#### JAMES LAWRENCE v. FRANKLIN G. PITT.

Where, by the death of her grand-father, (the person last seized,) a child is entitled to a reversion in land, expectant on the termination of a life estate, and such child dies before the expiration of the life estate! Held, that the inheritance does not vest for life in the parent of the deceased child, under the 6th Canon of Descents, on the expiration of the life estate. *The*person entitled to take must make himseli heir to the person last seized.

This was an action of Ejectment, tried before bis Honor Judge Caldwell, at tbe Spring Term 1854, of Edgecombe Superior Court.

The plaintiff claimed tbe right to enter upon an undivided fifth part of the tract of land set forth in the declaration, and the following facts are submitted as a case agreed:

“ Noah Little died intestate, in the year 1824, seized of a tract of land, leaving Mary E. Little his widow, and the following children, who were his only heirs at law, to wit: Joseph J. Little, Cullen Little, Wm. G-. Little, Elisha Little, Patsy Howard and Amariah Little. At the November Term, 1824, of Edgecombe County Court, the widow, Mary E. Little, filed her petition for dower, in the said land, which was assigned, and she took posscssien thereof, and continued in possession until her death in 1852. At August Term, 1826, of said Court, a petition for partition of the land was filed by the heirs, and under it a partition was had, and the share assigned to Amariah Little was covered by the dower of the widow and is the tract of land described in the declaration. Amariah Little died in 1842, intestate, and without issue. Patsey Howard died intestate, before 1842, leaving a child her only heir, by the name of Martha, who intermarried with the lessor of the plaintiff. Martha, the wife of the lessor, died in 1844, leaving a child (Joseph) her only heir — • the issue of the marriage between her and the lessor of the plaintiff. Joseph, the child, died intestate and without issue in 1850. The defendant was in adverse possession, at the time of the demise, in the declaration.

*345If tbe Court should be of «opinion that tbe plaintiff is entitled to recover, judgment is to be entered in bis favor for six-pence and costs, with an order to issue a writ of possession. If tbe Court should be of opinion that tbe plaintiff is not entitled to recover, judgment of non-suit is to be entered.”

His Honor being cf opinion with tbe plaintiff, gave judgment accordingly, from which tbe defendant appealed.

Biggs, for plaintiff.

*jHoward,*for defendant,

argued as follows :

Tbe plaintiff claims under the proviso to tbe 6th Rule, in chapter 88, on Descents, of tbe Revised Statutes. The wording of tbe Statute is, “ that in all cases where tbe person last seized shall have left no issue, nor brother, nor sister, nor the issue of such, the inheritance shall vest for life only in the parents of the intestate, or in either of them,” &e. It is admitted by the defendant, that the child of the plaintiff died, leaving no brothers, sisters or issue, and the only question is, whether reversions are within the purview pf the statute, or whether the child had such *seizin*as will support the plaintiff’s claim. The word “seized” is a “word which is -well ascertained at common law,” and it has been decided by this Court in KitcheN v. TxsoN, 3 Murphy, 314, that when such is the case, it must “ be understood in the statute in the same sense in which it is understood at common law.” The certainty and security attained by this mode of construction, was judicially considered and approved in ROBERTS v. CANNON, 4 Dev. and Bat. 256. And in 1 Jones 84, Rives v. C-utiime, the Court say, that1 *‘*we are bound to give to words, when used in- a statute, the meaning attached to them at common law.” What, then, Í3 the common law meaning of the word “ seized.”

