IN collateral inheritances the male ftocks fhall be preferred to the female (that is, kindred derived from the blood of the male ancestors fhall be admitted before those from the blood of the female *) unless where the lands have, in fact, defcended from a female . Thus the relations on the father's fide are admitted in infinitum, before thofe on the mother's fide are admitted at all; and the relations of the father's father, before thofe of the father's mother, and fo on 2. Yet whenever the lands have notoriously defcended to a man from his mother's fide, this rule is totally reversed, and no relation of his by his father's fide, as fuch, can ever be admitted to them; because he cannot poffibly be of the blood of the first purchafor. And fo, e converfo, if the lands defcended from the father's fide, no relation of the mother, as fuch, shall ever inherit. So alfo if they in fact defcended to J. S. from his father's mother C. K.; here not only the blood of L. B. his mother, but also of G. S. his father's father, is perpetually excluded. And, in like manner, if they be known to have defcended from F.H. the mother of C. K. the line not only of L. B. and of G. S. but also of L. K. the father of C, is excluded. Whereas when the fide from which they defcended is forgotten, or never known (as in the case of an eftate newly purchafed to be holden ut feudum antiquum, or as a feud of indefinite antiquity; as all the eftates held in fee-fimple throughout the kingdom are held b), the right of inheritance runs up all the father's fide, with a preference to the male stocks in every inftance; and if it finds no heirs there, it then, and then only, reforts to the mother's fide, leaving no place untried, in order to find heirs that may, by poffibility, be derived from the original purchasor. The greatest probability of finding fuch was among those defcended from the male ancestors; but upon failure of iffue there, they may poffibly be found among thofe derived from the females "'. FROM what has been here faid, the reader may form an idea of the law of defcents in fee-fimple; and for a more full and perfpicuous view thereof, we fhall refer to the learned authors here cited, especially to the commentaries of judge Blackftone; where it need not be faid this subject is amply Hale, H. C. L. 241. Black. Com. 2 V. 234. y Black. 2 V.234. Hale, 242. Black. 2 V. 334. a Black. 2 V. 236. b Ibid. 222, e Ibid. 236. treated treated on, as it is well known, by the book being in the hands of most of the profeffion of the law, as well as of many of the nobility and gentry throughout the kingdom; on which account, and for its repute and authenticity, it has hitherto been frequently cited inftead of other authors. As to the heir, he is much favoured by the law; as not being liable to pay any fimple contract debts due from the deceased, not even if the estate was purchased with the money for which the fimple contract debts are due. And in cafe the eftate is mortgaged, if the deceased have left enough perfonal estate to discharge all his debts, the real eftate must be redeemed for the benefit of the heir. But where the deceased has not left a fufficiency of perfonal eftate to discharge all his debts, the real eftate will be liable to answer thofe due by bonds and fpecial contracts, whereby he hath bound himself and his heirs; and this eftate defcending from the deceafed ancestor, who hath thus bound himfelf and heirs, will be real affets, or affets by defcent, mentioned in a former chapter f. And where the real estate is given to any perfon. By the ftatute of the 3 W. & M. c. 14. it is enacted, that all wills and teftaments, limitations, difpofitions, or appointments, of or concerning any manors, meffuages, lands, tenements, or hereditaments; or of any rent, profit, term, or charge, out of the fame, whereof any person at the time of his deceafe fhall be feifed in fee-fimple, in poffeffion, reverfion, or remainder, or hath power to difpofe of the fame by his laft will and teftament; fhall be deemed and taken to be fraudulent, and abfolutely void and of none effect, against such perfons, their heirs, fucceffors, executors, adminiftrators, and affigns, to whom the deceased fhall, by bonds or other specialties, have bound himfelf and his heirs and all fuch creditors may have and maintain actions of debt upon their bonds and specialties, against the heir at law of the obligor and fuch devifee jointly. Yet it is provided, that, where there fhall be any limitation or appointment, devife or difpofition, of or concerning any manors, meffuages, lands, tenements, or hereditaments, for the raifing or payment of any real or juft debts; or any portions or fums of money for any child or children of any perfon, other than the heir at law, according to any marriage contract or agreement in writing, bona fide made before fuch marriage, the fame fhall be in full force; and the fame manors, mef d Black. Com. 3 V. 430. may be exempt from going in discharge of the real. See page 202. fuages, fuages, lands, tenements, and hereditaments, fhall be holdenand enjoyed by every fuch perfon, his heirs, executors, adminiftrators, and affigns, for whom the faid limitation, appointment, devife, or difpofition was made, and by his trustee or trustees, their heirs, executors, adminiftrators, and affigns, for fuch estate or intereft as fhall be limited or appointed, devifed or difpofed, until fuch debt or portion fhall be raised and paid.-And where any heir at law fhall be liable to pay the debt of his ancestor, in regard of any lands, tenements, or hereditaments defcending to him, and fhall fell, alien, or make over the fame, before any action brought or procefs fued out against him; it is enacted, that fuch heir at law fhall be anfwerable for such debt, in an action of debt, to the value of the land fo by him fold, aliened, or made over; in which cafe all creditors fhall be preferred, as in actions against executors and administrators, and fuch execution fhall be taken out upon any judgment so obtained against fuch heir, to the value of the faid land, as if the fame were his own proper debt; faving that the lands, tenements, and hereditaments bona fide aliened before the action brought, fhall not be liable to fuch execution. SECTION THE SECON D. HOW THE LAW DISPOSES OF A WIFE'S REAL ESTATE; OR THE LAW CONCERNING A TENANCY BY THE CURTESY OF ENGLAND. W 7HERE a man taketh a wife feifed of an estate in feefimple, or fee-tail, and hath iffue by her; although the iffue afterward die or live, the hufband fhall hold the land during his life, as tenant by the curtesy of England. To make a tenancy by the curtefy, these four requifites are neceffary; marriage, feifin of the wife, iffue, and death of the wife. 1. The marriage muft be canonical and legal. 