[Queen Elizabeth, who were respectively of the half-blood to each other. For though none can be a claimant to the crown unless known to be descended from the original stock-which was formerly King William the Norman, and is now, by act of parliament, the Princess Sophia of Hanover (i)-yet, when such descent is known, the feudal rule is satisfied, whether he be related to the last sovereign by the whole, or by the half-blood. Upon the same principle, in titles of honour (k) and in all estates tail (1), halfblood was never an impediment to the descent,] because in these cases the pedigree from the first donee must be strictly proved; and the feudal maxim is consequently carried into effect, without resorting to any auxiliary rule. But now, as we have seen, the maxim which excluded the half-blood has given way, in every case, to a sounder and more satisfactory principle. Having been long generally disapproved, as founded on defective reasoning and opposed to natural justice, it was at length abolished by the Inheritance Act, the provision of which, as regards this subject, is expressed in the following terms:-" That any person related to the person from whom the descent is "to be traced by the half-blood shall be capable of being "his heir; and the place in which any such relation by "the half-blood shall stand in the order of inheritance, so "as to be entitled to inherit, shall be next after any rela"tion in the same degree of the whole blood and his issue, "where the common ancestor shall be a male, and next "after the common ancestor, where such common ancestor "shall be a female; so that the brother of the half-blood 66 on the part of the father shall inherit next after the "sisters of the whole blood on the part of the father and "their issue, and the brother of the half-blood on the part "of the mother shall inherit next after the mother (m).” (i) On this princess, granddaughter of James I., and the heirs of her body (being Protestants), the crown was settled by 12 & 13 Will. 3, c. 2. See bk. Iv. pt. 1. c. III. (k) Co. Litt. 15. (m) 3 & 4 Will. 4, c. 106, s. 9. Having now treated of descent in general, we next arrive at the few and rare cases formerly referred to as requiring a separate consideration. 1. First, then, there are cases in which a man may acquire land by purchase, under a limitation to the "heirs," or "heirs of the body," of one of his ancestors. Thus if the owner of lands conveys them to A. for life, remainder to the "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 (n), 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, by the rule of the common law, take the remainder 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 (o). By the Inheritance Act, however, the estate so acquired by purchase is anomalous as regards its descendible quality; for by the 4th section, "When any person shall have acquired any land by pur"chase under a limitation to the heirs or to the heirs "of the body of any of his ancestors, contained in an "assurance executed after the 31st December, 1833; or "under a limitation to the heirs or heirs of the body of 66 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 limitation had been the purchaser." 66 2. Secondly, it is provided by a more recent statute, viz., the 22 & 23 Vict. c. 35, s. 19, that "Where there (n) 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. 392. (0) Co. Litt. 10 a; 319 b; 1 Roll. Ahr. 627; 2 Bl Com. 241; 1 Prest. Est. 280, 452, 453. 66 shall be a total failure of heirs of the purchaser, or where any land shall be descendible as if an ancestor had been "the purchaser thereof (p), and there shall be a total "failure of the heirs of such ancestor, then and in every "such case the land shall descend, and the descent shall "thenceforth be traced from the person last entitled to the "land, as if he had been the purchaser thereof "(q). Having now brought our account of the present law of descent to a close, we may remark, as the result of the investigation, that, upon the death of the owner of an estate in fee simple, we are to ascertain the heir, by considering, first, who was the purchaser or quasi purchaser of that estate,―meaning by the term quasi purchaser, the person from whom descent is to be traced as if he had been the purchaser, as in the two cases just noticed:-and we are then to look for the heir, first, among his issue,-where the heir will be his descendant next to him in blood, but subject to the principles which obtain as to sex, primogeniture, and representation: and, failing his issue, among his lineal ancestors, or their issue-where the heir will be his lineal ancestor next in blood in the preferable line, or the issue of such ancestor, if deceased; applying the same law of succession as in the case of the purchaser's issue, and also the principle which prefers the whole to the halfblood. Before we conclude this branch of our inquiries, however, it may not be amiss to apply the rules more particularly, and to supply the reader with a short sketch of the manner in which we must search for the heir of a person, - as John Stiles (r), who dies entitled to land, of which he was the purchaser or quasi purchaser. In the first place succeeds the eldest son, Matthew Stiles, or his issue, No. 1. If he and his heirs be extinct, then Gilbert Stiles, and the other sons respectively in order (p) As in the case just mentioned, sup. p. 428. (9) The object of this provision will appear in the next chapter; vide post, p. 439. (r) See Table of Descent (No. II.) |