Registration may be. vacated.
chasers wire indebted for this protection to Lord St. Leonards.
(b) Stat. 28 & 29 Vict. c. 104, s. 4.
(c) Sect. 48.
(d) Sect. 49.
(e) Co. Litfc 344 b; Anon. 1
Vern. 318; Hiern v. Mill, 13 Ves. 120; 3 Prest. Abst.354; Bellamy v. Sabine, 1 De Gcx & Jones, 666.
(f) Stat. 2 & 3 Vict c. II,
Another instance of involuntary alienation for the payment of debts, occurs on the bankruptcy of any person, in which event the whole of his freehold, as well as his personal estate, is now vested in the creditors' trustee, by virtue of his appointment, in trust for the whole body of the creditors (h). On the insolvency of any person, his whole estate formerly vested in the provisional assignee of the Court for the Relief of Insolvent Debtors, from whom it was transferred to assignees appointed by the Court, vesting in them by virtue of their appointment, and without any conveyance, in trust for the benefit of the creditors of the insolvent, according to the provisions of the act for amending the laws for the relief of insolvent debtors (i). The whole of these laws are however now repealed, and all debtors, whether traders or not, are subject to the provisions of the last act to consolidate and amend the law of bankruptcy (k).
So inherent is the right of alienation of all estates (except estates tail, in which, as we have seen, the right is only of a modified nature), that it is impossible for any owner, by any means, to divest himself of this right. And in the same manner the liability of estates to involuntary alienation for payment of debts cannot by any means be got rid of. So long as any estate is in the hands of any person, so long does his power of disposition continue (l), and so long also continues his liability to have the estate taken from him to satisfy the demands of his creditors (m). When, however, lands or property are given by one person for the benefit of another, it is possible to confine the duration of the gift within the period in which it can be personally enjoyed by the grantee. Thus land, or any other property, may be given to trustees in trust for A. until he shall dispose of the same, or shall become bankrupt, or until any act or event shall occur, whereby the property might belong to any other person or persons (n); and this is frequently done. On the bankruptcy of A., or on his attempting to make any disposition of the property, it will in such a case not vest in his assignees, or follow the intended disposition; but the interest which had been given to A. will thenceforth entirely cease; in the same manner as where lands are given to a person for life, his interest terminates on his decease. But, although another person may make such a gift for A.'s benefit, A. would not be allowed to make such a disposition of his own property in trust for himself (o). An exception to this ride of law occurs in the case of a woman, who is permitted by the Court of Chancery to have property settled upon her in well a way, that she cannot when married make any disposition of it during the coverture or marriage; voluntary and involuntary, are inherent in property.
The right and liability to alienation, both but this mode of settlement is of comparatively modern date(p). There are also certain cases in which the personal enjoyment of property is essential to the performance of certain public duties, and in which no alienation of such property can be made; thus a benefice with cure of soids cannot be directly charged or encumbered (q); so offices concerning the administration of justice, and pensions and salaries given by the state for the support of the grantee in the performance of present or future duties, cannot be aliened (r); though pensions for past services are, generally speaking, not within the rule (s).
(g) Stat. 30 & 31 Vict. c. 47, s. 2.
(h) Stat. 32 & 33 Vict. c. 71. The former arts are repealed by stat. 32 & 33 Vict. c. 83.
(i) 1 & 2 Vict. c. 110, s. 23 et seq. See also 5 & 6 Vict. c. 116; 7 & 8 Vict. c. 90; 10 & 11 Vict. c. 102.
(k) Stat. 32 & 33 Vict. c. 71.
But a gift of property may be confined to the period of the grantee's personal enjoyment.
(l) Litt. s.360; Co. Litt. 206 b, 223 a. (m) Brandon v Robinson, 18 ves. 429, 433.
(n) Lockyer v. Savage, 2 Str-947.
(o) Lester v. Garland, .5. Sim 205;phipps, v. Lord Ennismore, 4 Russ. 131.
