So also in the case of an exchange: If both Exchange. parties die before either enter, the exchange is void but if one enter, and the other die before entry, yet his heir may enter, and shall be in BY DESCENT (c) [1].

So, in case of a devise to A. in fee, and A. die Devise. after the devisor, without having ever made any

actual entry himself; yet his heir

shall take BY DESCENT (d), had but a seisin in law (e).

may enter, and (though the devisee So also, on a devise

(c) See Perkins, s. 285, 286, and 1 Rep. 98 b. (d) See Hulm v. Heylock, Cro. Car. 200.

(e) See Co. Litt. 111 a, 240 b; and see Bishop v. Bishop, Jenk. Rep. 227, pl. 92; and Dyer, 221, pl. 16; Doct. and

admittance, it is the customary heir of the devisor, and not the heir of the devisee who is entitled to be admitted. But if the legal right of a surrenderee, dying before admittance, descends to his heir according to the text, the legal right of a devisee so dying must also descend to his heir. It is true the legal estate in the copyhold descends to the customary heir of the devisor, just as the legal estate, in the case of a surrender, remains till admittance in the surrenderor and his heirs; yet, as the heir of the surrenderee dying before admittance, is entitled to admittance by reason of his mere legal right, the heir of the devisee so dying must also be entitled to admittance for the same reason. It does not follow, because the surrenderee or devisee has nothing to devise or surrender, that he has, therefore, nothing that can descend. A right and a possibility are not grantable at law, yet they are descendible. In the late cases of Wainewright v. Elwell, and Phillips v. Phillips before referred to, this point was not raised. The new act for the amendment of the law of inheritance, extends to all hereditaments, whether freehold or copyhold, or of any other tenure, and whether descendible according to the common law, or according to the custom of gavelkind, or borough English, or any other custom; but as it changes the course of descent in comparatively few cases, questions between the heir-at-law and the customary heir of a surrenderee or devisee may still arise.

[1] This must be understood of an exchange at common law.

[21]

Remainder.

[22]

by custom before the statutes of Hen. VIII. the heir of the devisee might have had a writ of ex gravi querula, if the devisee had died after the devisor, and before entry (ƒ).

If a person takes a remainder at the time of its creation, otherwise than by way of use or devise, the seisin is delivered to the particular tenant of the freehold which seisin shall enure and give effect to all the remainders limited thereon (g). In case a remainder be limited by way of use or by devise, as these modes were introduced, (the latter, perhaps, revived :) see ante, p. 7, and note (k), [note (s),] since the de

Stud. Dial. 2, c. 33; Touchst. 455; Bull. N. P. 103; 2 Mod. 7; Co. Litt. 214, 236; Plowd. 412, 413; 10 Co. 40 b; Matheson v. Tret, 1 Leon, 290, case 293; 3 Bl. Comm. 168, ch. 10.

(f) See Fitz. N. B. 199 B, 200 B; and compare with Co. Litt. 111, and Fitz. N. B. 200 B. and note (a), p. 463 of 8th edit. 1755, 4to.

(g) See Litt. s. 60, 450; see also 1 Vent. 260, 1; and 2 Bl. Comm. 167, ch. 11.

So the admission of the particular tenant for life or years of copyhold premises, is the admission of him in remainder; but so as not to prejudice the lord of his fine, where by custom such fine is due. See Fitche's case, 4 Co. 23 a; Blackborne v. Greaves, 2 Levintz. 107; Batmore v. Graves, 1 Vent. 260, 1; Dell v. Higden, Moore, 358, case 488; Tiping v. Benning, Moore, 465, case 658; Blackborne v. Greaves, 1 Mod. 102 and 120, 1; Lex Custumaria, ch. 17, p. 152, ch. 18, p. 166; Gilb. Ten. 163, 194; Co. Compl. Copyh. s. 56, p. 130, and Supplement, s. 7, p. 162. See 2 Comyns's Dig. 391. tit. Copy

cline of the feudal system, there needs no livery to be given at all; yet the remainders so limited become equally transmissible to the heirs of the devisee, or cestui que use. And it is the same with respect to executory devises, contingencies, and possibilities (h).

If a person took a remainder by a mesne Attornment. grant, such grant was anciently attended with attornment; but now attornment is not necessary (i) [1].

relation.

