The common-law rule in this regard was recognized and applied in a number of states,13 but even in those states, as in others, it has, for the most part, been superseded, owing to the statutory changes in the law of descent, with the result that a reversion or remainder, which passes to one by descent, subsequently passes, on still descends as at common law. As to estates tail, see ante, Sec. 30.

11. Watkins, Law of Descents (14th Ed.) 130; Cruise, Digest, tit. 29, ch. 4, Sec. 1 et seq.

12. Goodright v. Searle, 2 Wils. 29; Doe v. Hutton, 3 Bos. & Pull. 643; Watkins, Law of Descents, 132; Fearne, Cont. Rem. 561.

13. Buck v. Lantz, 49 Md. 439; Conner v. Waring, 52 Md. 724; Jenkins v. Bonsai, 116 Md. 629, 82 Atl. 229; Payne v. Rosser, 53 Ga. 662; Jackson v. Hilton, 16 Johns. (N. Y.) 96; Lawrence v, Pitt. 46 N. Car. 344; King v.

Scoggin, 92 N. Car. 99, 53 Am. Rep. 410.

In Barnitz v. Casey, 7 Cranch 456, and Garrison v. Hill, 79 Md. 75, 47 Am. St. Rep. 363, 28 Atl. 1062, it is said that he is entitled who makes himself heir at the time when the contingency happens. That is so in the case of an executory interest, as in the first of the above cited cases, because it is then that the interest falls into possession, but it would not seem to be so in the case of a contingent remainder, unless the vesting and the termination of the particular estate occur at the same time.

His death intestate, to his heirs, without regard to the ancestor from whom he inherited.14

- Devise to heir. In case one undertakes to devise to his heir exactly the same interest in particular land as the latter would take by descent, he is regarded as taking by descent and not by the devise, descent being regarded as the worthier title.15 So if one having an estate in fee simple undertakes to devise an estate for life to one person with remainder in fee simple thereon to his, the testator's, heir at law, the latter, instead of taking an estate in remainder under the devise, takes an estate in reversion by descent.16 That the devise is subject to a charge of some sort does not affect the application of the rule.16a But if the devise undertakes to give to the heir an estate in a larger or smaller share of the land than would have passed to him by descent, he takes under the devise.16b as in the second of the above cited cases. At common law the general doctrine applied to a vested as well as to a contin-genty remainder.

In case the property would, apart from the devise, pass by descent to two or more persons to hold jointly.

14. Kean v. Hoffecker, 2 Harr. (Del.) 103, 29 Am. Dec. 336; Oliver v. Powell, 114 Ga. 592, 40 S. E. 826; North v. Graham, 235 111. 178, 18 L. R. A. (N. S.) 624, 126 Am. St. Rep. 189, 85 N. E. 267; Miller v. Miller, 10 Mete. (Mass.) 393; Cook v. Hammond, 4 Mason, 467; Moore v. Rake, 26 N. J. L. 574; Barber v. Brundage, 169 N. Y. 368, 62 N. E. 417; Early v. Early, 134 N. C. 258, 46 S. E. 503; Hicks v. Pegues, 4 Rich. Eq. (S. C.) 413.

15. Watkins, Law of Descents (4th Ed.) 229; Co. Litt. 12b, Hargrave's note; .Jost v. Jost, 1 Mackey (Dist. Col.) 487; Davidson v. Koehler, 76 Ind. 398; Tyler v. Fidelity & Columbia Trust Co. 158 Ky. 280, 164 S. W. 939; Medley v. Williams, 7 G. & J. (Md.) 70; Ellfs v. Page, 7 Cush. (Mass.) 161; Felton v. Billups, 2 Dev. & B. (19 N. Car.) 308; Seabrook's Excrs. v. Seabrook, 1 Mcmul. Eq. (S. C.) 201; Hoover's Lessee v. Gregory, 10 Yerg. 444.

16. Watkins, Law of Descents (4th Ed.) 221; Barr v. Gardner, 259 111. 256, 102 N. E. 287; Stel-well v. Knapper, 69 Ind. 558, 35 Am. Rep. 240; Donelly v. Turner, 60 Md. 81; Whitney v. Wliitney. 14 Mass. 88.

16a. Clark v. Smith, 1 Salk. 241; Ellis v. Page, 7 Cush. (Mass.) 161; Kinney v. Clasgow, 53 Pa. Ml.

The question whether a devise of the property to those persons would be operative depends primarily on whether, in that particular jurisdiction, joint heirs take as coparceners or as tenants in common.16c If joint heirs take as coparceners, such persons named as joint devisees take under the devise and not by descent, since the devise creates a tenancy in common or joint tenancy, and cannot create a holding in coparcenery,16d while if joint heirs take as tenants in common, a devise to them jointly, if not in such form as to create a joint tenancy, is nugatory as creating the same interest in each of them as he would acquire by descent.17