319.

39. The renewal of a lease for lives being consi dered as a new acquisition, the person renewing becomes a purchaser, and the descent is thereby altered.

Mason v. 40. Elizabeth Mason having purchased a lease for Day, Prec. in Cha. three lives, died, leaving Mary her daughter and heir, an infant. Two of the lives being dead, the guardians of the infant, out of the profits of the estate, took a new lease to the infant and her heirs, for three new lives; and afterwards the infant died without issue.

Pierson v.

Shore,

The question was, whether this lease should descend to the heirs of the infant ex parte paterna or materna. It was contended that it should go to the heirs ex parte materna, being a renewal only of the old lease, and under the old trust. For if the infant heir had died without issue before the renewal, living the surviving cestui que vie, there had been no question of it; and so ought the new lease, being renewed out of the profits of the old lease.

The Master of the Rolls held that the renewed lease was a new acquisition, which vested in the daughter as a purchaser; therefore it should first go to the heirs of the part of the father. The Lord Keeper Harcourt coming into Court, said he was of the same opinion,

41. In a subsequent case, exactly similar, it was 1 Atk. 480. objected that the renewal was an act done by a guardian only, during the minority; and ought not to prejudice any who take by representation; it being merely voluntary, and not of necessity. But Lord Hardwicke answered, that if this had been wantonly done by the guardian, without any real benefit to the infant, it would have been proper to have come into a court of equity to be relieved against it. But here was a just and reasonable occasion for what the

guardian had done: here one life being dead, surren-
dering the old and taking a new lease was the most
beneficial purchase for the infant that could be;
therefore ought to have the same consequence as if
done by the infant herself, at her full
age; and go
to her heirs ex parte paterna. That the case of
Mason v. Day was exactly in point.

42. A trust estate being descendible in the same manner as a legal one, where the trust estate descends from the mother, it will go to the heirs ex parte materna: but where the legal estate descends ex parte materna, and the trust estate ex parte paterna, or vice versa, the trust estate will merge in the legal, and both will follow the line through which the legal estate descended.

43. Serjeant Selby agreed for the purchase of the Goodright estate in question, and paid for it, but died before v. Wells, Doug. 771. any conveyance was made; having by his will devised all his real and personal estate to his wife, in trust to educate and maintain his son, until he should attain the age of 21 years; and afterwards in trust to convey all the rest of his real estate to his son and his heirs. After the testator's death, the estate was conveyed to Mrs. Selby, who died before the son attained 21; but he afterwards attained that age, and died in possession of the estate. The lessor of the plaintiff was his heir at law on the part of his mother, and the defendants were his heirs at law on the part of his father's mother.

Lord Mansfield said,-" Serjeant Selby, after his purchase, was owner of the equitable estate, and had a right to go into Chancery to compel a conveyance. After his death the vendor conveyed to the widow, which conveyance was absolutely in trust for the son. He outlived his mother, by whose death the trust

estate was completely vested in him, and the legal estate descended to him from her. The question was, to whom the estate descended on the death of the son. If it descended from the mother, the lessor of the plaintiff took it as heir at law: but it was contended, that though he was heir, there was a trust for the paternal heirs; and it was said to be settled, that the Court would not suffer a trustee to recover in ejectment against a cestui que trust. A case so circumstanced as this in every particular, probably never existed before, and perhaps never might again; but cases must often have happened in which the general question would arise, viz. whether, when cestui que trust takes in the legal estate, possesses under it, and dies, the legal and equitable estates should open on his death, and be severed for the different heirs. Consider first upon authority, and secondly upon principle. First, no case had ever existed where it had been so held; none where the heir at law of one denomination had, on the death of the ancestor, been considered as a trustee for the heir at law of another denomination; who would have taken the equitable estate, if that and the legal estate had not united. Secondly, on principle, it seemed to him impossible; for the moment both met in the same person, there was an end to the trust he had the legal interest and all the profits by his best title. A man could not be trustee for himself. Why should the estates open upon his death? What equity had one set of heirs, more than the other? He might dispose of the whole as he pleased: if he did not, there was no room for Chancery to interpose; and the rule of law must prevail. Quacunque via data, therefore, the lessor was entitled. If the question was doubtful, then in the Court of K. B. the legal right must pre

:

vail if the weight of opinion and argument was, that the legal estate must draw the trust after it; the case was still stronger against the defendant."

Judgement for the plaintiff.

44. Where an estate is devised to an heir at law, Tit. 38. c. 8. in such manner as to make him a purchaser of it, the descent will be to the heirs ex parte paterna.

Effect.

45. No conveyance, however, of a particular estate What Acts will alter the mode of descent of the reversion; be- have not that cause it is not a total departure of the estate: there- 1 Inst. 12 b. fore, if a person, seised ex parte materna, makes a gift in tail, or lease for life, reserving rent, the heir on the part of the mother shall have the reversion; and also the rent, as incident thereto.

46. So, if a person seised ex parte materna, makes Idem. a feoffiment in fee upon condition, his heir ex parte paterna shall enter for the condition broken: but the Tit. 13. c. 2. heir ex parte materna shall enter upon him, and enjoy the estate; because an entry for a condition broken revests the old estate.

$51.

47. Where a person seised ex parte materna, makes 1 Inst. 12 b. a feoffment in fee, and the use is expressly limited to 1 Rep. 100 b. the feoffor and his heirs, or if there is no declaration of uses, and the feoffment is not on such a considera

tion as to raise a use in the feoffee, so that the use

results to the feoffor; in either case he is in of the Tit. 11. c. 4. ancient use, and not by purchase; therefore the de

scent is not altered.

3 Lev. 406.

48. A person seised of lands by descent ex parte ma- Godbolt v. terna, made a feoffment of them to uses; as to Black Freestone, Acre, to the use of himself for life, remainder to his wife for life, remainder to the heirs of his body on his wife begotten, remainder to his own right heirs; and as to White Acre, to the use of himself for 99 years, if he should so long live, remainder to his wife for life,

remainder to his first and other sons in tail male, remainder to himself and his heirs. Adjudged, that upon the death of the husband without issue, the remainder descended to the heirs of the feoffor, ex parte materna; because the ancient fee remained in him.

49. Where a fine is levied, or a common recovery Tit. 55. & 36. suffered; if the use be not altered, the mode of descent will not be changed: but there are some particular cases in which a fine, and also a recovery, will alter the descent.

Rule of collateral Descents.

6th Canon. Proximity.

2 Comm. 224.

50. To return to the fifth canon of descent; Sir W. Blackstone says, the great and general principle upon which the law of collateral inheritances depends, is, that upon failure of issue in the last proprietor, the estate shall descend to the blood of the first purchaser; or that it shall result back to the heirs of the body of that ancestor from whom it either really has, or is supposed by fiction of law to have originally descended; according to the rule laid down in the Year Books, Fitzherbert and Hale,-" That he who would have been heir to the father of the deceased, and of course to the mother, or any other real or supposed purchasing ancestor, shall also be heir to the son." A maxim that will hold universally; except in the case of a brother or sister of the half blood. 51. The sixth canon or rule of descent is,-"That the collateral heir of the person last seised, must be his next collateral kinsman, of the whole blood."

First (says Sir W. Blackstone) he must be his next collateral kinsman, either personally or jure repreante, c. 2. §7. sentationis; which proximity is reckoned according to canonical degrees of consanguinity. The issue or descendants, therefore, of the brother of John Stiles (the propositus in the table of descents annexed) are