(k) Co. Litt. 164 a.
Having now ascertained the course of descent among coparceners under the old law, whenever descent was traced from a purchaser, we are in a better situation to place a construction on that clause of the act to amend the law of inheritance which enacts, "that in every case descent shall be traced from the purchaser" (l). what was the nature of the alteration which this act was intended to effect? Was it intended to introduce a course of descent amongst coparceners hitherto unknown to the law, and tending to the most intricate and absurd subdivision of their shares ? or did (he act intend merely to say that a descent from the purchaser, which had hitherto occurred only in the case of an estate tail, and in the case where the heir to a fee simple died without obtaining actual seisin, should now apply to every case ? In other words, has the act abolished the rule that, in tracing the descent from the purchaser, the issue of deceased heirs shall stand, quoad their entire shares, in the place of their parents ? We have seen that previously to the act, the rule that descent should he traced from the purchaser whenever it applied, was guided and governed by another rule, that the issue of every deceased person should, quoad the entire share of such person, stand in his or her place. Why, then, should not the same rule of representation govern descent, now that the rule tracing descent from the purchaser has become applicable to every case? Had any modification been intended to be made of so important a rule for tracing descent from a purchaser, as the rule that the issue, and the issue alone, represent their ancestor, surely the act would not have been silent on the subject. A rule of law clearly continues in force until it be repealed. No repeal has taken place of the rule that, in tracing descent from a purchaser, the issue shall always stand in the place of their ancestor. It is submitted, therefore, that this rule is now in full operation; and that, although in every case descent is now traced from the purchaser, yet the tracing of such descent is still governed by the rules to which the tracing of descent from purchasers was in former times invariably subject. If this be so, it is clear, then, that, under the circumstances stated at the commencement of this paper, the share of Catherine will descend entirely to her own issue, as heir to the purchaser quoad her share, and will not be divided between such issue and the surviving sister.
(l) Stat. 3 & 4 will. IV. c. l06, s. 2.
It is said, indeed, that, by giving to the issue one-half of the share which belonged to their mother, the rule is satisfied which requires that the issue of a person deceased shall, in all cases, represent their ancestor; for it is argued that the issue still take one-fourth by representation, notwithstanding that the other fourth goes to the surviving sister, who constitutes, together with such issue, one heir to their common ancestor. This, however, is a fallacy; the rule is, " that the lineal descendants in infinitum of any person deceased shall represent their ancestor, that is, shall stand in the same place as the person himself would have done had he been living" (m). Now, in what place would the deceased daughter have stood had she been living ? Would she have been heir to one-fourth ouly, or would she not rather have been heir to the entire moiety ? Clearly to the entire moiety; for had she been living, no descent of her moiety would have taken place; if, then, her issue are to stand in the place which she would have occupied if living, they cannot so represent her unless they take the whole of her share.
But it is said, again, that the surviving daughter may have aliened her share; and how can the descent of her deceased sister's share be said to be traced from the purchaser, if the survivor, who constitutes a part of the purchaser's heir, is to take nothing ? The descent of the whole, it is argued, cannot be considered as traced over again on the decease of any daughter, because the other daughter's moiety may, by that time, have got into the hands of a perfect stranger. The proper reply to this objection seems to be, that the laws of descent were prior in date to the liberty of alienation. In ancient times, when the rules of descent were settled, the objection could scarcely have occurred. Estates tail were kept from alienation by virtue of the statute De Donis for about 200 years subsequent to its passing. Rights of entry and action were also inalienable for a very much longer period. Reversions expectant on estates of freehold, in the descent of which the same rule of tracing from the purchaser occurred, could alone have afforded an instance of alienation by the heir; and the sale of reversions appears to have been by no means frequent in early times. In addition to other reasons, the attornment then required from the particular tenant on every alienation of a reversion operated as a check on such transactions. It may, therefore, be safely asserted as a general proposition, that on the decease of any coparcener, the descent of whose Share was to be traced from the purchaser, the shares of the other coparceners had not been aliened; and to have given them any part of their deceased sister's share, to the prejudice of her own issue, would have been obviously unfair, and contrary to the natural meaning of the rule, that "every daughter hatha several stock or root" (n). If, as we have seen, the rule remained the same with regard to estates tail, notwithstanding the introduction of the right of alienation (o), surely it ought still to continue unimpaired, now that it has become applicable to estates in fee, which enjoy a still more perfect liberty. Rules of law which have their foundation in natural justice, should ever be upheld, notwithstanding they may have become applicable to cases not specifically contemplated at the time of their creation.
(m) 2 Black, Com. 216.
(n) Co. Litt. 164 b.
(o) Doe v. Whichelo, 8 T. R.
211; ante, p. 453.