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principles of the common law, which are applicable to this subject.

S 2. It is a rule of the common law, that no inhe. Maxim that

Nemo eft ritance can vest, nor can any person be the actual Hæres Vi

ventis. complete heir of another, till the ancestor is previously dead : Nemo eft hæres viventis. Before that time, the Person who is next in the line of succession is called an heir apparent, or heir presumptive. Heirs apparent are such whose right of inheritance is indefeasible, provided they outlive their ancestor; as the eldest son or his issue, who must by the course of the common law be heir to the father, whenever he happens to die. Heirs presumptive are such who, if the ancestor should die immediately, would, in the present circumstances of things, be his heirs; but whose right of inheritance may be defeated, by the contingency of some nearer heir being born.

S 3. Another rule of the common law respecting The Ancestor

must die descents, is, that no person can properly be such an seised. ancestor, as that an inheritance can be derived from him unless he has had actual seisin, or, as Lord Coke Inst. 11 b. expresses it, " A man that claimeth as heir in fee “ fimple to any man by descent, must make himself " heir to him that was last feised of the actual free “ hold and inheritance."

S 4. Lord Hale says—“ The last actual seisin in Hift. c. 11.

any ancestor, makes him as it were the root of the “ descent, equally to many intents, as if he had been a purchaser; and therefore he that cannot, accord

ing

CC

ing to the rules of descents derive his succession, “ from him that was last actually feised, though he “ might have derived it from some precedent ancestor, « shall not inherit.”

2 Comm.209.

S 5. The law requires this notoriety of possession as evidence that the ancestor had that property in himself, which is to be transmitted to his heir. The seisin therefore of any person makes him the root or stock from which all future inheritance by right of blood must be derived, which is briefly expressed in the maxim of Fleta, Seisina facit ftipitem.

Tit. 1. f.35.

Lit. 1.8.
1 Inst. 11b.
154.

§ 6. The nature of seifin, and the difference between seisin in deed, and seisin in law, has been explained in a former title. It is therefore sufficient here to observe that when a person acquires an estate in land by descent, it is necessary that he should gain a seisin in deed, in order to transmit it to his heir ; for if he has a seisin in law only, it will not be sufficient.

1 Inft. 15 b.

57. The rule is the same with respect to incorporeal hereditaments. So that where an advowson in gross or a rent, descends to a person, he must actually present to the church and receive the rent, before he can become the stock of a descent. But if the ad. vowson be appendant to a manor, there actual seisin of the manor will give an actual seisin of the advowson.

$ 8. Where an ancestor acquires an estate by his own act, that is, by purchase, he is in many cases allowed to transmit it to his heirs ; although he never had actual seisin of it himself.

Exceptions to this Rule.

lowed

Thus it is laid down arguendo in Shelley's case, that Rep.98 da if a fine was levied to A. in fee, and afterwards, but before execution, A. died, his heir might enter ; and though he were the first that entered, yet he should be in by defcent; it being a rule that, where the heir takes any thing which might have vested in the ancestor, the heir should be in by descent. It was however observed that in a case of this kind the heir would not have been in directly by descent, either to be in ward, or to have had his age, or to have tolled the entry of one who had right.

S 9. In the case of an exchange, if both parties die before either enters, the exchange is totally void. Rep. 98 b. But if one of the parties enters, and the other dies before entry, his heir may enter, and shall be in by descent.

$ 10. In the case of equitable interests, an ancestor may transmit them to his heir without ever having obtained any kind of seisin or possession whatever.

Thus where a person contracts for the purchase of a Potter v.

Potter, real estate, and dies before it is conveyed to him, this į Vel. 437. equitable interest will descend to his heir, if not de.

vifed away

$ 11. I now return to the first canon of descent, in Explanation

of the tir.t consequence of which, whenever a person dies feised

Canon.
VOL. III.
Сс

of

of a real estate, leaving issue, it immediately descends to such issue; on whom the law casts the freehold be

fore entry.

A Descent $ 12. In consequence of the principle that the freemay be de. feated by the hold shall never if possible be in abeyance, lands Birth of a always descend to the person who is heir at the time nearer Heir.

of the death of the ancestor; but such descent may be defeated by the subsequent birth of a nearer heir.

§ 13. Thus where a person dies leaving his wife ensient, the law, not considering the infant in ventre matris to be in existence, casts the freehold on the person who is then heir. But when the posthumous child is born, his guardian may enter upon such heir, and take the estate from him.

Goodtitle v.
Newman,
Infra.

§ 14. It seems to have been formerly doubted whether in a case of this kind the posthumous child was entitled to the profits from the death of his ancestor, or only from the time of his birth. But in a modern case Lord Ch. Just. De Grey laid it down as clear law, upon the authority of a case in the Year Books, Trin. 9 Hen. 6. 25 a. that a posthumous child was not entitled to any profits received before its birth, because the entry of the heir was congeable, until the posthumous child was born.

§ 15. Lord Coke fays, if a man has issue a son and a daughter, and the son purchases lands in fee and dies without issue, the daughter shall inherit the land from him. But if afterwards the father has illue a

Inst, u1b.

fon,

fon, this son shall enter into the land as heir to his brother, and oust his fifter.

$ 16. So where a son purchased land, and died Bro. Ab. Tit.

Discent 58. without issue, the uncle entered as his heir, and two years after the father had issue another son; it was held that such other son might enter on his uncle.

$ 17. The last clause of the first canon of descent, Exclusion of

the ascending by whịch parents and all lineal ancestors are excluded Line. from succeeding to the inheritance of their offspring, is derived from the Feudal Law, in which it was an established rule that the ascending line could in no case inherit a feud. This rule was fully established in England in the time of Henry 2. for Glanville says, Lib. 7. C. 1. Hæreditas nunquam autem naturaliter ascendit. And it 3 Rep. 404.

12 Mod. 623 was probably derived immediately to us from the cuftoms of Normandy.

$ 18. Littleton says" If there be father and son, Sec. 3. 16 and the father hath a brother that is uncle to the “ son, and the son purchase land in fee simple, and “ die without issue, living his father, the uncle shall “ have the land as heir to the son, and not the fa" ther; yet the father is nearer of blood ; because it " is a maxim in law, that inheritance may lineally de“ scend, but not ascend. Yet if the son in this case “ die without issue, and his uncle enter into the land “ as heir to the son (as by the law he ought) and " after the uncle dieth without issue living, the father « shall have the land, as heir to the uncle, and not as 4. heir to his son.”

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