7. And where there shall be a failure of male paternal ancestors of the person from whom the descent is to be traced, and their descendants, the mother of his more remote male paternal ancestor, or her descendants, shall be the heir or heirs of such person, in preference to the mother of a less remote male paternal ancestor, or her descendants; and where there shall be a failure of male maternal ancestors of such person, and their descendants, the mother of his more remote male maternal ancestor, and her descendants, shall be the heir or heirs of such person, in preference to the mother of a less remote male maternal ancestor, and her descendants(p).

(*)8. And any person related to the person from whom the descent is to be traced by the half blood shall be capable of being his heir; and the place in which any such relation by the half blood shall stand in the order of inheritance, so as to be entitled to inherit, shall be next after any relation in the same degree of the whole blood, and his issue, where the common ancestor shall be a male; and next after the common ancestor where such common ancestor shall be a female, so that the brother of the half blood on the part of the father shall inherit next after the sisters of the whole blood on the part of the father and their issue, and the brother of the half blood on the part of the mother shall inherit next after the mother(q).

9. And when the person from whom the descent of any land is to be traced shall have had any relation who, having been attainted, shall have died before such descent shall have taken place, then such attainder shall not prevent any person from inheriting such land who would have been capable of inheriting the same, by tracing his descent through such relation, if he had not been attainted, unless such land shall have escheated in conse

quence of such attainder before the 1st day of January 1834(r).

10. But the Act does not extend to any descent which shall take place on the death of any person who shall die before the said 1st day of January 1834(s).

any

And where any assurance executed before the said 1st day of January 1834, or the will of any person who shall die before the same 1st day of January 1834, shall contain any limitation or gift to the heir or heirs of person, under which the person or persons answering the description of heir shall be entitled to an estate by purchase, then the person or persons who would have (*)answered such description of heir, if this Act had not been made, shall become entitled by virtue of such limitation or gift, whether the person named as ancestor shall or shall not be living on or after the said 1st day of January 1834(1).

IV. There is a serious objection frequently taken to titles, which it may not be improper to consider in this place.

The objection to which I allude is, that an equitable recovery is void where the equitable tenant to the præcipe has the legal estate. In support of this objection, it is urged, that where the legal freehold is limited to one for life, with an equitable remainder to the heirs of his body, the estates cannot coalesce so as to make the parent tenant in tail, notwithstanding that he has the beneficial, and consequently the equitable estate for life; and therefore, upon the same principle, the legal tenant for life cannot be considered as seised of an equitable estate, distinct from his legal estate, so as to support the recovery as a good equitable recovery.

In answer to this argument, it may be said, that the

(r) Sec. 10.

(s) Sec. 11.

(t) Sec. 12.

reason why the equitable remainder to the heirs of the body cannot coalesce with the legal estate for life is, that the rule in Shelly's case requires both estates to be legal. This is an imperative rule of law, which courts of equity can no more depart from than they can alter the rules of descent. Equity, however, follows the law; and, therefore, if both estates are equitable, they will unite in the same manner as if they were legal estates. But as Mr. Fearne, with his usual ability, observes, when both the estates are not legal, the application of a legal construction, or operation of a rule of law, which must equally affect both, (*)seems to be excluded by one of the objects of that construction not being a subject of legal cognizance. So when both are not equitable estates, their combination seems to be out of the reach of an equitable construction to which one of the estates is not adapted (u).

Now this difficulty does not occur in the principal case. The equitable estate tail has no existence in contemplation of law, but depends wholly on the rules of equity for its support. And therefore there is no rule of law which says that the recovery shall be void. Equity, with respect to equitable recoveries, adheres as nearly as may be to the mode of barring entails prescribed by the law. In this instance the analogy is strictly preserved, for the tenant to the præcipe has the equitable estate of freehold. And if a court of equity were to hold a recovery bad, on the ground of the equitable tenant to the præcipe having the legal estate, it would only make another deed necessary. The tenant for life would convey to a third person in trust for himself, before he made a tenant to the præcipe, and by this simple expedient vanquish the objection.

In a manuscript opinion, given by Mr. Fearne, on this point, in which he held the recovery to be good, although the equitable tenant to the præcipe had the legal estate,

(u) Cont. Remainders, p. 78, 5th edit.

he first adverts to the analogy preserved between legal and equitable recoveries, and then proceeds thus: "The principle applies with no less force, where we suppose the tenant for life to be of the legal estate, for his own benefit. For then the equitable interest is involved in the legal; and of consequence all that is required by the said rule of analogy is had in his concurrence, viz. the concurrence of the person entitled to the beneficial interest or pernancy of the profits of the immediate estate of freehold. If the concurrence of a person entitled to the mere beneficial (*)interest of freehold will answer the rule of analogy to the requisite extent for barring equitable estates tail and remainders, can there be a doubt in regard to the competency of the person entitled not merely to that degree of interest, but to a comprehending greater estate, adequate even to the purpose of barring legal estates and remainders? The analogy supposes that a recovery by an equitable tenant in tail will bar the equitable estate tail and remainders, and reversion, even where, if the estate tail and remainders had been legal, such recovery would not have barred them for want of a legal tenant to the præcipe; because that analogy in the one case substitutes an equitable tenant in the place of a legal one in the other. Now, can the same rule of analogy ever deny to a recovery by a tenant in tail of an equitable estate the same effect in barring his estate tail and the subsequent equitable remainders and reversion, as it would have had if all those estates had been legal? Such a doctrine would be outrunning the analogy, and the very ground for its adoption, in disabling those very persons from barring equitable estates tail and remainders, who might have barred them if they had been legal instead of equitable. This would scarcely be reconcilable with the well-known maxim of æquitas sequitur legem.

If the objection cannot be supported upon principle, much less can it be sustained upon authority. On the (*377)

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57

one hand, it has never been said that such a recovery is void, except in the case of Shapland v. Smith(x), where Lord Thurlow is made to say, that Christopher had only an equitable estate for life, and the subsequent estate being executed, he had an equitable estate for life, and a legal remainder in tail, which could not unite; and of course there could not be a good tenant to the præcipe, (*)and the recovery suffered was void; it being necessary, in order to make a good tenant to the præcipe, that there should be a legal estate for life, with a legal reversion in tail, or an equitable estate for life, with an equitable reversion in tail. Upon the latter dictum, Mr. Fearne, in the opinion before referred to, observes, that he could not hesitate in imputing it to the same inaccuracy or misapprehension of the reporter to which other unwarrantable positions in the same case must, as he conceived, be ascribed. That case came before the Court in consequence of his opinion, taken by the intended purchaser, in which he had objected to the title on the ground of Shapland's taking only an equitable estate for life, and the limitation to the heirs of his body operating as a contingent legal remainder to such heirs; the equitable and legal estates being incapable of that union which was requisite to vest the latter at all in him, or give him an estate-tail of any kind. Baron Eyre inclined against the objection; but on a re-hearing Lord Thurlow admitted it, and the insufficiency of the recovery depended, as he (Mr. F.) understood, not on the want of a good tenant to the præcipe, but the want of an estate tail in Shapland. And the report accordingly in the margin states, that it was not an estate tail in C. S. though the report itself makes the Chancellor speak of it as a legal remainder in tail in him. Mr. Fearne concludes by saying, that "therefore he could lay no sort of stress on any vague

(x) 1 Bro. C. C. 78.