever." On the devisor's death her son and daughter entered and became seised of the estate by virtue of the will. Afterwards by indentures of lease and release (executed after the death of Edward the husband of Elizabeth Baldy) dated the 21st and 22d of November 1748, Richard Lemmon granted all his undivided moiety to Elizabeth Baldy in fee, and thereby covenanted to levy a fine sur cognizance de droit come ceo, &c., unto the said Elizabeth Baldy and her heirs of the said moiety, which fine was thereby declared to inure to the use of the said Elizabeth in fee. Elizabeth Baldy had two sons who died in her lifetime without issue, and also one daughter Elizabeth who intermarried with Thomas Allen and died in the lifetime of Elizabeth Baldy, leaving an only daughter Elizabeth Allen. Elizabeth Baldy by will dated 6th October 1744 devised to her granddaughter Elizabeth Allen in fee "all that her part and parcel of freehold lands lying in Jevington and Folkington," &c. Elizabeth Baldy after purchasing a moiety of the estate from her brother Richard Lemmon did not make any alteration in her will, but died intestate as to that moiety without having barred the entail of her original moiety, and before any fine was levied by her said brother pursuant to the deeds of lease and release. And upon the death of Elizabeth Baldy on the 15th of December 1748, Elizabeth Allen her granddaughter entered into possession of the whole estate. A fine was afterwards levied in Trinity Term 1749 of the moiety, wherein Elizabeth Allen was plaintiff and the said Richard Lemmon the elder deforciant, but no deed to lead the uses of such fine was then or at any time afterwards executed. On the 27th of July 1749 Elizabeth Allen intermarried with Benjamin Brooker, and died in April 1790 without issue and intestate. Richard Lemmon the elder had issue by his first wife one son named Richard Lemmon, and a daughter, Martha, and by his second wife had issue three daughters, Ann, Elizabeth, and Grace; all of whom survived their father. Richard Lemmon the son afterwards died without issue and intestate, leaving his sister Martha of the whole blood and his three sisters of the half blood and the said Elizabeth Brooker him surviving. His sister Martha intermarried with John Whichelo, and afterwards died leaving John Whichelo, the present defendant, her eldest son and heir at law, who on the death of Elizabeth Brooker entered into possession of the premises which he now retains. Ann the eldest daughter of Richard Lemmon the elder by his second marriage is dead, leaving James Gregory one of the lessors of the plaintiff her grandson and heir at law. Elizabeth, the second daughter of Richard Lemmon the elder by the second ventre, died in June 1789 without issue; and Grace the third daughter is also dead leaving Diones Geere the other lessor of the plaintiff her only son and heir at law.

The question reserved for the opinion of the court was whether the plaintiff is entitled to recover the said two third parts or either of them:

if so, the verdict to stand; if one only, the verdict to be entered accordingly; if neither, a verdict to be entered for the defendant.

Conste for the lessors of the plaintiff. By the will of Elizabeth Lemmon, from whom all the parties claim, Richard Lemmon her son and Elizabeth Baldy her daughter took estates tail in moieties, as tenants in common, with cross remainders to their issue. Afterwards by the sale of Richard Lemmon's part to Elizabeth Baldy the whole vested in her and descended to Elizabeth Brooker then Elizabeth Allen. And upon her death without issue in 1790 the question is, who are the issue inheriting under the entail created by Elizabeth Lemmon's will? Now the lessors of the plaintiff, one of whom is the grandson and the other the great-grandson of R. Lemmon the elder through his daughters by his second marriage, are entitled each to one third, and the defendant who claims through the eldest daughter of Richard Lemmon the elder to the remaining third. It is unnecessary to consider the operation of the fine in this case, whether or not it converted a moiety of the estate-tail into a fee, for in either way of considering the question the lessors will be entitled to the same proportion. For it is stated in the case that Richard Lemmon the son (through whose sister Martha, of the whole blood, the defendant claims the whole) died in the lifetime of Mrs. Brooker, and consequently was never in possession of the estate. But all the three sisters of Richard Lemmon the younger are equally of the whole blood of Richard Lemmon the father, from whom alone they must all claim, they being his heirs special per formam doni. It is clearly settled that the rule of possessio fratris does not apply to entails, Co. Lit. 15 b. For the heirs in the entail are not to make title as heirs of the whole blood of the person last seised, as in the case of lands held in fee-simple, but as heirs to the original donee. Plowd. 57; Ratcliffe's Case, 3 Co. 42; Goodtitle v. Newman, 3 Wils. 526. So on the other hand Martha the sister of the whole blood of Richard the younger cannot claim lands in fee from him who was never seised, but can only claim from her father or grandmother, in which case the claims of Ann and Grace her half sisters stand upon an equal footing with her own. In either case therefore the lessors are entitled to recover two thirds.

