stock of descent (Tud. L. C. Conv. 4th ed. 179; 1 R. P. Report, 15; 1 Hayes, Conv. 5th ed. 312).

A vendor making title as heir is not bound to produce affirmative evidence is his possession that the ancestor from whom he traces descent took as purchaser, but may rely on the statutory presumption contained in this section until some proof to the contrary is adduced. But he is bound to disclose any matters within his knowledge tending to rebut the presumption that his ancestor took by purchase (Dorling v. Claydon, 1 H. & M. 402). Where an action to try the validity of a will was compromised on the terms that the rights of the plaintiff to certain lands should be the same as if there had been an intestacy, it was held that she took that land by descent, not by purchase (Blake v. Hynes, 11 L. R. Ir. 284). The descent under the present act of an estate in remainder or reversion, or by executory devise, is analogous to the descent of an estate taken by descent from a purchasing ancestor (Ingilby v. Amcotts, 21 Beav. 585). For the of estoppel against a tenant the heir of the landlord purpose may be his privy in blood though the heirship is ascertained under this section by tracing descent from an ancestor of the landlord (Weeks v. Birch, 69 L. T. 759).

Where a coparcener dies intestate leaving a son, the whole of her share descends on her son (Cooper v. France, 19 L. J. Ch. 315); and the same principle applies in the case of her leaving more remote descendants Paterson v. Mills, 19 L. J. Ch. 310; Re Matson, James v. Dickinson, 1897, 2 Ch. 509). Where land was limited to the "right heirs" of A., who were females, they took as joint tenants and not coparceners, and there was no right of representation (Berens v. Fellowes, 56 L. T. 391; 35 W. R. 350; Re Baker, Pursey v. Holloway, 79 L. T. 343). See Owens v. Gibbons, 1902, 1 Ch. 636. See the previous discussions of descent among coparceners in 5 Jur. 641, 763; 23 Law Mag. 279; 1 Hayes's Convey. 314, 5th ed 1 Jarm. & Byth. Convey. by Sweet, 139, 140; 10 Jur. 71–75, 112, 132, 160, 173.

The rule as to tracing the descent from the purchaser applies where there is a customary descent (sect. 1, ante). If the custom is found applicable by reason of the parties being within the requisite degree of consanguinity, the customary mode of descent is to be applied, and the descent traced according to the directions of the act. If the parties are not within the requisite degree, the directions of the act are to be followed, the descent being traced according to common law (per Crompton, J.; Muggleton v. Barnett, 2 H. & N. 653; Re Smart, Smart v. Smart, 18 Ch. D. 165; see Williams, Real Prop. App. A.).

Lands of gavelkind tenure, chiefly found in Kent, descend to all sons in equal shares, and in default of sons to all daughters (Robinson on Gavelkind, 5th ed. p. 44), and the custom extends to collaterals (Ib. p. 92; see Crump v. Norwood, 7 Taunt. 362). Lands of borough English tenure descend to the youngest son (Robins. Gavelkind, 236). In the case of the descent of lands of gavelkind or borough English tenure, the jus representationis attaches to the custom (Hook v. Hook, 1 H. & M. 43; Clements v. Scudamore, 1 P. Wins. 65). In the case of other customary descents, however, where the express terms of the custom are silent, the descent will be in accordance with the common law (Rider v. Wood, 1 K. & J. 644; Re Smart, Smart v. Smart, 18 Ch. D. 165; see Locke v. Colman, 1 My. & Cr. 423).

When the custom was that copyholds for the first descent after a surrender descend to the eldest son, and if no surrender to the youngest, it was held that the word "descent" was not used in its strict legal sense, but meant "a single step in the scale of genealogy" (Bickley v. Bickley, 4 Eq. 216). See further, Scriven, p. 167 et seq., 7th ed.