Seizin was of two hinds, “ actual and legal.” Actual, when the possession was held either by the party himself or his tenant for years; and legal, when he had a present right of entry, either by deed or descent, without having taken possession. *346There is certainly no actual seizin. The plaintiff must, therefore, contend that the words *“*actual and legal,” used in Rule 1, extends through the canons of descent, and entirely changes the common law; and that, by a construction, suited to our condition and circumstances, the plaintiff’s child had legal seizin, within the intendment of the Legislature. By the common law, “ a person can only be said to be entitled to, *not seized*of, an estate in reversion.” Cruise, vol. 2, title 17, section 13. At common law, the rule was fully recognized in our Courts, that a widow was entitled to dower in all cases of legal seizin; could she claim dower in this instance ? Certainly not. At common law, heirs must make out their title to reversions when the life tenancy falls in. Recognized and confirmed in ExüM v. Davie *el al,*1 Murphy 475. The statute certainly deserves no more liberality of construction than other canons of descent — the father, no more favor than any other heir. This rule of law has been clearly and forcibly set forth by Mr. Justice Stoiiy, in Cook; v. HamMOND, 4 Mason 467, 484, 485. After showing that, by certain acts, such seizin might be gained as to create a new stock, he says: “ But, if no such act be done, and the reversion on remainder continues in a course of devolution, by descent, the heir of the first donee or purchaser will be entitled to the whole as his inheritance, although he may be a stranger to all the mesne reversioners and remainder-men, through whom it was devolved.” No act of ownership was exercised.

Battle, J.

The facts stated in the case agreed, present the question, whether the reversionary estate in lands in fee simple, after a life estate in the same is to be regulated in its descent by the sixth rule in our canons of inheritance in the same manner as if it were an estate in possession. The solution of this question depends upon the sense in which the word *“*seized ” is used in those canons. This word is a well known term of the common law, signifying the possession or occupation of the soil by a free man or freeholder, one who has at least a life estate in the land, 2 Black. Com. 104. Seizin was of two kinds, sei-*347zin in deed, or the actual possession or occupation of the land, and seizin in law, which was a bare right to possess or occupy it. Ibid 127. The difference between the two kinds is thus illustrated : “ Where a freehold estate is conveyed to a person by feofment, with livery of seizin, or by any of those conveyances which derive their effect from the statute of uses, he acquires a seizin in deed and a ’freehold in 'deed. But where a freehold estate comes to a person by act of law, as by descent, he only acquires a seizin in law; that is,, a right to the possession; and his estate is called a freehold in law. For, he must make an actual entry on the land to acquire a seizin, and a freehold in deed.” 1 Cru. Dig., tit. 1, see. 24; Co. Lit. 266 b. In the English Canons of Inheritance, an actual seizin of land was necessary to constitute a person an ancestor from whom an estate could be derived by descent. A bare right or title to enter or be otherwise seized, would not do. Hence the maxim, *seisina fcucit stipitem.*Black. Com. 209; Co. Lit. 15. It is manifest, from this explanation of seizin, that neither actually nor legally could it be had of a remainder or reversion after a life estate. It could not be so had, because the tenant for life-was in the present occupation of the land, and there could not. be two distinct or separate seizins in the same land, at the same' time. Hence arose a peculiarity in the descent of such estates,, which is well expressed by Judge Story, in the case referred tO' in the argument of the defendant’s counsel, of Cook v. Hammond, 4 Mason’s Rep. 484. “ Where the estate descended, is a. present estate in fee, no person can inherit it, who cannot, at the time of the descent east, make himself heir of the person last in the actual seizin thereof. But of estates in expectancy,, as reversions and remainders, there can be no actual seizin during the existence of the particular estate of freehold; and,consequently, there cannot be any mesne actual seizin, which of itself shall turn the descent, so as to make any mesne reversioner or remainderman a new stock of .descent, whereby his heir, who is not the heir of the person last actually seized of the estate, may inherit. The rule, therefore, as to reversions and remain*348ders, expectant upon estates in freehold is, that unless something is done to intercept the descent, they pass, when the particular estate falls in, to the person who can then make himself heir of the original donor, who was seized in fee, and created the particular estate, or, if it be an estate b purchase, the heir of him who was the first purchaser of such reversion or remainder. It is no matter in how many persons the reversion or remainder may, in the intermediate period, have vested by descent; they do not, of course, form a new stock of inheritance. The law looks only to the heir of the donor or first purchaser.” See the note on the 228th page, in any of later editions of Black. Com., and the cases there cited. The same was held to be a rule of the common law in New York. Jackson v. Hendricks, 3 John. Cases, 214; Bates v. Schraeder, 13 John. Rep. 260; It has also been decided to be a part of our common law. Exum v. Davie, 1 Murp. Rep. 475.

