2 Comm.209. Tit. 1. § 23. Lit. § 8. 15 a. Id. 15 b. Exceptions to this Rule. 4. Sir W. Blackstone says, the law requires this notoriety of possession, as evidence that the ancestor had that property in himself, which is to be transmitted to his heir. The seisin, therefore, of any person makes him the root or stock from which all future inheritance, by right of blood, must be derived ; which is briefly expressed in the maxim of Fleta, seisina facit stipitem. 5. The nature of seisin, and the difference between seisin in deed, and seisin in law, has been explained in a former title. It is therefore sufficient here to observe, that when a person acquires an estate in fee simple in land by descent, it is necessary that he should enter on the lands to gain a seisin in deed, in order to transmit it to his heir; for if he has a seisin in law only, it will not be sufficient. 6. The rule is the same with respect to incorporeal hereditaments. So that where an advowson in gross, or a rent, descends to a person, he must actually present to the church, and receive the rent, before he can become the stock of a descent: but if the advowson be appendant to a manor, there actual seisin of the manor will give a seisin of the advowson. 7. Where an ancestor acquires an estate by his own act, that is, by purchase, he is in many cases allowed to transmit it to his heirs, though he never had actual seisin of it himself. Thus it is laid down 1 Rep. 98 a. arguendo, in Shelley's case, that if a fine was levied to A. in fee, and afterwards, but before execution, A. died, his heir might enter; and though he were the first that entered, yet he should be in by descent. It being a rule, that where the heir takes any thing which might have vested in the ancestor, the heir should be in by descent. It was however observed, that in a case of this kind the heir would not have been in directly by descent, either to be in ward, or to have had his age, or to have tolled the entry of one who had right. 8. In the case of an exchange, if both parties die Id. 98 b. before either enters, the exchange is totally void; but if one of the parties enters, and the other dies Tit. 32. c. 6. before entry, his heir may enter, and shall be in by descent. 9. Trust estates or equitable interests in lands or tenements may be transmitted to the heir, by an ancestor who never had obtained any kind of seisin of possession whatever. Thus where a person contracts for the purchase of a real estate, and dies before it is conveyed to him, his equitable interest will descend to his heir, if not disposed of by will. Potter v. Potter, of the First 10. We now return to the first canon of descent, Explanation in consequence of which, whenever a person dies Canon. seised in fee simple of a real estate, leaving issue, it iminediately descends to such issue, on whom the freehold in law is cast before entry. may be de Birth of a 11. It being a rule of law that the freehold shall A Descent never, if possible, be in abeyance, lands always descend feated by the to the person who is heir at the time of the death of the ancestor; but such descent may be defeated by the subsequent birth of a nearer heir. 12. Thus where a person dies leaving his wife ensient, the common law, not considering the infant in ventre matris to be in existence, casts the freehold on the person who is then heir. But when the posthumous child is born, his guardian may enter upon such heir, and take the estate from him. 13. It was formerly doubted whether in a case of this kind the posthumous child was entitled to the profits from the death of his ancestor, or only from nearer Heir. 1 Inst. 11 b. Newman, infra. the time of his birth. But in a modern case Lord Goodtitle v. C. J. De Grey laid it down as clear law, upon the authority of a case in the year books, Trin. 9 Hen. VI. 25 a. that a posthumous child was not entitled to any profits received before his birth; because the entry of the heir was congeable, till the posthumous child was born. 1 Inst. 11 b. Bro. Ab. Tit. Descent, pl.58. Exclusion of the ascending Line. Dissert. c. 1. § 69. 14. If a man has issue a son and a daughter, and the son purchases lands in fee, and dies without issue; the daughter shall inherit the land from him. But if afterwards the father has issue a son, this son shall enter into the land, as heir to his brother, and oust his sister. 15. So where a son purchased land, and died without issue, his uncle entered as his heir; two years after the father had issue another son, and it was held that such other son might enter on his uncle. 