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This act, I speak of that of 1794, has been drawn by one who has had a comprehensive view of the system of the English law respecting the descent, and inheritance of real estate, and in making the alterations has committed no error, which it is of all things the most difficult to avoid where a structure is to be altered, and a part taken away, or supplied. For hence it is that we see amendment and supplement without end.
But this will serve to give an idea of what I mean. A workinan, master of his art, has the whole in his mind before he begins, and the proportions are all hit at once.
This act has been drawn by one who has understood the arrangement of words, which is one standing cause of the obscurity of our acts of Assembly, and the extreme perplexity of being able judicially to say what is unequivocally meant. This act is invaluable as a model of perspicuous arrangement and unambiguous expressions. I might say of the acts of the legislature generally, had they said all things so,
"O, si sic omnia dixissent."
Might it not be advisable, by a supplement to the law of devises, to have a similar provision, viz. "That where real or personal estate is devised, and the devisee dies after the death of the testator, but before the contingency, on which he is to take, happens, his lawful issue shall take per capita, or by the head, what is devised to him." I have in my mind, the decisions in the case of the lessee of Smith against Folwell, 1 Binney, 546. It is true, it may be said, that the testator may provide for such or any other contingency; but it is not within the foresight of common persons to look to such contingencies, and provide for them; and they are not aware of the difficulty on the rule of the common law, of taking per stirpes, or by the stock, and not per capita, or by the head, which is in the way of representatives succeeding to the devise, as may be seen in the case referred to in the report which I have cited. This provision perhaps, with another relative to the construction of devises, might be the subject of legislative interposition. I speak of that much agitated ques
tion in England, as well as here, what shall be the effect of technical terms in a last will and testament. See 2 Binney, 13; 3 Binney, 374, and other cases in our reports and decisions under this head.
I did not take notice in the early part of this note, that by the common law the king's prerogative extended to the lands of the debtor; though by the statute of magna charta this prerogative was restrained to the taking the lands of the king's debtor, only where goods and chattels were deficient. But by the statute 33 H. 8. c. 39. this prerogative was restored; and perhaps enlarged from what it was at common law; but not carried so far as would seem to be by the laws of the United States and the decisions of their courts in case of a preference in the payment of debts. Judgments in the case of a private person take place of the king's debts by obligation, short of a judgment.
Lands descend therefore in England subject to the debts of the ancestor by obligation, where the heir is named, and in the case of the king's debt by obligation, whether named or not; and this by force of the statute in that case provided.
It may serve to give a clearer view of the subject, to contrast the rules of inheritance, as laid down by Blackstone, with the changes by our act of assembly.
The first rule, says the commentator, is, that "inheritances shall lineally descend to the issue of the person who died last seised, in infinitum; but shall never lineally ascend."
By our act, sec. 6. if the intestate die, leaving neither `widow nor lawful issue, but leaving a father, the whole of the real estate shall be enjoyed by the father of the intestate, for, and during his natural life.
In like manner, Sec. 7. if the intestate die leaving neither widow nor lawful issue nor father, but leaving a mother, the whole of the real estate shall be enjoyed by the mother, for, and during her natural life..
At the end of the same Sec. it is provided that if "the intestate shall leave no brothers or sisters, nor their representatives, then the estate shall go to the father in fee simple, unless where the estate has descended from the part of the mother."
In a supplement to the above act, passed 1797, it is provided in Sec. 5, that if any intestate shall die seised of real estate in fee simple, and shall leave no widow, nor lawful issue, father, brother, sister, or their representatives, then the said estate shall go and be vested in fee, simple in the mother, unless where such estate has descended from the part of the father, in which case it, or such part thereof as shall have come from the part of his or her father, shall pass and be enjoyed, as if such person, so dying seised, had survived his or her mother.
2d. "The male issue shall be admitted before the female."
In Pennsylvania no preference is given to the male issue, but all the children, lawful issue, or their representatives, are entitled to succeed to equal parts of the real estate, and hold as tenants in common.
3d. "Where there are two or more males in equal degree; the eldest only shall inherit; but the females altogether."
