last actually seised; and as he would thereby moreover prove his consanguinity to the purchaser, he would satisfy both the conditions required to make out a descent in fee simple. It These explanations will suffice not only to explain the nature of the new rule now laid down by the Inheritance Act, but to prove also its convenience and propriety. discards in effect the maxim of seisina facit stipitem; and establishes in a general sense the rule, which formerly obtained only in certain instances, that descent shall be traced from the purchaser. In point of simplicity and uniformity of system, the advantage is consequently obvious; while, on the other hand, nothing is sacrificed which it could be useful to retain. In very numerous instances, the descent (as we have seen) was in effect already traced from the purchaser; and though it was otherwise in cases where the last owner had become entitled by descent to an estate of a kind in which actual possession can be acquired, no sufficient reason could at the present day be shown (whatever may formerly have existed) in favour of such a distinction. Indeed the maxim of seisina facit stipitem was attended with material inconvenience; for it was sometimes difficult to determine what would amount to a seisin sufficient to constitute a stipes; and highly unsatisfactory besides, that the right to the succession should in any case depend on so unimportant a circumstance, as the omission of the owner to make entry, before his death, on the land he had acquired by inheritance (k). Before we dismiss the Rule under consideration, it must be remarked that though the "purchaser" is defined in the Act as the person who last acquired the land otherwise than by (k) See First Real Prop. Rep. p. 15. As to the operation of Canon I., in a case in which a man purchased land in fee simple, and died leaving two daughters, and afterwards one of the daughters died in testate, leaving a son to whom the whole of his mother's moiety was held to pass, see Cooper v. France, 14 Jur. 214; and Lord St. Leonards on Real Property Statutes, p. 282. descent, yet to apply the definition properly in cases of a certain description, it is necessary to take some other parts of the statute into account. Thus it may be doubtful, in the absence of a positive rule, whether under given circumstances a man acquires by descent or not, so as to bring the case within the definition; as where a man devises land in fee to his heir or to the person by name, who, at his decease, becomes his heir. In this case, if the devise was made in such form that the devisee would take an estate in fee, of precisely the same quality that he would otherwise have taken by descent, it was settled at the common law that the descent would take effect and not the devise; for the law gave the preference to the descent as the elder title (1). 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 (sect. 3), "that when any land shall "have been devised by any testator who shall die after "31st December, 1833, to the heir (m), or to the person "who shall be the heir of such testator, such heir shall be "considered to have acquired the same as a devisee, and "not by descent." So it may be doubtful, in the absence of a positive rule, what amounts to the last acquisition of an estate, so as to bring the case within the meaning of the definition; as where land is limited by any assurance to the person or to the heirs of the person who shall have thereby conveyed the land; for it was settled at the common law that he acquired nothing by such assurance, but was entitled as of his former estate (n). It is provided how did not take by descent. (m) The effect of a devise to the testator's "heirs" (in the plural) was before the statute similar to that of a devise to his "heir." Whether it is so now, or not, may be questionable. (1) 2 Bl. Com. 242; 2 Sand. by Wms. 7, n. (4); 1 Roll. Abr. 626; Doe d. 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 his seigniory where the heir (n) See Co. Litt. 22 (b). ever, by the same Act and the same section of it, II. A second general Rule or canon is, that inheritances shall in the first place lineally descend to the issue of the purchaser, in infinitum. The principle of placing the lineal descendants first in succession to their ancestor is, under all systems of descent, invariably adopted, and may be said to be of universal obligation or propriety; for even if it be held that the laws by which property is transmitted from one man to another, are in every case of an arbitrary nature, and juris positivi only (a doctrine which there is great difficulty in admitting as regards the succession of relatives), yet at least, in the choice of rules, it may happen that there are some much more consonant than others to the common feelings of mankind and the natural sense of propriety; and such principles as these seem universally to suggest, that [whenever a right of property transmissible to representatives is admitted, the possessions of the parents should go, upon their decease, in the first place to their offspring, as those to whom they have given being, and for whom they are therefore bound to provide.] III. We may lay it down as a third Rule, that the children of the purchaser are preferred to their own issue; and, among such children, males to females, and an elder male to a younger; but females (where there are several) take together. This involves three principles: first, that the descent is to the children rather than their descendants; secondly, that the male children are admitted before the female; thirdly, that among the male, primogeniture is the rule, though not among the female. 1. The children (as being nearer in blood to the purchaser) are of course preferred to their own descendants; that is, if any child of the purchaser, living at his decease, has issue also living at the same period, the estate will descend to the child (who is more nearly related to the purchaser), and not to the grandchild or other descendants, who are more remote. 2. But, secondly, among the children of the purchaser, males take before females, [or (as our male law-givers have somewhat uncomplaisantly expressed it) the worthiest of blood shall be preferred (o).] Thus if John Stiles hath two daughters, Margaret and Charlotte, and afterwards two sons, Matthew and Gilbert, and dies: first Matthew, and (in case of his death without issue) then Gilbert, shall be admitted to the succession, in preference to both the daughters. [This preference of males to females is entirely agreeable to the law of succession among the Jews (p), and also among the states of Greece, or at least among the Athenians (q); but was totally unknown to the laws of Rome (r) (such of them, at least, as are now extant), wherein brethren and sisters are allowed to succeed to equal portions of the inheritance. Without entering into the comparative merit of the Roman and the other constitutions in this particular, or examining into the greater dignity of blood in the male or female sex, it is sufficient to observe that our present preference of males to females seems to have arisen entirely from the feudal law. For though our British ancestors (the Welsh) appear to have given a preference to males (s), yet our Danish predecessors who succeeded them seem to have made no distinction of sexes, but to have admitted (0) Hale's Hist. Com. Law, c. 11. (r) Inst. iii. 1. 6. (s) Stat. Wall. 12 Edw. 1. 66 66 [all the children at once to the inheritance (t). But the feudal law of the Saxons on the continent, (which was probably brought over hither and first altered by the law of King Canute,) gives an evident preference of the male to the female sex. Pater aut mater defuncti, filio non "filiæ hæreditatem relinquent. Qui defunctus non filios sed filias reliquerit, ad eas omnis hæreditas pertineat (u)." It is possible, therefore, that this preference might be a branch of that imperfect system of feuds which obtained here before the Conquest; especially as it subsists among the customs of gavelkind, and as, in the charter or laws of King Henry the first, it is not (like many Norman innovations) given up, but rather enforced (v). The true reason of preferring the males must be deduced from feudal principles; for by the genuine and original policy of that constitution no female could ever succeed to a proper feud (w), inasmuch as they were incapable of performing those military services for the sake of which that system was established. But our law does not extend to the total exclusion of the females, as the Salic law and others, where feuds were most strictly retained. It only postpones them to males; for though daughters are excluded by sons, yet they succeed where there is no son: our law, like that of the Saxon feudists before mentioned, thus steering a middle course between the actual rejection of females, and the putting them on a footing with males.] 3. Primogeniture is established among the male children of the purchaser, but not among the female. [As if a man hath two sons, Matthew and Gilbert, and two daughters, Margaret and Charlotte, and dies; Matthew, his eldest son, shall alone succeed to his estate, in exclusion of Gilbert, the second son, and both the daughters: but if both the sons die without issue before the father, the (t) Wilkins, Leges Anglo-Sax. LL. Canut. c. 68. (u) Tit. 7, s. 1 and 4. (v) Leg. Hen. 1, c. 70. |