lands as heir to some of his ancestors. And from these observations arises another division of estates in fee-simple, viz. that every man who has a lawful estate in fee-simple has it either by descent or by purchase.

The eldest is most worthy of blood.] It is a maxim in law, that the next male of the worthiest blood shall ever inherit (as also and all descendants from him,) before the female, and the female of the part of the father before the male or female of the part of the mother, &c., because the female of the part of the father is of the worthiest blood. And therefore among the males, the eldest brother and his posterity shall inherit lands in fee-simple as heir before any younger brother, or any descending from him, because (as Littleton says) he is most worthy of blood. In King Alfred's time, knights' fees descended to the eldest son, for that by division of them between males, the defence of the realm might be weakened; but in those days socage fee was divided between the heirs male, and therewith agrees Glanville. But of this more shall be said hereafter in its proper place.

SECTION 6.

cluded.

ALSO it is to be understood, that none shall have land in fee-simple Half blood exby descent as heir to any man, unless he be his heir of the whole blood. For if a man has issue two sons by divers venters, and the elder purchase lands in fee-simple and dies without issue, the younger brother shall not have the land, but the uncle of the elder brother or other his next cousin shall have the same, because the younger brother is but of half-blood to the elder.

No man can be heir to a fee-simple by the common law but he who has sanguinem duplicatum, the whole blood, that is, both of the father and of the mother, so that the half-blood is no blood inheritable by descent; because that he who is but of the half-blood cannot be a complete heir, for that he has not the whole and complete blood, and the law in descents of fee-simple respects that which is complete and perfect.

Possessio fratris.

SECTION 7.

AND if a man has issue a son and a daughter by one venter, and a son by another venter, and the son of the first venter purchases lands in fee and dies without issue, the sister shall have the land by descent as heir to her brother, and not the younger brother, for that the sister is of the whole blood of her elder brother.

Same.

[146]

This rule not applicable to

SECTION 8.

AND also, where a man is seised of lands in fee-simple, and has issue a son and daughter by one venter, and a son by another venter, and dies, and the eldest son enters and dies without issue, the daughter shall have the land and not the younger son; yet the younger son is heir to the father but not to his brother. But if the eldest son does not enter into the land after the death of his father, but dies before any entry made by him, then the younger brother may enter, and shall have the land as heir to his father. But where the elder son in the case aforesaid enters after the death of his father, and has possession, there the sister shall have the land, because possessio fratris de feodo simplici facit sororem esse hæredem. But if there be two brothers by divers venters, and the elder be seised of land in fee, and dies without issue, and his uncle enters as next heir to him, and also dies without issue, now the younger brother may have the land as heir to the uncle, for that he is of the whole blood to him, albeit he be but of the half blood to his elder brother.

Seised of lands in fee-simple.] These words exclude a seisin in estates tail and fee-tail, albeit he hath a fee-simple expectant. And therefore, if reversions. See lands be given to a man and his wife and to the heirs of their two also infra, 156. bodies, the remainder to the heirs of the husband, and they have issue a son, and the wife dies, and he takes another wife, and has issue a son, the father dies, the eldest son enters and dies without issue, the second brother of the half blood shall inherit; because the eldest son, by his entry, was not actually seised of the fee-simple, being expectant, but only of the estate tail. And the rule is, that possessio fratris de feodo simplici facit sororem esse hære

dem; and here the eldest son is not possessed of the fee-simple, but of the estate tail.

And though Littleton speaks of lands only, yet there may be a possessio fratris of a use, of a seigniory, a rent, an advowson, and of other hereditaments.

And the eldest son enters.] These words are materially added when the father dies seised of lands in fee-simple, for if the eldest son does not in that case enter, then without question the youngest son shall be heir; because, as hath been said before, he must regularly make himself heir to the person who was last actually seised (or to the purchaser), that is to the father where the eldest son does not enter. And therefore Littleton adds, that the son is heir to the father. But when the eldest son in this case enters, then cannot the youngest son, being of the half blood, be heir to the eldest, but the land shall descend to the sister of the whole blood. Yet in many cases, albeit the son does not enter into lands descended in fee-simple, the sister of the whole blood shall inherit; and in some cases, where the eldest son does enter, yet the younger brother of the half blood shall be heir.

If the father makes a lease for years, and the lessee enters, and [the father] dies, then if the eldest son dies during the term before entry or receipt of rent, the younger son of the half blood shall not inherit, but the sister; because the possession of the lease for years is the possession of the eldest son, for he is thereby actually seised of the fee-simple; and consequently the sister of the whole blood shall be heir.

The same law is if the lands be holden by knights' service, the eldest son being within age, and the guardian enters into the lands. And so it is if the guardian in socage enter.