Although lands have actually descended in the first instance to the person who was heir of the party last seised at the time of his deccase, yet, if a nearer heir is afterwards born, property will shift to the nearest heir who subsequently comes into being (see Rider v. Wood, 1 K. & J. 644 ; Cru. Dig. Descent, Ch. III. s. 14). A posthumous heir is entitled to the

c. 106, s. 2.

rents of a descended estate only from the date of his birth, and the qualified 3 & 4 Will. 4, heir is entitled to the rents which accrue before the birth of the posthumous heir, whether actually received before that time or not (Richards v. Richards, Johns. 754; see Re Mowlen, 18 Eq. 9; see, however, Goodale v. Gawthorne, 2 Sm. & Giff. 375).

For the law before Law of Prop. Amdt. Act, 1859, see Doe v. Blackburn (1 Mood. & Rob. 547, Parke, B.).

Heir entitled

shall take as

or his heirs

3. That when any land shall have been devised, by any testator who shall die after the thirty-first day of December, one thousand eight hundred and thirty-three, to the heir or to the devisee, and a person who shall be the heir of such testator, such heir shall be limitation to considered to have acquired the land as a devisee, and not by the grantor descent (a); and when any land shall have been limited, by any shall create assurance executed after the said thirty-first day of December, an estate by one thousand eight hundred and thirty-three, to the person or purchase. to the heirs of the person who shall thereby have conveyed the same land, such person shall be considered to have acquired the same as a purchaser, by virtue of such assurance, and shall not be considered to be entitled thereto as his former estate or part thereof (b).

This section of the act is in direct contravention of two old- Descent and established rules of law, and renders it necessary to bear in mind the purchase. distinction between descent and purchase, the two modes of acquiring property. A title by descent is vested in a man by the single operation of law, and by purchase by his own act or agreement (Co. Litt. 18 b; 2 Bl. Comm. 200, 201). The latter is thus defined by Littleton, s. 12: “ Purchase is called the possession of lands or tenements that a man hath by his deed or agreement, unto which possession he cometh not by title of descent from any of his ancestors or cousins, but by his own deed." Lord Coke states that a purchaser is a law term, and imports any estate which is not cast upon a man by act of law, (as descent or escheat,) but which he takes or accepts by conveyance for money or other consideration, vel aliâ quâvis fortuna, or freely by gift (Co. Litt. 18 a). The difference between the acquisition of an estate by descent and by purchase consists principally in two points: 1st. That by purchase the estate acquires a new inheritable quality, and is descendible to the owner's blood in general, as a feud of indefinite antiquity. 2nd. An estate taken by purchase will not make the person who acquires it answerable for the acts of his ancestors, as an estate by descent (Cruise's Dig., tit. 30, s. 4).

(a) It was a positive rule of law, that a man could not make his right heirs Devise to heir. take by purchase, either by conveyance at common law, or by a limitation Law before to uses, or by devise (Counden and Clerk's case, Hob. 30; Pybus v. Mitford, this act. 1 Ventr. 372; Co. Litt. 22 b). The same rule applied to equitable as legal estates (Watk. Desc. 169), and to copyholds as to freeholds (Roe d. Noden v. Griffith, 4 Burr. 1952; Thrustout v. Cunningham, 2 Bl. R. 1048; Fearne, 68). Therefore, if a person devised his lands to his heir at law in fee, it was inoperative, and the heir took by descent, as his better title (Reading v. Royston, 1 Salk. 242; S. P., 2 Leon. 11; Dyer, 124 a; Plowd. 545; 2 Ves. & B. 190; Foxwell v. Van Grutten, 1897, A. C. 688); and this notwithstanding the will imposed some pecuniary charges on the estate (Clarke v. Smith, Com. 72; Allen v. Heber, 1 Bl. R. 22; Emerson v. Inchbird, 1 Ld. Raym. 728; Plunket v. Penson, 2 Atk. 292; Hedger v. Rowe, 3 Lev. 127; see Wms. Saund. 8 d; Chaplin v. Leroux, 5 M. & S. 14). So under a devise to one for life, or in tail, with remainder to the right heirs of the testator, immediately upon his death the heir took the reversion by descent, and not under the will (Hob. 30; 10 Rep. 41;

3 & 4 Will. 4, c. 106, s. 3.

