sex, as in the case of estates in tail male; or to those Tit. 2. c. 1. who are born of a particular woman, as in the case of estates in tail male special. But in all cases of intail the right of primogeniture takes place; and where females are not excluded, they all take in coparcenary, in the same manner as in the case of a descent in fee simple. 4. The descent of an estate tail may be defeated by 1 Inst. 46 a, the subsequent birth of a nearer heir in tail. Thus, if 7 Rep. 8. a tenant in tail general dies, leaving a daughter, and after his wife is delivered of a son, such son may enter upon his sister. 3 Rep. 41 6. 2 Ves. 364. 5. The maxim that seisina facit stipitem does not Ratcliff's case, take place in the descent of estates tail: it being only necessary, in deriving a title to an estate of this kind by descent, to deduce the pedigree from the first purchaser, and to shew that the claimant is heir to him; for the issue in tail claim per formam doni; that is, they are as much within the view and intention of the donor, and as personally and precisely described in the gift, as any of their ancestors. This doctrine will be more fully considered when we come to explain the ef- Tit. 35. c. 9. fect of a fine in barring the collateral heirs of a tenant in tail. blood. 6. The exclusion of the half blood does not take Go to the half place in the descent of estates tail; because the descent from the first purchaser, or original donee of the estate, must be strictly proved; and when the lineage is thus made out, there is no need of this auxiliary evidence. Lord Coke says, the issue in tail is ever of the whole 1 Inst. 15b. blood to the donee. And in a modern case Lord Kenyon observed, that in the case of estates tail, the half blood coming within the description of the entail, may inherit as effectually as the whole: there the rule of possessio fratris does not apply. 7. Although estates tail are made forfeitable by attainder for treason, yet it was laid down by the Court of Exchequer in Dowtie's case, reported by Lord Coke,-"That neither the act nor the attainder makes 3 Rep. 41 b. 8 Ter. Rep. 213. No corruption of blood. 3 Rep. 10. Bro. Ab. tit. Mantell v. Digby's case, 8 Rep. 165 b. Pa. 82, 4th edit. Airlie case, Tit. 26. c. 2. any corruption of blood, as to the descent of land in tail; for Popham, Attorney-General, said, that so it was agreed in the case of Lord Lumley, that where there was grandfather, father and son, and the grandfather was tenant in tail, and the father was attainted of high treason, and died in the life of the grandfather, and afterwards the grandfather died, that the land should descend to the son, notwithstanding the attainder of the father; which case was affirmed for good law by the whole Court. For the father had not the land, neither in possession nor in use, in which two cases the act of 26 Hen. 8., gave the forfeiture only; and his attainder is not any corruption of blood for the land intailed." 8. The same point was determined by the Court of Exchequer Chamber, in a case reported in Croke, Eliz. 28.; and was admitted to be good law in 8 Jac. 1. by the two chief justices, the chief baron, and the court of wards. 9. The late Mr. Yorke, in his Tract on the Law of Forfeiture, after stating Lumley's case, proceeds in these words:" The reason is obvious, because the issue in tail claims per formam doni, that is, he is as much within the view and intention of the gift or settlement, and as personally and precisely described in it, as his ancestor : but this is not all; the forfeiture of estates tail came in by the construction of the statute of the 28 Hen. 8. The judges resolved that the general words of those statutes comprehended these estates. But then such laws being of a penal kind, though they are to be construed so as to attain their full effect, yet they are to be construed strictly; and however they might extend to make estates tail liable to forfeiture where they are actually in the offender's possession, and consequently in his power to alienate; they could by no rule of construction be extended to bring consequential disabilities on the heir, where the estates have not been in the offender's possession." scents. 10. There are some other modes of descent, which Customary deare derived from the peculiar customs of particular places, and which differ in many respects from descents by common law of these, the principal are, the descent of lands held in gavelkind, in borough English, and by copy or court roll. 11. The descent of lands held in gavelkind, in the right line, is among all the sons, as coparceners; and in default of sons, among all the daughters, in the same manner: but though females, claiming in their own right, are postponed to males, yet they may inherit together with males by representation; for the right of representation takes place in customary descents, as well as in descents at common law. If, therefore, a man has three sons, and purchases lands held in gavelkind, and one of the sons dies in the lifetime of his father, leaving a daughter, she will inherit the part of her father: yet she is not within the words of the custom, inter hæredes masculos partibilis; for she is no male, but the daughter of a male, coming in his stead by representation. Gavelkind. Lit. § 210, 265. Rob. Gav. 90. Rob. Gav. 92. 