Referred to, p. 98.
The ease of Muggleton v. Barnett was shortly as follows (a) : - Edward Muggleton purchased in 1772 certain copyhold property, held of a manor in which the custom was proved to be, that the laud descended to the youngest son of the person last seised, if he had more than one; and if no son, to the daughters as parceners; and if no issue, then to the youngest brother of the person last seised, and to the youngest son of such youngest brother. There was, however, no formal record upon the rolls of the Court of the custom of the manor with respect to descents, but the custom was proved by numerous entries of admission. The purchaser died intestate in 1812, leaving two granddaughters, the only children of his only son, who died in his lifetime. One of the granddaughters died intestate and unmarried, and the other died leaving an only son, who died in 1854 without issue, and apparently intestate, and who was the person last seised. On his death the youngest son of the youngest brother of the purchaser brought an ejectment, and the Court of Exchequer, by two against one, decided against him. On appeal, this decision was confirmed by the Court of Exchequer Chamber, by four judges against three. But much as the judges differed amongst themselves as to the extent of the custom amongst collaterals, they appear to have all agreed that the act to amend the law of inheritance had nothing to do with the matter. The act, however, expressly extends to lands descendible according to the custom of borough English or any other custom; and it enacts that in every case descent shall be traced from the purchaser. Under the old law, seisin made the stock of descent. By the new law, the purchaser is substituted in every case for the person last seised. The legislature itself has placed this interpretation upon the above enactment. A well known statute, commonly called the Wills Act (b), enacts, "that it shall be lawful for every person to devise or dispose of by his will, executed in manner hereinafter required, all real estate which he shall be entitled to, either at law or in equity, at the time of his death, and which, if not so devised or disposed of, would devolve upon the heir at law or customary heir of him, or, if he became entitled by descent, of his ancestor." Now the old doctrine of possessio fratris was that, - that if a purchaser died seised, leaving a son and a daughter by his first wife, and a son by his second wife, and the eldest son entered as heir to his father, the possession of the son made his sister of the whole blood to inherit as his heir, in exclusion of his brother of the half-blood; but if the eldest son did not enter, his brother of the half-blood was entitled as heir to his father, the purchaser. This doctrine was abolished by the statute. Descent in every case is to be traced from the purchaser. Let the eldest son enter, and remain ever so long in possession, his brother of the half-blood will now be entitled, on his decease, in preference to his sister of the whole blood, not as his heir, but as heir to his father (c).
(a) The substance of these observations hae already appeared in letters to the editor of the " Jurist" newspaper, 4 Jur., N. S., Part 2, pp. 5, 56.
Let us now take the converse case of a descent according to the custom of borough English, and let the purchaser die intestate, leaving a son by his first wife, and a son and daughter by his second wife. Here it is evident, that the youngest son has a right to enter as customary heir. He enters accordingly, and dies intestate, and without issue. Who is the next heir since the statute? Clearly the brother of the half-blood, for he is the customary heir of the purchaser. As the common law, which is the general custom
(b) Stat. 7 Will. IV. & 1 Vict. c. 26, s. 3, ante, p. 196.
(c) See Sugden's Real Property Statutes, pp. 280, 281 (1st ed.); 267, 268 (2nd ed.) of the realm, was altered by the statute, and a person became entitled to inherit who before had no right, so the custom of borough English, and every other special custom, being expressly comprised in the statute, is in the same manner altered; and the stock of descent, which was formerly the person last seised, is now, in every case, the purchaser and the purchaser only.
Suppose, therefore, that Edward Muggleton, the purchaser, who died in 1812, had left a son by his first wife, and a son and a daughter by his second wife, and that the youngest son, having entered as customary heir, died intestate in 1854, - who would be entitled ? Clearly, the elder son, as customary heir, being of the male sex, in preference to the daughter. Before the act the sister of the whole blood would have inherited, as customary heir to her younger brother, and the elder brother, being of the half-blood to the person last seised, could not have inherited at all; but since the act the descent is traced from the purchaser, and the elder brother would, accordingly, be entitled, not as heir to his half-brother, but as heir to his father. The act then breaks in upon the custom. By the custom before the act the land descended to the sister of the person last seised, in default of brothers of the whole blood. By the act the purchaser is substituted for the person last seised, and whoever would be entitled as heir to the purchaser, if he had just died seised, must now be entitled as his heir, however long ago his decease may have taken place.