Effect of this section upon devise to heir.

Devise to

Ventr. 372; O'Keefe v. Jones, 13 Ves. 413). So under a devise to the heir at law in fee, with an executory devise over in case he did not attain the age of twenty-one years, the heir took by descent, and not by purchase (Doe v. Timins, 1 B. & Ald. 530; see 1 Jarman on Wills, 5th ed., 74; Langley V. Sneyd, 7 Moore, 165; Manbridge v. Plummer, 2 M. & K. 93). The rule did not apply in the case of money directed to be laid out in the purchase of land (Robinson v. Knight, 2 Eden, 155). And where a different estate was devised than would have descended to the heir, the disposition by will prevailed (Scott v. Scott, Amb. 383; Wood v. Skelton, 6 Sim. 183; see Buchanan v. Harrison, 1 J. & H. 662). As where the estate was devised to the heir in tail (Plowd. 545). So where a man having issue two daughters, who were his heirs, devised to them and their heirs, they took under the will, for by law they would have taken as coparceners, but by the will the estate was given to them as joint tenants (Cro. Eliz. 431; Com. R. 123; 2 Ld. Raym. 829; Swaine v. Burton, 15 Ves. 371).

Under this section an heir to whom lands are devised by the ancestor takes them as devisee to all purposes; and therefore the pecuniary legatees are not entitled to have the assets marshalled as against him (Strickland v. Strickland, 10 Sim. 374). And as between him and the devisees of other parts of the testator's estates, the estates devised to the former are not to be applied in payment of the debts in priority to the estates devised to the latter (Biederman v. Seymour, 3 Beav. 368).

It does not seem certain whether this section applies to the case of a devise of copyholds to an heir who disclaims all interest under the will, and enters as heir of the testator (Bickley v. Bickley, 4 Eq. 216).

It has been held that the section applies to a devise to "right heirs" "rightheirs." (Owen v. Gibbons, 1902, 1 Ch. 636). So where a testator devised lands to his own right heirs who were females, they took as joint tenants and not as coparceners (Re Baker, Pursey v. Holloway, 79 L. T. 343; see Swaine v. Burton, 15 Ves. 371; Berens v. Fellowes, 56 L. T. 391; Owen v. Gibbons, sup.). Under a devise of customary lands to the testator's heir, his heir-atlaw took, and not his customary heir (Thorp v. Owen, 2 Sm. & G. 90; Polly v. Polly, 31 Beav. 363; Garland v. Beverley, 9 Ch. D. 213; see Sladen v. Sladen, 2 J. & H. 369).

Construction

of devises to "heir."

Assurance to heirs.

Law before act.

A devise of the whole fee simple in the testator's residuary real estate to trustees, in trust to convey to such person as should answer the description of the testator's heir-at-law, broke the descent of real estate which had descended to the testator ex parte materna, and the trustees were bound to convey to the common law heir (Davis v. Kirk, 2 K. & J. 391; compare the grant in Heywood v. Heywood, 34 Beav. 317).

(b) In order to understand this section of the act, it is necessary to observe that when a person has an interest in lands and grants a portion of that interest, or, in other terms, a less estate than he has in himself, the possession of these lands will, on the determination of the granted interest or estate, return or revert to the grantor (Com. Dig. Estate (B. 10, 11, 12, 31); 2 Bl. Com. 175; Co. Litt. 22 b; Plowd. 151; Watk. on Conv. 120). An estate in reversion is therefore the residue of an estate left in the grantor, to commence in possession after the determination of some particular estate granted by him (Co. Litt. 22), or the returning of the land to the grantor or his heirs after the grant is over (Ib. 142). A reversion is never created by deed or writing, but arises from construction of law, whereas a remainder can only be limited by deed or some other assurance. It was a rule before this act that a grantor could not enable his heir general to take a remainder as purchaser, under a limitation to his heirs; but where the limitation is to the right heirs of the grantor, the use so limited was construed to be the old use, and was to be executed in him as the reversion in fee, and not as a remainder (1 Rep. 129 b, 130; Godolphin v. Abingdon, 2 Atk. 57). As where A. granted land to B. with remainder to his own heirs, he remained, under the old law, seised of the reversion as part of his former estate, which descended as if no such grant had been made (Wills v. Palmer, Bl. R. 687; 5 Burr. 2615; Read v. Morpeth, Cro.