2. The feifin of the wife, which must be an actual feifin or poffeffion of the lands; not a bare right to poffefs, which is a feifin in law, but an actual poffeffion, which is a feifin in deed: therefore a man shall not be tenant by the curtesy of a remainder or reverfion. But entry is not always neceffary to give feifin in deed; for if the land is in leafe for years, curtesy may be without entry or even receipt of rent, the poffeffion of the leffee for years being deemed the poffeffion of a Co. Litt. 29. b Black. Com. 2 V. 127. hufband husband and wife. And of fome hereditaments a man may be tenant by the curtefy, though there have been no actual feifin of the wife; as in the cafe of an advowfon, where the church has not become void in the lifetime of the wife; which a man may hold by curtefy, because it is impoffible to have had actual feifin of it, and impotentia excufat legem, or impotency excufeth the law. And though, in ftrictness of law, there cannot be curtesy of trufts; yet the courts of equity have allowed curtefy both of trufts and other interefts, which, though in law mere rights and titles, are deemed eftates in equity. However, a wife, in point of benefit, may have a truft of inheritance which may be so declared as to prevent curtesy; as by directing the profits during the wife's life to be paid to her feparate ufe.-If the wife be an ideot, the hufband fhall not be tenant by the curtefy of her lands; for the king, by prerogative, is intitled to them, the inftant fhe herfelf has any title f.-3. The iffue must be born alive. Some have had a notion that it must be heard to cry; but that is a mistake; crying indeed is the ftrongest evidence of its being born alive, but it is not the only evidence. The iffue muft alfo be born during the life of the mother; for, if the mother dies in labour, and the Cæfarean operation is performed, the husband, in this case, fhall not be tenant by the curtefy: because, at the inftant of the mother's death, he was clearly not intitled, as having had no iffue born, but the land defcended to the child, while he was yet in his mother's womb : and the eftate, being once so vested, fhall not afterwards be taken from him. The iffue that must be fo born alive, as has been obferved, muft alfo be capable of inheriting the mother's eftate *. Wherefore, if a woman be tenant in tail male, and hath only a daughter born, the husband is not thereby intitled to be tenant by the curtesy; be cause such iffue female can never inherit the estate in tail male, and if a woman be delivered of a monster, which hath not human shape, he is not capable of inheriting; yet, if he hath human fhape, though deformed in body, he is capable'. The time when the iffue was born is immaterial, provided it is born during the coverture; for whether it be born before or after the wife's feifin of the lands, whether it be living or dead at the time of the feifin, or at the time of the wife's decease, the husband fhall be tenant by the curtefy ".-4. By the death of the wife (after iffue had as before obferved) the huf c Co. Litt. 29. Note 3.. 13 Edit. d Black. Com. 2 V.27. e Co. Litt. 29. Note 6, 13 Edit. f Black. Com. 2 V. 127. & Ibid. h8 Co. Rep. 34, i Co. Litt. 29. k Black. Com. 2 V, 128, 1 Co. Litt. 29. m Ibid, band band becomes tenant by the curtefy, and not before". Yet by the birth of a child, he becomes tenant by the curtefy initiate, and may do many acts to charge the lands, but his eftate is not confummate till the death of the wife. By becoming tenant by the curtefy, the hufband is intitled to hold the eftate during his life, and immediately after his death the fame muft inevitably go to the heir, whether he be a child or distant relation of the wife: and this the husband, as being only tenant by the curtefy, can in no wise prevent; for he cannot alien this eftate for any longer term than his own life: wherefore, and for that it may fo happen, the husband, on the death of the wife, may have no further benefit from the eftate, of which during his wife's life he hath been intitled to the rents and profits; a tenancy by the curtefy feldom happens, where the wife is feifed in fee-fimple at any time during her coverture; for although she cannot devife this eftate by will, as being reftrained by the statute of 34 & 35 Hen. VIII. c. 5. neither will the law permit her to convey it to her husband or any other perfon whatever. For all deeds executed, and as done by her during her coverture, are void; except it be a fine, or like matter of record, in which cafe fhe must be folely and fecretly examined, to learn if her act be voluntary P. Yet by a fine, in which she and *her husband muft join, the estate may be conveyed and affured to any person or perfons, for fuch ufes and purposes as the hufband and wife fhall think fit. So likewife may such estate whereof the wife is feifed in fee-tail general, if there is no remainder or reversion expectant thereon, for barring of which a recovery must be fuffered as more particularly mentioned, page 242. SECTION THE THIRD. HOW THE LAW DISPOSES OF AN HUSBAND's REAL ESTATE; OR THE LAW CONCERNING A TENANCY IN DOWER. HE wife is entitled by law to be endowed of one-third part of all That wife fuch lands and tenements, of which her hufband was feifed in fee-fimple or fee-tail, at any time during the coverture or marriage; to hold the fame during the term of her natural life 9. But that the might be entitled thereto, "Co. Litt. 30. Black. Com. 2 V. 128. P Ibid. s. V. 444, q Co. Litt. 31. The husband being legally feifed in fee-fimple or fee tail during the coverture entitles the wife to dower, but if he before marriage puts the legal eftate out of him, or after mar riage purchases an eftate and takes a conveyance in his own name and a truflee's, the wife will be excluded; as fee p. 98, 99. And the wife cannot be entitled to dower out of an estate, which at the time of her marriage was fubject to a mortgage in fee. Co. Litt. 208. Note 1. 13 Edit, The |