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fore should first go to the heirs of the part of the father. And it was decreed accordingly.
The Lord Keeper coming into court, and being asked his opinion on it, said, he was of the same opinion, to prevent a rehearing.
Peirfon v. Shore, 1 Atk. 480.
S 48. In a subsequent case exactly similar, it was objected that the renewal was an act done by a guardian, only during the minority; and ought not to prejudice any who take by representation, it being merely voluntary, and not of necessity.
But Lord Hardwicke answered—" If this had been “ wantonly done by the guardian, without any real “ benefit to the infant, it would have been proper to “ have come into a Court of Equity, to be relieved
against it. But here was a just and reasonable oc« casion for what the guardian has done, for he was u directed to make purchases for the benefit of the “ infant. Here one life being dead, surrendering the
old, and taking a new lease, was the most beneficial purchase for the infant that could be, and therefore
ought to have the same consequence as if done by “ the infant herself at her full age, and go to her “ heirs ex parte paterna."
The case of Mafon v. Day is exactly in point. His Lordship dismissed the bill brought by the heir ex parte inaterna.
$ 49. A truft
$ 49. A trust estate is descendible in the same manner as a legal one; so that where a trust estate descends from the mother, it will go to the heirs ex parte materna.
But where the legal estate descends ex parte materna, and the trust estate ex parte paterna, or vice versa, the trust estate will merge in the legal, Tit. 12.c. 2. and both will follow the line through which the legal estate defcended.
S 50. Serjeant Selby agreed for the purchase of the Goodright v. estate in question, and paid for it, but died before any Doug. R.771.
Wells, conveyance was made; having by his will devised all his real and personal estate to his wife, in trust to educate and maintain his son, until he should attain the age of twenty-one years; and afterwards in trust to convey all the rest of his real estate to his son and his heirs. After the testator's death, the estate was conveyed to Mrs. Selby who died before the fon attained twenty-one, but he afterwards attained that
age and died, having been in possession of the estate, and having devised it to charitable uses, which were void by the statute of mortmain. The lessor of the plaintiff was his heir at law on the part of the mother, and the defendants were his heirs at law on the part of the father's mother.
Lord Mansfield.--Serjeant Selby after his purchase was owner of the equitable estate, and had a right to Tit. 12. c. is go into Chancery to compel a conveyance. After his f. 30. death the vendor conveyed to the widow; which conveyance was absolutely in trust for the son. He outlived his moiher, and, on her death, the trust estate was
completely vested in him, and the legal estate de. scended to him from her. The question is, to whom the whole estate descended, on the death of the son, for it did descend, the devise to charitable uses being void. If it descended from the mother, the leffor of the plaintiff takes as heir at law. But it was contended that though he is heir, there is a trust for the paternal heirs ; and it was said to be settled that the court will not suffer a trustee to recover in ejectment against the cestui que trust. A cafe fo circumstanced as this in every particular probably never existed before, and perhaps never may again ; but cafes must often have happened in which the general question would arise, viz. whether when cestui que trust takes in the legal estate, poffefses under it, and dies, the legal and equitable estates shall open on his death, and be severed for the different heirs. Confider first upon authority, and secondly upon principle. First, no case has ever existed where it has been so held, none where the heir at law of one denomination has, on the death of the ancestor, been confidered as a trustee for the heir at law of another denomination; who would have taken the equitable estate if that and the legal estate had not united. Secondly, on principle it seems to me impossible, for the moment both meet in the fame person, there is an end of the trust. He has the legal interest, and all the profits by his best title. A man cannot be a trustee for himself. Why should the estates open upon his death? What equity has one fet of heirs more than the other? He may dispose of the whole as he pleases, and if he does not, there is no room for Chancery to interpose, and the rule of law
must prevail. Quacunque via data therefore, the lessor of the plaintiff is intitled. If the question is doubtful then in this court the legal right must prevail; and if the weight of opinion and argument is, that the legal estate must draw the trust after it, the case is still stronger against the defendants. Judgement was given for the plaintiff.
S 51. Where an estate is devised to an heir at law in such a manner as to make him a purchaser of it, Vide Tit. 38. the descent will be altered.
$ 52. No conveyance of a particular estate will alter the mode of descent of the reversion, because it is not a total departure of the estate. And therefore if a person seised ex parte materna, makes a gift in tail, or lease for life, reserving rent, the heir on the part of the mother shall have the reversion, and also the rent, as incident thereto.
i Inst. 12 b.
S 53. If a person feised ex parte materna makes a fcoffment in fee upon condition, his heir ex parte pa
Idem. terna shall enter for the condition broken, but the heir ex parte materna shall enter upon himn and enjoy the estate, because an entry for a condition broken Tit. 13. c. 2. revests the old estate.
$ 54. Where a person feised ex parte materna I Inft. 12 b. makes a feoffment in fee, and the use is expressly 1 Rep. 100 b. limited to the feoffor and his heirs, or if there is no declaration of uses, and the feoffment is not on such a consideration as to raise a use in the feoffee, and conVOL. III.
Tit. 11. c. 4. sequently the use results to the fcoffor ; in either case f. 16.
he is in of the ancient use, and not by purchase, and therefore the descent is not altered.
$ 55. A person feised of lands by descent ex parte materna made a feoffment of them to uses. As to Blackacre to the use of himself for life, remainder to his wife for life, remainder to the heirs of his body on his wife begotten, remainder to his own right heirs. And, as to Whiteacre, to the use of himself for 99 years, if he should so long live ; remainder to his wife for life; remainder to his first and other sons in tail male ; remainder to himself and his right heirs. It was adjudged, that, upon the death of the husband without issue, the remainder descended to the heirs of the feoffor ex parte materna; because the ancient fee remained in him.
S 56. Where a fine is levied, or a recovery suffered; or, where a fine is levied to make a tenant to the pracipe, and a recovery fuffered against such tenant, and the uses are declared to the person levying the fine, or suffering the recovery; or, where no uses are declared, the mode of descent of the estate will not be altered.
S 57. A. being seised in right of his wife of lands, which he had by defcent on the part of her mother ; the husband and wife by deed covenanted to levy a fine, which was thereby declared should be to the use of the conufees and their heirs, to make them tenants to the precipe, in order to suffer a common recovery: