Referred to, p. 109.
The point in question is as follows (a): Suppose a man to be the purchaser of freehold land, and to die seised of it intestate, leaving two daughters, say Susannah and Catherine, but no sons. It is clear that the land will then descend to the two daughters, Susannah and Catherine, in equal shares as coparceners. Let us now suppose that the daughter Catherine dies on or after the 1st of January, 1834, intestate, and without having disposed of her moiety in her lifetime, leaving issue one son. Under these circumstances the question arises, to whom shall the inheritance descend ? The act to amend the law of inheritance enacts, " that in every case descent shall be traced from the purchaser." In this case Catherine is clearly not the purchaser, but her fattier; and the descent of Catherine's moiety is accordingly to be traced from him. Who, then, as to this moiety, is his heir? Supposing that, instead of the moiety in question, some other land were, after Catherine's decease, to be given to the heir of her father, such heir would clearly be Susannah, the surviving daughter, as to one moiety of the land, and the son of Catherine as to the other moiety. It has been argued, then, that the moiety which belonged to Catherine, by descent from her father, must, on her decease, descend to the heir of her father, in the same manner as other land would have done had she been dead in her father's lifetime; that is to say, that one moiety of Catherine's moiety will descend to her surviving sister Susannah, and the other moiety of Catherine's moiety will descend to her son. But the following reasoning seems to show that, on the decease of Catherine, her moiety will not descend equally between her surviving sister and her own son, but will descend entirely to her son.
(a) The substance of the following observations has already appeared in the " Jurist" newspaper for February 28,1846. The point has since been expressly decided, in accordance with the opinion for which the author has contended, in Cooper v. France,"V.- C. E., 14 Jur. 214, the authority of which decision is recognized by Lord St. Leonards in his Essay on the Real Property Statutes, p. 282 (1st ed.), 269 (2nd ed.) But as the grounds on which the judgment of the Vice-Chancellor was rested do not appear to the author to be quite conclusive, he has not thought it desirable to omit his remarks.
In order to arrive at our conclusion it will be necessary to inquire, first, into the course of descent of an estate tail, under the circumstances above described, according to the old law; secondly, into the course of descent of an estate in fee simple, according to the old law, supposing the circumstances as above described, with this qualification, that neither Susannah nor Catherine shall be considered to have obtained any actual seisin of the lands. And, when these two points shall have been satisfactorily ascertained, we shall then be in a better position to place a correct interpretation on the act by which the old law of inheritance has been endeavoured to be amended.
1. First, then, as to the course of descent of an estate tail according to the old law. Let us suppose lands to have been given to the purchaser and the heirs of his body. On his decease, his two daughters, Susannah and Catherine, are clearly the heirs of his body, and as such will accordingly have become tenants in tail each of a moiety. Now there is no proposition more frequently asserted in the old books than this : that the descent of an estate tail is per formam doni to the heirs of the body of the donee. On the decease of one heir of the body, the estate descends not to the heir of such heir, but to the heir of the body of the original donee per formam doni. Suppose, then, that Catherine should die, her moiety would clearly have descended, by the old law, to the heir of the body of her father, the original donee in tail. Whom, then, under the above circumstances, did the old law consider to be the heir of his body quoad this moiety ? The Tenures of Littleton, as explained by Lord Coke's Commentary, supply us with an answer. Littleton says, " Also, if lands or tenements be given to a man in tail who hath as much land in fee simple, and bath issue two daughters, and die, and his two daughters make partition between them, so as the land in fee simple is allotted to the younger daughter, in allowance for the land and tenements in tail allotted to the elder daughter; if, after such partition made, the younger daughter alieneth her land in fee simple to another in fee, and hath issue a son or daughter, and dies, the issue may enter into the lands in tail, and hold and occupy them in purparty with her aunt" (b). On this case Lord Coke makes the following comment: - " The eldest coparcener hath, by the partition, and the matter subsequent, barred herself of her right in the fee-simple lauds, insomuch as when the youngest sister alieneth the fee-simple lands and dieth, and her issue entereth into half the lands entailed, yet shall not the eldest sister enter into half of the lands in fee simple upon the alienee" (c). It is evident, therefore, that Lord Coke, though well acquainted with the rule that an estate tail should descend per formam doni, yet never for a moment supposed that, on the decease of the younger daughter, her moiety would descend half to her sister, and half to her issue; for he presumes, of course, that the issue would enter into half the lands entailed, that is, into the whole of the moiety of the lands which had originally belonged to their mother. After the decease of the younger sister, the heirs of the body of her father were no doubt the elder sister and the issue of the younger; but, as to the moiety which had belonged to the younger sister, this as clearly was not the case; the heir of the body of the father to inherit this moiety was exclusively the issue of such younger daughter, who were entitled to the whole of it in the place of their parent. This incidental allusion of Lord Coke is as strong, if not stronger, than a direct assertion by him of the doctrine : for it seems to show that a doubt on the subject never entered into his mind.