Let us put another case : Suppose the father of Edward Muggleton, the purchaser, had been living in 1854, when his issue failed. It is clear, that under the act the father would have been entitled to inherit, notwithstanding the-custom. Here, again, the custom would have been broken in upon by the act, and a person would have been entitled to inherit who before was not.
Suppose, again, that the father of Edward Muggleton bad been the purchaser, and that Edward Muggleton was his youngest son, and that the estate, instead of being a fee-iimple, had been an estate tail. Estates tail, it is well known, follow customary modes of descent in the same manner as estates in fee. The purchaser, however, or donee in tail, is and was, both under the new law and under the old, the stock of descent. The Courts appear to have been satisfied that in lineal descents according to the custom the youngest was invariably preferred. It is clear, therefore, that, when the issue of Edward Muggleton failed in 1854, the land would have descended to the plaintiff as youngest son of the next youngest son of the purchaser, although the plaintiff was but the first cousin twice removed of the person last seised.
The change, however, which the act has accomplished is simply to assimilate the descent of estates in fee to that of estates tail. The purchaser is made the stock in lieu of the person last seised. It is evident, therefore, that upon the supposition last put, of the father of Edward Muggleton being the purchaser, although the estate was an estate in fee, the plaintiff would have been entitled as customary heir.
The step from this case to that which actually occurred is very easy. On failure of the issue of the purchaser (whether after his decease or in his lifetime it matters not), the heir to be sought is the heir of the purchaser, and not the heir of the person last seised; and if the descent be governed by any special custom, then the customary heir of the purchaser must be sought for. Who, then, was the customary heir of Edward Muggleton, the purchaser? The case in Muggleton v. Barnett expressly states, that the land descends, if no issue, to the youngest son of the youngest brother of the person last seised, that is, of the stock of descent. There is no magic in the phrase "last seised." These words were evidently used in the statement of the custom as they would have been used before the act in a statement of the common law. It would have been said that the land descends, for want of issue, to the eldest sou of the eldest brother of the person last seised. It would have been taken for granted that every body knew that seisin made the stock. The law, however, is now altered in this respect. The purchaser only is the stock. If Edward Muggleton had died without leaving issue, the plaintiff clearly would have been entitled. His issue fails after his decease; but so long as he is the stock, the same person under the same custom must of necessity be his heir.
It was expressly stated in the case, that there was no formal record with respect to descents. This is important, as showing that the person last seised was mentioned in the statement of the custom simply in accordance with the ordinary rule of law, that the person last seised was the stock of descent prior to the act. If, however, there had been such a formal record, still Edward Muggleton, the purchaser, died seised. If he had not died seised, it might be said, according to the strict construction placed upon the records of customary descent, that the custom did not apply, and that his heir according to the common law was entitled (d). But in the present case the custom is expressly stated to be gathered from admissions only; and so long as the person last seised was by law the stock of descent, it is evident that a statement of the custom, as applying to the person last seised, was merely a statement with reference to the stock of descent as then existing. The act alters the stock of descent, and so far alters the custom. It substitutes the purchaser for the person last seised, whatever may be the custom as to descents. It follows, therefore, that the plaintiff in Muggleton v. Burnett, being the customary heir of the purchaser, was entitled to recover.
Since these observations were written the following remarks have been made by Lord St. Leonards, on the case of Muggleton v. Burnett: - "In the result, the Exchequer and Exchequer Chamber, with much diversity of opinion as to the extent of the custom, decided the case against the claimant, who claimed as heir by the custom to the lust purchaser, which he was; because he was not heir by the custom to the person last seised. And yet the act extends to all customary tenures, and alters the descent in all such cases as well as in descents by the common law, by substituting the last purchaser as the stock from whom the descent is to be traced for the person last seised. The Court, perhaps, hardly explained the grounds upon which they held the statute not to apply to this case" (e).
(d) Payne v. Barker, 0. Bridg. 18; Rider v. Wood, 1 Kay& J. 644.
(e) Lord St. Leonards' Essay on the Real Property Statutes, p. 271 (2nd ed.)