Eliz. 321; Moore, 281; Bingham's case, 2 Rep. 91; Cholmondeley v. 3 & 4 Will. 4, Clinton, 2 Mer. 173; 2 B. & Ald. 625; 2 Jac. & W. 1; 4 Bligh, N. S. 1; c. 106, s 3. Locke v. Southwood, 1 M. & C. 411).

Under such a grant A. now, by virtue of the present section, takes Effect of himself as purchaser. "In fact A. takes under his own assurance as if section on the estate were to him and his heirs of the gift of a stranger. And where assurance he creates a particular estate, limiting the expectant fee to himself and to heirs. his heirs, or without naming himself as an object to his heirs, he takes the fee. for the purposes of descent at least, not as a reversioner, but as a remainderman" (Hayes, Conv. 5th ed. 317).

Where a lady seised in fee ex parte materna, by a settlement in 1860 limited the land (ultimately) to the person who would on her decease have become entitled "in case she had died intestate and without having been married," her heir ex parte materna took, the section not applying (Heywood v. Heywood, 34 Beav. 317).

descent.

If, before this act, a man, seised as heir on his mother's side, made a Cases before feoffment in fee to the use of himself and his heirs, the use, being a the act as to thing in confidence, would have followed the nature of the lands, and alteration of would have descended to the heir on the part of the mother (Co. Litt. line of 13 a; Godbold v. Freestone, 3 Lev. 406; Nanson v. Barnes, 7 Eq. 250; Heywood v. Heywood, 34 Beav. 317); and it was the same if the assurance had been by fine and recovery (Abbot v. Burton, Salk. 590; see Stringer v. New, 9 Mod. 363). But the rule held only where the feoffor or settlor took by descent, and not by purchase (Martin v. Strachan, Str. 1179, Nolan's ed.; 1 Wils. 66; 6 Br. P. C. 319; 5 Term Rep. 104). As to copyholds, see Roe v. Baldwin (5 Term Rep. 104). A deed of partition between parceners did not break the descent (Com. Dig. Parcener, C. 15); nor a deed of partition between one parcener and a purchaser from another (Doe v. Dixon, 5 Ad. & Ell. 834).

If a tenant in tail by purchase, with the reversion in fee ex parte materná, levied a fine, the land descended to his maternal heirs (Symonds v. Cudmore, Salk. 338; 1 Show. 370); for the tenant in tail, by levying a fine, acquired a base fee, which merged in the reversion, of which the tenant was seised ex parte materna, and descended in the same line. Where a man had an equitable estate ex parte puternâ or ex parte maternâ, and afterwards, by descent or otherwise, acquired the legal estate, the equitable estate merged in the legal, and the descent was according to the legal title (Goodright v. Wells, Dougl. 771, 2nd ed.; Wade v. Paget, 1 Br. C. C. 363; Selby v. Alston, 3 Ves. 339; Lyster v. Mahony, 1 Drury & Warren, 243; Re Douglas, Wood v. Douglas, 28 Ch. D. 327; and see Goodright v. Searle, 2 Wils. 29; Goodtitle v. White, 1 New Rep. 383; 15 East, 174; 3 Prest. Conv. 325, 340). But where an infant died seised of an equitable estate which had descended ex parte materna, the descent was not broken, although a conveyance of the legal estate (which the infant was incapable of calling for) might have broken it (Langley v. Sneyd, 1 Sim. & Stu. 45).

Where a settlor entitled ex parte materna limited lands (by an ultimate limitation in a settlement), to the right heirs of her mother, whose heirat-law she then was, the estate descended on her intestacy to her own heir ex parte materna (Moore v. Simpkin, 31 Ch. D. 95).

