Bro. Ab. Tit. What Seifin is neceffay. f. 8. uncle of the elder brother, or fome other his next coufin fhall have the fame; becaufe the younger brother is but of the half blood. So if a man has a fon and a daughter by one venter, and a fon by another venter, and the fon by the first venter dies without iffue, his fifter fhall be his heir. § 65. If a man has three daughters by one venter and one daughter by another venter, and dies feifed of lands, and all enter, and after two of the daughters by the first venter die, the third daughter of the first venter fhall be heir to them, and fhall have their two parts, and the fourth daughter fhall take nothing from them, because fhe is of the half blood. § 66. We have seen, that no perfon can be fuch an ancestor, as that an inheritance may be derived from him, unless he had actual feifin. Thus, Littleton fays, "When a man is feifed of lands in fee fimple, and "hath iffue a fon and a daughter by one venter, and ઠંડ a fon by another venter, and die, and the eldest "fon enter and die without iffue, the daughter fhall "have the land and not the younger fon; yet the younger fon is heir to the father, but not to his "brother. But, if the elder fon doth not enter into "the land after the death of his father, but die be"fore any entry made by him; then the younger "brother may enter, and fhall have the land, as heir to his father. But, when the elder fon in the cafe "aforefaid enters after the death of his father, and "hath poffeffion, there the fifter fhall have the land; "because because it is a rule, that poffeffio fratris de feodo 3 Rep. 41 b. fimplici facit fororem effe hæredem." § 67. In confequence of this doctrine, it frequently becomes neceffary to determine, whether the heir acquired fuch a feifin, upon the death of his ancestor, as is required by law, to make him the ftock of the inheritance for, if he has not acquired fuch a feifin, then his ancestor is the person who was last seised of the inheritance; and to whom the claimants muft make themselves heirs. 1 Inft. 15 a. I Leon. 265. § 68. It has been stated, that an entry is in most Tit. 1. f. 35cafes neceffary to acquire a feifin in deed; and that, where lands lie in different counties, there mult be an entry in each county. Thus, where the demefnes of a manor extended into two counties, the eldest fon entered into the demefnes in one county only, and took the profits in one county only, and died, without iffue. It was faid by Manwood, that his fifter of the whole blood fhould inherit the demefnes whereof her brother was seised, and the brother of the half blood the rest. $ 69. It has also been stated, that the poffeffion of Tit. 1. f. 39. a termor for years is the poffeffion of the perfon en titled to the freehold. Hence Lord Coke fays, if a 1 Inft. 15 a; father makes a leafe for years, and the leffee enters, and the eldest fon (having fucceeded his father) dies during the term, before entry, or receipt of rent; the younger fon of the half blood fhall not inherit, but the fifter; because the poffeffion of the leffee for years Jenk. Cent. 6. Ca. 25. Tit. 20. f. 11. Small v. is the poffeffion of the elder fon, fo as he is actually feifed of the fee fimple: and confequently, the fister of the whole blood is to be heir. § 70. 4. feifed in fee had two daughters by feveral venters; and devised a moiety of the land to his wife for feven years, and that the eldest fifter fhould enter on the other moiety, on the day of her marriage. A. died; his wife entered and educated the daughters: the eldeft fifter entered with her husband into the other moiety; the younger fifter died without iffue.Refolved, that the heir of the whole blood of the younger fister should have her moiety for the poffeffion of the mother, for seven years, was an actual poffeffion in the younger fifter. § 71. It has been stated that the poffeffion and feifin of one tenant in common is the poffeffion and feifin of the other, and fuch a poffeffion will exclude the half blood. The § 72. A. had iffue B. a fon and M. a daughter by one venter, and N. and O. daughters by another venter, and C. a fon by a third venter, and devised all his lands to his wife durante viduitate and died. wife entered into all. B. the eldest fon died without having entered. It was adjudged that the will was void for a third part, and that the entry of the wife into all made her feifed but of two parts and tenant in common with her fon of the third part, and that the entry of the wife fhould veft fuch poffeffion in common in the son of the third part as should make a poffeffio poffeffio fratris in him for his sister of the whole blood to inherit after the younger fon. $73. The poffeffion of a guardian in focage is the Inft. 15 a. poffeffion of the ward; who thereby acquires an actual feifin without entry. And, where a pofthumous fon is born, and his mother is in poffeffion of the lands whereof his father died feiled, fhe becomes his guardian in focage; and the infant fon will be thereby deemed to be actually feifed of the inheritance, fo as to exclude the half blood. § 74. Alexander Newman being feifed in fee of four meffuages, and having iffue two daughters, died leaving his fecond wife enfient with a fon, who was born fix weeks after the death of his father, and lived five weeks, and then died; his mother continuing all that time in poffeffion of the houses, refiding in one of them with the two daughters, and receiving rent for the others. The question was, whether this was fuch feifin as would exclude the daughters. It was argued for the plaintiff the heir at law of the son, that the fon died laft actually feifed in fee, by defcent, of the premises. That, upon the death of the father, the premises defcended upon his two daughters; who, together with the mother being enfient with a fon, were then in rightful poffeffion; that, upon the birth of the fon, fix weeks after, the estate of the daughters was devested out of them, and the mother then became, and was, guardian in focage to her fon; and that her poffeffion and receiving the rents and profits, was the actual poffeffion and feifin of the fon, and would Goodtitle v. Newman, carry Tit. 6. c. 4. 1. 4. carry the descent of the premises to the heir at law of the fon. The infant fon was in poffeffion as much as it was poffible for an infant to be: for he was born, lived, and died, in one of the houses, which gave a title to the heir of the whole blood; for the law would prefume, that the mother entered rightfully, as guardian to her infant fon, and not wrongfully. For the defendant it was argued, that the rule of poffeffio fratris was extremely fevere, and ought not to be extended, but should be conftrued as favourably as poffible in favour of the daughters; that, to make a poffeffio fratris, there ought to be an actual feifin; that it was not found or ftated in the cafe, that the mother entered as guardian in focage, but that the and the two daughters continued in poffeffion from the time of the husband's death; and that, fix weeks after his death, the fon was born, and died in the fame houfe; that this was a continuance of the old eftate in herself and the daughters, or in the daughters only; for the law would adjudge the poffeffion in thofe, who had a lawful right to the poffeffion, namely the daughters; and the court could not determine, upon the facts ftated in the cafe, whether the mother was in poffeffion as guardian to the fon, or as a trefpaffer, or for her quarentine in order to have dower. Lord Ch. Juft. De Grey, having ftated the cafe, delivered the unanimous opinion of the court. "This " is an ejectment, brought by the heir of a pofthu"mous fon, to recover the premifes in queftion, "which were purchased by his father; who died "feifed |