No. 3. - Cooper v. France, 19 L. J. Ch. 313. - Rule.

Messrs. Randolph and Talcott, in note (3 Jarman on Wills, p. 21), say: "The general rule that a devise without words of inheritance carries only a life estate prevails in this country in the absence of statute to the contrary." But they explicitly lay down the exceptions covered in the earlier part of

this note.

Mr. Washburn (3 Real Property, p. 18), lays down the doctrine of the Rule, including the ineffectual character of a wish expressed in the will against the heir.

THE object of the Inheritance Act, 1833 (3 & 4 Will. IV. c. 106) is to vary the mode of tracing the succession to lands, but it has not altered the pre-existing law with respect to the devolution in the direct line in the descending scale.

An intestate, who was seized in fee of lands, died leaving two daughters who survived him. Both daughters died intestate, each leaving a surviving son. It was held that the moiety of each daughter descended upon her son.

Cooper v. France.

19 L. J. Ch. 313-314 (s. c. 14 Jur. 214).

Statute 3 & 4 Will. IV. c. 106.

Descent.

[313]

G. T., seized in fee of certain hereditaments, died intestate, leaving two daughters Ellen and Sarah. Both daughters died intestate, each leaving a son. It was contended for George, the son of Ellen, who died first, that under the 2nd section of the act 3 & 4 Will. IV. c. 106, upon the death of Ellen her moiety descended equally between him and Sarah, as co-heirs of G. T., the original purchaser; and that upon the death of Sarah, her original moiety as well as the half of Ellen's moiety, descended equally between her son and the son of Ellen, as co-heirs of the original purchaser: — Held, that the said statute was not intended to apply to cases which were plain before it was passed; and that the moiety of each daughter descended upon her son.

The bill stated that George Tomlinson died intestate on the 13th of April, 1826; and that at the time of his decease he was seised in fee of certain hereditaments in the county of Middlesex;

No. 3. Cooper v. France, 19 L. J. Ch. 313, 314.

that the intestate left two daughters, his co-heiresses-at-law, namely, Ellen Cooper and Sarah France, who entered into and continued in the possession of the property until their deaths; that Ellen Cooper died intestate on the 1st of June, 1835, leaving George Cooper, her eldest son and heir-at-law; that Sarah France died intestate on the 16th of January, 1839, leaving Benjamin France, her eldest son and heir-at-law. The bill was filed by George Cooper against Benjamin France for a partition, and a question was raised for the decision of the Court as to what shares in the property belonged to the plaintiff and the defendant, and as to what effect the 2d section of the 3 & 4 Will. IV. c. 1061 had upon the case.

Mr. Rolt and Mr. Willcock, for the plaintiff, George Cooper, contended that he was entitled to five-eighths of the property; that by the 2d section of the 3 & 4 Will. IV. c. 106, it was directed that in every case descent should be traced from the purchaser. The person last entitled to the land was to be considered to have been the purchaser, unless such person had inherited the same, in which case the person from whom he inherited was to be considered the purchaser; consequently, in this case, George Tomlinson was to be considered the purchaser, and therefore on the death of Ellen Cooper her moiety descended equally upon her son, George Cooper, and Sarah France as co-heirs of George Tomlinson, and upon the death of Sarah France, her share, con

sisting of her original moiety and the moiety of her sister's [* 314] share, being six-eighths of the property, *descended in like manner upon her son, Benjamin France, and George Cooper, as the co-heirs of George Tomlinson. By this means George Cooper, the plaintiff, was entitled to two-eighths of his mother's moiety, and three-eighths of Sarah France's moiety.

Mr. Malins and Mr. Shee for the defendant, Benjamin France, contended that he was entitled to one moiety of the whole prop

1 3 & 4 Will. IV. c. 106, s. 2. "And be it further enacted, that in every case descent shall be traced from the purchaser; and to the intent that the pedigree may never be carried further back than the circumstances of the case and the nature of the title shall require, the person last entitled to the land shall for the purposes of this act be considered to have been the purchaser thereof, unless it shall be proved

that he inherited the same, in which case the person from whom he inherited the same shall be considered to have been the purchaser, unless it shall be proved that he inherited the same, and in like manner the last person from whom the land shall be proved to have been inher ited shall in every case be considered to have been the purchaser, unless it shall be proved that he inherited the same."

No. 3. Cooper v. France, 19 L. J. Ch. 314.

erty; that the section of the act referred to did not affect this question, for otherwise it would produce this absurdity, that Benjamin France would take one-eighth less after the passing of the act than before it. It never could have been the intention of the legislature to alter or unsettle the law where it had always been perfectly clear; and in this case, under the law as it stood before the act, Ellen Cooper's moiety would have descended upon her son George, and Sarah France's moiety upon her son Benjamin. This rule had always been applied to questions which had been raised with regard to a barony. The descent was always traced separately, and the heir of each co-heiress succeeded to the rights of his mother. If any other construction were to be acted upon, the eldest son of a co-heiress would no longer be the heir of his mother, but though the act directed the descent to be traced from the original purchaser, still it did not regulate the mode of descent, it merely stated that none who were not of the blood of the purchaser should take, and what the parent had, the issue would take, only qualified with this, that such issue must be of the blood of the purchaser.

