:

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, intrat 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

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

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.

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

HENLEY, Lord Keeper, after having taken time to this day, gave his opinion, That the eldest son took by devise, as having under the will a different estate than would have descended to him, the one being pure and absolute, the other not.1

ACTION of debt on the bond of the father, to whom the defendant is heir. Plea, Riens per descent. The fact was, that the father had devised his lands to the defendant charged with debts. Qu. If this makes him a purchaser? For plaintiff: held, Hob. 30, that it will not make the heir a purchaser. But if the tenure or quality of the estate were altered, it had been otherwise: Dyer 124; Styl. 148; Hedger and Row, 3 Lev. 127, a devise to heir ex parte materna of no effect. Moor 644; Cro. Eliz. 919; Lutw. 797; Salk. 241. For defendant were cited Cro. Car. 161; 2 Mod. 286, Brittam and Charnock.

PER TOTAM CURIAM. If the tenure or quality of the estate be altered, the heir is a purchaser; but a charge on the estate does not alter the manner of the heir's taking the land. A devise is void, where it gives the same as would be taken by descent; 1 Ld. Raym. 728. Judgment for the plaintiff.

HURST v. WINCHELSEA.

KING'S BENCH. 1759.

[Reported 1 W. Bl. 187.]

THIS was a case stated from Chancery for the opinion of the Court of King's Bench, and appeared to be this,-Thomas Herbert, by will duly executed, devised to his wife Elizabeth all his lands, &c. in feesimple. Elizabeth (on his death) married a second husband; but, previous to such second marriage, settled the said estates to use of herself for life; then to Thomas Herbert, her own son by the first marriage, for his life, and so on to his issue in strict settlement; then in remainder to such person or persons as she should by deed or will, notwithstanding any coverture, appoint [and in default of such

1 s. c. 1 Eden, 458. See Serjeant Hill's MS. note quoted in note to this case in Blunt's edition of Ambler. The learned serjeant says: "The determination in this case is right; but the reason given for it is wrong." — ED.

appointment, to the said Elizabeth, her heirs and assigns]. After the second marriage she made a will, wherein she devised all her estate to said Thomas Herbert (charged with several pecuniary legacies), and died, living her second husband. Afterwards, Thomas Herbert died, sans issue and intestate. And the question was, Whether this estate should descend to his heir, ex parte paterna or materna? or whether the remainder in fee vested in him by descent from Elizabeth his mother, in which case it would go to the maternal heir; or whether it vested by the devise, operating as an appointment under the settlement, in which case, Thomas Herbert would be a purchaser, and the lands would descend to the paternal heir.

The COURT, after hearing two arguments, declared they should certify that it descended to the maternal heir of Thomas Herbert; it being a known rule, that a common devise in fee-simple to an heir-atlaw, gives him no estate at all, he being adjudged in by descent; and it having also been determined in the case of the Duke of Marlborough and Lord Godolphin, in Chancery, 2 Ves. S. 61, 73, that an appointment by will is subject to the same rules as a common devise.

EJECTMENT: special case. Robert Everden, seised in fee of the lands in question and other lands, on the 14th of September, 1753, devised the lands in question "to his son, Henry Everden, and his wife, Elizabeth, for their joint lives, and the survivor of them; and, after the decease of the survivor, to their eldest son and his heirs forever; and, if they leave no male issue, to their daughters and their heirs forever. And if they die without issue, then he gave, bequeathed, and devised the same to his right heirs forever." Afterwards he devised to his son-in-law, Humphrey Davis (the lessor of the plaintiff), "All his estates, lands, tenements, and premises thereunto belonging, not thereinbefore devised, bequeathed, &c., to hold to him, his heirs, and assigns forever;" in trust to sell the same, and, after payment of so much of his debts, funeral expenses, and all other necessary expenses as his personal estate could not extend to pay, out of the produce thereof to pay certain specific and pecuniary legacies to his children; and to divide the residue equally among his three sons and five daughters. And then devises "all the residue and remainder of his estate, both real and personal, of what nature or kind soever, unto his son-inlaw, the said Humphrey Davis, his heirs, executors, administrators,

1 This is the correct form, as appears from Lord Kenyon's note of the case, 2 Kenyon, 444.