But in the case aforesaid, if the father makes a lease for life, or a gift in fee-tail, and dies, and the eldest son dies in the life of the tenant for life or tenant in tail, the younger brother of the half blood shall inherit; because the tenant for life or tenant in tail is seised of the freehold, and the eldest son hath nothing but a reversion expectant upon that freehold or estate tail; and therefore the youngest son shall inherit the land as heir to the father who was last seised

of what there may be a seisin.

Eldest son must make possessio

be seised to

fratris.

[15a]

Possession of his

yearly tenant, is that seisin."

Entry by guardian.

Lease for life or in tail prevents possessio fratris, unless

eldest son receive

rent.

Possessio fratris

how affected by dower.

Entry into part sufficient.

[156]

of the actual freehold. And albeit a rent had been reserved upon the lease for life, and the eldest son had received the rent and died, yet it is holden by some that the younger brother shall inherit, because the seisin of the rent is no actual seisin of the freehold of the land. But 35 Ass. pl. 2. seems to the contrary, because the rent issues out of the lands, and is in lieu thereof, wherein the only question is, whether such a seisin of the rent be such an actual seisin of the land in the eldest son as the sister may in a writ of right make herself heir of this land to her brother? But it is clear, that if there be bastard eigne, and mulier puisne, and the father makes a lease for life or a gift in tail, reserving a rent and dies, and the bastard receives the rent [all his lifetime] and dies [leaving issue] this shall bar the mulier [by estoppel], for the reason of that stands upon another maxim, as shall manifestly appear in its apt place, Sect. 399.

Seised of lands.] But in this case, if the eldest son enters, and gets an actual possession of the fee-simple, yet if the wife of the father be endowed of the third part, and the eldest son dies, the younger brother shall have the reversion of the third part, notwithstanding the elder brother's entry; because his actual seisin which he got thereby was by the endowment defeated. But if the eldest son had made a lease for life, and the lessee had endowed the wife of the father, and tenant in dower had died, the daughter should have the reversion, because the reversion was changed and altered by the lease for life, and the reversion is now expectant on a new estate for life.

Enter.] Hereupon the question grows, whether if the father be seised of divers parcels of land in one county, and after the death of the father the son enters into one parcel generally, and before any actual entry into the other, dies, whether the general entry into part shall not vest in him an actual seisin in the whole, so that the sister shall inherit the whole? And some take a diversity when an entry shall vest or divest an estate, that there must be several entries into the several parcels, but that where the possession is in no man, but the freehold in law is in the heir that enters, there the general entry into one part reduces all into his actual possession. And therefore if the lord enters into a parcel generally for a mortmain, or the feoffor for a condition broken, [without saying in the name of the whole] or the disseisee into a parcel generally, the

entry shall not vest nor devest in those or the like cases, only for that parcel. But when a man dies seised of divers parcels in possession, and the freehold in law is by the law cast upon the heir, and the possession is in no man, there the entry into parcel generally seems to vest the actual possession in him of the whole. But if his entry in that case be special, viz. that he enter only into that parcel, and no more, then that parcel only is reduced into actual possession.

of advowson,

A man seised of lands.] What then is the law of rent, advowson, Possessio fratris or such things that lie in grant? If a rent, or an advowson, rent, &c. descend to the eldest son, and he dies before he has seisin of the rent, or present to the church, the rents or advowson shall descend to the youngest son, for that he must make himself heir to his father, as hath been oftentime said before. The like law is of offices, courts, liberties, franchises, commons of inheritance, and such like. And this case differs from the case of tenant by the Curtesy. curtesy; for there if the wife dies before the rent day, or the church becomes void, the law in respect of the issue begotten by him will give him an estate by the curtesy of England, because there was no laches or default in him, nor could he possibly get seisin. But the case of the descent to the youngest son stands upon another reason, viz. to make himself heir to him that was actually seised, as hath been said.

In fee-simple.] For half blood is not respected in estates tail, because the issues claim by descent per formam doni, and the issue in tail is ever of the whole blood to the donee.

Half blood applies not to

estates tuil.

Possessio fratris de feodo simplici facit sororem esse hæredem.] Four rules to Hereupon four things are to be observed, every word being almost possessio fraoperative and material. First, that the brother must be in actual possession; for possessio est quasi pedis positio. 2dly. de feodo simplici excludes estates in tail. 3dly. facit sororem esse hæredem, So that soror est hæres facta, and therefore some act must be done to make her heir, and the younger son is hæres natus if no act be done

to the contrary. And albeit the words be facit sororem esse hæredem, Sister's issue. yet this extends to the issue of the sister, &c. who shall inherit before the younger brother. 4thly. Of dignities, whereof no other No possessio fratris of dignipossession can be had but such as descends to a man and his heirs, ties. (as to be a duke, marquis, earl, viscount, or baron) of which there