16. The last clause of the first canon of descent, by which parents, and all lineal ancestors, are excluded from succeeding to the inheritance of their offspring, is derived from the feudal law, in which, we have seen, it was a settled maxim that the ascending line should in no case inherit. This rule was fully established in England in the time of Henry. II.; for Lib. 7. c. 1. Glanville writes, hæreditas nunquam autem naturaliter ascendit. And it was probably derived immediately to us from the customs of Normandy. 3 Rep. 40 a. 12 Mod. 623. 17. "If (says Littleton, § 3.) there be father and son, and the father hath a brother that is uncle to the son, and the son purchase land in fee simple, and die without issue, living his father; the uncle shall have the land, as heir to the son, and not the father, yet the father is nearer of blood: because it is a maxim in law, that inheritance may lineally descend, but not ascend. Yet if the son, in this case, die without issue, and his uncle enter into the land, as heir to the son, as by law he ought, and after the uncle dieth without issue living; the father shall have the land, as heir to the uncle, and not as heir to the son. 18. Lord Coke has observed on this passage, that 1 Inst. 11 b. if the uncle does not enter, the father cannot inherit from him; because he must make himself heir to the person last seised, which the uncle was not; for the person last seised was the son, to whom the father cannot make himself heir. 19. A father or mother may however be cousin to their own child, and in that relation may inherit from him, notwithstanding the relation of father or mother. v. Vincke, 2 P. Wms. 614. 20. A son died seised of lands in fee, without issue, Eastwood or brother or sister, but leaving two cousins his heirs at law, one of whom was his own mother. And the question was, whether the mother could take as heir to her son. It was determined by Sir J. Jekyll, M. R. that though a father or mother could not, as father or mother, inherit immediately after their son, yet if the case should so happen, that the father or mother were cousin to the son, and as such his heir, they might take notwithstanding; and that here, though the heir was also mother, this did not hinder her from taking in the capacity or relation of cousin. ferred to 21. The second canon or ruleof descent is," that 2d Canon. the male issue shall be admitted before the female." Males preThus sons shall be admitted before daughters; or, as Females. Lord Hale expresses it, "in descents the law prefers Hist. c. 11. the worthiest of blood; therefore the son inherits and excludes the daughter. The brother is preferred before the sister, the uncle before the aunt." But daughters succeed before collateral relations; and in VOL. III. A a all cases of descent, females are preferred to more 2Comm.214. 'remote males; our law steering a middle course between the absolute rejection of females, and the puting them on a footing with males. 3d Canon. Male succeeds. 22. The third canon or rule of descent is,-"that The eldest where there are two or more males, in equal degree, the eldest only shall inherit, but the females all together." The doctrine of primogeniture is also of feudal origin; for though upon the first introduction of hereditary feuds, they descended to all the sons, yet that course was changed by a constitution of the Emperor Frederick. This practice appears to have been first introduced into England by William I. but was only applied to honorary and military feuds, which could not be divided without great inconvenience. Wright's Ten. 31. Lib. 7. c. 3. 64 b. 23. Thus we learn from Glanville, that in the reign of Henry II. estates held by military service descended to the eldest son only; and estates held in socage were partible among all the sons. Cum quis ergo hæreditatem habens, moriatur, si unicum filium hæredem habuerit indistinctè verum est quod filius ille patri`suo succedit in totum. Si plures reliquerit filios, tunc distinguitur utrum ille fuerit miles, sive per feudum militare tenens, aut liber sokemannus; quia si miles fuerit, vel per militiam tenens, tunc secundum jus regni Angliæ, primogenitus filius patri succedit, in totum. Ita quod nullus fratrum suorum partem inde de jure petere potest. Si vero fuerit liber sokemannus, tunc quidem dividetur hæreditas inter omnes filios, quotquot sunt, per partes equales. 24. The right of primogeniture appears however to have been fully established in the reign of Hen. III. in socage lands, as well as in those held by a military service. For Bracton, in stating the law of descents, |