It is manifest, then, that, prior to the passage of our act to regulate descents in 1808, the son of the plaintiff’s lessor would not have been the *propositus*or stock from whom the inheritance could have been derived. Is the rule changed by that act? is the question which we now have to consider. The plaintiff’s counsel contends that it is, by force of the words “ actually *or legally,”*which are used in the first rule, in connection with the word “seized;” that those words must be supplied by construction, to explain and qualify the term seized wherever it occurs in the other rules; that a person is legally seized of an estate in reversion, after a particular estate for life ; and that all these propositions are established by the case of Bell v. Dozier, 1 Dev. Rep. 333. We do not understand the counsel to insist that the words “ legally seized” have a different signification in our act, from what they bear at common law. We suppose that he acquiesces in the rule, which is well established, “ that when a statute makes use of a word, the meaning of which was well ascertained at common law, the word shall be understood in the same sense it was at common law.” Kitchen v. Tyson, 3 Murph. Rep. 314; Rives v. Guthrie, *ante.*84. *349It is so even with regard to words used in our Constitution. Roberts v. Cannon, 4 Dev. and Bat. Rep. 256. In the matter of the contested election between Berry and Waddell, published in an appendix to the reports of the cases decided at December Term, 1848, 9 Ired. Rep. These words must then be understood in the same sense in which they are used at common law, as there is nothing in the act itself to show that they were intended to be used in any other sense. We admit that the words “ actually and legally ” are to be supplied whenever the term seized is used alone in any of the rules of descent prescribed in the act, because they are expressed in the first rule, and we can see no reason for excluding them from the others; and it was so held in Bell v. Dozier. We admit further, that that case is apparently an authority in 'favor of the other propositions contended for by the plaintiff’s counsel; and yet, we cannot yield our assent to the conclusion which he deduces from It. The judgment in that case may well stand, though some of the positions assumed in It are manifestly wrong, and the inferences drawn from them therefore erroneous. It was an action of waste against a dowress and her second husband, in which it is expressly stated, in the opinion of the Court, that the waste was committed upon the land assigned to the widow for her dower. She and her husband were therefore liable to the action, whether she held the land as dower, or as being vested in her for life, upon the death of her son Jesse, under the 6th Rule of Descents.

In the course of his opinion, Judge Henderson says: “ The case does not expressly state that Jesse was ever actually seized; but I think it may be inferred from the assignment of dower — - for it is taken out of his seizin.” This is a plain mistake, for the widow’s dower is not taken out of the seizin of the heir, but of that of her husband. The well known maxim of *dos de dote peti non*debet, depends upon this very principle; for the reason is, that when the heir endows the widow of the ancestor, the assignment defeats the seizin which the heir acquired by the descent of the land to' him; so that the widow is in of the estate *350of her husband, and the heir is considered as never having been - seized of that part. In the same manner, if a woman, on whom lands descend, endows her mother, afterwards marries, has issue, and dies in the lifetime of her mother, her husband will not be entitled to an estate by the curtesy in those lands, whereof the mother was endowed, because the daughter’s seizin was defeated by the endowment. 1 Cru. Dig. tit. 6, ch. 8, sec. 20-21. Co. Lit. 81 a, 4 Rep. 122 a. The opinion upon which we are commenting, after using the words quoted as above, proceeds thus ; “ But, if it did not, the first canon of the act, speaking of lineal descents, declares that a seizin in law shall make a *propositus;*and although no such declaration is made in case of collateral descents, but the word *1*seized ’ only is used, I apprehend that the Legislature intended to make a legal seizin sufficient in both eases. No reason can be given why, if it is good in the one case, it is not so in the other.” By turning to the case, it will at once be perceived, that, upon the death of Jesse Barnard, the plaintiffs were entitled, as the next collateral heirs of his father, Peter Barnard, the person last actually seized. So that it was entirely unnecessary to raise the question whether they could claim the reversion after his widow’s life estate in her dower, as heirs of his son Jesse. But it must be admitted that the Court seemed to think that the question was presented, and they disposed of it, by assuming the position that Jesse Barnard was legally seized of the reversion. In that we think they’were in error. We have already given the definitions of, and pointed out the distinctions between, an actual seizin, or seizin in deed, and a legal seizin or seizin in law. In doing so, we have derived our information from the highest authorities known to the common law. That they are correct, we have the additional assurance in their application to the well known instances of curtesy and dower. Actual seizin in the wife is es- ' sential to give curtesy to the husband, while only a legal seizin in the husband is necessary to entitle the wife to dower; and yet neither curtesy nor dower attaches to a reversion after a life estate in the lands. 1 Cru. Dig., tit. 5, ch. 2, sec. 28, and tit. *3516, ch. 2, sec. 15; Co. Lit. 29 a, and 32 a. The law is different with regard to reversions after terms for years, because the possession of the tenants for years does not prevent the seizin of the reversioners.