The VICE-CHANCELLOR (Sir LANCELOT SHADWELL): I cannot see that there is any doubt about this case. The question is, whether the act applies to cases which were perfectly plain before the act, whether, where a lady dies, leaving one child only, there is any necessity for making a question about the descent. I cannot suppose that the act even meant to introduce doubt into a case which was so plain that before the act no doubt could have existed. It seems to me that the meaning of the act was to leave the law of inheritance, in cases absolutely plain, just as it found them, and only to lay down rules where there was any doubt existing. In looking at the purview these words occur, to the intent that the pedigree may never be carried further back than the circumstances of the case and the nature of the title require; and then the 2d section says, that the person last entitled to the land shall be considered to be the purchaser thereof, unless it shall be proved that he inherited the same; but it appears to me that the act is then speaking only of what ought to be the rule where the case is doubtful. I cannot say that the act shall be so construed as to give a new rule where no doubt existed before the act. The act was passed expressly to make the thing clear, and it would be absurd to construe it so as to raise a doubt upon what was

already perfectly clear. I was at first inclined to think this case ought to have been sent for the opinion of a court of law, but I must say that it now appears to me so clear, that I shall not send it to law; I shall therefore make a declaration that one moiety did, upon the death of Ellen Cooper, descend on her son, George Cooper, and the other moiety did, on the death of Sarah France, descend upon her son, Benjamin France.

ENGLISH NOTES.

The Inheritance Act 1833 was one of a series of statutes passed in consequence of the report of the Commissioners of Real Property. The rules established by this Act and the amending Act, 22 & 23 Vict. c. 35, are as follows:

pur

In every case the descent is to be traced from the purchaser: s. 2. The person last entitled to the land is to be taken to be the chaser, unless it shall be proved that he inherited it. In that case the person from whom he inherited it is to be considered to have been the purchaser, unless it shall be proved that he inherited it: ibid.

Where there is a total failure of heirs of the purchaser, or where lands are descendible as if an ancestor had been the purchaser, and there is a total failure of the heirs of the ancestor, the descent is to be traced from the person last entitled to the land, as if he had been the purchaser thereof: 22 & 23 Vict. c. 35, ss. 19 & 20.

The person last entitled to the land includes the last person who had a right thereto, whether he did or did not obtain the possession or the receipt of the rents and profits thereof: 3 & 4 Will. IV. c. 106, 8. 1.

Formerly a man could not make his right heirs take by purchase: see Pibus v. Mitford (1675), 1 Vent. 372; Wills v. Palmer (1770), 5 Burr. 2615, 1 W. Bl. 687. This rule was abrogated by the Inheri tance Act 1833, s. 3, and the heir takes by force of the devise, and not by descent. It would appear however that the heir might disclaim, and that he would then be in by descent: Bickley v. Bickley (1867), L. R., 4 Eq. 216, 36 L. J. Ch. 817.

Where the heir takes by purchase under limitations to the heirs of his ancestor, the land descends as if the ancestor had been the purchaser: 3 & 4 Will. IV. c. 106, s. 4.

The rules thus established respecting the tracing of the descent from the actual purchaser, or the person deemed to be the purchaser, is applicable to lands of all tenures, including customary tenures: 3 & 4 Will. IV. c. 106, s. 1.

In the descending scale the old law remains in force: Cooper v.

France, the principal case.

Where however there is a total failure of descendants of the purchaser, the Inheritance Act 1833 provides that the line shall be traced backwards: ibid. s. 6.

The immediate lineal ancestor of the purchaser is preferred to any other person who would have been entitled to inherit, either by tracing his descent through the lineal ancestor, or in consequence of there being no descendant of the lineal ancestor, so that the father is preferred to a brother or sister, and a more remote lineal ancestor is preferred to any of his issue, other than a nearer lineal ancestor and his issue: ibid.

The descent from a person in the pedigree to his or her brother or sister must in every case be traced through the parent: ibid. s. 5.

In the ascending scale, the male line is preferred to the female line, so that none of the maternal ancestors of the person from whom the descent is to be traced, nor any of their descendants, are capable of inheriting until all the paternal ancestors of that person, and their descendants have failed; and no female paternal ancestor of such person, nor any of her descendants, are capable of inheriting, until all the male paternal ancestors and their descendants shall have failed, and no female maternal ancestor of such person, nor any of her descendants, are capable of inheriting until all the male maternal ancestors and their descendants shall have failed: 3 & 4 Will. IV. c. 106, s. 7. A person making title in part through the ascending line need only present a prima facie case by having issued advertisements and made reasonable enquiries, to prove failure of the male line and the descendants of the male line at any period, in order to let in the female line and the descendants of the female line: Greaves v. Greenwood (C. A. 1877), 2 Ex. D. 289, 46 L. J. Ex. 252, 36 L. T. 1, 25 W. R. 639; Kennedy v. Lyell and appeal s. n. Lyell v. Kennedy (1887, 1889), 18 Q. B. D. 796, 14 App. Cas. 437, 56 L. J. Q. B. 303, 59 L. J. Q. B. 268, No. 1 of "Discovery," post.

Where the female ancestral line is resorted to, the mother of the more remote male ancestor, and her descendants, are preferred to the mother of a less remote male ancestor, and her descendants. Here again it is only necessary to show a prima facie case: Greaves v. Greenwood, Kennedy v. Lyell, Lyell v. Kennedy, supra.

Provision is now made for the admission of the half-blood. Where the common ancestor is a male, the relation by the half blood inherits next after any relation in the same degree of the whole blood. Where the common ancestor is a female, the half blood inherits next after the common ancestor: 3 & 4 Will. IV. c. 106, s. 9.