poral seisin in hereditaments that are incorporeal, such as the receipt of rent, a presentation to the church in case of an advowson, and the like. But he shall not be accounted an ancestor, who has had only a bare right or title to enter or be otherwise seised; for the law requires this notoriety of possession as evidence that the ancestor had that property in himself which is now to be transmitted to his heir (y). The seisin, therefore, of any person, thus understood, makes him the root or stock from which all future inheritance by right of blood must be derived; and this is very briefly expressed by the maxim, seisina facit stipitem (z). The rule of law, therefore, with respect to the descent of land, where such descent took place prior to the 1st day of January, 1834, was, and still is (a), that the heir had not plenum dominium, or full and complete ownership, till he had made an actual corporal entry into the lands; for, if he died before entry made, his heir would not have been entitled to take the possession, but the heir of the person who was last actually seised. It was not, therefore, a mere right to enter, but the actual entry, that made a man complete owner, so as to transmit the inheritance to his own heirs (b). It may, then, be stated briefly, as the clear result of all the authorities, that, wherever a party succeeded to an in (y) Mr. Serjeant Stephen, in his Commentaries, vol. 1, p. 365, and note (z), observes, that the origin of the maxim seisina facit stipitem seems never to have been fully and satisfactorily traced; and that, though Blackstone's explanation may sufficiently shew why descent was not to be traced, except from a person who had obtained actual seisin, yet it does not shew why the person last seised was to be the propositus, or root of descent, in preference to a known purchaser, who had also obtained actual seisin. (z) 2 Bla. Com. 209. (a) The stat. 3 & 4 Will. 4, c. 106, does not apply to any descent which took place prior to January 1, 1834. (See sect. 11). (b) 2 Bla. Com. 209, 312. 3 & 4 Will. 4, e. 106. heritance by descent, he must have obtained an actual seisin, or possession, as contradistinguished from a seisin in law, in order to make himself the root or stock from which the future inheritance by right of blood must have been derived; that is, in other words, in order to make the estate transmissible to his heirs (c). With respect, however, to descents which take place on deaths since January 1st, 1834, the law has been entirely altered by the stat. 3 & 4 Will. 4, c. 106, of which sect. 1 enacts, that, in the construction of that act, the expression "person last entitled to land" shall extend to the last person who had a right thereto, whether he did or did not obtain possession or receipt of the rents and profits thereof; and sect. 2 enacts, that such person shall be deemed the purchaser. It may seem superfluous to remark on this portion of the above act; one instance may, however, be given of its effect. Thus, if A. died seised of land, and B., his heir, died without making entry; according to the former law, the heir of A., and not of B., would have succeeded to the land,-that is, would have had the right of entry thereon; but, by the operation of the recent statute, B. must now be deemed the purchaser, and would accordingly transmit the estate to his own heir. We may observe, moreover, that although, in many cases, the tracing descent from the person last seised amounted, in effect, to the same thing as tracing descent from the purchaser, yet this was not necessarily so. If, for example, in the case above put, B. had died leaving a brother of the half blood, this brother might possibly have been heir to A., but could, under no circumstances, have been heir to B., because descent was not then allowed between those related (c) Judgment, Doe d. Parker v. Thomas, 4 Scott, N. R., 468. by the half blood (d). It must also be borne in mind, that, in order to establish a title by descent, it was essential that the claimant should be of the blood of the first purchaser; there were, therefore, two requisites to such a title, viz. that the claimant should prove his consanguinity to the purchaser, and that he should make himself heir to the person last actually seised (e). The maxim, however, non jus sed seisina facit stipitem, did not hold in the descent of estates tail, it being only necessary, in deriving a title to an estate of this kind by descent, to deduce the pedigree from the first purchaser, and to shew that the claimant is heir to him; for the issue in tail claim per formam doni, that is, they are as much within the view and intention of the donor, and as personally and precisely described in the gift, as any of their ancestors (f). Likewise, if the estate which descended was of a kind in which the owner cannot acquire actual seisin of the land, (as is the case with a reversion or remainder expectant upon freehold, where the actual seisin belongs to the particular tenant), the rule was, that the claimant must trace his descent from, or, as it was usually expressed, make himself heir to, the purchaser (g). Rule did not apply to es tates tail, &c. HÆREDITAS NUNQUAM ASCENDIT. (Glanville, lib. 7, c. 1). -The right of inheritance never lineally ascends. applied. The above was an express rule of the feudal law, and Rule, how remained an invariable maxim (h) until the recent act 3 & 4 (d) See 1 Steph. Com. 365, 366. (e) Id. 364, 367. (f) Cruise, Dig., 3rd ed., vol. 3, p. 439; cited Argument, 7 Scott, N. R., 236; Id., 4th ed., p. 386. (g) Ratcliff's case, 3 Rep. 42 a. See the judgment in Doe d. Andrew v. Hutton, 3 B. & P. 648. (h) 2 Bla.Com. 211, 239; 3 Cruise, Dig., 4th ed., 331. 3 & 4 Will. 4, c. 106, s. 6. Will. 4, c. 106, effected so great a change in the law of inheritance. It is thus stated and illustrated by Littleton (2): If there be father and son, and the father has a brother, who is, therefore, uncle to the son, and the son purchase land in fee simple, and die without issue, living his father, the uncle shall have the land as heir to the son, and not the father, although the latter is nearer in blood, because it is a maxim in law that the inheritance may lineally descend, but not ascend. Yet, if the son in this case die without issue, and his uncle enter into the land as heir to the son, and afterwards the uncle die without issue, living the father, the father shall have the land as heir to the uncle, and not as heir to the son, for he should rather come to the land by collateral descent than by lineal ascent. It was, moreover, a necessary consequence of this rule, coupled with the maxim, seisina facit stipitem, that, if, in the instance above put, the uncle did not enter into the land, the father could not inherit it, because a man claiming as heir in fee simple by descent must make himself heir to him who was last seised of the actual freehold and inheritance; and if the uncle, therefore, did not enter, he would have had but a freehold in law, and no actual freehold, and the last person seised of the actual freehold was the son, to whom the father could not make himself heir (k). And here we may remark, that the maxim, hæreditas nunquam ascendit, applied only to exclude the ancestors in a direct line, for the inheritance might ascend indirectly, as in the preceding example, from the son to the uncle (1) The above rule has, however, been altered with respect to descents on deaths on or after the 1st January, 1834, it being enacted by stat. 3 & 4 Will. 4, c. 106, s. 6, that (i) Sect. 3. (k) Co. Litt. 11. b. (1) 2 Bla. Com., 16th ed., 212, n. (5); Bracton, lib. 2, c. 29. every lineal ancestor shall be capable of being heir to any preferred. And here we may conveniently advert to a well-known Lineal descent maxim of our law, which is thus expressed: Linea recta semper præfertur transversali (m)—the right line shall always be preferred to the collateral. It is a rule of descent that 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 (n). Hence it is that the son or grandchild, whether son or daughter, of the eldest son succeeds before the younger son, (m) Co. Litt. 10. b.; Fleta, lib. 6, c. 1. The reader will find the subject, which has been purposely only touched upon in the text, fully explained and |