But it is said that, in pleading and other legal proceedings at the common law, a person is often said to be seized of a reversion ; and therefore the term seized may well be applied to reversions in our statute of descents. It is true, that it was held by the Court in the case of Wrotesly v. Adams, 1 Plow. Rep. 191, that in pleading it was not error to say, that one was seized as of fee of a reversion after a life estate. But, though that case was decided early in the reign of Elizabeth, the essential character of seizins, “actual and legal,” remained the same, and continued still to influence the doctrine of the common law, in relation to curtesy, dower and descent. It is almost certain, that our statute intended to refer to it; else, why use the words, “actually or legally,” at all? The argument derived from the use of the word “seizin,” in pleading, as applied to a reversion, would have been much stronger, had our statute used that word alone, without other words qualifying it, and pointing to the well established distinction between aetual and legal seizin.

It is said again, that hardships will sometimes be felt, unless the construction contended for by the counsel be adopted. Eor instance, if one die seized of an estate, leaving a widow and a daughter, and dower be assigned to the widow, and then the daughter has a bastard child, and dies in the lifetime of her mother, the bastard could not, under the 10th rule, inherit from his mother the part assigned to the widow. That may be true, but it only shows that the act is not broad enough to extend to every case of descent, leaving some to be regulated still by the rules of the common law. Among these are remainders and reversions after life estates, which were manifestly not within the purview of the legislature, else it would have given something more substantial to parents, in the very rule under which the plaintiff claims, than a dry reversion for life, after an estate *352for life in tbe same lands. In reply to tbe argument derived from tbe supposed case of hardship which might occur under our construction, we ean state a case equally hard, which might happen under the construction contended for by the plaintiff’s counsel. If an alien father, having two sons, should come into this State with one only of his sons, and they should he naturalized, and then the father should purchase land, marry a second wife and die, devising the land to his wife, or, leaving it to be assigned to her for dower, and. then his other son should come into the State with the view to be naturalized, but his brother should die before the widow, he could not inherit the land under the plaintiff’s construction, though he might be naturalized before the death of the widow, because it would have escheated before that period; whereas, according to our construction, he might have taken it, when the life estate fell in, as the heir of his father, the person last actually seized. The case of Exum v. Davie, above cited, is an instance of the benign operation of the rule at common law. The truth is, that the act was mainly intended to operate upon estates in possession, and upon remainders and reversions, after estates for years, of which the owner might be said to be seized, either actually or legally, according to the meaning of those terms at common law. Some of its rules, as for instance, the second, which abolishes *¶rimogeniticre,*and prescribes equality among males and females, and the third, which provides for the right of representation, extend to all inheritances, because they do not use the word “ seized ” at all. In the case of remainders and reversions after life estates, the rules of the common law still prevail, and the person who claims them must, when the particular estate falls in, “ make himself heir of the original donor, who was seized in fee, and created the particular estate, or if it be an estate by purchase, the heir of him who was the first purchaser of such reversion or remainder.” In our case, the plaintiff’s lessor, not being entitled to the land in question, either by the common law, or by our act of descents, *353must submit to have the judgment in his favor set aside, and judgment upon the case agreed entered for the defendant.

Judgment reversed.