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There was issue of the marriage one daughter, named Elizabeth, and no other child.
Upon the death of the said Sarah, David Smith married a second wife, and, by her, had issue Anne, the lessor of the plaintiff, and no other child.
Elizabeth, the daughter of the said David by Sarah his first wife, intermarried with John Waters, and, upon that marriage, David Smith delivered up the pofsession of the premises to John Waters, but did not execute any conveyance thereof to him.
In 1738, David Smith died, leaving issue only Elizabeth by his first wife, and Anne by his second wife ; and about twelve months after, Elizabeth died, leaving issue one son, who was born after the death of David his grandfather, and died an infant, soon after the death of his mother.
The said David Smith had no brother, but left a sister named Jane, (who married one Gilbert), who was heir at law to Elizabeth, the daughter of David Smith, by his first wife, and to her son; and upon the death of John Waters, Gilbert and his wife entered on the Premises.
Anne, the daughter of David Smith by his second wife, claimed the estate as heir at law to her father, and brought an ejectment against Gilbert and his wife.
Serjeant Wilson reports the Court to have been of opinion, that Anne had no title to the premises. But
it is truly observed by Mr. Watkin's, in his essay on the 2d Edit. 143. Law of Descents, that the judgment is most evidently
mistated, or wrongly printed; and that Gentleman states that, in a note of this case taken by Mr. Serjeant Hewit, (afterwards Lord Chancellor of Ireland). The adjudication is thus given. “ In this case, it “ was clearly agreed, that, by the settlement of 1716, 6 David Smith was tenant for life, his wife was tenant in
tail, with the reversion in David Smith. And, there
upon, this point was made, whether the reversion “ in fee descended upon the two daughters of David, “ viz. Elizabeth by his first wife, and Anne by his 66 second wife, in such manner as that, upon the de“ termination of the estate tail, which descended upon “ Elizabeth, and from her upon her son, and expired “ by his death without issue, it should go in moieties, “ viz. one moiety to Anne, and the other to the heirs “ of Elizabeth ; or whether it should not go all to “ Anne as heir to her father, who was last actually $6 feised of the reversion ?"
The Judges were of opinion, " that though the re“ version descended upon the two daughters of David " on his death, yet they were not actually feised of " that reversion, during the continuance of the estate o tail ; but the same was expectant thereon. And as “ whoever takes by descent, must take as heir to him “ who was last actually seised, therefore Anne took " the reversion wholly as heir to her father. And,
" as to this, i Inst. 14, 15. and Kellow y. Rowden in " Carthew and Shower, were held to be authorities “ in point."
§ 6. A right to an estate in remainder or reversion, A Right to a does not exclude the half-blood. For, where a person does not ex.
Remainder having such a right, dies before the estate in remainder clude the
Half-Blood. or reversion falls into possession, he cannot acquire such a seisin as to become the stock of an inheritance, and, therefore, his heir of the half-blood, if he is heir to the donor or settler of the remainder or reversion, will become entitled to it.
$ 7. If there be a gift to baron and feme in special - Roll Ab.
628. Pl. 6. tail, remainder to the right heirs of the baron, and cites 37 Art
. they have issue and the feme dies, and the baron takes 4: 24 Ed. 3.
Jenkins v. another feme and hath issue and dies, and the eldest Prichard, son enters, and dies without issue, the second son of the half-blood shall have the remainder ; because the eldest was not seised thereof in his demesne.
Ante f. 5.
Lord Coke has stated this case, and observed, that i Inft. 14 6. the rule is, that po[effio fratris de feodo fimplici facit sororem effe hæredem, and here the eldest son was not possessed of the fee simple, but of the estate tail.
$ 8. If land be given to I. for life, remainder to R. Roll Ab. .
628. Pl. 7. his son in tail, remainder to the rights heirs of I., and
cites 29 Edw. I. dies, and R. enters as tenant in tail, and dies with- 3. out issue, T. the son and heir of I. of the half-blood to R. shall have the land by descent, and not the heir of R., because R. was never seised in fee in demesne. Vol. III,
S 9. So,
Idem Pl. 8.
. Ch. iv. § 9-12. S 9. So, if a gift be made to a person in tail, re. mainder to his right heirs, and after the donee dies, having issue a son by one venter, and a son by another venter, and the eldest son enters and dies without issue, his brother of the half-blood shall inherit the remainder by descent, because his brother was never feised there. of in demesne.
Idem Pl. 9. cites 5 & 32 Edw. 3
S 10. So, if the eldest son be seised in tail, with a remainder or reversion by descent to him from his father in fee, and dies without issue, his brother of the half-blood fhall have the remainder or reversion by descent, because his brother was never feised thereof in demesne.
S 11. Lord Coke says, if a father makes a lease for life, or a gift in tail and dies, and the eldest son dies in the lifetime of the tenant for life, or tenant in tail, the younger
son of the half-blood shall inherit the re. version; because the tenant for life or tenant in tail was seised of the freehold, and the eldest son had nothing but the reversion expectant upon that freehold, and therefore the younger fon ihall inherit the land as heir to his father, who was last seised of the freehold.
$ 12. Lord Coke also observes, that although a rent had been reserved on the lease for life, and the eldest son had received it, yet it was holden by fome, that the younger brother should inherit: because the feisin of the rent was no actual seisin of the freehold of the
Idem, au 1
land; but that 35 All pl. 2. seemed to the contrary, because the rent issued out of the land, and was in lieu thereof. But it is said in Lord Hale's Notes, published by Mr. Hargrave, to have been adjudged in the case of Piper v. Masters, Trin. 1657, that in such a case fe:fin of rent did not make a polufio fratris.
§ 13. Although the eldest son enters on the death 1 Int. is a. of his father and gets actual possession of the fee simple, yet, if the widow of the father be endowed of a third part, and the eldest son dies in the life-time of the widow, the younger brother of the half-blood will inherit the reversion of the third part, notwithstanding the elder brother's entry; because the actual seisin Tit. 6. Ch. 4. which he acquired thereby, was defeated by the en- f. 29. dowment.
§ 14. Where there are two sons or two daughters Jenk.cent. 6.
Ca. 25 by different venters, and a remainder or reversion
expectant upon an estate for life is purchased by the father, who dies in the life-time of the tenant for life, and the eldest son or daughter also dies in the life-time of the tenant for life, the half-blood Mall inherit; for, in this case, the claim is from the father.
operates as a
§ 15. Where the person entitled to a remainder or An Ad of reversion exercises an act of ownership over it, by Ownerhip granting it for life or in tail, this is decmed equivalent Seifin. to an actual seisin of an estate, which is capable of being reduced into possession by entry, and will make the person exercising it a new stock or root of inheritance. Hh 2