and afterwards fuch recovery was had accordingly; which by the fame deed was declared fhould be to the use of the faid A. for his life, and to his faid wife for her life, and then to the first and every other fon of their two bodies in tail male, remainder to the right heirs of the wife. A. and his wife died without iffue; and the question was, whether the lands fhould defcend to the heir of the wife on the part of the mother, or to her heir on the part of the father. Trevor, Ch. Juft. delivered the opinion of the Court. In the arguing of this cafe it has been infifted on, that there is a difference between a ufe refulting by impli cation of law, and a ufe limited by exprefs words; but we are to confider how this point ftood before the flatute of uses. Before that ftatute the law considered the estate of the land, and the use of the land, a 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 exprefs limitation have declared the ufe of the land; or, if there were no exprefs limitation, the law gave it back to him again; for he was not to pass away the pernancy of the profits, without fome confideration or estoppel, by exprefs limitation: fo that a man might at common law have feparated the ufe 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 ufe had a remedy by fubpoena, fo that the ufe was Dd 2 taken taken notice of as diftinct from the land, even at com. mon law. Then comes the ftatute 27 Hen. 8. c. 10. and what alteration that made is to be confidered. This ftatute executes the poffeffion of the land in the fame plight and manner as the ufe was before: therefore, as this conveyance is, this ancient use, which refults back, is not a new ufe; for it must be an old ufe, if it refult back as not difpofed of, and fo much of the ancient ufe ftill remained in him, as was undifpofed of. Now, if the ufe would have gone this way before the ftatute, it will ftill go the fame way fince the statute. It is the fame thing, whether the ancient use comes back by implication of law, or by limitation of the party: for that the conftruction of law is founded on a fuppofal of the intention of the parties, and will convey and carry the ufe the fame way as it is fuppofed the party would have done. Now, if the law be fo in the case of a resulting use, which arifes by implication of law, what reafon is there, why it should have a different conftruction, where there is an express declaration of the party? Efpecially, fince this declaration makes no alteration of the eftate; 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 fo large an eftate as the fee was before. But, where the limitation is in fee, it makes no alteration, becaufe the one is as large an eftate as the other; and it is ftill the fome refidue, remaining in the wife, which fhe had not difpofed of before, that is a part, taken out of the whole, and of the fame nature as the other was; and this appears fo, not only from the reafon of the thing, but there are other other authorities alfo, which feem to fettle this point. And it is all one, whether this ancient ufe in fee was created by implication of law, or by exprefs limitation of the party, if it be of the fame eftate. In the case of Godbolt v. Freestone, these authorities are held to be Ante, f. 55good. A difference has been made between this cafe and that of Godbolt v. Freeftone; namely, that this was not an immediate conveyance, as a feoffment to a perfon in fee, but that here there was a covenant to levy a fine, which was to be to the ufe of the conufees and their heirs, with an intent to have a common recovery and hereupon the chief objection is, that not only the legal estate, but also the ufe, paffed to the conufees both in law and equity; fo that, when a a recovery was fuffered, the ufe in fee muft arife out of the estate of the conufees. This carries the cafe a step farther than that of Godbolt v. Freeftone; and it is fit I should give an anfwer to it. Now, this opinion seems to me to be grounded on taking this common recovery in a wrong fenfe: for this fine and recovery may be taken as two distinct conveyances, and, taking it as fuch, it is fubject 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 feveral parts of one and the fame conveyance, which is the cafe in question, and easily refolved: for, where fuch a conveyance is made by deed, fine, and common recovery, though the estate do move from one to another (as conduits) yet the eftate originally moves only from the conufor, and the estate is always in a manner in him; as, if the estate be declared to one for Dd3 life, life, remainder in tail, and no limitation of the ufe of the fee, the ufe fhall refult back to the conufor, and not go to the conufee or recoverors. And fo, if there be a limitation of the use of the fee, that ufe shall and must arife out of the estate of the conufor, and not out of the estate of the recoverors.-Judgewas given in favour of the heir ex parte ment was materná. § 58. There is one fort of fine which alters the defcent; and one cafe in which a common recovery has the fame effect; of which an account will be Tit. 35, 36. given under those respective titles. Rule of Collat-ral Defcents. § 59. To return to the fifth canon of defcent, Sir William Blackstone fays, the great and general prin2 Comm.223. ciple upon which the law of collateral inheritances depends, is, that upon failure of iffue in the laft proprietor, the eftate fhall defcend to the blood of the first purchaser; or that it fhall refult back to the heirs. of the body of that ancestor, from whom it either really has, or is fuppofed by fiction of law to have originally defcended; 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 fuppofed purchafing ancestor,) fhall also be heir to the fon." A maxim that will hold univerfally; except in the cafe of a brother or fifter of the half blood. § 60. The § 60. The fixth canon or rule of descents is, that 6th Canon. the collateral heir of the perfon laft feifed must be his next collateral kinfman of the whole blood. S 61. Sir William Blackstone obferves that this and the other rule of inheritance that remains are only rules of evidence calculated to investigate who the purchasing ancestor was. Exclufion of the Half Blood. c. 25. § 62. By the ancient customs of Normandy, a Grand. Couft. frater uterinus could not inherit from his brother, when the inheritance defcended from the father, and vice verfa; from which the origin of the cuftom of excluding the half blood probably arofe. For Bracton fo. 65 a ftates it as doubtful, whether the half blood on the father's fide was excluded from an inheritance, which originally defcended from the common father, or only from fuch as defcended from the refpective 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 cafes. And, in 5 Edw. 2. a cafe arofe in which it was determined, that, where a perfon died feifed of lands, leaving a fifter of the half blood, and an uncle of the whole blood, the uncle fhould inherit, and not the fifter. May. 148. Bro. Ab. Tit. Defcent Pl. 20. S 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 fimple and dies without iffue, the younger brother shall not have the land, but the Dd 4 uncle |