stitute the technical possessio fratris, and transmit the inheritance to the sister of the whole blood.a

If the estate be out on a freehold lease when the father dje, then there is not such a possession in the son as to

eate the possessio fratris. The tenancy for life in a third person suspends the descent, unless the son enters in his lifetime, or receives rent after the expiration of the life estate. It is a well settled rule of the common law, that if the person owning the remainder, or reversion expectant upon the determination of a freehold estate, dies during the continuance of the particular estate, the remainder or reversion does not descend to his heir, because he never had a seisin to render him the stock, or terminus of an inheritance. The intervention of the estate of freehold between the possession and the absolute fee, prevents the owner of the fee from becoming the stock of inheritance, if he dies during the continuance of the life estate. The estate will descend to the person who is heir to him who created the freehold estate, provided the remainder or reversion descend from him; or if the expectant estate had been purchased, then he must make himself heir to the first purchaser of such remainder or reversion at the time when it comes into possession. He takes the inheritance, though he may be a stranger to all the mesne reversioners and rerainder-men, through whom the inheritance had devolved. This severe rule of the common law is so strictly enforced, that it will, in some cases, admit the half, to the exclusion of the whole blood. Should the person entitled in remainder or reversion, exercise an act of ownership over it,

a Litt. sec. 8. Co. Litt. 15. a.

Goodtitle v. Newman, 3 Wils.

Rep. 516. Doe v. Keen, 7 Term Rep. 386.

b Co. Litt. 15. a. Doe v. Hutton, 3 Bos. & Pull. 643. 655. Rat

cliffe's case, 3 Co. 41. b. 42. a.

253.

c Co. Litt. 15. a.

Kellow v. Rowden, 3 Mod. Rep.

as by conveying it for his own life, it would be an alteration of the estate sufficient to create in him a new stock, or root of inheritance. It would be deemed equal to an entry upon a descent."

The rule of the common law existed in New-York under the statute of descents of 1786, and the heir was to deduce his title from the person dying seised. It has been repeatedly held in this state, that during the existence of a life estate, the heir on whom the reversion or remainder was cast, subject to the life estate, was not so seised as to constitute him the possessio fratris, or stirps of descent, if he died pending the life estate; and the person claiming as heir must claim from a previous ancestor last actually seised. But the New-York Revised Statutes have wisely altered the pre-existing law on this subject; and they have extended the title by descent generally to all the real estate owned by the ancestor at his death, and they include in the descent every interest and right, legal and equitable, in lands, tenements, and hereditaments, either seised or possessed by the intestate, or to which he was in any manner entitled, with the exception of leases for years, and estates for the life of another person. This completely abolishes the English maxim that seisina facit stipitem. So, likewise, in Massachusetts, Rhode Island, Connecticut, NewJersey, Pennsylvania, Delaware, Virginia, South Carolina, Georgia, and Ohio, and probably in other states, the real and personal estates of intestates are distributed among the heirs, without any reference or regard to the actual seisin of the ancestor. Reversions and remainders vested by descent in an intestate, pass to his heirs in like manner

a Co. Litt 15. a. Ibid. 191. b. Stringer v. New, 9 Mod. Rep.

363.

b Jackson v. Hendricks, 3 Johns. Cas. 214. Bates v. Schroeder, 13 Johns. Rep. 260. Jackson v. Hilton, 16 Ibid. 96.

as if he had been seised in possession, and no distinction. is admitted in descents between estates in possession, and in reversion. In the states of Vermont, New-Hampshire, Maryland, and North Carolina, the doctrine of the possessio fratris would seem still to exist."

