ment. This reasoning does not apply to a sole heir taking a particular share exclusively; for as to him and the other devisee, it is the same as if this share had not been devised, since in the absence of a devise to the heir, the heir and the devisee of a moiety would be tenants in common. It must not, however, be forgotten, that there are some cases in which a coparcener may take the entirety of the lands, and yet hold them by descent. Thus, on a partition between coparceners, each coparcener will hold the lands allotted for him as a parcener, and consequently by descent (p); and even a rent granted for equality of partition will be descendible in the same manner as the land was descendible (q). So on a descent to parceners by custom, one of them may be excluded by reason of advancement, and by refusal to bring the advancement into hotchpot; and the remaining parcener may take the remaining lands, although an entirety in the character of heir, and by descent. The authorities which illustrate this subject are to be found in Coke Litt. chap. Parceners, and Parceners by Custom. When the feudal tenures prevailed, and reliefs, and other burthens of tenure were severely felt, there was a great anxiety on the (9) Ibid. (p) 1 Inst. 169 b. part of tenants to prevent the descent to the heir, and the consequent burthens of tenure. To guard against the various contrivances adopted to avoid the right of the lord to his fines, &c. we owe the rules, 1st, That a man cannot grant to his heirs, or heirs of his body, eo nomine, so as to make them purchasers (r): 2dly, The rule in Shelley's case, that whenever in the same deed or will there are several gifts, either by way of limitation under the rules of the common law, or by way of use, or by way of trust; one to the ancestor for his life, and the other to his heirs generally; or to his heirs male or female, as heirs of his body; either generally or specially, the gift to the heir or heirs of the body shall form part of the gift to the ancestor; and on his death the heirs, or heirs of the body, shall take by way of descent, and not as purchasers. This rule equally applies, whether the several limitations are mediate or immediate; but it is necessary that the several limitations should give interests of the same quality, either both legal, or both equitable; and that the heirs should be described with an intention that they should take in their character of heirs, and not by way of designation of particular persons; and that the several limitations should be in the same deed or instrument, or in component (r) 1 Inst. 22 b. parts of the same instrument; for example: in a codicil, as part of a will; or in an appointment, exercising a power in another deed (s). This rule of law admits of a great variety of distinctions, and of many anomalies and exceptions. It has invited a large portion of fessional attention. pro To understand this rule, and all its distinctions, the student should, in the first place, read those authors who have treated the subject in the most summary way. He should advance step by step into the discussion with those authors who have taken a more full, minute, and complete investigation of the subject. The order to be recommended is to read, 1st, The observations of Mr. Watkins on this rule in his Treatise on Descents (t): 2dly, The succinct view of the rule in Shelley's case: 3dly, Mr. Hargrave's view of the rule, as given in his juridical arguments, and in his note on Coke Litt. : 4thly, Mr. Butler's note on this rule: 5thly, Mr. Fearne's elaborate and comprehensive view of the rule; as part of his work on contingent remainders. It remains only to observe, that in copyhold lands, if the ultimate fee be limited to the use (s) Venables v. Morris, 7 Term Rep. 438; but see View of the Rule in Shelley's case, of the former owner, or to his right heirs, though this be not strictly an use of equitable jurisdiction, he will retain his old estate; and of course it will be descendible from the first purchaser of that estate (u). So if tenant in tail by descent, ex parte materna, suffer a common recovery of the copyhold lands, and the lands are re-surrendered to him in fee, this fee, according to the last decision, will be descendible to his heirs, ex parte materna, and not from him as the first purchaser (x). But there are some propositions in the case of Roe v. Baldwere (y) which are rather singular. According to the doctrine of that case, if tenant in tail by descent from the maternal ancestor suffer a recovery, and declare the use to himself in fee, the estate will descend to the heirs ex parte materna, whether the lands be of copyhold or freehold tenure. This, no doubt, is true as to freehold lands, because the use is, as to them, governed by rules which prevailed in courts of equity prior to the statute of uses. But as to copyhold lands, the recoveror must be admitted, and after he is admitted, he surrenders to the use of the former tenant in tail and his heirs, and this surrender is a common law conveyance, and the former tenant in tail (u) Roe dem. Noden v. Griffiths, J. Black. Rep. 605. takes by the rules of the common law, without regard to the doctrine of uses, or any rule adopted by courts of equity. This case, therefore, was, in argument, very accurately compared to a feoffment and re-enfeoffment; and although Lord Kenyon observed in Roe v. Baldwere, that this case has been ingeniously argued on the forms of a recovery, and it has been compared, as to the copyholds, to the case of a feoffment and re-enfeoffment, yet this is by no means like the case of a feoffment and re-enfeoffment, and we cannot enter into these forms. They are, perhaps, inexplicable, but they must be taken as a mere mode of conveyance by a tenant in tail, and ought so to be considered in all respects; and that it was so considered by the court in Martin v. Strachan. He added, that without wasting time in going through the doctrine laid down by Lord C. J. Lee, in that case, he thought they were bound to adopt the authority of it, and to apply it to both these species of property. With great deference, however, this opinion seems to have been too hastily formed; and is a proof that the most learned judges may be surprised into error. It is impossible, on principle, to distinguish the case of a recovery of copyhold lands, with a subsequent surrender to the former tenant in tail, from the case of a feoffment and re-enfeoffment. Both cases stand on the same footing; and Lord Kenyon's obser |