that, on the other hand, in most cases which admit of possession, and as to equitable estates, the law creates constructive possession, these anomalies are sometimes inevitable; moreover, occasionally nice and doubtful questions arise as to the fact of actual or constructive possession.

The rule itself appears not to be grounded on any solid principle; and, though the inconveniences arising from it will be lessened by admitting the half blood and the lineal ancestor to inherit, it is proposed to abolish it, and to enact that estates shall pass to the heirs of the person who last died entitled, although he may not have had seisin.

It appears expedient to extend all the above proposed rules to the inheritance of lands held by tenures or customs different from the general tenure of free and common socage, as copyhold lands and customary freeholds, and lands held in ancient demesne, and borough English and gavelkind lands, and also to descendible freeholds.1st Rep. pp. 10–16.

The following Propositions are annexed to the Report.

ASCENDING LINE.

1. The rule that inheritance shall not ascend shall be abolished. 2. The rule that descent between brothers and sisters is immediate shall be abolished.

3. The ascending line shall come next after the lineal descending line.

4. In the ascending line preference shall be given to proximity of blood to the person last seised or entitled, preference to the male line over the female line without regard to the proximity of blood being preserved.

5. The lineal descendants of a deceased ancestor, who would succeed to the inheritance, through such ancestor, if the rule that inheritance shall not ascend were preserved, shall stand in the place of such ancestor in the order of inheritance.

FEMALE LINE.

6. Declare and enact, that where from failure of the male ascending line, inheritance shall pass to any female ancestor, or any person or persons claiming through any female ancestor of the first purchaser, preference in tracing inheritance shall be given to the male ascending line of the first purchaser, and of his ancestors without regard to proximity of kindred, so that the mother of the paternal grandfather of the first purchaser, or her kindred, shall inherit before the mother of the father and her kindred.

HALF BLOOD.

7. The rule that inheritance shall not pass from a person to any of his kindred of the half blood shall be abolished.

8. As amongst kindred claiming through one and the same ancestor of the first purchaser, preference shall be given in inheritance to the whole blood of the first purchaser.

9. Subject to such preference, the whole blood and the half blood shall stand upon equal footing as to inheritance.

LIMITATION TO SPECIAL HEIRS.

10. Hereditaments may be limited to any person and his heirs on the part of any ancestor, in which case the same shall pass in the course of inheritance to his heirs-at-law on the part of such ancestor.

11. When, in case of inheritance having passed to the half blood, the heir of the person last seised or entitled shall not be the heir of the purchaser, the heir of such purchaser shall be the person to take the same by inheritance.

12. When the blood of any ancestor from whom, as a first purchaser, inheritance shall have descended, or of the specified ancestor in case of a limitation to heirs on the part of such ancestor, shall fail, such inheritance shall pass as if the person last seised or entitled had been the purchaser, and had taken without reference to any ancestor.

SEISIN OF ANCESTOR.

13. The rule that hereditaments shall pass by inheritance to the heir of the person last actually seised, shall be altered as follows:

hereditaments, or the right thereto, shall pass by inheritance to the heir of the person last seised of or entitled to the estate, right, or interest to be taken by inheritance, although such person may not have had seisin.

14. The above rules shall extend to copyhold and customary lands of inheritance, and lands held by the tenure of ancient demesne, and to gavelkind lands, and borough English lands, and to freehold tenements for lives granted or devised or limited to any person and his heirs general.

OBSERVATIONS.

The proposals 1, 2, 3, 4, and 5, as to the ascending line, have, it will be seen, been carried into effect by the 5th, 6th, and 7th sections of the act. The 6th proposal, as to the female line, is provided for in the 8th section of the act. The proposals 7, 8, and 9, as to the half blood, are provided for by the 9th section. Here however ends the congruity between the act proposed by the Real Property Commissioners, and that which has actually passed into a law.

The first enactment of the act for the amendment of the law of inheritance, namely, that in every case descent shall be traced from the purchaser, is, as has been observed before,* directly in opposition to the expressed intention of the commissioners. Under the act no person can be the stock of inheritance, if it be proved that he took by descent; but, according to the 13th proposal, hereditaments were to pass by inheritance to the heir of the person last entitled, in whichever way he took. The act abolishes possessio fratris altogether; the Commissioners would have made a possessio fratris in every case. The enactment proposed by them would have amounted to a simple declaration, that wherever a person was entitled to possession, he should be deemed to have taken it. The end of the Commissioners was to facilitate the discovery of the heir; and for this purpose to supply a ready answer to the question, whose heir is to be found? Ante, p. 51.

Their answer would have been-The heir of the person last entitled; but the answer of the act is-The heir of the purchaser, who may have died long ago. True it is, that the person last entitled shall be considered the purchaser, if it be not proved that he took by inheritance; but, independently of all questions as to the nature of this proof, it may often be easy to prove that the person last entitled inherited long ago from A. B., and yet very difficult to prove who is now A. B.'s next heir.

It may be said that in the case of estates tail and titles of honour, descent is always traced from the purchaser; but it must be remembered that in these cases the lineal heirs only of the purchaser can inherit; whereas, under the act, the descent may be to the most remote collateral heir; so that on the death of one heir there will be a greater probability of its being difficult to find the next. It is possible that some difficulty may have been found in carrying the proposal of the Commissioners into effect; but, in the humble judgment of the writer, if it could have been effected, it would have been a more beneficial alteration than the present enactment.

The enactment contained in the 3rd section of the act does not appear to have been proposed by the Commissioners. Its insertion is a tacit admission of the advantage of tracing the descent rather from the person who last died entitled, than from one of his distant ancestors. The benefit to be derived from it, however, may not improbably be counter-balanced by the difficulties which may arise in its construction.

The proposal of the Commissioners that lands might be limited to a person and his heirs on the part of any ancestor, has been partially adopted in the 4th section of the act; the enactment is perhaps an improvement on the proposal. In a case where so little amendment was really wanted, the smaller alteration is perhaps the better.

The 11th proposal, which might have been necessary, had the 13th proposal, as to the seisin of the ancestor, been adopted, is now included in the sweeping enactment, that in every case descent shall be traced from the purchaser.

It is difficult to see why the 12th proposal has been neglected. The case it intended to provide for, though it may not very frequently occur, is yet one of some hardship when it does.

The 13th proposal has been already noticed.

The 14th proposal has been adopted in the first section of the act. It must be borne in mind that customary descents, except where altered by the act, remain as before. An abolition of these uncertain and troublesome customs, and a general uniformity of descent is much to be wished.