Page images
PDF
EPUB

SECTION II.

BREAKING DESCENT.1

A. By Deed.

Co. LIT. 12 b. It is necessary to be known in what cases the heir of the part of the mother shall inherit, and where not. 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 first inherit.2 If a man so seised maketh a feoffment in fee upon condition, and die, the heir of the part of the father, which is the heir at the common law, shall enter for the condition broken, but the heir of the part of the mother shall enter upon him, and enjoy the land. A man so seised maketh a feoffment in fee reserving a rent to him and to his heirs, this rent shall go to the heirs of the part of the father; but if he had made a gift in tail, or a lease for life reserving a rent, the heir of the part of the mother shall have the reversion, and the rent also as incident thereunto shall pass with it; but the heir of the part of the mother shall not take the advantage of a condition annexed to the same, because it is not incident to the reversion, nor can pass therewith. If a man had been seised of a manor as heir on the part of his mother, and before the Statute of Quia emptores terrarum, had made a feoffment in fee of parcel to hold of him by rent and service, albeit they be newly created, yet for that they are parcel of the manor, they shall with the rest of the manor descend to the heir of the part of the mother, quia multa transeunt cum universitate quæ per se non transeunt. If a man hath a rent-seck of the part of his mother, and the tenant of the land granteth a distress to him and to his heirs, and the grantee dieth, the distress shall go with the rent to the heir of the part of the mother, as incident or appurtenant to the rent, for now is the rent-seck become a rent-charge.

1 See Watkins on Descents, c. 5.

2 But here 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 completely divesting the feoffor of all interest in the land; and the second regranting the estate to him. For if in the first feoffment, the use had been expressly limited to the feoffor and his heirs, or if there was no declaration of uses, and the feoffment was not on such a consideration as to raise an use in the feoffee, and consequently the use resulted to the feoffor, in either case he is in of his ancient use, and not by purchase. - Harg. note. VOL. IV. - 2

[ocr errors]

Co. LIT. 13 a. A man so seised as heir on the part of his mother maketh a feoffment in fee to the use of him and his heirs, the use being a thing in trust and confidence shall ensue the nature of the land,1 and shall descend to the heir on the part of the mother. A man hath a seigniory as heir of the part of his mother, and the tenancy doth escheat, it shall go to the heir of the part of the mother. If the heir of the part of the mother of land whereunto a warranty is annexed is impleaded and vouch, and judgment is given against him, and for him to recover in value, and he dieth before execution, the heir of the part of the mother shall sue execution to have in value against the vouchee, for the effect ought to pursue the cause, and the recompense shall ensue the loss.

GODBOLD v. FREESTONE.

NISI PRIUS, COMMON PLEAS. 1694.
[Reported 3 Lev. 406.]

EJECTMENT, and Not guilty, tried before Holt, Chief Justice, at Suffolk Assizes, he being of opinion for the plaintiff but doubting, a verdict was by his direction given for the plaintiff, but by consent of parties a case was made to be argued before him at his chambers at Serjeants-Inn, and according to his opinion there, either the judgment to be entered or the verdict to be stayed; and the case was this. A man seised of lands by descent a parte materna, makes a feoffment of all the lands to uses, viz. of Blackacre to the use of himself for life, the remainder to his wife for her life, the remainder to the heirs of his body on his wife begotten, the remainder to his right heirs. And of Whiteacre to the use of himself for 99 years if he so long lived, the remainder to trustees for his life, remainder to his wife for her life, remainder to his first and so to his tenth sons in tail, remainder to him and his heirs; the husband and wife are both dead without issue; and if the heirs a parte paterna or a parte materna should have the lands? was the question. And now upon argument at his chamber he changed the opinion he was of at the assizes, and held that the heir a parte materna should have the whole; and he did not make any difference between the cases, though the one is to himself for life, and the other for years: and Co. Lit. 13, 23, was cited, that where one takes an estate to himself for years, the remainder to his heirs, this is a new estate in him and not the ancient reversion; otherwise when he takes an estate for life, the remainder to his heirs; and Hob. 33 and Dy. 134 a, 163, where it is held, that when a man seised a parte materna makes a feoffment, or levies a fine, &c. and expressly declares the use to him and his heirs; this shall be to the use of his heirs a parte paterna :

1 The better reason seems to be, that the use being the same as it was before the feoffment, it is the old use which continues. - Harg. note.

