We shall now proceed to consider the rules of the descent of an estate in fee simple, as altered by the act for the amendment of the law of inheritance (a). This act does not extend to any descent on the decease of any person, who may have, died before the first of January, 1834 (b). For the rules of descent prior to that date, the reader is referred to the Commentaries of Black-stone (c), and to Watkins's Essay on the Law of Descents.
1. The first rule of descent now is, that inheritances shall lineally descend, in the first place, to the issue of the last purchaser in infinitum. The word purchase has in law a meaning more extended than its ordinary sense : it is possession to which a man cometh not by title of descent (d): a devisee under a will is accordingly a purchaser in law. And, by the act, the purchaser from whom descent is to be traced is defined to be, the last person who had a right to the land, and who cannot be proved to have acquired the land by descent, or by certain means (e) which render the land part of, or descendible in the same manner as, other land acquired by descent. This rule is an alteration of the old law, which was, that descent should be traced from the person who last had the feudal possession or seisin, as it was called; the maxim being seisina facit stipitem (f). This maxim, a relict of the troublesome times when right without possession was worth but little, sometimes gave occasion to difficulties, owing to the uncertainty of the question, whether possession had or had not been taken by any person entitled as hen; thus, where a man was entering into a house by the window, and when half out and half in, was pulled out again by the heels, it was made a question, whether or no this entry was sufficient, and it was adjudged that it was (g). These difficulties cannot arise under the new act; for now the heir to be sought for is not the heir of the person last possessed, but the heir of the last person entitled who did not inherit, whether he did or did not obtain the possession, or the receipt of the rents and profits of the land. The rule, as altered, is not indeed altogether free from objection; for it will be observed that, not content with making a title to the land equivalent to possession, the act has added a new term to the definition, by directing descent to be traced from the last person entitled who did not inherit. So that if a person who has become entitled as heir to another should die intestate, the heir to be sought for is not the heir of such last owner, but the heir of the person from whom such last owner inherited. This provision, though made by an act consequent on the report of the Real Property Commissioners, was not proposed by them. The Commissioners merely proposed that lands should pass to the heir of the person last entitled (h), instead, as before, of the person last possessed; thus facilitating the discovery of the heir, by rendering a mere title to the lands sufficient to make the person entitled the stock of descent, without his obtaining the feudal possession, as before required. Under the old law, descent was confined within the limits of the family of the purchaser; but now no person who can be shown to have inherited can be the stock of descent, except in the case of the total failure of the heirs of the purchaser (i); in every other case, descent must be traced from the last purchaser. The author is bound to state that the decision of the Courts of Exchequer and Exchequer Chamber, in the recent case of Muggleton v. Barnett(k), is opposed to this view of the construction of the statute. The reasons which have induced the author to think that decision erroneous will be found in Appendix A.
Rules of descent.
Descent formerly traced from the person last possessed.
(a) Stat. 3 & 4 Will. IV. c. 106, amended by stat. 22 & 23 Vict. c. 35, ss. 19, 20.
(7/) Sect. 11.
(c) 2 Black. Com. c. 14.
(d) Litt. s. 12.
(e) Escheat, Partition and In-closure, s. 1.
Objection to the alteration.
(f) 2 Black. Com. 209; Watk. Descent, c 1, s. 2. (g) Watk. Descent, 45 (4th cd. R.P. 53).
(h) Thirteenth proposal as to Descents.
2. The second rule is, that the male issue shall be admitted before the female (l).
3. The third rule is, that where two or more of the male issue are in equal degree of consanguinity to the purchaser, the eldest only shall inherit; but the females shall inherit all together (m). The last two rules are the same now as before the recent act; accordingly, if a man has two sons, William and John, and two daughters, Susannah and Catherine (n), William, the eldest son, is the heir at law, in exclusion of his younger brother John, according to the third rule, and of his sisters, Susannah and Catherine, according to rule 2, although such sisters should be his seniors in years. If, however, William should die without issue, then John will succeed, by the second rule, in exclusion of his sisters; but if John also should die without issue, the two sisters will succeed in equal shares by the third rule, as being together heir to their father.
(i) Stat. 22 & 23 Vict. c. 35, ss. 19, 20.
(k) 1 H. &N. 282; 2 H.&N. 653.
(l) 2 Black. Com. 212. (m) 2 Black. Com. 214. (n) See the Table of Descents annexed.
Primogeniture, or the right of the eldest among the males to inherit, was a matter of far greater consequence in ancient times, before alienation by will was permitted, than it is at present. Its feudal origin is undisputed; but in this country it appears to have taken deeper root than elsewhere; for a total exclusion of the younger sons appears to be peculiar to England: in other countries, some portion of the inheritance, or some charge upon it, is, in many cases at least, secured by law to the younger sons (o). From this ancient right has arisen the modern English custom of settling the family estates on the eldest son; but the right and the custom are quite distinct: the right may be prevented by the owner making his will; and a conformity to the custom is entirely at his option.