heir in preference to any person who would have been entitled 3 & 4 Will. 4, to inherit, either by tracing his descent through such lineal c. 106, s. 6. ancestor, or in consequence of there being no descendant of such collateral lineal ancestor, so that the father shall be preferred to a brother persons claiming through or sister, and a more remote lineal ancestor to any of his issue, him. other than a nearer lineal ancestor or his issue. It was an old maxim of law that an inheritance might lineally descend Old rule but not ascend (3 Rep. 40a). The parent, therefore, could never take excluding the immediately by descent from the child, but the land would rather have ascending escheated (Cowper v. Cowper, 2 P. Wms. 666). Yet a father or mother line. before this act might have inherited as cousin to their child; as where a son died seised in fee of land without issue, brother, or sister, but leaving two cousins his heirs-at-law, one of whom was his own mother (Eastwood v. Vincke, 2 P. Wms. 613). So an uncle might have had land as heir though the father was alive (Litt. s. 3); but if in that case the uncle acquired actual seisin and died without issue, the father might have had the land as heir to the uncle (Crig. de Jur. Feud. 234; Wright's Ten. 182, n. (z)). So the father might have taken by purchase as the nearest of blood to his son, as if a lease were made to the son for life with remainder to his next of blood in fee (Co. Litt. 10 b; 3 Rep. 40 a). By the present section lineal ancestors are admitted (see Real Property Report, ante, p. 376). Where a son, legitimate in Scotland by the subsequent marriage of his parents, died intestate as to lands in England of which he was seised in fee and without issue, the father did not inherit under this section (Re Don, 4 Drew. 194). Compare the rule laid down in Doe v. Vardill, 7 Čl. & F. 895, that a child born out of wedlock, although legitimated by the subsequent marriage of his parents, cannot inherit land in England. And see Re Grey, Stamford v. Grey, 1892, 3 Ch. SS; and Shaw v. Gould, L. R. 3 H. L. 55. 7. And be it further enacted and declared, that none of the The male maternal ancestors of the person from whom the descent is to be line to be preferred. traced, nor any of their descendants, shall be capable of inheriting until all his paternal ancestors and their descendants shall have failed; and also that no female paternal ancestor of such person, nor any of her descendants, shall be capable of inheriting until all his male paternal ancestors and their descendants shall have failed; and that no female maternal ancestor of such person, nor any of her descendants, shall be capable of inheriting until all his male maternal ancestors and their descendants shall have failed. The true meaning of the section is that where, after due and sufficient investigation, there is no reasonable possibility of ascertaining that there are descendants from the paternal ancestors, then the descendants of the maternal ancestors must be sought for (Greaves v. Greenwood, 2 Ex. Div. 297). As to what is sufficient evidence of the extinction of superior lines of descent, see Ib.; Lyell v. Kennedy (18 Q. B. Div. 811); Rawlinson v. Miller (1 Ch. D. 52); Jeakes v. White (6 Exch. 880); and the note, ante, p. 155. more remote 8. And be it further enacted and declared, that where there The mother of shall be a failure of male paternal ancestors of the person from whom the descent is to be traced, and their descendants, the mother of his more remote male paternal ancestor, or her male ancestor to be pre ferred to the c. 106, s. 8. mother of the less remote male ancestor. 3 & 4 Will. 4, descendants, shall be the heir or heirs of such person, in preference to the mother of a less remote male paternal ancestor, or her descendants; and where there shall be a failure of male maternal ancestors of such person and their descendants, the mother of his more remote male maternal ancestor, and her descendants, shall be the heir or heirs of such person, in preference to the mother of a less remote male maternal ancestor, and her descendants. Half blood, if on the part of a male ancestor, to inherit after the whole blood of the Fame degree; if on the part of a female ancestor, after her. Exceptions to the rule excluding the half blood. Seisin of ancestor. This statute has declared the law to be in accordance with the position laid down by Blackstone (2 Comm. 238; Davies v. Lowndes, 5 Bing. N. C. 169). It was decided, that where a person seised of an estate ex parte materna died without issue, the descendants of his maternal grandfather must all be extinct before any descendant of a remoter maternal ancestor could inherit, however nearly related to the propositus ex parte maternâ (Hawkins v. Shewen, 1 Sim. & Stu. 257; see Hale's Hist. C. L. by Runn. 2nd vol. 120). As to what is sufficient evidence of the extinction of a superior line of descent, see Jeakes v. White (6 Exch. 880), and the cases quoted under sect. 7. 