1

"feifed thereof in fee fimple, the 4th of June 1760, "leaving two daughters by his firft wife, and his fe"cond wife enfient with this pofthumous fon. The "wife and daughters remained in the fame house "where the father died: then the wife received fome "rent for the houses; and afterwards, in July 1760, "the fon was born, and in his lifetime the widow "received more rent: then the fon died, having "lived five weeks and three days, and fhe received "fome more rent after his death. Lands in fee "fimple must descend to the heir of the whole blood "of the perfon laft actually feifed thereof: and this "is a maxim in the law of England, which has fub"fifted for ages, as appears by Bracton, 1. 2. fo. 65. "Britton, cap. 119. fo. 271. Fleta, l. 6. cap. 1. § 14.

Although this may fometimes be very hard upon "fome children of the half blood of the perfon laft "actually feifed, yet we must take the law as it is, "and determine accordingly. The question there"fore is, whether this pofthumous fon was actually "feifed of the premises in question?

"Upon the death of the father, his two daughters "would have been good tenants to the præcipe before "the birth of the pofthumous fon, who could not

lay his title before he was born; the law vefted the feifin in law in the daughters upon the death of the "father, and in like manner vefted the feifin in law "in the fon the moment he was born: if the

66

daughters had aliened or been diffeifed, the fon "would not have been actually feifed, but would only "have had a right of entry upon the poffeffion of the

"alienee

"alienee or diffeifor. This was the ground of my "brother Hill's argument, namely, that the daughters "were diffeifed by the mother, and that the fon

died having only a right of entry, fo was never "actually feifed. But the daughters were in actual "poffeffion as well as the mother, (of one house), "from the time of the death of their father until "the birth of the fon; and were also in actual pof"feffion of the other three houfes, by the poffeffion "of the tenants thereof; whether any rent had been "due, received, or not received, before the birth of "the fon. 3 Rep. 41, 42. Moor 125. Co. Lit. 14, 15. "And the rent, which was due and received before "the birth of the fon, belonged to the daughters, "who were actually feifed. For, by Babington (Ch. "Just. C. B.) Trin. 9 H. 6. 25 a. if a man has iffue 66 a daughter and dies, his wife being enfient, the

66

daughter may lawfully enter; and, if the dies, her "heir may enter and take the profits for the time; ✰ and, afterwards, if the wife, being enfient by the "ancestor paramount, is delivered of a fon, the fon

may enter, notwithstanding that the heir of his "fifter is in by defcent; but he fhall not have an "action of account, or any remedy for the iffues in "the mean time before his birth; because their entry

was congeable until he was born; and if a church "becomes void, and the fifter or heir prefent, and "their prefentee be inftituted and inducted before "his birth, he fhall not have the advantage of the "avoidance; and yet by fuch presentation he shall "not be out of poffeffion. At the time of the birth "of the fon (in the prefent cafe) his mother was in poffeffion,

"poffeffion, as well as the daughters; the moment "he was born fhe became guardian in focage; and, upon fuppofition that nothing was done to hinder " it, the law will prefume that fhe entered as guar"dian to her fon the moment he was born, and "nothing appears to the contrary, upon the facts "stated in the cafe. She was in, without any decla"ration how fhe was in; and acts, without any "words, amount in law to an entry; for acts with"out words may make an entry, but words without

"an act (viz. entry into the lands, &c.) cannot make 1 Inft. 245 b. ·

"It was objected, that the mother being in one ❝house, and receiving the rents of others, was a "diffeifor, or that it was in the daughters to make it "diffeifin, Cro. Car. 303. and that, if one enters as "guardian who is not fo, he is a diffeifor. 1 Roll. “Ab. 662. (J.) Pl. 3. in anfwer to this. The facts in "this cafe are, that the mother continued in poffeffion "from the death of her husband, received the rents "under leafes; her poffeffion was general; it does not appear that she oufted the daughters, or made any actual or particular claim; fhe might continue "in the house by quarentine, which continued until "the fon was born; and the entry of one is the entry of others, who have a right to enter. 1 Roll. Ab.

66

740, 741. If guardian by nature make a lease by "indenture to one, being under the title of the in<fant, rendering rent to himself, which is paid ac"cordingly, yet this is not any diffeifin to the infant. "1 Roll. Ab. 659, pl. 13.

- 66

"It is to be obferved, that the title of the "daughters expired on the birth of the fon, before 66 any election, to make the mother a diffeifor, was "made; that the law will not prefume a wrong: "there never was any determination, that the mo"ther's entry or poffeffion was by wrong, in a cafe "like this: and it is impoffible to fuppofe, in this cafe, "that the whole rents and profits of the premises in "queftion were not applied by the mother to the "common ufe of her daughters, herself, and the "infant fon; indeed, if the mother had entered as "guardian to the daughters, fhe not being their "guardian, it would have been a diffeifin; fo, if she "had entered for her dower, when it was not affigned "to her. The poffeffion of the mother and daughters was the poffeffion of the daughters; and, when the "fon was born, the estate was devested out of the daughters, and not before: then the fon was in "actual poffeffion and feifin of the premises by his "mother; who had a right to the poffeffion, as being "his guardian by law, (namely) the person next of "blood, to whom the inheritance cannot defcend: "her poffeffion was the poffeffion of the fon,

tr

66

3 Rep. 42. Moore 125. A guardian need not be "affigned. The seifin of a guardian of a son by the "fecond venter fhall ouft the daughters of the first venter. 8 Affife 6.

"Upon the whole we are all of opinion, that the "premises in queftion belong to the leffor of the plain"tiff; and therefore we give judgement for the

66

plaintiff."

$75. An

$ 75. An entry by a mother, as guardian in focage, will give a fufficient feifin to an infant, to exclude the heir of the half blood.

Doe v. Keen,

7 Tern Rep. 386.

76. A perfon died, leaving two daughters by dif. ferent venters: the mother entered as guardian in focage and received the profits. The question was, whether this gave fuch a feifin to the daughters, that, on the death of one of them, the other could not inherit from her. It was contended, ift, That the entry of the mother as guardian in focage, and her receipt of the profits, amounted to a fufficient feifin for her daughter, and that this point was fufficiently eftablished by the case of Goodtitle v. Newman. 2d, That the feifin of one coparcener was the feifin to the other, Tit. 19. f. 7. and the entry of one is in law the entry of the other. Lit. § 396. Where two claim by the fame title, as two fons from their father, and the youngest fon enters, the law will presume that his entry was not to gain a poffeffion diftinct from his elder brother, but merely to preferve the eftate from a stranger, and therefore though the younger fon dies feifed, and his iffue enters by defcent, yet the entry of the elder brother or his heir is not therefore taken away. And if the law put fo favourable a conftruction in that cafe where the younger fon cannot have any claim for himself, a fortiori such a prefumption should be made in the cafe of coparceners, who make but one heir, and fo it was ftated in Co. Lit. 243 b. that where one coparcener enters generally and takes the profits, this fhall be accounted in law the entry of both, and no divesting of the moiety of her sister.

VOL. III.

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