(b) Litt. sect 260.
(c) Co. Litt. 172 b.
At the end of the section of Littleton, to which we have referred, it is stated that the contrary is holden, M., 10 Hen. VI. scil.; that the heir may not enter upon the parcener who hath the entailed land, hut it is put to a for-medon. On this Lord Coke remarks (d), that it is no part of Littleton, and is contrary to law; and that the case is not truly vouched, for it is not in 10 Hen. VI., hut in 20 Hen. VI., and yet there is hut the opinion of Newton, obiter, by the way. On referring to the case in the Year Books, it appears that Yelverton contended, that, if the sister, who had the fee simple, aliened, and had issue, and died, the issue would he barred from the land entailed by the partition, which would he a mischief. To this Newton replied, "No, sir; hut he shall have formedon, and shall recover the half" (e). Newton, therefore, though wrong in supposing that a formedon was necessary, thought equally with Lord Coke, that a moiety of the land was the share to be recovered. This appears to be the Newton whom Littleton calls (f) "my master, Sir Richard Newton, late Chief Justice of the Common Pleas."
There is another section in Littleton, which, though not conclusive, yet strongly tends in the same direction; namely, section 255, where it is said, that, if the tenements whereof two parceners make partition "be to them in fee tail, and the part of the one is better in yearly value than the part of the other, albeit they be concluded during their lives to defeat the partition, yet, if the parcener who hath the lesser part in value hath issue and die, the issue may disagree to the partition, and enter and occupy in common the other part which was allotted to her aunt, and so the other may enter and occupy in common the other part allotted to her sister, etc, as if no partition had been made." Had the law been that, on the decease of one sister, her issue were entitled only to an undivided fourth part, it seems strange that Littleton should not have stated that they might cuter into a fourth only, and that the other sister might occupy the remaining three-fourths.
(d) Co. Litt. 173 a.
(e) Year Book, 20 Hen. VI. 14 a.
(f) Sect. 729.
In addition to these authorities, there is a modern case, which, when attentively considered, is an authority on the same side; namely, Doe d. Gregory and Geere v. Whi-chelo (g). This case, so far as it relates to the point in question, was as follows: Richard Lemmon was tenant in tail of certain premises, and died, leaving issue by his first wife one son, Richard, and a daughter, Martha; and by his second wife three daughters, Anne, Elizabeth and Grace. Richard Lemmon, the son, as heir of the body of his father, was clearly tenant in tail of the whole premises during his life. He died, however, without issue, leaving his sister Martha of the whole blood, and his three sisters of the half blood, him surviving. Martha then intermarried with John Whichelo, and afterwards died, leaving John Whichelo, the defendant, her eldest son and heir of her body. John Whichelo, the defendant, then entered into the whole of the premises, under the impression that as he was heir to Richard Lemmon, the son, he was entitled to the whole. In this, however, he was clearly mistaken; for the descent of an estate tail is, as we have said, traced from the purchaser, or first donee in tail, per formam doni. The heirs of the purchaser, Richard Lemmon, the father, were clearly his four daughters, or their issue; for the daughters by the second wife, though of the half blood to their brother by the former wife, were, equally with their half sister Martha, of the whole blood to their common father. The only question then is, in what shares the daughters or their issue became entitled. At the time of the ejectment all the daughters were dead. Elizabeth was dead, without issue; whereupon her one equal fourth part devolved, without dispute, on her three sisters, Martha, Annc and Grace : each of these, therefore, became entitled to one equal third part. Martha, as we have seen, died, leaving John Whichelo, the defendant, her eldest son and heir of her body. Anne died, leaving James Gregory, one of the lessors of the plaintiff, her graudson and heir of her body; and Grace died, leaving Diones Geere, the other lessor of the plaintiff, her only son and heir of her body. Under these circumstances, an action of ejectment was brought by James Gregory and Diones Geere; and on a case reserved for the opinion of the Court, a verdict was directed to be entered for the plaintiff for two-thirds. Neither the counsel engaged in the cause, nor the Court, seem for a moment to have imagined that James Gregory and Diones Geere could have been entitled to any other shares. It is evident, therefore, that the Court supposed that, on the decease of Martha, the heir of the body of the purchaser, as to her share, was her son, John Whichelo, the defendant; that, on the decease of Anne, the heir of the body of the purchaser, as to her share, was James Gregory, her grandson; and that, on the decease of Grace, the heir of the body of the purchaser, as to her share, was her sou, Diones Geere. On no other supposition can the judgment be accounted for, which awarded one-third of the whole to the defendant, John Whichelo, one other third to James Gregory, and the remaining third to Diones Geere. For let us suppose that, on the decease of each coparcener, her one-third was divided equally amongst the then existing heirs of the body of the purchaser; and the result will be, that the parties, instead of each being entitled to one-third, would have been entitled in fractional shares of a most complicated kind; unless we presume, which is next to impossible, that all the three" daughters died at one and the same moment. It is not stated, in the report of the case, in what order the decease of the daughters took place; but according to the principle suggested, it will appear, on working out the fractions, that the heir of the one who died first would have been entitled to the largest share, and the heir of the one who died last would have been entitled to the smallest. Thus, let us suppose that Martha died first, then Anne, and then Grace. On the decease of Martha, according to the principle suggested, her son, John Whichelo, would have taken only one-third of her share, or one-ninth of the whole, and Anne and Grace, the surviving sisters, would each also have taken one-third of the share of Martha, in addition to their own one-third of the whole. The shares would then have stood thus: John Whichelo 1/9, Anne 1/3 +1/9 , Grace 1/3 + 1/9. Anne now dies. Her share, according to the same principle, would be equally divisible amongst her own issue, James Gregory, and the heirs of the body of the purchaser, namely, John "Whichelo and Grace. The shares would then stand thus: John Whichelo 1/9 + 1/3 (1/3 + 1/9); namely, his own share and one-third of Anne's share, = 2/27 : James Gregory 1/3 (1/3 + 1/9) - 4/27: Grace. 1/3 + 1/9 + 1/3 ( 1/3 + 1/9 ) i namely, her own share and one-third of Anne's share = - 26/27. Lastly, Grace dies, and her share, according to the same principle, would be equally divisible between her own issue, Diones Geere and John Whichelo and James Gregory, the other co-heirs of the body of the purchaser. The shares would then have stood thus: John Whichelo, 7/27 + (1/3 x 16/27); namely, his own share and one-third of Grace's share, = 37/81i of the entirety of the laud. James Gregory, 4/27 + (1/3x16/27); namely, his own share and one-third of Grace's share, = 23/81 : Diones Geere, 1/3 x 16/27 = 16/81. On the principle, therefore, of the descent of the share of each co-parcener amongst the co-heirs of the body of the purchaser for the time being, the heir of the body of the one who died first would have been entitled to thirty-seven eighty-first parts of the whole premises; the heir of the body of the one who died next would have been entitled to twenty-eight eighty-first parts; and the heir of the body of the one who died last would have been entitled only to sixteen eighty-first parts. By the judgment of the Court, however, the lessors of the plaintiff were entitled each to one equal third part; thus showing that, although the descent of an estate tail under the old law was always traced from the purchaser (otherwise John Whichelo would have been entitled to the whole), yet this rule was qualified by another of equal force, namely, that all the lineal descendants of any person deceased should represent their ancestors; that is, should stand in the same place, and take the same share, as the ancestor would have done if living.