[11]
It has been considered advisable to set out in full the Analysis of the Law of Descent of Hereditary Property, by John McHutchin, Esq., formerly Clerk of the Rolls of the Island, to which reference is made on page 25, &c.
Before the Statute of 1777, purchased lands were deemed chattels in the hands of executors, [note 2] and were divided amongst [12] the next of kin in the same way that the money appropriated to the purchase of such lands would have been, had no such purchase been made. This statute does not take from a widow her absolute right to half of the purchased lands. In fact a wife is considered as much a purchaser as her husband, she having a right to a moiety of all personal property, and, therefore, to half of the money, which was appropriated in making the purchase.
In the case of Cain v. Lace, [note 3] Common Law Book, 1824, the Keys decided, that, on the failure of the issue to whom the estate had descended from the original purchaser and his wife, the collateral relatives of both the purchaser and his wife were entitled to equal proportions, and in the order of descent herein mentioned.
Grants (barganes) from the ancestor to his heir, though generally for pecuniary considerations, are not considered purchases. It is only giving up possession to the heir which otherwise, in the natural course of events, he would have. The consideration is for the obtaining present possession.
A person other than the right heir, taking an estate, by gift, grant, or bequest, without a valuable consideration, is not considered a purchaser, so as to entitle the husband, wife or widow, to an absolute right in a moiety of such estate, though subject to be taken in execution for debts, as intacks, mills and cottages are.
A quarterland estate having passed one descent, is not subject to be taken in execution for debts; neither is an estate settled by an ancestor upon his heir.
If the person last seised were the purchaser, and die without issue, the estate would descend to his eldest, and other brothers, of the whole blood, respectively, in order of birth, or their issue. In default of these, to the father's eldest brother, and other brothers, and eldest, and other sisters of the whole blood: the paternal grandfather's eldest brother of the whole blood, &c., in infinitum, in the paternal line: the paternal grandfather's mother's eldest brother of the whole blood, or his issue, &c., in infinitum in the paternal grandfather's maternal line: the paternal grandmother's eldest brother of the whole blood, or his issue; &c., in infinitum in the paternal grandmother's paternal line: the paternal grand- [13] mother's mother's eldest brother of the whole blood, or his issue, &c., in infinitum in the paternal grandmother's maternal line: the mother's (of him who was last seised) eldest brother of the whole blood: the mother's sisters &c., and so on, as in the paternal line, paying no regard to the issue of half blood.
According to the decision of the Keys before mentioned, in default of the issue of the purchaser and his wife, one moiety of the estate would descend to the purchaser's eldest brother of the whole blood, and the other moiety to the purchaser's wife's eldest brother of the whole blood, and so on in the order of descent before described.
If a wife dies, without issue, before her husband, her rights become extinct. See Statute 1777. [note 4]
An estate must descend, as prescribed in the first mentioned order of descent, until it have run through all the heirs or descendants of the first purchaser or person who acquired the property to the family.
When the issue of the first purchaser becomes extinct, his and his wife's collateral relatives of the whole blood take the estate in order of descent before mentioned.
The first wife has an absolute right to half of the estate purchased before or during her coverture, the second wife to a fourth, or half of what remains to her as a purchase, provided that the first wife devised her right, or that the same descended to her issue, and vice versa. [note 5]
Note 1: See the case of Corlett v. Frowde, LIBER PLITOR, 1800, wherein it appeared that Thomas Corlett, senr. devised his lands to William Corlett, his son, who died a bachelor without issue. The plaintiff, (son of Thomas Corlett) jun., who was a brother of the half blood of William Corlett,) recovered the lands from Margaret Frowde, William Corlett's sister of the whole blood. See also the case of Quirk v. Quayle} LIB. PLITOR, 1835.
Note 2: This statute enacts "That no houses, lands, or premises, either quarterland, mills, cottages, or intacks, purchased or acquired, shall be construed, deemed, or taken, to be personal effects or chattels, so as to be considered as 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, any law, custom, or usuage, to the contrary, notwithstanding." Mill's Statute Laws, page 374.
Note 3: In this case, it appeared that William Cannell and Ann his wife had purchased certain lands, and had issue one child only, namely Catherine Cannell, and died intestate. Therefore Catherine, as their heiress at law, became entitled to the purchased lands: but she likewise died intestate, and without lawful issue: wherefore the House of Keys decided, that, on failure of her, the collateral relatives of Ann Cannell, the purchaser's wife, were entitled to half of the lands, as well as the collateral relatives of William Cannell the purchaser himself. Hence the plaintiff recovered a moiety only of the lands.
Note 4: Mill's Statute Laws, of the Isle of Man, page 374. [Revised Statutes, vol. 1, p. 333. Acts of 1777, c. 13, sec. 1.]
Note 5: A widow is entitled to a widowright dum sola et casta vixerit only, for if she marry during her widowhood, she must forfeit her widuwright; and, in the case of Cain v. Cain, LIB. PLITOR, 1836, wherein it appeared that the defendant, during her widowhood, had given birth to illegitimate children, the House of Keys decided that she should lose her widowright. This case, however, in consequence of an appeal to King in Council, is not yet finally determined.
By the ancient Common Law of this Island, if a widow, during her widowhood, give birth to an illegitimate child, it seems she lost her widowright as effectually as a Widow who married during her widowhood. This appears by an order of Tynwald, LIB. SCAC. 1687, which declares,