principles of the common law, which are applicable to this fubject. § 2. It is a rule of the common law, that no inheritance can veft, nor can any perfon be the actual complete heir of another, till the ancestor is previously dead: Nemo eft hæres viventis. Before that time, the Person who is next in the line of fucceffion is called an heir apparent, or heir prefumptive. Heirs apparent are fuch whofe right of inheritance is indefeasible, provided they outlive their ancestor; as the eldest fon or his iffue, who must by the courfe of the common law be heir to the father, whenever he happens to die. Heirs prefumptive are fuch who, if the anceftor fhould die immediately, would, in the present circumstances of things, be his heirs; but whofe right of inheritance may be defeated, by the contingency of fome nearer heir being born. , The Ancestor muft die feifed. § 3. Another rule of the common law refpecting descents, is, that no perfon can properly be fuch an ancestor, as that an inheritance can be derived from him unless he has had actual feifin, or, as Lord Coke 1 Inft. 11 6. expreffes it, "A man that claimeth as heir in fee fimple to any man by defcent, muft make himself " heir to him that was last seised of the actual free"hold and inheritance." 66 § 4. Lord Hale fays-" The laft actual feifin in Hift. c. 11. any ancestor, makes him as it were the root of the "defcent, equally to many intents, as if he had been "a purchaser; and therefore he that cannot, accord 2 Comm. 209. Tit. 1. f. 35. Lit. f. 8. I Inft. 1 1 b. 15 4. 1 Inft. 15 b. Exceptions to this Rule. 66 ing to the rules of defcents derive his fucceffion. "from him that was laft actually feifed, though he might have derived it from fome precedent ancestor, fhall not inherit." 66 § 5. The law requires this notoriety of poffeffion as evidence that the ancestor had that property in him-self, which is to be tranfmitted to his heir. The seifin therefore of any perfon makes him the root or stock from which all future inheritance by right of blood must be derived, which is briefly expreffed in the maxim of Fleta, Seifina facit ftipitem. § 6. The nature of feifin, and the difference between feifin in deed, and seisin in law, has been explained in a former title. It is therefore fufficient here to observe that when a perfon acquires an estate in land by descent, it is neceffary that he should gain a feifin in deed, in order to transmit it to his heir; for if he has a seisin in law only, it will not be sufficient. § 7. The rule is the fame with respect to incorporeal hereditaments. So that where an advowfon in gross or a rent, defcends to a perfon, he muft actually present to the church and receive the rent, before he can become the ftock of a defcent. But if the advowfon be appendant to a manor, there actual feifin of the manor will give an actual feifin of the advowfon. § 8. Where an ancestor acquires an estate by his own act, that is, by purchase, he is in many cafes al lowed lowed to tranfmit it to his heirs; although he never had actual feifin of it himself. Thus it is laid down arguendo in Shelley's cafe, that Rep.98 a if a fine was levied to A. in fee, and afterwards, but before execution, A. died, his heir might enter; and though he were the first that entered, yet he fhould be in by defcent; it being a rule that, where the heir takes any thing which might have vested in the anceftor, the heir should be in by defcent. It was however observed that in a case of this kind the heir would not have been in directly by descent, either to be in ward, or to have had his age, or to have tolled the entry of one who had right. § 9. In the cafe of an exchange, if both parties die before either enters, the exchange is totally void. Rep. 98 b. But if one of the parties enters, and the other dies before entry, his heir may enter, and shall be in by descent. § 10. In the cafe of equitable interests, an ancestor may tranfmit them to his heir without ever having obtained any kind of feifin or poffeffion whatever. Thus where a perfon contracts for the purchase of a real estate, and dies before it is conveyed to him, this equitable interest will defcend to his heir, if not de vifed away. Potter v. Potter, Vef. 437. § 11. I now return to the first canon of descent, in Explanation confequence of which, whenever a perfon dies feised of the fir.t Canon. of A Defcent may be defeated by the Birth of a nearer Heir. Goodtitle v. 1 Inft. 11 6. of a real estate, leaving iffue, it immediately defcends to fuch iffue; on whom the law cafts the freehold before entry. § 12. In confequence of the principle that the freehold shall never if poffible be in abeyance, lands always defcend to the person who is heir at the time of the death of the ancestor; but fuch defcent may be defeated by the subsequent birth of a nearer heir. § 13. Thus where a perfon dies leaving his wife enfient, the law, not confidering the infant in ventre matris to be in existence, cafts the freehold on the perfon who is then heir. But when the pofthumous child is born, his guardian may enter upon fuch heir, and take the estate from him. S 14. It feems to have been formerly doubted whether in a cafe of this kind the pofthumous child was entitled to the profits from the death of his ancestor, or only from the time of his birth. But in a modern cafe Lord Ch. Juft. De Grey laid it down as clear law, upon the authority of a cafe in the Year Books, Trin. Hen. 6. 25 a. that a pofthumous child was not entitled to any profits received before its birth, because the entry of the heir was congeable, until the pofthumous child was born. 9 S 15. Lord Coke fays, if a man has iffue a fon and a daughter, and the fon purchafes lands in fee and dies without iffue, the daughter fhall inherit the land from him. But if afterwards the father has iffue a fon, fon, this fon fhall enter into the land as heir to his brother, and ouft his fifter. § 16. So where a fon purchased land, and died without iffue, the uncle entered as his heir, and two years after the father had iffue another fon; it was held that such other fon might enter on his uncle. § 17. The laft claufe of the firit canon of defcent, by which parents and all lineal ancestors are excluded from fucceeding to the inheritance of their offspring, is derived from the Feudal Law, in which it was an established rule that the afcending line could in no cafe inherit a feud. This rule was fully established in England in the time of Henry 2. for Glanville fays, Hæreditas nunquam autem naturaliter afcendit. And it was probably derived immediately to us from the cuf toms of Normandy. § 18. Littleton fays- If there be father and fon, Sec. 3. "and the father hath a brother that is uncle to the "fon, and the fon purchase land in fee fimple, and "die without iffue, living his father, the uncle fhall "have the land as heir to the fon, and not the fa"ther; yet the father is nearer of blood; because it "is a maxim in law, that inheritance may lineally de"fcend, but not ascend. Yet if the fon in this cafe "die without iffue, and his uncle enter into the land "as heir to the fon (as by the law he ought) and "after the uncle dieth without iffue living, the father "fhall have the land, as heir to the uncle, and not as " heir to his fon." |