In addition to the interests which may be created by alienation, either voluntary or involuntary, there are certain rights, conferred by law on husbands and wives in each other's lands, by means of which the descent of an estate, from an ancestor to his heir, may partially be defeated. These rights will be the subject of a future chapter. If, however, the tenant in fee simple should not have disposed of his estate in his lifetime, or by his will, and if it should not be swallowed up by his debts, his lands will descend (subject to any rights of his wife) to the heir at law. The heir, as we have before observed (t), is a person appointed by the law. He is called into existence by his ancestor's decease, for no man during his lifetime can have an heir. Nemo est hares viventis. A man may have an heir apparent, or an heir presumptive, but until his decease he has no heir. The heir apparent is the person, who, if he survive the ancestor, must certainly be his heir, as the eldest son in the lifetime of his father. The heir presumptive is the person, who, though not certain to be heir at all events, should he survive, would yet be the heir in case of the ancestor's immediate decease. Thus an only daughter is the heiress presumptive of her father: if he were now to die, she would at once be his heir; but she is not certain of being heir; for her father may have a son, who would supplant her, and become heir apparent during the father's lifetime, and his heir alter his decease. An heir at law is the only person in whom the law of England vests property, whether he will or not. If I make a conveyance of land to a person in my lifetime, or leave him any property by my will, he may, if he pleases, disclaim taking it, and in such case it will not vest in him against his will (u). But an heir at law, immediately on the decease of his ancestor, becomes presumptively possessed, or seised in law, of all his lands (x). No disclaimer that he may make will have any effect, though, of course, he may, as soon as he pleases, dispose of the property by an ordinary conveyance. A title as heir at law is not nearly so frequent now as it was in the times when the right of alienation was more restricted. And when it does occur, it is often established with difficulty. This difficulty arises more from the nature of the facts to be proved, than from any uncertainty in the law. For the rules of descent have now attained an almost mathematical accuracy, so that, if the facts are rightly given, the heir at law can at once be pointed out. The accuracy of the law has arisen by degrees, by the successive determination of disputed points. Thus, we have seen that, in the early feudal times, an estate to a man and his heirs simply, which is now an estate in fee simple, was descendible only to his offspring, in the same manner as an estate tail at the present day; but in process of time collateral relations were admitted to succeed. When this succession of collaterals first took place is a question involved in much obscurity; we only know that in the time of Henry II. the law was settled as follows: - In default of lineal descendants, the brothers and sisters came in; and if they were dead, their children; then the uncles and their children; and then the aunts and their children; males being always preferred to females (y). Subsequently, about the time of Henry III. (z), the old Saxon rule, which divided the inheritance equally amongst all males of the same degree, and which had hitherto prevailed as to all lands not actually the subjects of feudal tenure (a), gave place to the feudal law, introduced by the Normans, of descent to the eldest son or eldest brother; though among females the estate was still equally divided, as it is at present. And, about the same time, all descendants in infinitum of any person, who would have been heir if living, were allowed to inherit by right of representation. Thus, if the eldest son died in the lifetime of his father, and left issue, that issue, though a grandson or granddaughter only, was to be preferred in inheritance before any younger son (b). The father, moreover, or any other lineal ancestor, was never allowed to succeed as heir to his son or other descendant; neither were kindred of the half-blood admitted to inherit(c). The rules of descent, thus gradually fixed, long remained unaltered. Lord Hale, in whose time they had continued the same for above 400 years, was the first to reduce them to a series of canons (d); which were afterwards admirably explained and illustrated by Blackstone, in his well-known Commentaries; nor was any alteration made till the enactment of the act for the amendment of the law of inheritance (e), a.d. 1833. By this act, amongst other important alterations, the father is heir to his son, supposing the latter to leave no issue; and all lineal ancestors are rendered capable of being heirs (f); relations of the half-blood are also admitted to succeed, though only on failure of relations in the same degree of the whole blood (g). The act has, moreover, settled a doubtful point in the law of descent to distant heirs. The rules of descent, as modified by this act, will be found at large in the next chapter.