Though posthumous descendants inherit equally as if they had been born in the lifetime of the intestate, and had survived him, yet the inheritance descends, in the mean time, to the heir in esse, at the death of the intestate. It was declared, by Lord Ch. J. De Grey, in the case of Goodtitle v. Newman, on the authority of a case in the Year Books of 9 Hen. VI. 25. a. that the posthumous heir was not entitled to the profits of the estate before his birth, because the entry of the presumptive heir was lawful. This rule does not apply to posthumous children who take remainders under the statute of 10 and 11 Wm. III. They must take the intermediate profits, says Lord Hardwicke, for they are to take in the same manner as if born in the lifetime of the father. This construction of Lord Hardwicke applies to the New-York Revised Statutes, for it is

a Reeve on Descents, p. 377-379. Cook v. Hammond, 4 Mason's Rep. 467. Hillhouse v. Chester, 3 Day's Rep. 166. Gardner v. Collins, 2 Peters' U. S. Rep. 59. Tucker's Blacks. Com. vol. ii. appendix, note B. The doctrine of the common law was fully," ably, and learnedly discussed by counsel, in the three last cases above mentioned.

b 2 Peters' U. S. Rep. 625. Griffith's Law Register, tit. N. C. No. 6. Reeve on Descents, p. 377. The English real property commissioners, in their first report to Parliament, in May, 1829, objected to the rule that seisina facit stipitem, and they recommended an alteration of the rule, so far as that the inheritance should pass to the heir of the person last seised of, or entitled to the estate or interest, to be taken by inheritance.

declared that posthumous descendants shall, in all cases, inherit in the same manner as if born in the lifetime of the intestate. The provision in the laws of some of the other states, such as Rhode Island, New-Jersey, Pennsylvania, and Missouri, would seem to be to the same effect, and admit of the same construction."

2. The second rule of descent is, that if a person dying seised, or as owner of land, leaves lawful issue of different degrees of consanguinity, the inheritance shall descend to the children and grandchildren of the ancestor, if any be living, and to the issue of such children or grandchildren as shall be dead, and so on to the remotest degree, as tenants in common. But such grandchildren, and their descendants, shall inherit only such share as their parents respectively would have inherited if living.

The rule is thus declared in the New-York Revised Statutes, and it probably is to be found in the laws of every state in the Union. The rule applies to every case where the descendants of the intestate, entitled to share in the inheritance, shall be of unequal degrees of consanguinity to the intestate. Those who are in the nearest degree take the shares which would have descended to them, had the descendants in the same degree, who are dead, leaving issue, been living; and the issue of the descendants who are dead, respectively take the shares which their parents, if living, would have received. It may be illustrated by the following example: A. dies scised of land, and leaves B., a son, living, and D. and E., two grandsons of C., a son who is dead. Here B.. the son, and D. and E., the two grandsons, stand in different degrees of consanguinity, and B. will, therefore, under this second rule, be entitled to one half of the estate, and

a N. Y. Revised Statutes, vol. i. 754. sec. 18. Griffith's Law Register, under the head of those states, No. 6.

b N. Y. Revised Statutes, vol. i. 751. sec. 3. 4. Griffith's Law Register, passim.

Or

D. and E. to the other half, as tenants in common. suppose A. should leave not only B., a son, living, and D. and E., two grandsons by C., who is dead, but also F. and G., two great grandsons by H., a daughter of C., who is also dead. Here would be descendants living in three different degrees of consanguinity, viz, a son, two grandsons, and two great grandsons. The consequence would be, that B., the son, would take one half of the estate, D. and E., the grandsons, would take two thirds of the other half, and F. and G., the great grandsons, would take the remaining third of one half, and all would possess as tenants in common. Had they all been in equal degree, that is, had all of them been either sons, grandsons, or great grandsons, they would, under the first rule, have inherited the estate in equal portions, which is termed inheriting per capita. So that, when heirs are all in equal degree, they inherit per capita, or equal portions, and when they are in different degrees, they inherit per stirpes, or such portion only as their immediate ancestor would have inherited if living. Inheritance per stirpesis, therefore, admitted, when representation becomes necessary to prevent the exclusion of persons in a remoter degree; as, for instance, when there is left a son, and children of a deceased son, and a brother, and children of a deceased brother. But, when they are in equal degree, as all, for instance, being grandsons, representation is not necessary, and would occasion an unequal distribution of the estate, and they, accordingly, inherit per capita. This is the rule which prevails throughout the United States, with the exception, already noticed, of South Carolina; and it agrees with the general rule of law in the distribution of personal property. The law of descent, in respect to real and personal property, bear, in

a See vol. ii. 342. of this work.