son had made a lease for life, and the lessee had en dowed the wife of his father, and tenant in dower had died, the daughter should have had the reversion, because the reversion was changed and altered by the lease for life; and the reversion is now expectant on a new estate for life." In another place he says"for many times the change of the freehold makes an Id. 191 b. alteration or change of the reversion." This doctrine

has been confirmed by Lord Hardwicke in the following case.

New, 9 Mod.

363.

18. A. being tenant for life, remainder to trustees to Stringer v. preserve contingent remainders, remainder to his first and other sons in tail male, remainder to the heirs of his own body, remainder to the right heirs of his father; had a sister of the half blood, and also a sister of the whole blood. A. conveyed the estate to B. by lease and release, in trust for payment of debts, and levied a fine thereof.

Lord Hardwicke said, the question was whether A. had made any alteration as to the descent of the reversion in fee. If he had not, it would descend to the sister of the half blood, who was the elder daughter, and equally heir to the father with the other daughter. But if he had altered it, and given it to himself, it would descend to the sister of the whole blood, who claimed as heir to her brother, who was last actually seised, and who would be entitled under that known rule of law, that possessio fratris de feodo simplici facit sororem esse hæredem. But then it was certain that must be an actual possession; so that it was argued in this case that this being an estate for life in A. with a remainder in tail, and a reversion in fee expectant; this was not such a possession as would entitle the younger daughter to take under a possessio fratris.

What was insisted upon on the other hand, in order to have altered the course of descent, and given it to the heirs of A. instead of the father, was, that A.

Ante, § 17.

Vide Tit. 35.

had made a lease and release, and thereby conveyed the estate to B., in trust for the payment of debts, &c. and levied a fine thereof; but had not suffered a recovery. And the question was, whether this fine had changed the reversion in fee, and thereby altered the descent.

He was of opinion that it did alter the reversion; that therefore the estate would go to the right heirs of A.; and founded his opinion on the two passages stated in a former section from Coke on Littleton, 15 a and 191 b.; from which it appeared, that in consequence of such change in the reversion, it should descend to the heir of the son; and therefore entitle the younger sister of the whole blood to claim as heir to him by a possessio fratris. The conveyance was by lease and release to B., to pay debts,. &c.; and surely this was a great alteration, for this amounted to a grant of his estate for life. It likewise passed the reversion in fee; for as he was right heir of his father, he had a reversion to grant, though it would descend to the right heirs of the father, without any such alteration; and though the estate was subject to redemption on payment of the debts, &c. yet it would follow the heirs of the son, because the son had changed it, and made it his own by a plain alteration.

2

He then said he should consider what would be the effect of the fine, supposing the lease and release out of the case. That fine would certainly have barred the remainder in tail to himself, for he was seised for life, with remainder to the heirs of his own body; so that the fine barred the estate, and would have amounted to a grant of the reversion in fee, if to a stranger. Now this reversion in fee, instead of being expectant on the estate tail, as it originally was, did now depend on an estate in contingency. Therefore on this case, whether the reversion being thus changed, should alter the descent of it, so as to

go to the heirs of the son, he was clearly of opinion that it was literally within what was laid down in Co. Lit. 191 b. that if the elder brother change the freehold, it shall alter the reversion likewise, and shall cause a possessio fratris. In this case both the conveyances changed the reversion, and therefore the estate descended to the heir of the whole blood to the brother.

438

Descent of es

tates tail.

Tit. 35. c. 9.

CHAP. V.

Descent by Statute and Custom.

SECT. 1. Descent of Estates SECT. 20. Customary

Tail.

6. Go to the Half Blood.
7. NoCorruption of Blood.

10. Customary Descents.
11. Gavelkind.

16. Borough English.

SECTION I.

Descents

not altered by Limitation.

21. Copyhold Descents. 27. The Half Blood excluded.

32. Construed strictly.

BESIDES the descent of lands in fee simple, there are two other modes of descent, of which it will be proper to give an account. (a) The first of these is the descent of estates tail, which is regulated by the statute De Donis Conditionalibus; and is therefore called descent by statute.

2. The descent of an estate tail resembles that of a feudum novum; for the person to whom an estate tail is originally given or limited is the first purchaser of it; and none but those who are lineally descended from him can derive a title to it by descent. (b)

3. In some cases the descent of an estate tail is not only confined to the lineal descendants of the first purchaser, or donee: but is restrained to those of the male

(a) The descent of dignities has been already discussed in Title XXVI.; and the descent of estates held by prescription will be noticed in Title XXXI.

(b) The descent of an estate limited to the heirs of the body of A. will be stated in Tit. XXXII. c. 21.