« PreviousContinue »
effected, when once we trace from the father, No 10 will certainly inherit. But, as the fact is otherwise, as the son is the person last seised, shall not No II confessedly succeed?
“ The negative application of the rule is this. Because the issue of Luke and Frances Kempe, or No 11, should not have inherited to the father, therefore they shall not inherit to the son. Now it is certain, that not one person of those represented in the table of descents, from N° 14 to No 20 inclusive, shall ever inherit the father ; but who will be found to contend, that therefore not one of them shall inherit the fon?
“ However, by virtue of this liberal rule, John Stiles is utterly excluded, as though he had never ex. isted; notwithstanding we are told by the author himself that John Stiles held the land as a feud of indefinite antiquity. Let us then for a moment admit of the delusion, and refer ourselves to Geoffrey Stiles the father. Now, if the heirs of Christian Smith shall inherit John Stiles, as by the table they do, by parity of reason must not the heir of Ann Godfrey succeed to Geoffrey Stiles ? To hesitate were useless, their respective relation is the same; if the heirs of the greatgrandmother shall succeed in one instance, they shall in another, or there is no virtue in consistency. Nevertheless, having once secured Geoffrey Stiles as the propofitus, the system of the table of descents is deserted ; and appeal is made to the resolution in Clere and Brooke : so that, when Justice Manwoode argues rightly from the son, the doctrine is reprehensible,
whereas no scruple is made in tracing from the father, to admit the same arguments..
“ To pursue the proposed plan of defence, we should continue to examine whether such inference follows, as is suggested from the stating of the cafe resolved. But we are prevented by the express prohibition of our author ; who, perhaps not thinking he hould ever adopt a contrary opinion, hath in effect told the student that, if any cafe be put except as from John Stiles, he should not admit it. The words are—“ The student should bear in mind that, during 2 Com. 240. “ this whole process, John Stiles is supposed to have $c been last actually seised of the estate: for, if ever ♡ it comes to vest in any other person as heir to John “ Stiles, a new order of succession must be observed upon
the death of such heir ; since he, by his own “ seisin, now becomes an ancestor or ftipes, and must * be put in the place of John Stiles.”
“ Had we previously attended to this admonition, we should have found, that our arguments against the appointment of George Stiles the father, as the stipes, were needless : for, in such case, a new order of succession must be observed, and the student is forewarned accordingly. Can we, therefore, with any propriety pursue our enquiries respecting the inference, when we are forbidden to admit the propofition?
"Upon the whole, we presume to have thewn that, of the foregoing reasons, the first, second, and third, are merely speculative; the fourth is drawn from an
inapplicable medium, and a charge which is contra. dicted by the express words of Plowden; the fifth depends upon a distorted authority, and violent afsumption; the sixth on a misquotation ; that the seventh involves a contradi&tion between the table and the text; and of the eighth it will not be deemed in. temperate to say, that it collects a point of doctrine from authorities by which that doctrine is opposed, which point is applied to a case we are directed not to allow; and from which an inference is drawn, though we are enjoined not to admit of the premises."
Of the Descent of Estates in Remainder and Reverfion.
$ 2. Remainders, &c. defcend to $ 6. A Right to a Remainder does not
exclude the Half-Blood.
rates as a Seifin.
HE rules laid down in the preceding chapters re
specting the descent of estates in possession, do not apply to the descent of estates in remainder and reversion, expectant on an estate of freehold; because, where there is a preceding estate of freehold, the actual seifin is in the poffeffor of that estate, and not in the person entitled to the estate in remainder or reversion.
§ 2. It follows, from this principle, that, where a Remainders,
&c. defcend person entitled to an estate in remainder or reversion,
to the Heirs expectant upon a freehold, dies during the continuance of the Person
in whom they of the particular estate, the remainder or reversion does first vefted. not descend to his heir ; because he never had a seisin to render him the stock or terminus of an inheritance : but it will descend to the person who is heir to the first purchaser of such remainder or reversion, at the time when it comes into possession.
3 Rep. 434.
S 3. Thus, it was laid down by the Judges in Ratcliffe's case, that “ of a reversion or a remainder ex. “ pectant on an estate for life or in tail, there, he who “ claims the reversion as heir, ought to make himself “ heir to him who made the gift, or lease, if the re6C version or remainder descend from him. Or, if a
man purchase such reversion or remainder, he who " claims as heir ought to make himself heir to the first “ purchaser."
Vide Tit. 17. . 24.
$ 4. In the case of Kellow v. Rowden, it was held by all the Judges, that, where an estate for life or in tail is created, and the reversion in fee expectant there. on descends from the donor or fettler, through several intermediate heirs, before it falls into possession, every person claiming it by descent must make himself heir to the donor or settler, and take it as such, and not as heir to the intermediate heirs; who need not be fo much as named in an action brought against the person so acquiring the possession, as heir to the donor or settler : for the intermediate heirs never had such a seisin as to transmit the reversion from them by descent to any person who was not heir to the donor or settler.
Jenkins . Prichard, 2 Will. R.45
S 5. David Smith, in consideration of his marriage with Sarah Madey in 1716, settled the premises in question to the use of himself and the said Sarah during their natural lives, and the life of the survivor of them ;' remainder to the heirs of the body of the said Sarah by the said David; remainder to the said David, his heirs and assigns for ever.