of high treason, yet the blood of the person attainted is not corrupted so as to impede the descent: because (says Mr. Yorke) "the forfeiture of estates tail came Law of Forfeiture, 82. in by the construction of the statute 28 Hen. VIII. 4th edit. The Judges resolved that the general words of that statute comprehended these estates. But then such laws being of a penal kind, though they are to be construed so as to attain their full effect, yet they are to be construed strictly; and however they might extend to make estates tail liable to forfeiture where they are actually in the offender's possession, and consequently in his power to alienate; they could, by no rules of construction, be extended to bring consequential disabilities on the heir, where the estates have not been in the offender's possession." 206. Cro. Eliz. 28. 8. Thus, where there was grandfather, father, and Lumley's son; the grandfather was tenant in tail, the father Case, cited 3 Rep. 10 b. was attainted of high treason, and died in the lifetime Jenk. 82. of the grandfather, afterwards the grandfather died. Mantell v. It was agreed that the land should descend to the Mantell, son, notwithstanding the attainder of the father; for the father had not the land, either in possession or in use; in which two cases only the act of 26 Hen. VIII. gave the forfeiture: and his attainder was not any corruption of blood for the land in tail. Descents. 9. There are some other modes of descent, which Customary are derived from the peculiar customs of particular places, and which differ in many respects from descents by common law of these, the principal are, the descent of lands held in gavelkind, in borough english, and by copy of court-roll. 10. The descent of lands held in gavelkind, in the Gavelkind. Lit. § 210. right line, is among all the sons, as coparceners; and 265. in default of sons, among all the daughters, in the Robin. Gav. 90. 1 Inst. 100 a. Rob. Gav. 92. Lit. § 265. Id. 97. Tit.3. c. 1. $52. same manner: but though females, claiming in their own right, are postponed to males, yet they may inherit together with males by representation; for the right of representation takes place in customary descents, as well as in descents at common law. If therefore a man has three sons, and purchases lands held in gavelkind, and one of the sons dies in the lifetime of his father, leaving a daughter, she will inherit the part of her father: yet she is not within the words of the custom, (inter hæredes masculos partibilis); for she is no male, but the daughter of a male, coming in his stead by representation. 11. The partible quality of lands held in gavelkind is not confined to the right line, but is the same in the collateral one. For it has been resolved, that where one brother dies without issue, all the other brothers shall inherit from him; and in default of brothers, their respective issue shall take, jure representationis but where the nephews succeed with an uncle the descent is per stirpes, and not in capita : and so, from the nature of the thing, it must be, where the sons of several brothers succeed, no uncle surviving; for though in equal degree, they stand in the place of their respective fathers. 12. Although an estate tail is a kind of inheritance introduced by the statute de donis conditionalibus, yet this partible quality extends to it; for if a person dies seised in tail of lands held in gavelkind, all his sons shall inherit together, as heirs of his body. 13. Descendible freeholds are also partible, where the lands are held in gavelkind: as if a lease be made of lands of this kind to a man and his heirs, during the life of A., and the lessee dies, living A., the lands shall descend to all his sons as special occupants. 14. The exclusion of the half blood takes place in Rob. Gav.99. the descent of lands held in gavelkind... 15. With respect to lands held in borough english, Borough English. Littleton, § 165, says, some boroughs have a custom, Rob. App. that if a man has issue many sons, and dies, the youngest shall inherit all the tenements which were his father's within the same borough, by force of the custom. 16. If lands, of the nature of borough english, be 1 Inst. 110 b. let to a man and his heirs, during the life of J. S., and the lessee dies, living J. S., the youngest son shall have them. Scudamore, 17. The right of representation takes place in the Clements v. descent of lands held in borough english: therefore, infra. if the youngest son dies in the lifetime of his father, leaving a daughter, she will inherit the lands. Stevens, Cro. Ja. 198. 18. The custom of borough english is however Rob. Gav. 93. confined to lineal descents, and does not extend to collateral ones; so that where lands held in borough Bayley v. english descended to the youngest son, and he died without issue, it was resolved that they did not go to the younger brother; for the custom did not take place in the descent between brothers, but the eldest 1 Inst. 110 6. brother inherited. Lord Coke has however said, that by some customs the youngest brother shall inherit : but this extension of borough english to the collateral line must be specially pleaded. n. 3. altered by 5 Ca. 70. 19. The descent of lands held in gavelkind and Cannot be borough english cannot be altered by any limitation Limitation. of the parties: therefore, where A. seised in fee of Jenk. Cent. lands held in borough english, made a feoffment to Dyer, 179 b. the use of himself and the heirs male of his body, according to the course of the common law; the words, "according to the course of the common law," Copyhold Tit. 10. c. 3. Idem, c. 5. $34. Cop. § 41. were held void; for customs which go with the land, as this one, and gavelkind, and fix and order the descent of inheritances, can only be altered by parliament. 20. Estates held by copy of court-roll are in general descendible in the same manner as estates held in socage; though in some manors a different mode of descent is established by custom: but the ceremonies of the feudal law are still followed; for when a copyholder dies, his death must be presented by the homage, at the next court, and proclamation made for the heir to claim, who must come in within a limited time, and be admitted; else he will forfeit his right. 21. Lord Coke says, the heir is tenant by copy immediately on the death of his ancestor; not to all intents and purposes, for peradventure he cannot be sworn of the homage before, neither can he maintain a plaint in the lord's court before, because till then he is not complete tenant to the lord, no farther forth than the lord pleaseth to allow him for his tenant so that to all intents and purposes, the heir, till admittance, is not complete tenant; yet to most intents, especially as to strangers, the law takes 4 Rep. 23 b. notice of him, as of a perfect tenant of the land, instantly upon the death of his ancestor; for he may enter into the land before admittance, take the profits, punish any trespass done upon the ground, surrender into the hands of the lord, to whose use he pleaseth, satisfying the lord his fine, due upon the descent; and by estoppel he may prejudice himself of his inheritance. Gilb. Ten. 192. 22. The heir of a copyholder is not however 2 P.Wms. 15. compellable to accept the inheritance. But if he 1 Atk. 449. does not come in and accept, the lord may seise the copyhold to his own use. 23. The right of representation takes place in the descent of copyholds: for whenever the custom gives any person the heirship, the law will give all necessary rights and incidents. Scudamore, 1 P. Wms. 24. J. S. having issue five sons, the youngest died Clements v. in the lifetime of his father, leaving issue a daughter. 2 Ld.Raym. Afterwards J. S. purchased the lands in question, 1024. which were copyhold. The Jury found, that by the 63. custom these lands were descendible to the youngest son and his heirs. The father died, and the question was, whether the lands descended to the daughter of the youngest son, or to the eldest son. Lord Holt." We are all of opinion that the Godfrey v. Bullock, daughter ought to have the lands, jure representa- 1 Roll. Ab. tionis. Wherever this custom hath obtained, the 623. youngest son is thereby placed in the room of the eldest son, who inherits by the common law; and there is no other difference in the course of descent, but that the custom prefers the youngest son, and the common law the eldest son; and therefore as at the common law the issue of the eldest son, female as well as male, do inherit jure representationis, before the other brothers; so, by the same reason, where this custom has transferred the right of descent from the eldest son to the youngest, it shall also carry it to the daughter of the youngest son, by like representation; and there is no reason to make any dif ference between a descent by this custom, and at common law; though Lord Coke is of a different opinion." § 50. 25. Where a copyhold estate has been derived from Co. Cop. the mother's side, it will go to the heirs on the part Taverner v. of the mother; unless the copyholder departs with Cromwell. |