Previous to the Statute of 1662 [Mil1s p. 117] [note 1] the lands of the description of purchased Quarterland were reputed to be chattels, and on the decease of the purchaser they descended to his executors or administrators, and were inventoried and distributed as part of his personal estate.
That Statute enacted that thereafter they should descend as inheritance to the heir-at-law, but should be liable in his hands to a charge in "favour of the rest of the children unmarried or le unprovided for, or to the administrators where there is no children, equal to the amount of the consideration formerly paid for such lands, or the value thereof." This charge was held to be extinguished by the operation of the Act of 1777. [Mills p. 374.] [note 2]
Certain other descriptions of lands distinguished in the succeeding chapters as "purchased intacks of ease" [Parr's Abstract [note 3] and Mills p. 165 [note 4]] certain detached intacks, mills and cottages, were, under certain circumstances, as explained at length in other chapters, also considered chattels and personal estate, and no alteration in the law respecting [25] them was made until the passing of the before mentioned Act of 1777. All the other lands in the Island, viz., Quarterlands, Intacks of Ease not purchased, detached Intacks, after three descents, and certain Mills and Cottages of three descents were lands of inheritance descendible from ancestor to heir according to ancient custom.
By the Act of Tynwald 1777 [note 5] it was enacted that no lands of any description however acquired should thereafter be deemed to be personal effects or chattels "so as to be considered assets in the hands of executors, or subject to be claimed by right of consanguinity or next of kindred in exclusion of the heir at law." The effect of this Act was to make all the lands in the Island descendible to the heir-at-law.
The Law of descent of hereditary property is laid down by the late John McHutchin in the Analysis in the Appendix to Jeffcott's Statutes [note 6] as follows:
In tracing the descent of hereditary property it must be understood, as further explained in the [27] subsequent chapter on Quarterlands, that an heir presumptive or apparent taking under a customary settlement (barganeeriey) [note 7] from his ancestor is held to take in the same manner as jf he had acquired the lands by descent or inheritance. Although a pecuniary consideration may appear to form a part of the settlement, yet this will not alter the effect of the deed unless indeed it be clear from the amount of the pecuniary consideration as compared with the value of the land and from no other consideration being set forth, or from other circumstances that the transaction was a clear sale and purchase for value, and not a family settlement. [See Brew v. Brew Adv. N.B. p. 27, [note 8] where in addition to the consideration of natural affection the consideration of £1,000 and a lien of £50 a year for life to the grantor did not prevent the deed operating as a bargane]. Although the title comes within Blackstone's definition of "purchase," and although a settlement of this nature by which the grantor divests himself of his Estate is by the express terms of the Act of Settlement [Mills page 165 clause 5 [note 9]] an alienation, in respect of which a fine is payable, the land in the hands of the grantee possesses by the custom of the Island all the qualities [28] of the land acquired by inheritance and these qualities are not affected by the circumstance of the grantee dying in the lifetime of the grantor.[Harrison v. Dinwoody, Adv. N.B. p. 298]. As a settlement of this kind from an owner to his next heir presumptive or apparent operates as above stated, in a manner peculiar to itself, the writer will hereafter refer to this nature of settlement by the name usually applied to it by the people of the Island, and which is expressive of its nature, viz., "barganeeriey" [note 10] or "an heir's settlement." The descent of lands purchased or acquired otherwise than by inheritance or the customary settlement upon the next heir, is stated by the same authority as follows:
It was decided in the case of Cowell v. Thompson (Lib. Plitor, 1859), that the plaintiff who was half brother ex parte paterna of defendant's deceased wife could not inherit her lands which she had acquired under the will of a former husband, the judge directing the jury that the law of descent of purchased lands, which must be applied, excluded the half blood.
It is not necessary by the law of the Island that a child should be born in wedlock [Mills p. 62] [note 11] to entitle it to inherit.
A customary law, promulgated in 1577, enacts that "if a man get a maid or young woman with child before marriage, and within a year or two after doth marry her, if she was never slandered or defamed with any other man before, that child begotten before marriage shall have his father's corbe and farm, according to the Custom of this Isle."
[30] This was re-affirmed in the year 1594, by the Deemsters and Keys, who declared such child to be legitimate. [Mills p. 67] [note 12]
On the construction of this Customary Law it was held by the Privy Council, on appeal, that if born within two years before the marriage the child was lawful. It was argued that the marriage should be within two years from the "begetting" and not the "birth" of the child. [Quane v. Quane, Moore's P.C. Reports.]
In the case of Garrett v. Garrett (Lib. Plitor 1775), it was decided that the fact of the mother having had an illegitimate child by another man before her marriage with defendant's father prevented the legitimation of the defendant by the subsequent marriage of his parents, she being a "defamed woman" in terms of the Customary Law.
In the case of Collister v. Radc1iffe (Lib. Plitor, 1859), it was held that the words "within a year or two" must be construed as restrictive of the time allowed, and not mean more than two years, and consequently that the subsequent marriage of his parents did not legitimate the plaintiff, born seven or eight years before. [note 13]
For Sherwood's notes on this chapter see Appendix 1.
Note 1: Revised Statutes, Vol. 1 p. 114.
Note 2: Revised Statutes, Vol. 1 p. 333.
Note 3: Deemster Parr's Abstract, title" Lands," paragraph 10, commencing "And it is accustomed," &c.
Note 4: Revised Statutes, Vol. I p. 162.
Note 4: Revised Statutes, Vol. I p. 333; Chapter 13. sec. 2.
Note 5: Jeffcott's Statute laws "promulgated since the year 1832" Appendix No. II p. 16. Mr McHutchin was successively High-Bailiff of Douglas, Deemster, and Clerk of the Rolls.
Note 7: Or rather — barganee-eirey — the Manx expression for an heir's deed or settlement.
Note 8: The references to Adv. N. B. in the text are to "The Advocate's Note Book, being notes and minutes of cases heard and determined befOle the Judicial Tribunals of the Isle of Man" by J. C. Bluett, Esq., of Gray's Inn, Barrister-at-law, and Advocate at the Manx Bar. The work was published in 1847.
Note 9: Revised Statutes, Vol. I p. 163.
Note 11: Revised Statutes, Vol. I p. 55.
Note 12: Revised Statutes, Vol. I p. 68.
Note 13: In a more recent case Cottier v. Corlett otherwise Cottier in the Common Law Division of the High Court, being an action for the recovery of lands tried before Deemster Gill and a Jury in Oct., 1886, it appeared that the plaintiff and defendant were the children of the same parents, but the defendant was born 2 years and 9 months before the marriage of the parents. He became possessed of his father's real estate, claiming that he was legitimated by the subsequent marriage of his parentro. The Deemster held that the marriage in order to legitimate [31] a child previously born, must take place at furthest two years after the birth of the child. On appeal to the Staff of Government Division of the High Court (The Lieut-Govemor Mr Walpole, Dumbell, Clerk of the Rolls, and Deemsters Drinkwater and Gill) were equally divided in opinion, the two first being of opinion that the defendant was legitimated by the marriage, the contrary opinion being held by the Deemstersj (one of whom was the Deemster whose judgment was that under review). It had been intended to appeal to Her Majesty in Council but it was understood that the parties came to an agreement which rendered an appeal unnecessary.