In connection with limitations to heirs reference should be made to Limitation to the well-known rule, called the rule in Shelley's case (1 Rep. 93; see heirs in an Parker v. Clarke, 3 Sm. & G. 161, 165). By this rule it was established, assurance. that where the ancestor, by any gift or conveyance, takes an estate for Rule in life, and in the same conveyance an estate is limited either immediately Shelley's case. or mediately to his heirs in fee or in tail, the word heirs is a word of limitation of the estate, and not of purchase. Where the subsequent limitation to the heirs follows immediately the estate for life, it then becomes executed in the ancestor, forming, by its union with the estate for life, one estate of inheritance in possession; but where such limitation is mediate and another estate intervenes, it is then a remainder vested in the ancestor who takes the freehold, not to be executed until after the

3 & 4 Will. 4, c. 106, s. 3.

Where heirs

chase under

limitations to

the heirs of

their ancestor, descend as if

the land shall

determination of the preceding mesne estate (1 B. & C. 243). For the decisions on this rule, see Tudor's L. C. Conv. 4th ed. 388; Fearne, Cont. Rem. 10th ed. pp. 28-201; Foxwell v. Van Grutten, 1897, A. C. 658; Re Youman, 1901, 1 Ch. 720.

4. When any person shall have acquired any land by purtake by purchase under a limitation to the heirs or to the heirs of the body of any of his ancestors, contained in an assurance executed after the said thirty-first day of December, one thousand eight hundred and thirty-three, or under a limitation to the heirs or to the heirs of the body of any of his ancestors, or under any limitation having the same effect, contained in a will of any testator who shall depart this life after the said thirty-first day of December, one thousand eight hundred and thirty-three, then and in any of such cases such land shall descend, and the descent thereof shall be traced as if the ancestor named in such limitation had been the purchaser of such land.

the ancestor

had been the

purchaser.

Brothers, &c., shall trace descent

through their parent.

Lineal ances

tor may be

heir in preference to

Before this act, under a limitation to special heirs of a person, to whom no estate was given, the descent would have been the same as if the estate had descended from him (see Fearne, Cont. Rem. 80). Thus, a limitation to the heirs male of the body of B. (where no estate is in or given to B. himself), not only gives such heir an estate in tail male, but such an estate tail as will, on failure of his issue male, go in succession to the other heirs male of the body of B., in the same course as if the estate tail had descended from B. himself (Mandeville's case, Co. Litt. 26; see Vernon v. Wright, 2 Drew. 439; Southcot v. Stowell, 1 Mod. 226, 237; 2 Mod. 207, 211; Wills v. Pulmer, 5 Burr. 2615; Wrightson v. Macauley, 14 M. & W. 214; Winter v. Perrott, 9 Cl. & Fin. 606). But where the limitation was to the heirs general of a person, the rule in Mandeville's case did not apply (Moore v. Simkin, 31 Ch. D. 95).

The above section lays down a rule of descent applicable as well to limitations to heirs general as to limitations to heirs special.

A gift to the heirs of a person to whom no estate is given is a gift to them as personce designate, and they take as joint tenants (Berens v. Fellowes, 56 L. T. 391; 35 W. R. 350).

5. No brother or sister shall be considered to inherit immediately from his or her brother or sister, but every descent from a brother or sister shall be traced through the parent.

Before this act the descent between brothers and sisters was considered as immediate; and in making out their title to each other, the common father need not have been named, though living, but the descent between them was exactly the same as if he had been dead (Watk. Desc. 111, n.; H. Chitty on Desc. 64, 354; Collingwood v. Pace, 1 Ventr. 413; Bridg. by Bann. 410). So under the old law, where A. had been attainted of treason, the descendants of one of A.'s children could inherit property from the descendants of another notwithstanding A.'s attainder (Kynnaird v. Leslie, L. R. 1 C. P. 389). As to the doctrine of possessio fratris, see note to sect. 9, post, p. 384.

6. Every lineal ancestor shall be capable of being heir to any of his issue; and in every case where there shall be no issue of the purchaser, his nearest lineal ancestor shall be his