OF

CHAP. V.

DESCENTS EX PARTE MATERNA; AND WHAT SHALL CHANGE SUCH DESCENT, AND GIVE THE PREFERENCE TO THE PATERNAL LINE.

[147]

IF a person succeeds to an estate as HEIR to his Descent ex mother and dies without issue, his heirs on the parte materné. part of his mother shall inherit such estate, and not his heirs on the part of his father: and, e converso, if it descends from his father, it shall devolve, on the death of the son, to his heirs of the paternal line (a) [1].

(a) See ante, ch. 2, p. 89; Litt. s. 4; 2 Bl. Comm. ch. 14, p. 222, 234; [Doe v. Willan, 2 Barn. & Ald. 84.]

[1] The case of Hawkins v. Shewen, 1 Sim. & Stu. 257, is a good illustration of the rule as to descents ex parte materna. In that case G. P. died without issue, seised of estates which had descended to him from his mother, to whom they had descended from A. J. the first purchaser; and it was held that Jane Matthews, who was of the whole-blood to G. P., and his nearest relative on the part of his father, could not establish her title as his heir, although she was of the blood of A. J.; because she was not proved to be the nearest relative of the blood of A. J. Her relationship to A. J. was traced through the mother of one of his paternal ancestors, and it was not shewn that the blood of the father of such paternal ancestor was exhausted.

Part of the case of Burgess v. Wheate, 1 Eden, 177, is an example of the

Purchaser

takes ut antiquum.

Paternal line preferred.

[148]

But if a person takes an estate BY PURCHASE, he takes it ut feudum antiquum; and, consequently, it shall descend to his heirs on the part OF HIS FATHER, as of the worthiest blood; the law never calling in the heirs on the part of the mother to the inheritance of the son, unless such inheritance had actually descended from the mother, or until the blood of the father be exhausted. And when the son takes BY PURCHASE, it could not possibly (by the terms) have actually descended to him from the mother, or from any one else; but, as he takes it UT ANTIQUUM, the supposed or presumed descent is from the father, to whose line the preference in law is given; and, therefore, as it has been said, the estate acquired by the son as a purchaser shall descend to his heirs on the part of his father (b).

For should a son take an estate by purchase,

(b) Litt. s. 4; Co. Litt. 12; and see ante, ch. 2, note (a), and art. vii.

rule as to paternal descents. In that case a person died seised of estates which had descended to him ex parte paterna, and it was held that on failure of his issue, and of his paternal heirs, his heirs ex parte maternâ could not inherit.

Under the 3 & 4 Wm. IV. c. 106, the heir of the mother or of the father, as the case may be, will be entitled to inherit, instead of the heir ex parte materná, or ex parte paterna. Before that act, if the deceased had gained an actual seisin, the heir of the mother or of the father of the whole-blood to the deceased was the person entitled to inherit in default of issue, according to the rule of possessio fratris explained in Chap. I.; but now descent shall be traced from the purchaser, that is, from the mother in the one case, and from the father in the other. See note, ante, p. 50 of this edition.

and it be expressly limited to him and his heirs of the part of his mother, yet his heirs of the part of his father shall succeed to the estate for it is not in the power of an individual (nor even of the king (c) to institute a new kind of inheritance not allowed by the law (d).

(c) Bro. Abr. tit. Patentes et Grantes le Roy, 104; Hob. 224; Lord Lovel's case, cited 1 Co. 43 b; and next note (d). (d) Co. Litt. 13 a, 27 a; Plowd. 251, 335; Beresford's case, 7 Co. 40 b; 1 Brownl. 45; 2 Ibid. 334; Roe d. Aistrop v. Aistrop, 2 Bl. Rep. 1229.

So if lands descend differently from the course of the common-law, as in Borough English, for instance, the person seised of such lands cannot alter the descent: as if one seised in Borough English make a feoffment to the use of himself and the heirs male of his body, "according to the course of the common-law;" the words " according to the course of the common-law," are void; and the youngest, and not the eldest son, shall take the entail. Dyer, 179, pl. 45; Jenk. Cent. 220, pl. 70, S. C.; and see further of Gavelkind and Borough English, Robins. on Gavelk. b. 1, ch. 5, p. 52, 65, 74; ch. 6, p. 94, 5; and Roe d. Aistrop v. Aistrop, 2 Bl. Rep. 1228; [Doe v. Garrod, 2 Barn. & Adol. 87.]

&c.