Holroyd, contra, admitted that he could not claim more than one third for the defendant.

LORD KENYON, C. J. In the case of estates tail the half blood coming within the description of the entail may inherit as effectually as the whole blood. There the rule of possessio fratris does not apply. Neither does it in the case of peerages. Nor does that rule hold even with respect to inheritances in fee-simple unless there be an actual possession of the brother, or that which has been deemed equivalent. For in that respect there is a difference between freehold and chattel leases outstanding. In the former case unless the elder brother afterwards obtain possession by the receipt of rent or other acknowledgment, the descent will be to the younger brother of the half blood in

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The wife died in 1801 & he somewhat later

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curtain emis. I defended liete against a half bes
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if so, the verdict to stand; if one only, the verdict to be entered accordingly; if neither, a verdict to be entered for the defendant.

Conste for the lessors of the plaintiff. By the will of Elizabeth Lemmon, from whom all the parties claim, Richard Lemmon her son and Elizabeth Baldy her daughter took estates tail in moieties, as tenants in common, with cross remainders to their issue. Afterwards by the sale of Richard Lemmon's part to Elizabeth Baldy the whole vested in her and descended to Elizabeth Brooker then Elizabeth Allen. And upon her death without issue in 1790 the question is, who are the issue inheriting under the entail created by Elizabeth Lemmon's will? Now the lessors of the plaintiff, one of whom is the grandson and the other the great-grandson of R. Lemmon the elder through his daughters by his second marriage, are entitled each to one third, and the defendant who claims through the eldest daughter of Richard Lemmon the elder to the remaining third. It is unnecessary to consider the operation of the fine in this case, whether or not it converted a moiety of the estate-tail into a fee, for in either way of considering the question the lessors will be entitled to the same proportion. For it is stated in the case that Richard Lemmon the son (through whose sister Martha, of the whole blood, the defendant claims the whole) died in the lifetime of Mrs. Brooker, and consequently was never in possession of the estate. But all the three sisters of Richard Lemmon the younger are equally of the whole blood of Richard Lemmon the father, from whom alone they must all claim, they being his heirs special per formam doni. It is clearly settled that the rule of possessio fratris does not apply to entails, Co. Lit. 15 b. For the heirs in the entail are not to make title as heirs of the whole blood of the person last seised, as in the case of lands held in fee-simple, but as heirs to the original donee. Plowd. 57; Ratcliffe's Case, 3 Co. 42; Goodtitle v. Newman, 3 Wils. 526. So on the other hand Martha the sister of the whole blood of Richard the younger cannot claim lands in fee from him who was never seised, but can only claim from her father or grandmother, in which case the claims of Ann and Grace her half sisters stand upon an equal footing with her own. In either case therefore the lessors are entitled to recover two thirds.

Holroyd, contra, admitted that he could not claim more than one third for the defendant.

LORD KENYON, C. J. In the case of estates tail the half blood coming within the description of the entail may inherit as effectually as the whole blood. There the rule of possessio fratris does not apply. Neither does it in the case of peerages. Nor does that rule hold even with respect to inheritances in fee-simple unless there be an actual possession of the brother, or that which has been deemed equivalent. For in that respect there is a difference between freehold and chattel leases outstanding. In the former case unless the elder brother afterwards obtain possession by the receipt of rent or other acknowledgment, the descent will be to the younger brother of the half blood in

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Plea that aft
never had by descent the premes of the
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I me. I iyon look through the lette of his wife
The wife died in 1801 & he somewhat later.
Ift, sono y M. Bifon, oblained ejectment of
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