In the case also of EQUITABLE relations; if the Equitable ancestor executes articles of purchase, and dies before such purchase be completed, A COURT OF EQUITY will compel such completion in favour of the heir of the purchaser; the vendor being considered as a trustee for the vendee; and the estate shall, IN THE CONTEMPLATION OF SUCH COURT,

hold (G 9); 6 Vin. Abr. tit. Copyhold (P b) and (Ce) pl. 15; Kitch. Courts, 122 a; Auncelme v. Auncelme, Cro. Jac. 31, pl. 1; Barnes v. Corke, 3 Lev. 308. [2]

(h) Ante, p. 4, and post, ch. 3, s. 2, p. 122.

(i) See Gilb. Ten. Co. Litt. &c. under Attornment. And see the statutes 4 & 5 Ann. c. 16, and 11 Geo. II. c. 19, and Co. Litt. 309 a, note (1) (Harg. & Butl. edit.) and Doug. 283.

[1] The heir will, no doubt, under the late act for the amendment of the law of inheritance be held, to be still in by descent in the above mentioned cases of a purchase not absolutely complete in the lifetime of the ancestor.

[2] See also Doe d. Whitbread v. Jenny, 5 East, 522; Dean and Chapter of Ely v. Caldecott, 8 Bing. 439; Phypers v. Eburn, 3 Bing. N. C. 250.

[23]

Actual seisin necessary on a descent.

be deemed in such purchaser from the time of the execution of the articles, so as to be capable of being devised by such ancestor, or inheritable by his heir (k) [1].

may

Thus, in case the ancestor takes BY PURCHASE, he be capable of transmitting the property so taken to his own heirs, without any actual possession in himself; but if the ancestor himself takes BY DESCENT, it is absolutely necessary, in order to make him the stock or terminus from whom the descent should now run, and so enable him to transmit such hereditaments to his own heirs, that he acquire an ACTUAL SEISIN of such as are corporeal, or what is equivalent thereto in such as are incorporeal (1); or that he exert some

(k) Greenhill v. Greenhill et al., Preced. Chanc. 320; Potter v. Potter, 1 Vesey, 437; Hinton v. Hinton, 2 Vesey, 631; Shepp. Touchst. 429, note (2), (edit. of 1729); Langford v. Pitt, 2 P. Wms. 629; Green v. Smith, 1 Atk. 572.

But we must not confound these equitable interests with estates at common-law; for such an interest as mentioned above is incapable of an actual seisin. It is stated from its analogy to the cases preceding it, and not as furnishing a rule for common-law estates. For on the completion of the agreement by conveyance to the heir, such heir would undoubtedly take by purchase at common-law; however, he may be considered as being in by a court of equity. See post, c. 5, Goodright d. Alston v. Wells et al. and Dougl. 771.

(1) See 2 Bl. Comm. 209, ch. 14; Gilb. Ten. 12; Co.

[1] See 1 Sugd. Vend. and Purch. c. 4, s. 1, where this subject is fully treated of.

act of ownership over such as are in reversion or remainder expectant upon an estate of freehold (m).

For though the heir of the person to whom the fine sur cogn. de droit tantum, &c. was levied, or to whom the surrender was made: though the heir of the party to the exchange who died before entry, of the devisee, of the remainderman, or of the purchaser, shall succeed to the hereditaments of their respective ancestors by descent, though those ancestors had never had any actual seisin, yet, in order to enable them to turn the descent, and transmit such hereditaments to their own heirs, it is indispensably necessary that such persons, who so succeed BY DESCENT, gain an ACTUAL POSSESSION, or what is equivalent thereto, in the respective premises; otherwise they shall descend, not to their heirs,

[24]

[25]

Litt. 11 b, 15 a, 40 a, 239 b; Hale's Hist. of the Comm. Law, 267, ch. 11; Wright's Tenures, 183, and note (9), ch. 3; Ratcliff's case, 3 Rep. 41 b, 42 a & b; 8 Rep. 36 a, in Pain's case; Noy's Maxims, 22, 3, ch. 4; Kitch. Courts, 109. See Newman v. Newman, 3 Wilson, 526. But note: though it be necessary that the ancestor be seised, yet it is by no means required that such seisin continue till the death of such ancestor; for if he had been seised at any time during his life, and afterwards disseised, still, if he had not parted with his right or property, his heir shall inherit. See post, s. 3; see Coke's Read. on Fines; Tracts, 270; Co. Litt. 237 b. And note, intended a dying seised.

if a seisin be pleaded, it shall be

See Paston v. Townsend, 4 Leon, 97. (m) See post, ch. 3, s. 1.

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