9. Any person related to the person from whom the descent is to be traced by the half blood shall be capable of being his heir; and the place in which any such relation by the half blood shall stand in the order of inheritance, so as to be entitled to inherit, shall be the next after any relation in the same degree of the whole blood, and his issue, where the common ancestor shall be a male, and next after the common ancestor where such common ancestor shall be a female, so that the brother of the half blood on the part of the father shall inherit next after the sisters of the whole blood on the part of the father and their issue, and the brother of the half blood on the part of the mother shall inherit next after the mother. The old rule of law which excluded the half blood from taking by descent, was subject to some exceptions and qualifications, to which it will be proper to advert. As the descent from the parent to daughters was immediate, daughters by different venters might have inherited together as one heir to their common parent, although they could not inherit to each other (Harg. Co. Litt. 14 a, n. (5)). And the daughters by several husbands succeed in the same manner to the inheritance of their mother (see Watk. on Desc. 159, n. (b); H. Chitty on Desc. 78, 79). So, also, in the case of estates tail, the half blood coming within the description of the entail might inherit as effectually as the whole blood, for they do not claim as heirs of the person last seised, but of the original donee (Plowd. 57; 3 Rep. 42; Goodtitle v. Newman, 3 Wils. 526). In titles of honour, also, half blood is no impediment to the descent; but a title can only be transmitted to those who are descended from the first person ennobled, or the person who is made the stock of descent (Co. Litt. 15 b; 3 Rep. 42 a; Cruise's Dig. tit. 26, c. 3, ss. 8-11). A brother or sister of the half blood is entitled to share the personal estate of an intestate equally with one of the whole blood, inasmuch as they are both equally near of kin to the intestate (1 Jac. 2, c. 17, s. 7; Jessop v. Watson, 1 M. & K. 665; Burnett v. Mann, Ì Ves. sen. 156). Before the above act, a man in order to qualify himself to take by descent, must have shown that he was heir of the person last seised of the actual freehold and inheritance (Co. Litt. 11 b, 15 d; 3 Bos. & P. 648; Effect of rule Jenkins v. Pritchard, 2 Wils. 45). Thus if A. died leaving a son and daughter by one venter, and a son by another, and the son by the first 3 & 4 Will. 4, venter became actually seised and dies, his sister was heir to him; but if c. 106, s. 9. he died without having acquired the seisin, the son by the second venter would have taken as immediate heir of his father, to the exclusion of the requiring seisin of sister (Co. Litt. 15; Sir W. Jones, 561; Co. Litt. 15 a; 3 Wils. 521; 7 T. R. ancestor upon 398, 399; Id. 213; Bushby v. Dixon, 3 B. & C. 304; 3 T. R. 211; Jenk. descent to 242; Goodtitle v. Newman, 3 Wils. 516; Doe v. Keen, 7 T. R. 386; Cun- half blood. ningham v. Moody, 1 Ves. sen. 174; Buchanan v. Harrison, 1 J. & H. 662; Rule of Doe v. Hutton, 3 Bos. & P. 643; Goodtitle v. White, 15 East, 174; 2 Bos. possessio & P. N. R. 388; Harg. Co. Litt. 14 a, n. 6). The descent of descendible freeholds to heirs was governed by the same Descendible fratris. rules as prevailed in cases of estates of inheritance (Gravenor v. Brooke, freeholds. Poph. 32; Long v. Myles, Fox & Smith, Ir. Rep. 1; Pierson v. Shore, 1 Atk. 480). And the rule of possessio fratris was applicable to copyholds (4 Rep. 21). 10. That when the person from whom the descent of any After the land is to be traced shall have had any relation who, having death of a been attainted, shall have died before such descent shall have person attainted, his taken place, then such attainder shall not prevent any person descendants from inheriting such land who would have been capable of in- may inherit. heriting the same, by tracing his descent through such relation, if he had not been attainted, unless such land shall have escheated in consequence of such attainder before the first day of January, one thousand eight hundred and thirty-four. Persons attainted of high treason or felony were incapable of inheriting The effect of lands or of transmitting them by descent to their posterity (Co. Litt. 8 a; attainder. Cro. Car. 366). Another consequence of such an attainder was the corruption and extinction of all hereditary blood in the person attainted, by which he was rendered not only incapable of himself inheriting or of transmitting his own property by heirship, but he also obstructed the descent of lands to his posterity, in all cases where they were obliged to derive their title through him from any remote ancestor (11 Rep. 1b; Co. Litt. 391 b; see Yorke's Law of Forfeiture, 72, 4th ed.; 2 Blac. Com. 251; 4 Ib. 388; Bl. Considerations on the Law of Forfeiture for High Treason; Bac. Abr. Forfeiture; Burn's J. Forfeiture). But as between two sons of an attainted father, there was nothing to hinder one brother from inheriting to the other (1 Ventr. 