"When two or more persons together form an heir, they are called in law coparceners, or, more shortly, parceners (p). The term is derived, according to Littleton (q), from the circumstance that the law will constrain them to make partition; that is, any one may oblige all the others so to do. Whatever may be thought of this derivation, it will serve to remind the reader that coparceners are the only kind of joint owners, to whom the ancient common law granted the power of severing their estates without mutual consent: as the estate in coparcenary was cast on them by the act of the law, and not by their own agreement, it was thought right that the perverseness of one should not prevent the others from obtaining a more beneficial method of enjoying the property. This comptilsory partition was formerly effected by a writ of partition(r), a proceeding now abolished (s). The modern method is by a judge of the Court of Chancery in chambers, or more rarely by a commission issued for the purpose by that (t). Partition, however, is most frequently made by voluntary agreement between the parties, and for this purpose a deed has, by a modem act of parlia-liinit. been rendered essential in every case(u). The inclosure commissioners for England and Wales have also power to effect partitions, by virtue of modern enactments, which will be found mentioned at the end of the chapter on Joint Tenants and Tenants in Common. When partition has been effected, the lands allotted are said to be held in severalty; and each owner is said to have the entirety of her own parcel. After partition, the several parcels of land descoid in the same manner as the undivided shares, for which they have been substituted (v); the coparceners, therefore, do not by partition become purchasers, but still continue to be entitled by descent. The term coparceners is not applied to any other joint owners, but only to those who have become entitled as coheirs (w).
(0) Co. Lilt, 191l a ,n.(l), vi.4. (p) Bac Abr. tit. Coparceners. (q) sect. 241; 2 Black. Com.
(r) Litt. ss. 217, 248. (s) Stat. 3 & 4 Will IV. c. 27, s. 86.
4. The fourth rule is, that all 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 (x). Thus, in the case above mentioned, on the death of William the eldest son, leaving a son, that son would succeed to the whole by right of representation, in exclusion of Ins uncle John, and of his two aunts Susannah and Catherine; or had William left a son and daughter, such daughter would, after the decease of her brother without issue, be, in like manner, the heir of her grandfather, in exclusion of her uncle and aunts.
(t) Co. Litt. 169 a, n. (2); 1 Fonb. Eq. 18; Canning v. Canning, 2 Drewry, 434.
(u) Stat. 8 & 9 Vict. c. 10G, s. 3, repealing stat. 7 & 8 Vict. c. 76, 3. :3, to the same effect.
(v) 2 Prest. Abst. 72; Doe d. Crosthwaite v. Dixon, 5 Adol. & Ellis, 834.
(w) Litt. s. 254.
(x) 2 Black. Com. 216.
The preceding rules of descent apply as well to the descent of an estate tail, if not duly barred, as to that of an estate in fee simple. The descent of an estate tail is always traced from the purchaser, or donee in tail, that is, from the person to whom the estate tail was at first given. This was the case before the act, as well as now (y); for, the person who claims an entailed estate as heir claims only according to the express terms of the gift, or, as it is said,per formam doni. The gift is made to the donee, or purchaser, and the heirs of his body; all persons, therefore, who can become entitled to the estate by descent, must answer the description of heirs of the purchaser's body; in other words, must be his lineal heirs. The second and third rides also equally apply to estates tail, unless the restriction of the descent to heirs male or female should render unnecessary the second, and either clause of the third rule. The fourth rule completes the canon, so far as estates tail are concerned; for, when the issue of the donee are exliausted, such an estate must necessarily determine. But the descent of an estate in fee simple may extend to many other persons, and accordingly requires for its guidance additional rules, with which we now proceed.
5. The fifth rule is, that on failure of lineal descendants, or issue of the purchaser, the inheritance shall descend to his nearest Lineal ancestor. This rule is materially different from the rule which prevailed before the passing of the act. The former rule was, that, on failure of lineal descendants or issue of the person last seised (or feudally possessed ), the inheritance should descend to his collateral relations, being of the blood of the first purchaser, subject to the three preceding rules (z). The old law never allowed lineal relations in the ascending line (that is, parents or ancestors) to succeed as heirs. But, by the new act, descent is to be traced through the ancestor, who is to be heir in preference to any person who would have been entitled to inherit, either by tracing his descent through such lineal ancestor, or in consequence of there being no descendant of such lineal ancestor. The exclusion of parents and other lineal ancestors from inheriting under the old law was a hardship of which it is not easy to see the propriety; nor is the explanation usually given of the origin perhaps quite satisfactory. Bracton, who is followed by Lord Coke, compares the descent of an inheritance to that of a falling body, which never goes upwards in its course (a). The modern explanation derives the origin of collateral heirships, in exclusion of lineal ancestors, from gifts of estates (at the time when inheritances were descendible only to issue or lineal heirs) made, by the terms of the gift, to be descendible to the heirs of the donee, in the same manner as an ancient inheritance would have descended. This was called a gift of a feudum novum, or new inheritance, to hold ut feudum antiquum, as an ancient one. Now, an ancient inheritance, - one derived in a course of descent from some remote lineal ancestor, - would of course be descendible to all the issue or lineal heirs of such ancestor, including, after the lapse of many years, numerous families, all collaterally related to one another: an estate newly granted, to be descendible ut feudum antiquum, would therefore be capable of descending to the collateral relations of the grantee, in the same manner as a really ancient inheritance, descended to him, would have done. But an ancient inheritance could never go to the father of any owner, because it must have come from his father to him, and the father must have died before the son could inherit: in grants of inheritances to be descendible as ancient ones, it followed, therefore, that the father or any lineal ancestor could never inherit (b). So far, therefore, the explanation holds; but it is not consistent with every circumstance; for an elder brother has always been allowed to succeed as heir to his younger brother, contrary to this theory of an ancient lineal inheritance, which would have previously passed by every elder brother, as well as the father. The explanation of the origin of a rule, though ever so clear, is however a different thing from a valid reason for its continuance; and, at length, the propriety of placing the property of a family under the care of its head, is now perceived and acted on; and the father is heir to each of his children, who may die intestate and without issue, as is more clearly pointed out by the next rule.