.

Case,

3. Thus it was laid down by the Court of K. B., Ratcliffe's in 34 Eliz. that "Of a reversion or remainder ex- 3 Rep. 42 a. pectant on an estate for life, or in tail, there he who claims the reversion as heir, ought to make himself heir to him who made the gift or lease; if the reversion or remainder descend from him: or if a man pur- 1Inst. 14a. chase such reversion or remainder, he who claims as heir ought to make himself heir to the first purchaser."

n. 6.

4. In the case of Kellow v. Rowden it was held Tit. 17. § 28. by all the Judges, that where an estate for life or in tail is created, and the reversion in fee expectant thereon, descends from the donor or settlor, through several intermediate heirs, before it falls into possession; every person claiming it by descent must make himself heir to the donor or settlor, and take it as such and not as heir to the intermediate heirs, who need not be so much as named in an action brought against the person so acquiring the possession, as heir to the donor or settlor. For the intermediate heirs never had such a seisin as to transmit the reversion from them, by descent, to any person who was not heir to the donor or settlor.

Jenkins v.

Prichard,

5. D. Smith, in consideration of his marriage with Sarah Madey, in 1716, settled the premises in question 2 Wils. 45. to the use of himself and the said Sarah, during their natural lives, and the life of the survivor of them, remainder to the heirs of the body of the said Sarah by the said David; remainder to the said David, his heirs and assigns for ever. There was issue of the marriage one daughter, named Elizabeth, and no other child. Upon the death of the said Sarah, David Smith married a second wife, and by her had issue, Ann, the lessor of the plaintiff, and no other child. Elizabeth the daughter of the said David by Sarah his first wife, intermarried with John

2d edit. 143. note (g).

Waters, and upon that marriage, David Smith delivered up the possession of the premises to John Waters, but did not execute any conveyance thereof to him. In 1738 David Smith died, leaving issue only Elizabeth by his first wife, and Ann by his second wife; and about twelve months after, Elizabeth died, leaving issue one son, who was born after the death of David his grandfather, and died an infant, soon after the death of his mother. The said David Smith had no brother, but left a sister named Jane (married to one Gilbert) who was heir at law to Elizabeth the daughter of David Smith, by his first wife, and to her son; and upon the death of John Waters, Gilbert and his wife entered on the premises. Ann, the daughter of David Smith by his second wife, claimed the estate, as heir at law to her father, and brought an ejectment against Gilbert and his wife.

Serjeant Wilson reports the Court to have been of opinion that Ann had no title to the premises. But it is truly observed by Mr. Watkins, in his Essay on the Law of Descents, that the judgement is evidently misstated, or wrongly printed; that in a note of this case taken by Mr. Serjeant Hewit, afterwards Lord Chancellor of Ireland, the adjudication is thus given:

:

"In this case it was clearly agreed, that by the settlement of 1716, David Smith was tenant for life, his wife was tenant in tail, with the reversion in David Smith and thereupon this point was made, whether the reversion in fee descended upon the two daughters of David; viz. Elizabeth by his first wife, and Ann by his second wife, in such manner as that upon the determination of the estate tail which descended upon Elizabeth, and from her upon her son, and expired by his death without issue, it should go in

moieties; viz. one moiety to Ann, and the other to the heirs of Elizabeth; or whether it should not go all to Ann as heir to her father, who was last actually seised of the reversion."

The Judges were of opinion, "that though the reversion descended upon the two daughters of David on his death, yet they were not actually seised of that reversion during the continuance of the estate tail, but the same was expectant thereon; and as whoever takes by descent must take as heir to him who was last actually seised, therefore Ann took the reversion wholly as heir to her father. And as to this, 1Inst. 14, 15. and Kellow v. Rowden, in Carthew and Shower, were held to be authorities in point."

3 Bos. & Pul. Rep. 658. Doe v. Hut

Goodright v.

Lord Alvanley has observed that the preceding case ton. was misstated in Wilson; as all the reasoning showed Searle, it must have been determined in favour of the lessors Fearne Cont. of the plaintiff.

