#### Jackson, *ex dem.*Lawrence and others, *against*Hilton and another.

Where A.,seispk>' ofeeiaiS, hfe^and'die" leaving b. his heir at law, who dies before the determinationofthe estate for life the heirs of fu'chT entitled ter&edeathof life; forB*had not such a ate a new stock of descent: and a person land by détitfe'hSíf as heir of A.) who was last actually seised m

THIS was an action of ejectment, brought to recover three undivided fourth parts of a house and lot of land, situate in the first ward of the city of *Mcw-York.*The cause was tried before Mr. J. *Yates,*at the *Mew- York*sit-» ' tings, in *April,*1818. ® ' * ***

The plaintiff produced in evidence, the will of *Daniel Lawrence,*dated the 14th of *March,*1755, and proved, on the 18th of *August,*1757, which contained the following devise of the premises in question : “ *Item,*I give unto my daughter *Mehitable Hilton,*relict of Captain *Ralph Hilton,*ja(;e 0f the city of *Mew-York,*deceased, my dwelling house, jn *Mew-York,*which I lately purchased of Captain *Lush,*du« v 1 j x ring her natural life.'5 The testator made no further dispositionof the premises; and he also gave to his executors full power and authority to sell and convey all his real es- . , tate*

^ witness on the part of the plaintiff, testified, that *Mehitable,*the daughter of the testator, occupied the premises. *97under her father’s will, as long as the witness could rememher, and that she died about seven years ago, aged about 90 years ; that the testator had two sons, of whom *Abraham Lawrence*was the eldest, and that the other son went to sea before h'is father’s death, and had never been heard of since, and was supposed to have been lost; and that *A. Lawrence*died about fourteen years ago, having had six children, some of whom died in the life time of their father. *Mary Lawrence*and *Clarissa Wenman,*two of the lessors of the plaintiff, are the daughters of *A. Lawrence,*and *Mary Ann,*the wife of *L. G. Coutant,*she and her husband being also lessors, and *John L. Quick,*the other lessor, are the children of *Nancy,*one of the daughters of *A. Lawrence,,*who died during the life of her father.

The counsel for the defendants insisted, that under the power in the will of *D. Lawrence,*the premises in question went to his executors for the benefit of the residuary legatees ; and that the reversionary estate, after the death of *M. Hilton,*could not descend to *A. Lawrence,*as the only son and heir at law of the testator, and, therefore, that the plaintiff was not entitled to recover. A verdict was taken for the plaintiff, subject to the opinion of the Court, on the point above stated.

*M. S. Wilkins,*for the plaintiff, contended, that *A. Law-*

*rence*being the eldest son of the testator, the estate vested in him as heir at law, and upon his death, descended to the lessors of the plaintiff.

*D. B. Ogden,*contra.

The testator devised to his daughter *M.*for life, and made no disposition of the reversion. A person who claims by *descent*must show himself heir to the person *last seised. (Co. Litt.*11.6.) The estate for life being a freehold, the seisin was in the daughter, during her life; and *A. L.*the eldest son, could not, therefore, be seised. *(Co. Litt. 15. a.)*He who claims the reversion, as heir, must make himself heir to *D. L.*the testator. *(Ratcliffe's case,*3 *Co.*42. *Cro. Car.*410.) The Court decided in *Bates*v. *Shraeder, (*13 *Johns. Rep.*260.) that a person claiming the reversion, must deduce his title immedi*98ately from the person last actually seised ; and that a tenancy by the *curtesy,*or for life, suspended the descent, so that the eldest son or heir at law is not so seised as to constitute á new stock of descent, *(a)*
      **The seisin here, being in the tenant for life, oil the determination óf that estáte, the reversion must go to the heirs o.f *D. L.*the testator. The lessors of the plaintiff could recover, therefore, hut a very, small proportion ; not more than two thirty-third parts of one thirty-third part, there being numerous children, and grandchildren. ( *Watkins on Descents,*149.)

