Peirfon v. 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, faid, he was of the fame opinion, to prevent a rehearing. § 48. In a fubfequent case exactly fimilar, it was 1 Atk. 480. 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 neceffity. But Lord Hardwicke anfwered-" 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 juft and reasonable oc"cafion for what the guardian has done, for he was "directed to make purchases for the benefit of the "infant. Here one life being dead, furrendering the "old, and taking a new lease, was the most beneficial purchase for the infant that could be, and therefore 66 ought to have the fame confequence as if done by "the infant herself at her full age, and go to her " heirs ex parte paterna." 66. The cafe of Mafon v. Day is exactly in point. His Lordship dismissed the bill brought by the heir ex parte materna. $ 49. A truft S 49. A truft eftate is defcendible in the fame manner as a legal one; fo that where a truft eftate defcends from the mother, it will go to the heirs ex parte materna. But where the legal estate defcends ex parte materna, and the trust estate ex parte paterna, or vice verfa, the trust estate will merge in the legal, and both will follow the line through which the legal eftate defcended. $ 50. Serjeant Selby agreed for the purchase of the estate in question, and paid for it, but died before any conveyance was made; having by his will devised all his real and perfonal estate to his wife, in truft to educate and maintain his fon, until he fhould attain the age of twenty-one years; and afterwards in trust to convey all the rest of his real estate to his fon and his heirs. After the teftator'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 poffeffion of the estate, and having devised it to charitable uses, which were void by the statute of mortmain. The leffor 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 eftate, and had a right to Tit. 12. c. I. go into Chancery to compel a conveyance. After his f. 30. death the vendor conveyed to the widow; which conveyance was abfolutely in truft for the fon. He outlived his mother, and, on her death, the trust estate was completely completely vested in him, fcended to him from her. and the legal estate de The question is, to whom the whole estate defcended, on the death of the fon, for it did defcend, the devife to charitable uses being void. If it defcended 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 truft for the paternal heirs; and it was faid to be fettled that the court will not fuffer a trustee to recover in ejectment against the cestui que truft. A cafe fo circumftanced 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 arife, viz. whether when ceftui que trust takes in the legal estate, poffeffes under it, and dies, the legal and equitable estates shall open on his death, and be fevered for the different heirs. Confider first upon authority, and fecondly upon principle. First, no cafe has ever existed where it has been fo 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 eftate had not united. Secondly, on principle it feems to me impoffible, for the moment both meet in the fame person, there is an end of the truft. He has the legal interest, and all the profits by his best title. A man cannot be a trustee for himself. Why should the eftates open upon his death? What equity has one fet of heirs more than the other? He may difpofe of the whole as he pleases, and if he does not, there is no room for Chancery to interpofe, and the rule of law muft muft prevail. Quacunque via data therefore, the leffor of the plaintiff is intitled. If the queftion is doubtful then in this court the legal right must prevail; and if the weight of opinion and argument is, that the legal estate muft draw the truft after it, the cafe is ftill ftronger against the defendants. Judgement was given for the plaintiff. § 51. Where an eftate is devifed to an heir at law in fuch a manner as to make him a purchafer of it, Vide Tit. 38. the descent will be altered. § 52. No conveyance of a particular eftate will alter the mode of defcent of the reverfion, because it is not a total departure of the estate. And therefore if a perfon feifed ex parte materna, makes a gift in 1 Inft. 12 b. tail, or leafe for life, referving rent, the heir on the part of the mother fhall have the reverfion, and alfo the rent, as incident thereto. $ 53. If a perfon feifed ex parte materna makes a feoffment in fee upon condition, his heir ex parte paterna fhall enter for the condition broken, but the heir ex parte materna fhall enter upon him and enjoy the estate, becaufe an entry for a condition broken revests the old estate. Idem. Tit. 13. c. 2. 1.59. n2. 1 Rep. 100 b. $ 54. Where a perfon feifed ex parte materna 1 Inft. 12 b. makes a feoffment in fee, and the ufe is expressly limited to the feoffor and his heirs, or if there is no declaration of uses, and the feoffient is not on fuch a confideration as to raise a use in the feoffee, and confequently VOL. III. Dd f. 16. Tit. 11. c. 4. fequently the ufe refults to the fcoffor; in either cafe he is in of the ancient ufe, and not by purchase, and therefore the defcent is not altered. Godbolt v. Abbot v. 11 Mod. 181. § 55. A perfon feised of lands by defcent ex parte materna made a feoffment of them to uses. As to Blackacre to the ufe 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 ufe of himself for 99 years, if he fhould fo long live; remainder to his wife for life; remainder to his first and other fons in tail male; remainder to himself and his right heirs. It was adjudged, that, upon the death of the hufband without issue, the remainder defcended to the heirs of the feoffor ex parte materna; because the ancient fee remained in him. § 56. Where a fine is levied, or a recovery fuffered; or, where a fine is levied to make a tenant to the præcipe, and a recovery fuffered against fuch tenant, and the uses are declared to the perfon levying the fine, or suffering the recovery; or, where no uses are declared, the mode of defcent of the estate will not be altered. § 57. A. being feised in right of his wife of lands, which he had by defcent on the part of her mother; the husband and wife by decd 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 præcipe, in order to fuffer a common recovery: and |