otherwise where he does not expressly declare the use, but levies a fine, &c. without an express declaration of the use, there the use shall be the same it was before without any alteration. But on the other part were cited, 5 E. 4, 7, 2 Co. Bingham's Case, that it is all one be the use expressed or not; the word heirs shall be heirs of the same quality as before and of that opinion was the Chief Justice, and ruled the postea to be delivered. But the heir a parte paterna, not being satisfied with this opinion, brought a new ejectment, which is entered Hill. 6 W. 3, C. B. Rot. 306, where this whole matter was found specially, and there, upon argument and the authorities before recited, judgment was given by the whole court, viz. TREBY, NEVIL, and the two PowELS, justices, for the heir a parte materna for the whole and they did not differ the cases where the estate was limited to the ancestor for years, or for life, the remainder to him in fee, for in both these cases the fee is the old reversion and shall go to the heirs a parte materna. Nor did they admit the difference where the use is expressly limited by the deed, or implied by law without any express limitations; but that in both cases the fee remains in the donor, and was never drawn out of him. And that it neither merged the estate for life or for years, but that both are preserved by the mesne remainders over, which come between those estates and the reversion, as was held in the Earl of Bedford's Case, Poph. 3; Mo. § 719, 2, and Pasch. 179; Pl. 17, Roll. 2 Abr. 418, the same case; where till John Lord Russel in whom the next reversion in tail was, both the term for years and also the reversion in fee stood distinct in the earl, viz. the term for 40 years and the reversion in fee; and in Plunket and Holme's Case, intrať Hill. 1658, Rot. 521, B. R. sed adjornať Mich. 13 Car. 2, where a feme devised lands to her son and heir Thomas, and if he died without issue living Leonard, to Leonard and his heirs; but if he had issue living at his death, to him and his heirs, there the fee descending upon Thomas did not merge his estate for life, but it was preserved by the contingent possibilities coming between his estate for life and the fee; and seeing that Holt had before delivered his opinion the same way, no writ of error was brought, and so the case rested. Pemberton for the heirs a parte materna, Levinz for the heirs a parte paterna in both places.1

[blocks in formation]

WHERE, said LORD CHANCELLOR [LORD HARDWICKE], a limitation is to A. for life, to his wife for life, to trustees to preserve contingent remainders, to the first and every other son in tail, remainder to his 1 And see Abbot v. Burton, 2 Salk. 590.

own right heirs; it will be absurd to say, that by a conveyance of lands, or by use, or by devise, the last limitation shall make the right heirs purchasers, and by that means prevent the reversion from being assets to satisfy the son's debts; for according to the doctrine laid down in the case of Counden and Clerke, Hobart 29, the limitation to the right heirs will be but a reversion, and will vest also in the son; for it is a positive rule, that a man cannot raise a fee-simple to his own right heirs, by the name of heirs, as a purchase, by any form of conveyance whatsoever. The same case is reported in Moore 860, but the point is wrong stated.1

[blocks in formation]

A FORMEDON in the descender was brought by Samuel Bear, James Bear, and John Bear of lands in gavelkind; and the warranty of their ancestor was pleaded against them in bar, upon which they were at issue, if assets by descent. And it was found by special verdict, that Thomas, father of the demandants, was seised in fee of the lands supposed to be descended to the demandants, being of the nature of gavelkind, and devised the same to the demandants, being his heirs, by the custom, and to their heirs equally to be divided amongst them: And if the demandants shall be accounted to be in of the lands by descent, or devise, was the question; for if by devise, then they shall not be assets. Anderson, Let us consider the devise by itself without the words (equally to be divided amongst them). And I conceive that they shall be in by the devise, for they are now joint-tenants, and the survivor shall have the whole, whereas if the lands shall be holden in law to have descended, they should be parceners, and so as it were tenants in common. And although the words subsequent, equally amongst them to be divided, makes them tenants in common, yet that doth not amend the matter; and so also was the opinion of WINDHAM and RHODES, Justices.2

1 On the descent of the equitable fee when land is settled in trust for the settlor and his heirs, see Ames, Cases on Trust, c. 8, § 9, p. 496. Cf. also Davis v. Kirk, 2 K. & J. 391, p. 29, post.

When the legal estate descends from one parent, and the equitable from the other, the land descends according to the legal estate. "There is no equity between the different classes of heirs." - Per LEACH, V. C., in Langley v. Sneyd, 1 S. & St. 45, 55 (1822), and see Goodright v. Wells, 2 Dong. 771; In re Douglas, 28 Ch. D. 327.

2 Gilpin v. Hollingsworth, 3 Md. 190 (1852), accord.

CLERK v. SMITH.

COMMON PLEAS. 1699.

[Reported 1 Salk. 241.]

In ejectment on a special verdict the case was, J. S. devised lands to his daughter's son [who was also his heir] and to his heirs, upon condition that he should pay £200 to such a person out of the said lands, as the wife of the devisor would appoint by her deed. The grandson entered, and the wife made no appointment; then the grandson died seised, leaving an heir a parte materna, under whom the plaintiff claimed, and an heir a parte paterna, under whom the defendant claimed. The question was, Whether the grandson was in by descent, or in by purchase under the will: And it was adjudged, that he was in by descent, and not by purchase, for the devise gives him the same estate the law would have given him, under a possibility of being charged, which never happened; by consequence, as the grandson took it as heir a parte materna, he shall transmit it in the same manner to his heirs a parte materna: And TREBY, C. J., and Powell, J., denied Gilpin's Case, Cro. Car. 161. Vide 2 Mod. 286; Dy. 124; 3 Leon. 64, 70; Cro. El. 833, 919; Mo. 644; Vau. 271; Dy. 371; Hard. 204; 1 Roll. Abr. 626.

[blocks in formation]

SCOTT devised to Henry, his eldest son, and only son by a former wife, and to his heirs and assigns, all other his real estate not before devised: nevertheless, in case he should die without issue, not having attained 21, then, from and immediately after his death under age and without issue, unto the testator's son William, and the heirs male of his body, with remainders over.

The eldest son attained 21.

The specialty creditors (not having a lien on the real estate) having exhausted the personal estate in satisfaction of their demands, the legatees contended to stand in their place, and come upon the real

estate.

Q. Whether the eldest son took by devise or descent? latter case, the legatees would be entitled; in the former, not.

In the

« PreviousContinue »