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and afterwards such recovery was had accordingly; which by the same deed was declared should be to the use of the said A. for his life, and to his faid wife for her life, and then to the first and every other son of their two bodies in tail male, remainder to the right heirs of the wife.
A. and his wife died without issue ; and the question was, whether the lands should descend to the heir of the wife on the part of the mother, or to her heir on the part of the father.
Trevor, Ch. Just. delivered the opinion of the Court. In the arguing of this case it has been insisted on, that there is a difference between a use resulting by implication of law, and a use limited by express words; but we are to consider how this point stood before the statute of uses. Before that statute the law considered the estate of the land, and the use of the land, as two distinct things; and therefore, before that statute, if a man had made conveyance either by deed of feoffment, or any other legal conveyance, he might therein by express limitation have declared the use of the land; or, if there were no express limitation, the law gave it back to him again ; for he was not to pass away
the pernancy of the profits, without some confideration or estoppel, by express limitation : fo that a man might at common law have separated the use and the estate; and though the use and pernancy of the profits were neither created nor guided by the common law, yet the law took notice of them, and the cestui que use had a remedy by subpæna, fo that the use was Dd 2
taken notice of as diflinâ from the land, even at common law. Then comes the statute 27 Hen. 8. c. 10. and what alteration that made is to be considered. This statute executes the poffeffion of the land in the same plight and manner as the use was before : therefore, as this conveyance is, this ancient use, which results back, is not a new use ; for it must be an old use, if it result back as not disposed of, and so much of the ancient use still remained in him, as was undisposed of. Now, if the use would have gone this way before the statute, it will still go the same way since the statute. It is the same thing, whether the ancient use comes back by implication of law, or by limitation of the party : for that the construction of law is founded on a supposal of the intention of the parties, and will convey and carry the use the same way as it is supposed the party would have done. Now, if the law be so in the case of a resulting use, which arises by implication of law, what reason is there, why it should have a different construction, where there is an express declaration of the party? Especially, since this declaration makes no alteration of the estate; and the other use, limited to A. and his wife, is only a new interest arising out of the conveyance only, because it is not so large an estate as the fee was before. But, where the limitation is in fee, it makes no alteration, because the one is as large an estate as the other; and it is still the some residue, remaining in the wife, which she had not disposed of before, that is a part, taken out of the whole, and of the same nature as the other was; and this appears so, not only from the reason of the thing, but there are
other authorities also, which seem to settle this point,
fenfe: for this fine and recovery may be taken as two distinct conveyances, and, taking it as such, it is subject to this objection. But, as it may be taken as two several, it may as well be taken as one fingle conveyance; and the deed, the fine, and the recovery may well be taken as several
of one and the same conveyance, which is the case in question, and easily resolved : for, where such a conveyance is made by deed, fine, and common recovery, though the estate do move from one to another (as conduits) yet the estate originally moves only from the conusor, and the estate is always in a manner in him; as, if the estate be declared to one for
life, remainder in tail, and no limitation of the ufe of the fee, the use shall result back to the conusor, and not go to the conusee or recoverors. And so, if there be a limitation of the use of the fee, that use shall and must arise out of the estate of the conufor, and not out of the estate of the recoverors.-Judge. ment was given in favour of the heir ex parte maierná.
S 58. There is one fort of fine which alters the descent; and one case in which a common recovery
has the same effect; of which an account will be Tit. 35, 36. given under those respective titles.
Rule of Col.
$ 59. To return to the fifth canon of defcent, Sir lat-ral De.
William Blackstone says, the great and general prinscents. 2 Comm.223. ciple upon which the law of collateral inheritances depends, is, that upon failure of issue in the last
proprietor, the eftate shall descend to the blood of the first purchaser; or that it shall result back to the heirs of the body of that ancestor, from whom it either really has, or is supposed by fiction of law to have originally descended; according to the rule laid down in the Year Books, Fitzherbert and Hale;—“ That « he who would have been heir to the father of the " deceased, and of course to the mother or any « other real or supposed purchasing ancestor,) shall 6 also be heir to the fon.” A maxim that will hold universally; except in the case of a brother or sister of the half blood.
$ 60. The $ 60. The sixth canon or rule of descents is, that 6th Canon. the collateral heir of the person last feised must be Esclufion of his next collateral kinsman of the whole blood.
S 61, Sir William Blackstone observes that this and the other rule of inheritance that remains are only rules of evidence calculated to investigate who the purchasing ancestor was.
$ 62. By the ancient customs of Normandy, a Grand. Couft. frater uterinus could not inherit from his brother, c.25. when the inheritance descended from the father, and vice versa; from which the origin of the custom of excluding the half blood probably arose. For Braclon fo. 65 a, states it as doubtful, whether the half blood on the father's side was excluded from an inheritance, which originally descended from the common father, or only from such as descended from the respective mothers; and from newly purchased lands.
§ 63. It appears, however, from Britton, ch. 119. that, when he wrote, the half blood was excluded from inheriting in all cases. And, in 5 Edw. 2. a cafe Mayo. 148. arose in which it was determined, that, where a per- Tit. Defcent
Bro. Ab. son died seised of lands, leaving a sister of the half Pl. 20. blood, and an uncle of the whole blood, the uncle should inherit, and not the filter.
$ 64. It is therefore laid down by Littleton, that if s. 6,7. a man has two fons by divers venters, and the elder purchases lands in fee simple and dies without issue, the younger brother shall not have the land, but the