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.