There was iffue of the marriage one daughter, named Elizabeth, and no other child.

Upon the death of the faid Sarah, David Smith married a fecond wife, and, by her, had iffue Anne, the leffor of the plaintiff, and no other child.

Elizabeth, the daughter of the faid David by Sarah his first wife, intermarried with John Waters, and, upon that marriage, David Smith delivered up the poffeffion of the premises to John Waters, but did not execute any conveyance thereof to him.

In 1738, David Smith died, leaving iffue only Elizabeth by his first wife, and Anne by his fecond wife; and about twelve months after, Elizabeth died, leaving iffue one fon, who was born after the death of David his grandfather, and died an infant, soon after the death of his mother.

The faid David Smith had no brother, but left a fifter 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 fon; and upon the death of John Waters, Gilbert and his wife entered on the Premises.

Anne, the daughter of David Smith by his fecond wife, claimed the estate as heir at law to her father, and brought an ejectment against Gilbert and his wife.

Serjeant

2d Edit. 143. Note (g.)

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 Law of Descents, that the judgment is most evidently miftated, or wrongly printed; and that Gentleman states that, in a note of this cafe taken by Mr. Serjeant Hewit, (afterwards Lord Chancellor of Ireland. The adjudication is thus given. "In this cafe, it "was clearly agreed, that, by the fettlement of 1716, "David Smith was tenant for life, his wife was tenant in "tail, with the reversion in David Smith. And, therecc upon, this point was made, whether the reverfion "in fee defcended upon the two daughters of David, “ viz. Elizabeth by his first wife, and Anne by his "fecond wife, in fuch manner as that, upon the de"termination of the eftate tail, which defcended upon "Elizabeth, and from her upon her fon, and expired

by his death without iffue, it should go in moieties, "viz. one moiety to Anne, and the other to the heirs "of Elizabeth; or whether it fhould not go all to "Anne as heir to her father, who was last actually feifed of the reverfion ?"

The Judges were of opinion, " that though the re"verfion defcended upon the two daughters of David " on his death, yet they were not actually feifed of "that reverfion, during the continuance of the estate "tail; but the fame was expectant thereon. And as "whoever takes by defcent, muft take as heir to him "who was last actually feifed, therefore Anne took "the reverfion wholly as heir to her father. And,

as

as to this, I Inft. 14, 15. and Kellow v. Rowden in "Carthew and Shower, were held to be authorities. "in point."

§ 6. A right to an estate in remainder or reverfion, does not exclude the half-blood. For, where a perfon having fuch a right, dies before the eftate in remainder or reverfion falls into poffeffion, he cannot acquire fuch a feifin as to become the ftock of an inheritance, and, therefore, his heir of the half-blood, if he is heir to the donor or fettler of the remainder or reversion, will become entitled to it.

§ 7. If there be a gift to baron and feme in fpecial tail, remainder to the right heirs of the baron, and they have iffue and the feme dies, and the baron takes another feme and hath iffue and dies, and the eldest fon enters, and dies without iffue, the fecond fon of the half-blood fhall have the remainder; because the eldeft was not feised thereof in his demesne.

A Right to a does not exclude the

Remainder

Half-Blood.

1 Roll Ab. cites 37 Aff. 4 24 Ed. 3. Jenkins v. Prichard, Ante f. 5.

628. Pl. 6.

Lord Coke has ftated this cafe, and obferved, that 1 Inft. 14b. the rule is, that poffeffio fratris de feodo fimplici facit

fororem effe hæredem, and here the eldest fon was not poffeffed of the fee fimple, but of the eftate tail.

628. Pl. 7. cites 29 Edw.

3.

§ 8. If land be given to I. for life, remainder to R. Roll Ab. his fon in tail, remainder to the rights heirs of I., and I. dies, and R. enters as tenant in tail, and dies without iffue, T. the fon and heir of I. of the half-blood to R. fhall have the land by defcent, and not the heir of R., becaufe R. was never feifed in fee in demefne.

VOL. III.

Hh

§ 9. So,

Idem Pl. 8.

Idem Pl. 9. cites 5 & 32 Edw. 3.

1 Inft. 154.

Idem, and Note 5.

$ 9. So, if a gift be made to a perfon in tail, remainder to his right heirs, and after the donee dies, having issue a fon by one venter, and a fon by another venter, and the eldest fon enters and dies without issue, his brother of the half-blood fhall inherit the remainder by descent, because his brother was never feifed thereof in demefne.

S10. So, if the eldest fon be feifed in tail, with a remainder or reverfion by defcent to him from his father in fee, and dies without iffue, his brother of the half-blood shall have the remainder or reverfion by defcent, because his brother was never feifed thereof in demefne.

S 11. Lord Coke fays, if a father makes a leafe for life, or a gift in tail and dies, and the eldeft fon dies in the lifetime of the tenant for life, or tenant in tail, the younger fon of the half-blood fhall inherit the reverfion; because the tenant for life or tenant in tail was feifed of the freehold, and the eldeft fon had nothing but the reverfion expectant upon that freehold, and therefore the younger fon fhall inherit the land as heir to his father, who was last feifed of the freehold.

§ 12. Lord Coke alfo obferves, that although a rent had been referved on the leafe for life, and the eldest fon had received it, yet it was holden by fome, that the younger brother fhould inherit: becaufe the feifin of the rent was no actual feifin of the freehold of the

land,

land; but that 35 A pl. 2. feemed to the contrary, because the rent iffued out of the land, and was in lieu thereof. But it is faid in Lord Hale's Notes, published by Mr. Hargrave, to have been adjudged in the cafe of Piper v. Mafters, Trin. 1657, that in fuch a, cafe fe:fin of rent did not make a poffeffio fratris.

§ 13. Although the eldest fon enters on the death 1 Inft. 15 a. of his father and gets actual poffeffion of the fee fimple, yet, if the widow of the father be endowed of a third part, and the eldest fon dies in the life-time of the widow, the younger brother of the half-blood will inherit the reverfion of the third part, notwithstanding

the elder brother's entry; because the actual feifin Tit 6. Ch. 4. which he acquired thereby, was defeated by the en

dowment.

£29.

Ca. 25.

§ 14. Where there are two fons or two daughters Jenk.cent.6. by different venters, and a remainder or reverfion expectant upon an estate for life is purchased by the father, who dies in the life-time of the tenant for life, and the eldeft fon or daughter alfo dies in the life-time of the tenant for life, the half-blood fhall inherit; for, in this cafe, the claim is from the father.

§ 15. Where the perfon entitled to a remainder of reverfion exercises an act of ownership over it, by granting it for life or in tail, this is deemed equivalent to an actual feifin of an eftate, which is capable of being reduced into poffeffion by entry, and will make the perfon exercifing it a new ftock or root of inheritance.