The provisions of our act have changed this rule. With us there is no such thing as the right of primogeniture; and the males as well as females inherit equal parts.
4th. "The lineal descendants, in infinitum, of any person deceased shall represent their ancestor; that is, shall stand in the same place as the person himself would have done, had he been living."
Our act adopts this canon, but in the application of the rule, there is no preference of the eldest son or his representatives, as in England. In Pennsylvania all the children, grand-children, or great-grand-children, as they succeed to the inheritance, take equal shares, regarding in the distribution the method of inheriting per stirpes by the roots.
5th. "On failure of lineal descendants, or issue, of the person last seised, the inheritance shall descend to his collaeral relations; subject to the three preceding rules."
By our act, when the lineal descendants are exhausted, the father or mother succeed, and where there are brothers and sisters the real estate shall descend to and be enjoyed by
the brothers and sisters of the intestate, or their representa tives, after the decease of the father or mother, as tenants in common, in equal parts.
"Being of the blood of the first purchaser."
The Jews, Greeks, and Romans looked no farther thas the person who died seised of the estate. The looking back to the first purchaser, is derived from the feudal system, and I presume is not a rule in Pennsylvania, except in the case where the brothers and sisters or representatives of the halfblood, being otherwise entitled to inherit, cannot take where the inheritance came to the intestate by descent, devise, or gift, of some one of his or her ancestors, in which case all those, who are not of the blood of such ancestor, shall be excluded from the inheritance.
6th. "The collateral heir of the person last seised must be his next collateral kinsman of the whole blood."
By our act the half blood are not totally excluded. By Sec. 2. on failure of lawful issue, father or mother, brothers or sisters, or their lawful issue, of the whole blood, then brothers and sisters of the half blood, and their lawful issue, shall inherit the same as aforesaid, in preference to the more remote kindred of the whole blood, unless where such inheri tance came to the person so seised by descent, devise, or gift of some one of his or her ancestors, in which case all those, who are not of the blood of such ancestor, shall be excluded from such inheritance.
And by a supplement to this act, 1797, Sec. 7. "if there are no lawful issue, widow, father or mother, brothers or sis ters, or their representatives, of the whole blood, then brothers and sisters of the half blood shall inherit the said real estate in fee simple, &c. as tenants in common, in equal parts, except such parts of the real estate as came to such intestate by descent, devise or gift of some one of his or her ancestors, in which case, all those who are not of the blood of such ancestor, shall be excluded from such inheritance, and such part of the real estate."
7th. "In collateral inheritances the male stocks shall be preferred to the female; (that is, kindred derived from the
blood of the male ancestors, however remote, shall be admitted before those from the blood of the female, however near) unless where the lands have, in fact, descended from a female."
By our act is given no preference to the males in lineal succession, nor in the succession of collaterals.
This last, will seem in some degree to be but a repetition of what precedes; but giving a different view by means of the contrast, it will be of use to the student. For of all things it is the most difficult to get an impression made upon the understanding or the memory, where the rules are merely abstract, and little depending upon natural reason. There must be "line upon line, precept upon precept, here a little and there a little ;" and this is the great secret of indoctrinating the early mind in any science.
«The fourth species of assurance, by matter of record, is a common recovery." II Bl. Com. 357.
THE statutes of entail, were impliedly recognized as extending to Pennsylvania by the act of 27 Jan. '49, '50, entit led an act baring estates tail, 1 Smith's laws, 203. The preamble is, that, "forasmuch as the entailing of estates without a proviso by law for baring them, would introduce perpetuities, prevent the improvement of such estates, disable tenants in tail to make provision for the younger branches of their families, prove of general detriment, and be attended with manifold inconveniences, for preventing thereof," &c.
By this act, the recoveries before suffered, were validated and confirmed as well as those thereafter to be made.
But by an act 16 Jan. 1799, entitled "an act to facilitate the baring entails," it is provided "that whereas common recoveries are now considered as a mode of conveyance, by which tenants in tail, are enabled to convey and dispose of their lands and tenements; but, the said mode of convey