*T. A. Emmet,*in reply, said, that the case of *Bates*v. *Shtaeder,*was founded on that of *Jackson*v. *Gomez, '*(3 *Johns. Cases,*214.) which was not within the statute of descents, and did not apply. The doctrine contended for x by the defendant’s counsel is, that where there is an estate for life, directly devised, and nothing is said as to the reversion, the reversion in fee is no where. When D, *L.,*the testator, died, *A.L.*his son, was his heir at law, on whom* according to the statute of descents, the reversion in fee was cast, and through whom the lessors trace their descent from *D. L.*The lessors of the plaintiff have, therefore, shown themselves to be heirs of the person last seised.

**Vide *Gilb. on'Tenures,*15,16. (4 *Ed.) Watkins on Descents,*85. 108.

Spencer, J. delivered the opinion of the Court.

The lessors claim three-fourths of the premises, as heirs to *Abraham Lawrence,*Although it is not stated, that *Daniel Lawrence,*the ancestor, had any other children than *Abraham,*and a son, who went to sea in the'life-time of his father, and was never heard of, and who must be presumed to be dead; yet the case has been argued, as though there Were other children of the ancestor *Daniel „Lawrence;*and, it seems, that the question intended to be submitted, is, whether *Abraham Lawrence,*as the eldest son, and heir at law of hiá father, became, as such, so seised of the premises devised to the daughter, *Mehitabel Hilton,*for life, as that his children can recover the premises as his heirs. We are of opinion that they cannot. It is a maxim of the common law, which *De Grey,*Ch. Justice, says, in *Goodtitle*v. *Newman',*(3 *Wil.*526 ) has subsisted for ages, as appears by *Bracton,*
      *99(lib. 2. fol. 65.) *Britton, (cap.*119. 271.) and *Fleta,*(lib. 6. cap. 1. s. 14.) that lands in fee simple must descend to the heir of the whole blood of the person last actually seised thereof. Lord *Coke,*in his commentary on the 8th section of *Littleton, 15.a.*states the law to be, that, if the father make a lease for years, and the lessee entereth and dieth, and the eldest son dieth during the term, before entry and receipt of the rent, the youngest son of the half blood shall not inherit, but the sister; because, the possession of the lessee for years is the possession of the eldest son, so as he is actually seised of the fee simple, and consequently, the sister of the whole blood is to be heir. But, he observes, in the case aforesaid, if the father made a lease for life, or a gift in tail, and dieth, and the eldest son dieth in the life of a tenant for life, or tenant in tail, the younger brother of the half blood shall inherit, because the tenant for life, Or the tenant in tail, is seised of the freehold, and the eldest son had nothing but a reversion expectant upon that freehold or estate tail, and, therefore, the youngest son shall inherit the land, as heir to his father, who was last seised of the actual freehold, (3 *Co. Rep.*42. *Ratcliff^s*case.)

This doctrine has received the sanction of this Court on two occasions 3 in *Jackson*v. *Hendricks,*(3 *Johns. Cas.*214.) and in Bates v. *Shraeder,*(13 *Johns. Rep.*200.) In the first case, *Esther Hendricks*died seised of a real estate in 1775, leaving a husband and two sons and three daughters ; the husband became seised by the curtesy, until his decease in 1798 3 the eldest son died in 1784, intestate, and without issue; the youngest son entered after the death of his father; the sisters brought their ejectment, and the Court held, that the case was governed by the common law, and that the statute of descents did not apply; that the descent to the eldest son was suspended by the existence of the estate of the tenant by the curtesy, and that the eldest son was not seised so as to form a new stock of descent, or to constitute *apossessio fratris ;*and that the mother was the person last seised, from whom the descent must be claimed 3 and as she died before our statute of descents, her surviving son was adjudged to be entitled to the estate, to the total exclusion of his sisters,

*100In the case of *Bates*v. Shraeder, the same doctrine prevailed. The counsel for the plaintiff seemed to suppose, that this doctrine was not correct, because the reversion would he in no one, during the interval between the death of *Daniel Lawrence*and his daughter *Mehitabel;*it was an inchoate estate in *Abraham,*dependant on his surviving the tenant for life.

This being the law, unless the lessors can make a title, as heirs to *Daniel Lawrence,*they cannot recover, and they have failed to show what proportions they are entitled t© as such heirs.