But if A REMAINDER be limited of lands in Borough English Of a remainder or gavelkind "to the right heirs" of a particular person, the in gavelkind, eldest son shall take. For such customs are that lands shall DESCEND to all the sons, or to the youngest of them; and have nothing to do with a PURCHASE, which such remainder evidently is; and, consequently, being without the custom, it is the province of THE COMMON LAW to point out the person who shall now take as heir. See Bro. Abr. tit. Descent, 59; tit. Done, 42 ; Co. Litt. 10 a; Hob. 31; 1 Co. 101 a, 103 a; and see Robins. on Gavelk. b. 1, ch. 6, p. 117; Roberts v. Dixwell, 1 Atkyns, 607; Brown v. Barkham, Prec. in Chan. 464; Davy's Rep. 31 a; Kitch. 86 a.

[149]

Supposing then an estate descending ex parte materna, we will inquire what will be sufficient to

And when the law ascertains who shall take a remainder we must be careful to recollect that it is taken BY purchase. For though this is in itself so evident, yet we may, perhaps, from want of sufficient attention, be led to suppose that if there are more than one who are heirs-at-law to the person described, they shall take such remainder as they would have succeeded to an inheritance: for, notwithstanding we must thus have recourse to the law of DESCENTS to ascertain the persons who are to take, yet, when they are once ascertained, we have nothing further to do with it; for the persons then take AS PURCHASERS. And therefore, if a remainder be limited to the right heirs of A. and A. die during the particular estate, leaving several sons; as the law declares the eldest only to be his heir, the eldest only shall take such remainder. See Co. Litt. 220 a; 1 Co. 104; Brown v. Barkham, 1 Strange, 42.

But in case A. had died, leaving two daughters, as the law considers them both as his heir, they shall both take; but as they take as purchasers, they shall not have it in parcenary, (for to do this they must have taken by descent, Litt. s. 254), but as joint-tenants, or as tenants in common. See Stowell v. Earl of Hartford, 3 Leon, 14, case 32; and see also Counden v. Clerke, Hob. 33; Bro. Abr. tit. Descent, 24; tit. Done, 21; Fitz. N. B. 219, B; Co. Litt. 163 b; [1].

So if A. had had three daughters, and the eldest of them had died, leaving several sons; the second leaving two daughters; and the youngest be living; and then the remainder vest: we must inquire who were then, (for it matters not who were before (at his death), or who might be thereafter; see ante, ch. 4, p. 135; and Bro. Abr. tit. Done, 21), the right heirs of

[1] In Mounsey v. Blamire, 4 Russ. 384, under a bequest of money by a testatrix to her heir, it was held that her three co-heirs were entitled as joint tenants.

break such descent, and cause the estate to go in future to the heirs ex parte paternâ.

And, in or- break the de

scent.

A.? And these we find to have been the eldest son of the eldest daughter, the two daughters of the second, and the youngest daughter herself: these, therefore, should take the remainder; and they should take it in equal portions as jointtenants. For though they had succeeded as to the inheritance of A. they would have taken per stirpes, and not per capita (the eldest son one-third part, the two daughters one other third part between them, and the aunt the other third); yet such would be the manner in which they would have taken BY DESCENT, and not that in which they should take BY PURCHASE for being then all equally the heirs of A. they all equally answered the description given; and, consequently, all were equally entitled to take; and, where more than one take together, by purchase, it must be either in joint-tenancy

or common.

And note: In bequests of personal property to "the relations" or 66 next of kin," of any one, the statute of distribution furnishes the rule as to the objects of the bequest, i. e. ascertains the persons comprehended in those terms; but when they are ascertained, the statute ceases to be a rule: And the persons taking shall take per capita, though the act might, in a similar case, order the distribution of the effects of an intestate to be made according to their stocks or roots. See Thomas v. Hole, Cas. temp. Talb. 251; Roach v. Hammond, Prec. Chan. 401; Harding v. Glyn, 1 Atk. 470; Anonymous, 1 P. Wms. 327; and see Blackler v. Webb, in Mr. Coxe's note (1) to 2 P. Wms. 385, and the books by him cited [1].

[1] In the late case of Elmsley v. Young, 2 M. & K. 780, it was held by the Lords Commissioners, Shadwell and Bosanquet, reversing the decision of Sir John Leach, M. R. that the words "next of kin,” mean nearest of kin, and not the next of kin according to the Statute of Distribution; so that a brother surviving was held entitled in exclusion of the children of a deceased brother. The Master of the Rolls had a short time previously,