have other issue descending from them besides the deceased, in a parallel or collateral line. From these ancestors the heir of J. must derive his descent; and in such derivation the same rules must be observed with regard to sex, primogeniture, and representation, that have before been laid down with regard to lineal descent from the person of the last proprietor. Here again we must observe, in respect to collateral inheritances, that the heir need not be the nearest kinsman absolutely, but only sub modo; that is, he must be the nearest kinsman of the whole blood; for if there be a much nearer kinsman of the half blood, a distant kinsman of the whole blood shall be admitted, and the other entirely excluded $. A kinsman of the whole blood is he that is derived, not only from the same ancestor, but from the same couple of ancestors. As if the blood of J. S. was composed of those of G. S. his father, and L. B. his mother, therefore his brother F., being descended from both the same parents, hath entirely the same blood with J. S., or he is his brother of the whole blood. But if after the death of G. S. L. B. the mother marries a second husband L. G., and hath issue by him, the blood of this issue, being compounded of the blood of L. B. (it is true) on the one part, but that of L. G. instead of G. S. on the other part, it hath therefore only half the same ingredients with that of J. S.: so that he is only his brother of the half-blood, and for that reason they shall never inherit to each other. So also, if the father has two sons, A and B, by different venters or wives; now these two brethren are not brethren of the whole blood, and therefore shall never inherit to each other, but the estate shall rather escheat to the lordt. Nay, even if the father dies, and his lands descend to his eldest son A, who enters thereon, and dies seised without issue, still B shall not be heir to this estate, because he is only of the half blood to A the person last seised; but, had A died without entry, then B might have inherited; not as heir to A, his half-brother, but as heir to their common father, who was the person last actually seised ". In collateral inheritances, the male stocks shall be preferred to the female (that is, kindred derived from the blood of the male ancestors shall be admitted before those from the blood of the female'), unless where the lands have, in fact, descended from a female'. Thus the relations on the father's side are admitted in infinitum, before those on the mother's side are admitted at all; and the relations of the father's father, before those of the father's mother, and so on 2. Yet whenever the lands have notoriously descended to a man from his mother's side, this rule is totally reversed, and no relation of his by his father's side, as such, can ever be admitted to them; because he cannot possibly be of the blood of the first purchasor. And so, e converso, if the lands descended from the father's side, no relation of the mother, as such, shall ever inherit. So also if they in fact descended to J. S. from his father's mother C. K.; here not only the blood of L. B. his mother, but also of G. S. his father's father, is perpetually excluded. And, in like manner, if they be known to have descended from F. H. the mother of C. K., the line not only of L. B. and of G. S., but also of L. K. the father of C. is excluded. Whereas when the side from which they descended is forgotten, or never known (as in the case of an estate newly purchased to be holden ut feudum antiquum, or as a feud of indefinite antiquity; as all the estates held in fee-simple throughout the kingdom are held b), the right of inheritance runs up all the father's side, with a preference to the male stocks in every instance; and if it finds no heirs there, it then, and then only, resorts to the mother's side, leaving no place untried, in order to find heirs that may, by possibility, be derived from the original purchasor. The greatest probability of finding such was among those descended from the male ancestors; but upon " Hale, H. C. L. 238. 2 Black. 227. * Hale, H. C. L. 241. 2 Black. Com. 234. y 2 Black. 234. a 2 Black. 236. b Ibid. 222. 2 Black, 234. failure of issue there, they may possibly be found among those derived from the females c. From what has been here said, the reader may form an idea of the law of descents in fee-simple; and for a more full and perspicuous view thereof, we shall refer to the learned authors here cited, especially to the commentaries of judge Blackstone; where it need not be said this subject is amply treated on, as it is well known, by the book being in the hands of most of the profession of the law, as well as of many of the nobility and gentry throughout the kingdom; on which account, and for its repute and authenticity, it has hitherto been frequently cited instead of other authors. As to the heir, he is much favoured by the law; as not being liable to pay any simple contract debts due from the deceased, not even if the estate was purchased with the money for which the simple contract debts are dued (12). And in case the estate is mortgaged, if the deceased