12. The partible quality of lands held in gavelkind 1 Inst. 100 a. is not confined to the right line, but is the same in the collateral one. For it has been resolved, that where one brother dies without issue, all the other brothers shall inherit from him; and in default of brothers, their respective issue shall take, jure representationis. But where the nephews succeed with an uncle, the descent is per stirpes, and not in capita: and so, from the nature of the thing, it must be, where the sons of several brothers succeed, no uncle surviving; for though in equal degree, they stand in the place of their respective fathers. 13. Although an estate tail is a kind of inheritance introduced by the statute De Donis Conditionalibus, yet this partible quality extends to it; for if a person dies seised in tail of lands held in gavelkind; all his sons shall inherit together, as heirs of his body. Lit. § 265. Dyer 179 b. Rob. Gav. 94. Id. 97. Tit. 3. c. 1. Rob. Gav. 99. Borough English. 7 Vin. Ab. 560. 1 Inst. 1106. Clements v. Scudamore, infra, § 25. Rob. Gav. 93. Bayley v. 1 Inst. 110 b. n. 3. Customary de scents not al ation. Jenk. Cent. 5 Ca. 70. 14. Descendible freeholds are also partible, where the lands are held in gavelkind: as if a lease be made of lands of this kind to a man and his heirs, during the life of A., and the lessee dies, living A., the lands shall descend to all his sons as special occupants. 15. The exclusion of the half blood takes place in the descent of lands held in gavelkind. 16. With respect to lands held in borough English, Littleton says, s. 165., some boroughs have a custom, that if a man has issue many sons, and dies, the youngest shall inherit all the tenements which were his father's within the same borough, by force of the custom. 17. This custom extends to estates tail, and also to descendible freeholds. Thus Lord Coke says,-" If lands, of the nature of borough English, be letten to a man and his heirs, during the life of J. S., and the lessee dieth, the youngest son shall enjoy it." 18. The right of representation takes place in the descent of lands held in borough English: therefore, if the youngest son dies in the lifetime of his father, leaving a daughter, she will inherit the lands. 19. The custom of borough English is however confined to lineal descents, and does not extend to collateral ones; so that where lands held in borough English descended to the youngest son, and he died without issue, it was resolved that they did not go to the younger brother; for the custom did not take place in the descent between brothers, but the eldest brother inherited. Lord Coke has however said, that by some customs the youngest brother shall inherit: but this extension of borough English to the collateral line must be specially pleaded. 20. These customary descents in gavelkind and botered by limit- rough English cannot be altered by any limitation of the parties: therefore, where A. seised in fee of lands held in borough English, made a feoffment to the use of himself and the heirs male of his body, according to the course of the common law, the words "accord Dyer 179 b. ing to the course of the common law" were held void ; for customs which go with the land, as this one, and gavelkind, and fix and order the descent of inheritances, can only be altered by parliament. scents. 21. Estates held by copy of court roll are in general Copyhold dedescendible in the same manner as estates held in socage; Tit. 10. c. 3. though in some manors a different mode of descent is established by custom but the ceremonies of the feudal law upon descents are still followed; for when a copyholder dies, his death must be presented by the homage, at the next court, and proclamation made for the heir to claim, who must come in within a limited time, and Id. c. 5. be admitted; else he will forfeit the estate. 22. Lord Coke says, the heir is tenant by copy im- Cop. § 41. mediately on the death of his ancestor; not to all intents and purposes, for peradventure he cannot be sworn of the homage before admittance, neither can he maintain a plaint in the lord's court before, because till then he is not complete tenant to the lord, no farther forth than the lord pleaseth to allow him for his tenant: so that to all intents and purposes the heir, till admittance, is not complete tenant; yet to most intents, especially as to strangers, the law takes notice of him, as of a perfect tenant of the land, instantly upon the death 4 Rep. 236. of his ancestor; for he may enter into the land before admittance, take the profits, punish any trespass done upon the ground, surrender into the hands of the lord, to whose use he pleaseth, satisfying the lord his fine, due upon the descent; and by estoppel he may prejudice himself of his inheritance. 2 P. Wms. 15. 1 Atk. 449. 23. The heir of a copyholder is not however com- Gilb. Ten. 192. pellable to accept the inheritance. But if he does not come in and accept, the lord may seise the copyhold to his own use. 24. The right of representation takes place in the descent of copyholds; for whenever the custom gives any person the heirship, the law will give all necessary rights and incidents. |