413; Yorke's Law of Forfeiture, 83, 4th ed.; Kynniard v. Leslie, L. R. 1 C. P. 389). Freeholds of inheritance, which at the time of the death of a felo de se belonged to him, did not escheat to the Crown, but passed to his heir-atlaw (Norris v. Chambers, 29 Beav. 258; 3 Co. Inst. 55; 2 Bl. Com. 386; 2 Bac. Abr. tit. Felo de se; 4 Vin. Abr. 268, tit. Blood, corrupted, A. pl. 2; Haley v. Petit, Plowd. 253, 261; 7 Jur. N. S. 689). In the case of a fee tail, notwithstanding the forfeiture of lands entailed by an attainder, yet the blood of the attainted person was not corrupted so as to affect the issue in tail, for they claimed per formam doni (Dowtie's case, 3 Rep. 9 b; Yorke's Law of Forfeiture, 81, 82; Br. Descent, pl. 1; Bro. Forfeiture, pl. 37; Mantell v. Mantell, Cro. Eliz. 28; Sheffield v. Ratcliffe, Godb. 305; Hob. 347). If a copyholder was attainted of treason or felony, his copyhold was immediately forfeited to the lord (Hawk. P. C. b. 2, c. 49, s. 7). But by the custom of some manors, the son might inherit from his father, notwithstanding the attainder of the latter (1 Watk. on Cop. 326; Scriven, 181). By the Forfeiture Act, 1870, s. 1, it is enacted that, from and after the Statutes as to 4th July, 1870, no confession, verdict, inquest, conviction, or judgment attainder. of or for any treason or felony or felo de se shall cause any attainder or 33 & 34 Vict. S. 25 c. 23. 3 & 4 Will. 4, c. 106, s. 10. Act not to descent before corruption of blood or any forfeiture or escheat. But nothing in the act 11. This act shall not extend to any descent which shall take extend to any place on the death of any person who shall die before the said January, first day of January, one thousand eight hundred and thirtyfour. 1834. Limitations made before 1st January, 1834, to the heirs of a person then living, shall take effect as if this act had not been made. 12. Where any assurance executed before the said first day of January, one thousand eight hundred and thirty-four, or the will of any person who shall die before the same first day of January, one thousand eight hundred and thirty-four, shall contain any limitation or gift to the heir or heirs of any person, under which the person or persons answering the description of heir shall be entitled to an estate by purchase, then the person or persons who would have answered such description of heir if this act had not been made, shall become entitled by virtue of such limitation or gift, whether the person named as ancestor shall or shall not be living on or after the said first day of January, one thousand eight hundred and thirty-four. V. THE LAW OF PROPERTY AMENDMENT ACT, 1859, ss. 14-18, 23 411 VI. THE LAND TRANSFER ACT, 1897, ss. 1-5, 24-26 417 VII. THE REAL ESTATE CHARGES ACTS, 1854, 1867 & 1877 428 387 I. THE DEBTS RECOVERY ACT, 1830. 11 GEO. IV. & 1 WILL. IV. c. 47. 1 Will. 4, c. 47, s. 1. 3 & 4 Will. & An Act for consolidating and amending the Laws for facilitating the Payment of Debts out of Real Estates. [16th July, 1830.] 11 Geo. 4 & WHEREAS an act was passed in the third and fourth years of King William and Queen Mary, intituled "An Act for the Relief of Creditors against fraudulent Devises," which was made per- M. c. 14. petual by an act passed in the sixth and seventh years of King 6 & 7 Will. 3, William the Third, intituled "An Act for continuing several c. 14. Laws therein mentioned:" and whereas an act was passed by the Parliament of Ireland, in the fourth year of Queen Anne, 4 Anne, intituled "An Act for Relief of Creditors against fraudulent c. 5 (1). Devises :" and whereas an act was passed in the forty-seventh 47 Geo. 3, year of his late Majesty King George the Third, intituled "An Act for more effectually securing the Payment of Debts of Traders: " and whereas it is expedient that the provisions of the said recited acts should be enlarged, and that the said recited acts should be repealed, in order that all the provisions relating c. 74. to this matter should be consolidated in one act; be it therefore Recited acts enacted, that the said several recited acts shall be and the same repealed. are hereby repealed, but so as not to affect any of the provisions and remedies of the said acts, or any of them, to the benefit of which any persons are entitled, as against any estate or interest in any lands, tenements, hereditaments or other real estate of any person or persons who died before the passing of this act. By the common law, freehold lands of inheritance which descended to the heir were assets for the payment of the ancestor's debts by specialty, Old rule as to liability of lands to debts. |