have left enough personal estate to discharge all his debts, the real estate must be redeemed for the benefit of the heir. But where the deceased has not left a sufficiency of personal estate to discharge all his debts, the real estate will be liable to answer those due by bonds and special contracts, whereby he hath bound himself and his heirs; and this estate descending from the deceased ancestor, who hath thus bound himself and heirs, will be real assets, or assets by descent, mentioned in a former chapter. And where the real estate is given to any person. By the statute of the 3 W. & M. c. 14. it is enacted, that all wills and testaments, limitations, dispositions, or appointments, of or concerning any manors, messuages, lands, tenements, or hereditaments; or of any rent, profit, term, or charge out of the same, whereof any person at the time of his decease shall be seised in fee-simple, in pos 2 Black. 236. d 3 Black. Com. 430. when liable to answer debts or legacies, will be treated on in a subse Page 55.- Assets by descent, quent part of our work. (12) See ante, p. 55. n. 17. session, reversion, or remainder, or hath power to dispose of the same by his last will and testament; shall be deemed and taken to be fraudulent, and absolutely void and of none effect, against such persons, their heirs, successors, executors, administrators and assigns, to whom the deceased shall, by bonds or other specialties, have bound himself and his heirs and all such creditors may have and maintain actions of debt upon their bonds and specialties, against the heir at law of the obligor and such devisee jointly. Yet it is provided, that, where there shall be any limitation or appointment, devise or disposition, of or concerning any manors, messuages, lands, tenements, or hereditaments, for the raising or payment of any real or just debts (13), or any portions or sums of money for any child or children of any person, other than the heir at law, according to any marriage contract or agreement in writing, bona fide made before such marriage, the same shall be in full force; and the same manors, messuages, lands, tenements, and hereditaments, shall be holden and enjoyed by every such person, his heirs, executors, administrators, and assigns, for whom the said limitation, appointment, devise or disposition was made, and by his trustee or trustees, their heirs, executors, administrators, and assigns, for such estate or interest as shall be limited or appointed, devised or disposed, until such debt or portion shall be raised and paid f. And where any heir at law shall be liable to pay the debt of his ancestor, in regard of any lands, tenements, or hereditaments descending to him, and shall sell, alien, or make over the same, before any action brought, or process f A devise for payment of debts must provide for it in a practicable manner, otherwise it will be within the meaning of this act; as shewn in a subsequent part of our work, where further mention is made concerning fraudulent devises, (13) A direction accompanying a devise of real estate to pay simple contract before specialty creditors has been determined not to be void; since being a disposition for payment of debts, it satisfies the words of this proviso. Miller v. Horton, Coop. 45. sued out against him; it is enacted, that such heir at law shall be answerable for such debt, in an action of debt, to the value of the land so by him sold, aliened, or made over; in which case all creditors shall be preferred, as in actions against executors and administrators, and such execution shall be taken out upon any judgment so obtained against. such heir, to the value of the said land, as if the same were his own proper debt; saving that the lands, tenements, and hereditaments, bona fide aliened before the action brought, shall not be liable to such execution. SECTION II. How the Law disposes of a Wife's real Estate; or the Law concerning a Tenancy by the Curtesy of England. WHERE a man taketh a wife seised of an estate in feesimple, or fee-tail, and hath issue by her; although the issue afterward die or live, the husband shall hold the land during his life, as tenant by the curtesy of Englands. To make a tenancy by the curtesy, these four requisites are necessary: marriage, seisin of the wife, issue, and death of the wife. 1. The marriage must be canonical and legal. 2. The seisin of the wife must be an actual seisin or possession of the lands; not a bare right to possess, which is a seisin in law, but an actual possession, which is a seisin in deed: therefore a man shall not be tenant by the curtesy of a remainder or reversion". But entry is not always necessary to give seisin in deed; for if the land is in lease for years, curtesy may be without entry or even receipt of rent, the possession of the lessee for years being deemed the possession of husband and wife. And of some hereditaments a man may be tenant by the curtesy, though there have been no actual seisin of the wife; as in the case of an advowson, where the church has not become void in the lifetime of the wife; $ Co. Litt. 29. h2 Black. Com. 127. i Co. Litt. 29. note 3. 13th edit. |