(g) 8T. R. 211.
2. Let us now inquire into the course of descent of an fate in fee simple, according to the old law, in case the purchaser should have died, leaving two daughters, Susannah and Catherine, neither of whom should have obtained any actual seisin of the lands, and that one of them (say Catherine) should afterwards have died, leaving issue one son. In this case, it is admitted on all sides, that the share of Catherine -would have descended to the heir of the purchaser, and not to her own heir, in the character of heir to her; for the maxim was seisina facit stipitem. Had either of the daughters obtained actual seisin, her seisin would have been in law the actual seisin of the sister also; and on the decease of either of them, her share would have descended, not to the heir of her father, but to her own heir, the seisin acquired having made her the stock of descent. In such a case, therefore, the title of the son of Catherine to the whole of his mother's moiety would have been indisputable; for, while he was living, no one else could possibly have been her heir. The supposition, however, on which we are now to proceed is, that neither of the daughters ever obtained any actual seisin; and the question to be solved is, to whom, on the death of Catherine, did her share descend; whether equally between her sister and her son, as being together heir to the purchaser, or whether solely to the son, as being heir to the purchaser, quoad his mother's share. In Mr. Sweet's valuable edition of Messrs. Jarman and Bythewood's Conveyancing (h), it is stated to be "apprehended that the share of the deceased sister would have descended in the same manner as by the recent statute it will now descend in every instance," which manner of descent is explained to be one-half of the share, or a quarter of the whole only, to the son, and the remaining half of the share to the surviving sister, thus giving her three-quarters of the whole. This doctrine, however, the writer submits, is erroneous; and in proof of such error, it might be sufficient simply to call to mind the fact, that the law of England had but one rule for the discovery of the heir. The heirs of a purchaser were, first the heirs of his body, and then his collateral heirs; and an estate tail was merely an estate restricted in its descent to lineal heirs. If, therefore, the heir of a person had been discovered for the purpose of the descent of an estate tail, it is obvious that the same individual would also be heir of the same person for the purpose of the descent of an estate in fee simple. No distinction between the two is ever mentioned by Lord Coke, or any of the old authorities. Now, we have seen that the heir of the purchaser, under the circumstances above mentioned, for the purpose of inheriting an estate tail, was the son of the deceased daughter solely, quoad the share which such daughter had held; and it would accordingly appear that the heir of the purchaser, to inherit an estate in fee simple, was also the son of the deceased daughter quoad her share. That this was in fact the case appears incidentally from a passage in the Year Book (i), where it is stated, that "If there be two coparceners of a reversion, and their tenant for term of life commits waste, and then one of the parceners has issue and dies, and the tenant for term of life commits another waste, and the aunt and niece bring a writ of waste jointly, for they cannot sever, and the writ of waste is general, still their recovery shall be special; for the aunt shall recover treble damages for the waste done, as well in the life of her parcener as afterwards, and the niece shall only recover damages for the waste done after the death of her mother, and the place wasted they shall recover jointly. And the same law is, if a man has issue two daughters and dies seised of certain land, and a stranger abates, and afterwards one of the (laughters has issue two daughters and dies, and the aunt and the two daughters bring assize of mort d'ancestor; here, if the aunt recover the moiety of the land and damages from the death of the ancestor, and the nieces recover each one of them the moiety of the moiety of the land, and damages from the death of their mother, still the writ i- general." Here we have all the circumstances required; the father dies seised, leaving two daughters, neither of whom obtains any actual seisin of the land; for a stranger abates, - that is, gets possession before them. One of the daughters then dies, without having had possession, and her share devolves entirely on her issue, not as heirs to her, for she never was seised, but as heirs to her father quoad her share. The surviving sister is entitled only to her original moiety, and the two daughters of her deceased sister take their mother's moiety equally between them.
(h) Vol. i. p. 139. This point has, however, since been decided in accordance with the author's opinion in Paterson v. Mills, V.-C. K. Bruce, 15 Jar. 1.
(i) 35 Hen. VI. 28.
There is another incidental reference to the same subject in Lord Coke's Commentary upon Littleton (k): "If a man hath issue two daughters, and is disseised, and the daughters have issue and die, the issues shall join in a praecipe, because one right descends from the ancestor, and it maketh no difference whether the common ancestor, being out of possession, died before the daughters or after, for, that, in both cases, they must make themselves heirs to the grandfather which was last seised, and when the issues have recovered, they are coparceners, and one praecipe shall lie against them." "It maketh no difference," says Lord Coke, "whether the common ancestor, being out of possession, died before the daughters or after." Lord Coke is certainly not here speaking of the shares which the issue would take; but had any difference in the quantity of their shares been made by the circumstance of the daughters surviving their father, it seems strange that so accurate a writer as Lord Coke should not "herein" have "noted a diversity." The descent is traced to the issue of the daughters not from the daughters, but from their father, the common grandfather of the issue. On the decease of one daughter, therefore, on the theory against which we are contending, the right to her share should have devolved, one-half on her own issue and the other half on her surviving sister; and, on the decease of such surviving sister, her three quarters should, by the same rule, have been divided, one-half to her own issue and the other half to the issue of her deceased ter; whereas it is admitted, that had the daughters both died in their father's lifetime, their issue would have iuherited in equal shares. Lord Coke, however, remarks no difference whether the father died before or after his daughters. Surely, then, he never could have imagined that so great an equality in the shares could have been produced by so mere an accident. It should be remembered that the rule of representation for which we are contending is the rule suggested by natural justice, and might well have been passed over without express notice; but had the opposite rule prevailed, the inequality and injustice of its operation could scarcely have failed to elicit some remark. This circumstance may, perhaps, tend to explain the fact that the writer has been unable, after a lengthened search, to find any authority expressly directed to the point; and yet, when we consider that in ancient times the title by descent was the most usual one (testamentary alienation not having been permitted), Ave cannot doubt but that the point in question must very frequently have occurred. In what manner, then, can we account for the silence of our ancient writers on this subject, but on the supposition, which is confirmed by every incidental notice, that, in tracing descent from a purchaser, the issue of a deceased daughter took the entire share of their parent, whether such daughter should have died in the lifetime of the purchaser or after his decease ?