Thus, suppose the great-grandfather on the father's side is dead without issue, and it is not known who was the great-great-grandfather, you cannot continue up the male paternal line.

Then, by reason of a most peculiar rule, you must find, if possible, the mother of the greatgrandfather and her heirs.

Instead of starting again (as one would expect) with the mother of the purchaser, you must go to the mother of the most remote male ancestor on the father's side, then the mother of the next remote, and so on, until the purchasers own mother and her heirs comes last of all.

The rule is -

IX. The mother of the more remote male paternal ancestor and her heirs, takes before the mother of the nearer male paternal ancestors.

Thus in the following diagram G E stands for grandfather, G G F for great-grandfather, M for mother, etc. The numbers show the order in which they take. la comes immediately after 1, etc.

Section I Freeholds 8

Note that when we leave the male paternal line and return by the female paternal line, not only the issue of each mother will stand in her place if she is dead, but any of her heirs.

Thus a second cousin of the great-great grandmother on the father's side will take before the purchaser's own mother.

X. If there are no paternal relations, the mother of the purchaser and her heirs take.

To ascertain the heir of the mother, if she is dead, the same rules apply.

Thus her heir will be one or more of her children if she has any. She cannot have any children of the whole blood with the purchaser; for if so, they would have taken the land long before it came to her, but she may have married a second husband, H2, and have had two other children, 1/2 B and 1/2 S. Thus -

Section I Freeholds 9

If so, the half-brother (1/2 B) will stand in the place of the mother; and if he is dead, the half-sister, 1/2 S, will take.

Thus whenever the inheritance falls to a female ancestor of any kind, and she is dead, her issue, if any, always come next. These cannot be relations of the whole blood with the purchaser, for if they were they would have taken as issue of their father, before the inheritance came to their mother. Thus we get the rule mentioned above, VIII b, that where the common ancestor is a female, the half blood relations take next after her.

The above rules must be understood rather than learnt. Most of them follow common sense, and might be guessed, but there are four rules especially which must be remembered because they are unexpected. They are all rules which were introduced for the first time in 1833, as follows: -

Changes effected by the Real Property Inheritance

'Act, 1833 (b).

New Law.

Old Law.

1. Inheritance is traced from the last purchaser (c).

1. Inheritance was traced from the person last seized.

If a father devises land by will to his eldest son, the statute enacts that the son shall be deemed to take as purchaser, not as heir.

This gave rise to some difficulties, as it was necessary in each case to prove possession.

(b) 3 & 4 Will. IV. c. 106.

(c) S. 2.

2. If there is no issue the male paternal ancestors take (d).

2. Ancestors could not take.

The argument was curious, namely, that land is like water, and cannot descend upwards.

3. The mother of the more remote male paternal ancestor and her heirs (e) takes next after the male paternal ancestors.

3. Ancestors could not take.

4. Relations of the half blood -

4. Relations of the half blood could not take.

(a) Where the common ancestor is a male, take next after the relations of the same degree of the whole blood and their issue.

(b) Where the common ancestor is a female, they take next after her (f).

Rule I has been modified by another rule introduced by Lord St. Leonard's Act, 1859 (g).

If there is no heir of the last purchaser, inheritance shall be traced from the person last entitled.

It is difficult at first sight to see how this rule applies, but suppose that P, who bought the land, was illegitimate, and therefore had no legal relations; P marries W, and has one son, S.

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(d) S. 6. (f) S. 9.

(e) S. 8.

(g) 22 & 23 Vict. c. 35, s. 19.

P dies intestate: his land descends to bis eldest son S, who becomes entitled to the land.

S then dies intestate. S is not the last purchaser, because be acquired by descent. Therefore we must find the heirs of P. But P has no heirs, so that before 1859 the land would have escheated to the Crown. Now under the 1859 rule we look for the heirs of S, for he was the last person entitled. The heir of S will be W, bis mother, and her heirs.

Position of the Widow. - The widow of a purchaser cannot be his heir. But the widow of any person entitled to a fee simple may have certain rights to his land if he dies intestate.

(1) Dower. If this right has not been barred by the husband, she will get one-third of the land for her life (see p. 128).

(2) Sometimes 500.

By the Intestates Estates Act, 1890 (h), the widow gets a first charge of 500, payable out of the realty and personalty in proportion to their values, if the husband dies intestate and without issue after the 1st of September, 1890.

Note that it is an almost universal error among students to imagine that a widow is always entitled to 500. But she is not entitled unless three conditions are fulfilled, the most important of which is that there are no issue.

The three conditions are -

(1) The husband must die intestate, i.e. wholly without a will.

Re Twigg's Estate, [1892] 1 Ch. 579. T gave by will certain legacies and gave the residue of his real and personal estate to trustees for his brothers and sisters, all of whom died before T. So that the greater part of the will failed to take effect.

(h) 53 & 54 Vict. c. 29.

Held, T's widow was not entitled to a first charge of 500 out of the residue.

(2) He must die after the 1st of September, 1890.

(3) There must be no issue.

The provision is intended to meet the case of a man of small means dying without having made a will. A man who leaves about 500 only, and leaves a widow, but no children, probably would wish the whole to go to his widow, rather than that a distant cousin (perhaps) should share it equally with her. But if he leaves children, he would not want the widow to have all; her one-third share (see p. 94) is then a fair share.

If the estate is less than 500 the widow (subject to the three conditions above) will take it all.

If the estate is greater than 500, she gets a first charge on the real property and on the personal property in proportion to their values; and the value of the property at the death of the husband determines the proportions in which it is payable.

Re Heath, [1907] 2 Ch. 270.

H died in 1894, intestate, leaving a widow, but no issue. He had assets worth about 10 and also a contingent reversionary interest dependent on the death of L without issue. This interest was valued in 1894 at 388. In 1904 L died without issue, and the interest became worth 3500.

Held, the widow of H was entitled to the whole.

Position of the Husband. - If the tenant in fee simple is a woman, her husband, if he survives her, will not be her heir; but will be entitled to a life estate in her land under certain conditions. See p. 126.

Exceptions to the general rules. Gavelkind lands and Borough English lands descend in a different manner (see pp. 16 and 17.)

Section II. Copyholds

The rules as to the descent of Copyholds are governed by the customs of the various manors: but if there is no special custom the same rules apply to the beneficial interest: as in the case of freeholds.