Rem. 561.

6th ed.

Blood.

6. A right to an estate in remainder or reversion A Right to a descends to the half blood. For where a person &c. descends Remainder, having such a right dies, before the estate in remainder to the Half or reversion falls into possession, he cannot acquire such a seisin as to become the stock of an inheritance; therefore his heir of the half blood, if he is heir to the donor or settlor of the remainder or reversion, will become entitled to it.

1

Roll. Ab. 628. pl. 6.

7. Thus if there be a gift to baron and feme in special tail, remainder to the right heirs of the baron, and they have issue, the feme dies, the baron takes another feme, and hath issue and dies, and the eldest son enters and dies without issue, the second son of the half blood shall have the remainder; because the eldest was not seised thereof in his demesne. Lord Coke has stated this case, and observed that the rule 1 Inst. 14 b. is, possessio fratris de feodo simplici facit sororem esse

hæredem; and here the eldest son was not possessed of the fee simple, but of the estate tail.

8. So if land be given to J. for life, remainder to R. his son in tail, remainder to the right heirs of J.; and J. dies, and R. enters as tenant in tail, and dies without issue, T. the son and heir of J. of the half blood to R. shall have the land by descent, and not the heir of R.; because R. was never seised in fee in demesne.

9. So if a gift be made to a person in tail, remainder to his right heirs, and after the donee dies, having issue a son by one venter, and a son by another venter, and the eldest son enters and dies without issue, his brother of the half blood shall inherit the remainder by descent, because the elder brother was never seised thereof in demesne.

10. So if the eldest son be seised in tail, with a remainder or reversion by descent to him, from his father in fee, and dies without issue; his brother of the half blood shall have the remainder or reversion by descent; because his brother was never seised thereof in demesne.

11. Lord Coke says, if a father makes a lease for life, or a gift in tail, and dies, and the eldest son dies in the lifetime of the tenant for life, or tenant in tail; the younger son of the half blood shall inherit the reversion: because the tenant for life or tenant in tail was seised of the freehold, and the eldest son had nothing but the reversion expectant upon that freehold; therefore the younger son shall inherit the land, as heir to his father, who was last seised of the freehold.

12. Lord Coke has also observed, that although a rent had been reserved on the lease for life, and the eldest son had received it, yet it was holden by some

that the younger brother should inherit; because the seisin of the rent, was no actual seisin of the freehold of the land; but that 35 Ass. pl. 2. seemed to the contrary, because the rent issued out of the land, and was in lieu thereof. It is however said in Lord Hale's Notes, published by Mr. Hargrave, to have been adjudged in the case of Piper v. Masters, Trin. 1657, that in such a case, seisin of rent did not make a possessio fratris.

13. Although the eldest son enters on the death of 1 Inst. 15 a. his father, and gets actual possession of the fee simple, yet if the widow of the father be endowed of a third part, and the eldest son dies in the lifetime of the widow, the younger brother of the half blood will inherit the reversion of the third part, notwithstanding the elder brother's entry; because the actual seisin which he acquired thereby, was defeated by the Tit. 6. c. 4. § 25. endowment.

14. Where there are two sons, or two daughters, Jenk, Cent. by different venters; and a remainder or reversion 6 Ca. 25. expectant upon an estate for life is purchased by the father, who dies in the lifetime of the tenant for life, and the eldest son or daughter also dies in the lifetime of the tenant for life, the half blood shall inherit; for in this case the claim is from the father.

15. In the case of Cunningham v. Moody, where 1 Ves. 174... a limitation was to husband and wife for their joint lives, remainder to the children of the marriage in tail, and for default of such issue, to the right heirs of the husband in fee, the husband had one. daughter of the marriage mentioned in the settlement, and another daughter of a second marriage; and upon the death of the first daughter without issue, the question was, whether her sister of the half blood was Doe v. entitled to the reversion in fee. Lord Hardwicke VOL. III.

Ee

Hutton,

3 Bos. 643.