Page images
PDF
EPUB

Descent

. Ch.ü. 8 61–66. uncle of the elder brother, or some other his next cousin shall have the same; because the younger brother is but of the half blood. So if a man has a son and a daughter by one venter, and a son by another venter, and the son by the first venter dies without issue, his sister shall be his heir.

Bro. Ab.Tit. Descent, 20.

$ 65. If a man has three daughters by one venter and one daughter by another venter, and dies seised of lands, and all enter, and after two of the daughters by the first venter die, the third daughter of the first venter shall be heir to them, and shall have their two parts, and the fourth daughter shall take nothing from them, because she is of the half blood.

What Seisin i; necella y.

(. 8.

$ 66. We have seen, that no person can be such an ancestor, as that an inheritance may be derived from him, unless he had actual seisin. Thus, Littleton says, “ When a man is feised of lands in fee simple, and “ hath issue a son and a daughter by one venter, and

a son by another venter, and die, and the eldest “ son enter and die without issue, the daughter shall “ have the land and not the younger son; yet the

younger son is heir 'to the father, but not to his “ brother. But, if the elder fon doth not enter into " the land after the death of his father, but die be“ fore any entry made by him ; then the younger “ brother may enter, and fhall have the land, as heir

to his father. But, when the elder fon in the case " aforesaid enters after the death of his father, and “ hath possession, there the fifter shall have the land;

66 because

"

CC

" because it is a rule, that poffeffio fratris de feodo 3 Rep. 41 b.

fimplici facit fororem effe heredem.

$ 67. In consequence of this do&trine, it frequently becomes necessary to determine, whether the heir acquired such a seisin, upon the death of his ancestor, as is required by law, to make him the stock of the inheritance : for, if he has not acquired such a seisin, then his ancestor is the person who was last feised of the inheritance; and to whom the claimants must make themselves heirs.

$ 68. It has been stated, that an entry is in most Tit. 1. 1. 35. cases necessary to acquire a seisin in deed ; and that, where lands lie in different counties, there muit be an entry in each county. Thus, where the demesnes i Inst. 15 a.

Leon. 265. of a manor extended into two counties, the eldest son entered into the demesnes in one county only, and took the profits in one county only, and died, without issue. It was said by Manwood, that his sister of the whole blood should inherit the demesnes whereof her brother was seised, and the brother of the half blood the rest.

$ 69. It has also been stated, that the possession of Tit. 1. f. 39. a termor for years is the possession of the person entitled to the freehold. Hence Lord Coke fays, if a j Inft. 15 a; father makes a lease for years, and the lefsee enters, and the eldest son (having succeeded his father) dies during the term, before entry, or receipt of rent; the younger

son of the half blood shall not inherit, but the sister ; because the possession of the lessee for years

is

is the possession of the elder son, so as he is actually seised of the fee simple : and consequently, the fifter of the whole blood is to be heir.

[blocks in formation]

$ 70. A. seised in fee had two daughters by several venters ; and devised a moiety of the land to his wife for seven years, and that the eldest sister should enter on the other moiety, on the day of her marriage. A. died; his wife entered and educated the daughters : the eldest sister entered with her husband into the other moiety; the younger sister died without issue.Resolved, that the heir of the whole blood of the younger sister should have her moiety : for the possession of the mother, for seven years, was an actual possession in the

younger

fister.

Tit. 20. 8.11.

$ 71. It has been stated that the possession and seisin of one tenant in common is the possession and seisin of the other, and such a possession will exclude the half blood.

Small v.
Dale,
Moo. 868.
Hob, 120.

$ 72. A. had issue B. a son and M. a daughter by one venter, and N. and 0. daughters by another venter, and C. a son by a third venter, and devised all his lands to his wife durante viduitate and died. The wife entered into all. B. the eldest son died without having entered. It was adjudged that the will was void for a third part, and that the entry of the wife into all made her seised but of two parts and tenant in common with her son of the third part, and that the entry of the wife should vest such possession in common in the son of the third part as should make a

podelio

Ch. ii. S 72–74. poffeffio fratris in him for his sister of the whole blood to inherit after the younger son.

$ 73. The poffeffion of a guardian in focage is the i Inft. 15 a. poffeffion of the ward; who thereby acquires an actual seisin without entry. And, where a posthumous son is born, and his mother is in possession of the lands whereof his father died seised, she becomes his guardian in socage ; and the infant son will be thereby deemed to be actually seised of the inheritance, so as to exclude the half blood.

§ 74. Alexander Newman being seifed in fee of Goodtitle v.

Newman, four mesfuages, and having issue two daughters, died

3 Will. 516. leaving his second wife ensient with a son, who was born fix weeks after the death of his father, and lived five weeks, and then died; his mother continuing all that time in possession of the houses, residing in one of them with the two daughters, and receiving rent for the others. The question was, whether this was such a seisin as would exclude the daughters. It was argued for the plaintiff the heir at law of the son, that the son died last actually feised in fee, by descent, of the premises. That, upon the death of the father, the premises descended upon his two daughters; who, together with the mother being enfient with a son, were then in rightful posseffion; that, upon the birth of the son, six weeks after, the estate of the daughters was devested out of them, and the mother then became, and was, guardian in focage to her son; and that her possession and receiving the rents and profits, was the actual possession and seisin of the son, and would

carry

carry the descent of the premises to the heir at law of the son. The infant son was in possession as much as it was possible for an infant to be: for he was born, lived, and died, in one of the houses, which gave a title to the heir of the whole blood; for the law would presume, that the mother entered rightfully, as guardian to her infant son, and not wrongfully. For the defendant it was argued, that the rule of podeljno fratris was extremely si vere, and ought not to be extended, but should be conltrued as favourably as posfible in favour of the daughters; that, to make a poDefio fratris, there ought to be an actual seisin; that it was not found or stated in the case, that the mother entered as guardian in socage, but that she and the two daughters continued in possession from the time of the husband's death; and that, six weeks after his death, the son was born, and died in the same house ; that this was a continuance of the old estate in herself and the daughters, or in the daughters only; for the law would adjudge the possession in those, who had a lawful right to the possession, namely the daughters ; and the court could not determine, upon the facts stated in the case, whether the mother was in poffeffion as guardian to the fon, or as a trespasser, or for her quarentine in order to have dower.

Tit. 6. c.4. f. 4.

Lord Ch. Just. De Grey, having stated the case, delivered the unanimous opinion of the court. “ This “ is an eje&tment, brought by the heir of a posthu

mous son, to recover the premises in question, “ which were purchased by his father ; who died

feised

« PreviousContinue »