"and gives them the same preference as the next and worthiest of "blood." Hist. Com, Law, 237. This authority we trust will solve all difficulties.' I am sorry to differ from this learned writer in thinking that the difficulty is not in any degree solved by this authority, for in the passages above cited lord Coke and lord Hale are considering proximity jure representationis in the descending lines only, as that a grandson of the older brother shall be preferred to the son of the younger, or to the younger himself, as being the next and worthiest of blood. But I have never found any intimation that the whole of the blood of b the grandmother shall inherit before any of the blood of c the greatgrandmother. Lord Hale says that the most part of his rules may be collected out of the case in Plowden, but the question between 10 and 11 was not then decided judicially by the court, though I am ready to confess that in favor of no 11 there is a greater number of high legal opinions. If it should be admitted that the remotest of the blood of the grandmother b shall inherit before the nearest relation of the great grandmother c, my objection to the uncertainty from proximity in the sense, in which it seems hitherto to have been used, is removed. And I cannot think that any court can ever determine that the brother of the grandmother b shall take before the brother of the great-grandmother c, but they must also determine that the whole of the blood of b shall fail, before any of the blood of c can be heir to the propositus. Upon that supposition I conceive the table I have proposed will be found to be equally useful, for after the failure of all the male blood, if we are to have recourse to the blood of the father's mother b, then to find the heir on the part of b, we must substitute b in the place of the propositus, as I before described in finding the heir of z. In discussing this subject my wish has been to produce from autho rity and principles an universal plan of descents, that when the pedigrees of any two relations whatever can be established, the priority of their claims to the inheritance may be instantly and uncontrovertibly decided. I have no predilection for any particular system, and I shall be glad to confess my errors and to cancel all I have written upon the subject, when a more correct plan is sanctioned by legal authority, or the general voice of the profession. CHAPTER THE FIFTEENTH. OF TITLE BY PURCHASE, AND FIRST BY ESCHEAT. PURCHASE, perquisitio, taken in its largest and most extensive sense, is thus defined by Littleton a; the possession of lands and tenements, which a man hath by his own act or agreement, and not by descent from any of his ancestors or kindred. In this sense it is contradistinguished from acquisition by right of blood, and includes every other method of coming to an estate, but merely that by inheritance: wherein the title is vested in a person, not by his own act or agreement, but by the single operation of lawb. PURCHASE, indeed, in its vulgar and confined acceptation, is applied only to such acquisitions of land, as are obtained by way of bargain and sale, for money, or some other valuable consideration. But this falls far short of the legal idea of purchase: for, if I give land freely to another, he is in the eye of the law a purchasor; and falls within Littleton's definition, for he comes to the estate by his own agreement, that is, he consents to the gift. A man who has his father's estate settled upon him in tail, before he was born, is also a purchasor; for he takes quite another estate than the law of descents would have given him. Nay even if the ancestor devises his estate to his heir at law by will, with other limitations, or in any other shape than the course of descents would direct, such heir shall take by purchased (1). a sec. 12. b Co. Litt. 18. c Ibid. d Lord Raym. 728. (1) A man having two daughters his heirs, devises his lands to them And their heirs, and dies. They shall take by purchase as joint-tenants: But if a man, seised in fee, devises his whole estate to his heir at law, so that the heir takes neither a greater nor a less estate by the devise than he would have done without it, he shall be adjudged to take by descente, even though it be charged with incumbrances f; this being for the benefit of creditors, and others, who have demands on the estate of the ancestor. If a remainder be limited to the heirs of. Sempronius, here Sempronius himself takes nothing; but if he dies during the continuance of the particular estate, his heirs shall take as purchasors 8. But, if an estate be made to A for life, remainder to his right heirs in fee, his heirs shall take by descent: for it is an ancient rule of law, that wherever the ancestor takes an estate for life, the heir cannot by the same conveyance take an estate in fee by purchase, but only by descent. And, if A dies before entry, still his heir shall take by descent, and not by purchase; for, where the heir takes any thing that might have vested in the ancestor, he takes by way of descenti. The ancestor, during his life, beareth in himself all his heirs ; and therefore, when once he is or might have been seised of the lands, the inheritance so limited to his heirs vests in the ancestor himself: and the word " heirs" in this case is not esteemed a word of purchase, but a word of limitation, enuring so as to increase the estate of the ancestor from a tenancy for life to a fee-simple (2). And, had it been otherwise, had the heir (who is uncertain till the death of the ancestor) been allowed to take as a purchasor originally nominated in the deed, as must have been the case if the remainder had been expressly limited to Matthew or Thomas by name; then, in the times of strict feodal tenure, the lord would have been e 1 Roll. Abr. 626. f Salk. 241. Lord Raym. 728. g 1 Roll. Abr. 627. h 1.Rep. 104. 2 Lev. 60. Raym. 334. k Co, Litt, 22. for the estate of joint-tenants, and tenants in common, is different in its nature and quality from that of coparcenors. Gro. Eliz. 431. (2) See ante, p. 172. n. 3. defrauded by such a limitation of the fruits of his signiory, arising from a descent to the heir. WHAT we call purchase, perquisitio, the feudists called conquest, conquaestus, or conquisitio1: both denoting any means of acquiring an estate out of the common course of inheritance. And this is still the proper phrase in the law of Scot land m; as it was among the Norman jurists, who [243] styled the first purchasor (that is, he who brought the estate into the family which at present owns it) the conqueror or conquereur". Which seems to be all that was meant by the appellation which was given to William the Norman, when his manner of ascending the throne of England was, in his own and his successors' charters, and by the historians of the times, entitled conquaestus, and himself conquaestor or conquisitor°; signifying that he was the first of his family who acquired the crown of England, and from whom therefore all future claims by descent must be derived: though now, from our disuse of the feodal sense of the word, together with the reflexion on his forcible method of acquisition, we are apt to annex the idea of victory to this name of conquest or conquisition: a title which, however just with regard to the crown, the conqueror never pretended with regard to the realm of England; nor, in fact, ever had P. THE difference in effect, between the acquisition of an estate by descent and by purchase, consists principally in these two points. 1. That by purchase the estate acquires a new inheritable quality, and is descendible to the owner's blood in general, and not the blood only of some particular ancestor. For, when a man takes an estate by purchase, he takes it not ut feudum paternum or maternum, which would descend only to the heirs by the father's or the mother's side: but he takes it ut feudum antiquum, as a feud of indefinite antiquity; whereby it becomes inheritable to his heirs gene I Crag. 1. 1. t. 10. sec. 18. m Dalrymple of feuds, 210, A Gr. Coustum, Gloss. e. 25. pag. 40. o Spelm. Gloss. 145. p See Book I. ch. 3. |