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Three Coheiresses, one being advanced.

All must be equally divided amongst them, without any consideration had of what one or more of them received in the life-time of the intestate, by the statute.

A Daughter by said Children, by a Son, Heir advanced.

A moiety is due to the daughter by the said custom, the intestate having no wife or other children, and the other moiety being the death's part, is distributed by the act, viz. one moiety to the said daughter, the rest amongst the grandchildren as representatives of their father.

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A Mother, Brothers and Sisters.

All equally amongst them, share and share alike, by the statute.

Brothers and Sisters, and Brothers' and Sisters' Children.

All equally amongst them; but the children are to have shares according to the several stocks or families of which they are descended, and not according to the num ber of persons.

Brothers' and Sisters' Children.

All equally amongst them, according to the number of their persons, they being all in equal degrees of kindred. Grandfather or Grandmother.

All to him or her, there being neither widow, child, father or mother, brother, sister, nor their children,

Grandchildren.

Equally amongst them, as next of kin.

Uncles, Aunts.

Similiter.

Cousins German.

Similiter.

On Distributions.*

NOTE. Grandmother is nearer of kin than the aunt; and is intitled to administration in preference to her. 1 P. Will. 41. vide Grouud, ibid 48. She is lineal, the other collateral.

The wife, or next of kin may be appointed to the administration, by the ordinary, at his election.

Sand's case, 1 Sid. 179.

Sir G.

But a husband has an original right to be administrator to his wife by the 31 Edw. III. c. 11, as the most loyal friend of the wife; and is not within the 21 Hen. VIш. c. 5. Duncomb v. Mason, cited 1 P. Will. 45.

Every person entitled to a distributory share has an interest vested before distribution transmissible to his representatives. But the distributional share is not so vested in the whole, as not to let in a posthumous child. Edwards et al. . Freeman, 1 P. Will.

The father surviving has the whole child's estate. 1 P. Will. 48.

The mother surviving, had the whole likewise, at common law; but 1 Jac. II. lets in. brothers and sisters for a moiety. Ibid.

Grandfather by the father's side, and grandmother by the mother's side, being next of kin, shall take in equal moieties. M v. Barham, cited 1 P. Will. 53. Powers.

There is a strictness required in the essential part of the execution of all powers. Thus a power to make leases for three lives or twenty-one years, does not authorise leases for ninety-nine years determinable on three lives; Whitlock's case: nor a power to grant an estate of freehold does not extend to a chattel interest. Newport and Savage. A power to grant an estate out of land does not authorise you to charge the estate with a rent charge. Harvey and Harvey, in Chancery, 1740. A power to charge does not give a power to grant an estate out of the land. 1 Lev. 150. 237, 238. Hard. 895. Dy. 263.

Leases made under powers, differ from common leases; for in the latter, the lessee, till entry, has only an interesse termini, and he has no actual estate; but when the lessee actually enters, then he has an actual estate in

* Vid. Blackborough v. Davis, P. Will. 41. A leading case en this subject.

possession divided from the reversion, and then the lessor may grant the reversion; whereas, upon a lease under a power, the lessee, upon the very sealing, has an actual estate in possession, divided from the reversion; and therefore it is said these are not real estates, but only declarations of uses to such and such persons for years.These consequently are not real leases, but acts that bear as near a resemblance to leases as possible.

Copyhold, Covenant to surrender.

Nota. Covenant, by tenant in tail in equity of a copyhold, in his marriage settlement, to surrender his copyhold Jands to the use of himself for life, with remainder to his first and other sons in tail, with reversion to himself in fee,will not of itself be sufficient to dock the equitable intail; for if such an entail be created, a recovery in the court baron is necessary to dock it; it being a rule, that the same steps must be taken to bar an equitable estatetail, as it would be requisite to bar it,were it a legal estatetail. Determined in Hale's case, in Chancery, 11th Dec. 1764.

Quære, if a court of equity will consider a covenant by a copyholder, in his marriage settlement, to surrender to the use of himself for life, remainder to his sons in tail successively, remainder to the use of J.S. a volunteer and mere stranger, of such a nature, as that they will, if the copyholder dies without issue and without a surrender, supply the defect against the heir at law, upon the ground of its being an equitable entail or a trust.-It seems not; if they would, they would equally supply it in case of a volunteer in the first instance, and this would supersede surrenders. Vide ibid.

