ftrained to those of the male fex, as in the case of Tit. 3. ch. 1. eftates in tail male, or to those who are born of a particular woman, as in the case of eftates in tail special. § 4. The maxim, that feifina facit ftipitem does not take place in the descent of estates tail. It being only neceffary in deriving a title to an estate tail by descent, to deduce the pedigree from the first purchaser, or donee, and not that the claimant is heir to the perfon laft feifed. For the iffue in tail claim per formam doni, that is, they are as much within the view and intention of the donor, and as perfonally and precisely described in the gift, as any of their ancestors. 1. 13. Lit. f. 14, 15. 3 Rep. 41 6. § 5. The exclufion of the half blood does not take place in the descent of estates tail: because the defcent from the first purchaser or original donee of an eftate tail, must be strictly proved; and where the lineage is thus made out, there is no need of this auxiliary proof: and Lord Coke fays, the issue in tail is ever of 1 Inft. 156. the whole blood to the donee. And in a modern cafe Lord Kenyon faid-" In the cafe of eftates tail the half 8 Term Rep. "blood coming within the defcription of the entail 213. ،، may inherit as effectually as the whole blood. "There the rule of poffeffio fratris does not apply." tion of Blood. § 6. The doctrine of corruption of blood does not No Corrup attach in the descent of eftates tail; for notwithstanding the forfeiture of lands intailed, by attainder of high treafon, yet the blood of the perfon attainted is not corrupted, fo as by any confequential difability to affect the iffue in tail, or prevent the defcent of an eftate tail to him. $ 7. Thus Lumley's Cafe cited, Mantell v. Mantell, § 7. Thus where there was grandfather, father, and 3 Rep. 10 b. fon, and the grandfather was tenant in tail, and the father was attainted of high treafon, and died in the Cro. Eliz, 28. life of the grandfather, and afterwards the grandfather died. It was agreed that the land fhould defcend to the fon, notwithstanding the attainder of the father; for the father had not the land, neither in poffeffion nor in ufe, in which two cafes the act of 26 Hen. 8. gave the forfeiture only. And his attainder was not any corruption of blood for the land in tail. Tit. 3. c. 2. £. 30. § 8. The reafon upon which this doctrine was founded, was, because the forfeiture of eftates tail was created by the ftatute 26 Hen. 8. But that ftatute being of a perfonal kind, the Judges conftrued it ftrictly fo that they only extended it to fuch eftates whereof the offender was actually in poffeffion, and Vide Tit. 26. which he had power to alienate; but would not conftrue it fo as to bring confequential disabilities on the heir, where the offender was not in poffeffion. (. 137 Bro. Ab. Tit. Devife 5. 7 Rep. 8 b. Cuftomary Defcents. § 9. If a tenant in tail dies without iffue leaving his wife enfient with a fon the donor may enter, But upon the birth of the fon, the estate tail is set up again. The iffue will not however in this cafe be entitled to the mefne profits, $10. There are fome other modes of defcent which are derived from the peculiar cuftom of particular places and differ in many refpects from the defcent by common law. Of thefe the principal are the defcent fcent of lands held in gavelkind and borough English, and by copy of court roll. Gavelkind. 265.. Robin. Gav. 90. § 11. The defcent of lands held in gavelkind in the Defcent in right line is amongst all the fons, and in default of fons, amongst all the daughters. But although females claiming in their own right are poftponed to males, yet they may inherit together with males, by reprefentation; for the right of representation takes place in customary defcents, as well as in defcents at common law; and therefore if a man has three fons, and purchases lands held in gavelkind, and one of the fons dies in the lifetime of his father leaving a daughter, fhe fhall inherit the part of her father; and yet she is not within the words of the custom, (inter hæredes mafculos partibilis) for fhe is no male, but the daughter of a male, coming in his ftead by reprefentation, 1 Inft. 140 a. § 12. The partible quality of lands held in gavel- Rob. 92. kind is not confined to the right line but is the fame in the collateral one. For it has been refolved, that where one brother dies without iffue, all the other brethren fhall inherit from him, and in default of brothers their refpective iffue fhall take, jure reprefentationis; but where the nephews fucceed with an uncle, the descent is per ftirpes, and not in capita, and fo from the nature of the thing it must be, where the fons of feveral brothers fucceed, no uncle furviving; for though in equal degree, they ftand in the place of their refpective fathers. $ 13. The Rob. 94. Lit. f. 265Dyer 179 b. Rob. 97. Rob. 99. Borough Nelf. Ab. 397. pl. 6. S 13. The partible quality of lands held in gavelkind is not confined to eftates in fee fimple. For although an estate tail is a new kind of inheritance introduced by the ftatute de donis conditionalibus, yet if a perfon dies seised in tail of gavelkind lands, whether general or special, all the fons fhall inherit together as heirs of his body. § 14. Defcendible freeholds are also partible where the lands are held in gavelkind. As if a leafe be made of lands of this kind to a man and his heirs, during the life of A. and the leffee dies living A. the lands will defcend to all his fons, as fpecial occupants. $ 15. The exclufion of the half blood takes place in the defcent of lands held in gavelkind. § 16. With refpect to lands held in borough Englifh, Littleton fays, fome boroughs have a custom that if a man has iffue many fons, and dies, the youngest fhall inherit all the tenements which were his father's within the fame borough, by force of the custom. § 17. It appears to have been held in 10 Jac. that tithes arifing out of lands held in burrough English defcend to the eldest fon. Because tithes do not arife naturally from the land, but by the labour and industry of man. Befides of common right tithes are not inheritances defcendible to an heir, but go in fucceffion from one clergyman to another. And though by the statute of diffolution of monafteries they are made descendible to heirs, yet that being within time of of memory the cuftom of burrough English will not prevail in fuch a cafe. Scudamore. S 18. The right of representation takes place in the Clements v. defcent of lands held in borough English. And therefore if the youngest fon dies in the lifetime of his father, the children of fuch youngest fon fhall inherit the lands. § 19. The custom of borough English is confined Rob. 93. to lineal descents, and does not extend to collateral ones. So that where lands held in borough English defcended to the youngest son, and he died without iffue; it was refolved that they did not go to the younger brother: for the custom did not take place in the defcent between brothers; but the eldest brother inherited. Bayly v. Stevens, Cro. Jac. 198. 1. 3. § 20. Lord Coke however fays, that by fome cuf- 1 Inft. 110 b. toms the youngest brother fhall inherit. But this extenfion of borough English to the collateral line must be specially pleaded. I Salk. 243. § 21. If lands of the nature of borough English Idem. be let to a man and his heirs during the life of 7. S. and the leffee dies, the youngest fon fhall have them. § 22. The descent of lands held in gavelkind and borough English cannot be altered by any limitation of the parties. And therefore where A. feifed in fee of lands held în burrough English made a feoffment to the use of himself and the heirs male of his body according 2 Vern, 226. Jenk. Cent. 5. ca. 70. Dyer 179 b. |