Estate tail, Recovery.

Mr. Fearne was of opinion that a period of thirty-eight years was not a sufficient time to dispense with an inquiry whether a person suffering a recovery was at that time tenant in tail, and qualified to gain the fee thereby created.

Recovery, not presumed from Length of Time.

In Leighton v. Leighton, where an old intail was created in Hen. VIII.'s time, the family had acted as absolute owners in fee, and there had been an inquisition finding that several of the ancestors were seised u fce; the Court

would not presume a recovery from length of time. But on proof of fines having been burnt, the jury presumed a fine levied; but their acting as owners was not sufficient to warrant that presumption. Vide a case cited 2 Vez.311. Crown. Recovery not sufferable.

You cannot suffer a recovery of lands the reversion of which are in the crown : otherwise, if the crown grants the reversion to a subject.

Recovery-Surrender, when presumed.

Surrender of tenant for life presumed on recovery of forty years standing. Strange, 1129.

What evidence admissible to support a presumption of a surrender, viz. attorney's bill, containing a charge for drawing and engrossing it. Ibid.

After 40 years' possession of a copyhold under a will, a surrender to the use of the will is presumed. Lyford's case; vide 1 Vernon, 195.

Livery presumed.

Lessee 25 years in possession: livery presumed. 1 J'ern. 196.

After 40 years possession of a piscary: decree to surrender and release title though a defective surrender. 1 Vern. 196.

Recovery-Death of Vouchee.

Dedimus potestatem sued out to take the warrants of attorney of A. and B. his wife, in order to suffer a recovery. B. dies.

Where vouchee died on the day the recovery was passed at bar, and before the writ of summons ad warrantizandum was returnable, the recovery, Serjeant Prime was of opinion, would not conclude the right of that youchee.

Where the warrants of attorney, in order for suffering a recovery, were joint, it was held, that it might proceed, where one died, as to the survivor; and the recovery be completed, as to him, so as to bind; but that it was proper to suggest the death of the vouchee, upon the roll, imunediately before the entry of the appearance or Isaac From the opinion of Serjeant Prime.

Answer to the Query of Senex concerning Lineal Descent.

Mr. Editor,

THE following ideas, having suggested themselves to my mind, in considering the point stated in your last by Sener, are submitted to your perusal, in the hope that they will not be thought unworthy of insertion. I shall in the first place consider for what reason it is that lineal ancestors are excluded. You are aware that every purchaser at this day takes his feud ut feudum antiquum, and it, therefore occurred to my mind, that it was consequently necessary to consider first what the nature of feudum vere antiquum was. The great fundamental principle, in the descent of the really aucient feud, was that no one should inherit but those who had derived their blood from the first feudatory. The collateral rule seisina facit stipitem was but auxiliary to it, and adopted to make it good as far as possible. You see then that as well the first purchaser of the feud as also such of the lineal ancestors of the person last actually seised, as were descended from the first purchasers must have been dead before such last possessor inherited it, and it therefore follows that the existence of

any lineal ancestor was demonstrative proof that he had not derived his blood from the first purchaser, but, on the contrary, was an ancestor above the purchaser, and was consequently disqualified by the original substantive rule itself. Senex and your other readers will not, I trust, after considering the subject with the aid of the above light, hesitate to admit that the universal exclusion of lineal ascent in the feudum vere antiquum is most satisfactorily accounted for in this way, since all the lineal ancestors who were, or had been qualified, under the substantive rule, by having derived their blood from the first feudatory were dead, and the existence of any lineal ancestor was consequently an evidence of his disqualification to succeed to the feud.

If you will permit me, I will for the assistance of your less discerning readers, endeavour to illustrate this; and therefore suppose the paternal grandfather (or, in other words, grandfather by the side of the father,) to have been the first purchaser, and the grandson to have died seiscd of the feud. It seems to me plain that the father and grandfather of the person last scised could not have

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