This is a petition for partition, in which the petitioner claims one half of the described premises. This claim is admitted as to two small parcels, but as to the residue, constituting the largest proportion of the premises, the respondent contests the claim of the petitioner to one half, and insists that he is entitled to a third only.
The parties claim by descent from their mother, Abigail Miller, who was seized in fee, and died in July 1789. She left her husband, Seth Miller, surviving her, who was entitled to the estate for his life, as tenant by the curtesy, and who died in 1823. Mrs. Abigail Miller left three children her heirs, namely, thr present petitioner and respondent, and one daughter Elizabeth Miller, who married Noah Alden, and died in the life time of her father, leaving one daughter, Elizabeth M. Alden, who still survives, having married Soranus Shaw.
The court are of opinion that the rights of these parties, in respect to the proportions which they may legally take, are *398not affected by the transaction stated in the facts, by which Mrs. Shaw, their niece, transferred her share to them. It was a partition and mere release of her share and interest to them, in one portion of the common estate, in consideration of their release to her of their interests in the other portion assigned to her. But they held in the same proportions which they originally had, whether that was in equal shares, or whether the elder brother had two shares. And we place no reliance on the fact that the petitioner joined in this partition. We think he waived no right by it.
But the main point of controversy is this: The respondent, as the eldest son, claims two shares of the inheritance, to each of the other heirs’ one share. This claim is denied by the petitioner, and it depends on the question upon what rule of law the rights of these parties rest. By St. 1783, c. 36, <§> 1, it was provided that land should descend equally among children, and such as legally represent them, except that the eldest son should have two shares. This exception was abrogated by St. 1789, c. 2, which went into operation on the 1st of January 1790 ; and from and after that time, all children took in equal shares, without regard to sex or primogeniture. Mrs. Abigail Miller, the mother of the parties, from whom the estate descended, died in July 1789, before the new law took effect. If the law, as it then stood, governs the descent, and regulates the rights of the parties, the respondent is clearly entitled to two shares.
But the petitioner insists, that as the right to this inheritance was suspended by the intervention of an estate for life in the tenant by the curtesy, the proportions in which the heirs are to take must be governed by the law as it stood at the determination of the particular estate. The court, however, are all of opinion that this position cannot be maintained. The estate of the mother was an estate in fee, subject to an inchoate tenancy by the curtesy, in the husband, after the birth of children, which became consummate, as an estate for life, at her decease. Whether regarded as a present estate subject to a charge or incumbrance, or as a reversion, it vested in the heirs, at the time of the decease of the *399mother, and their rights were fixed by the law, as it then stood. This precise point was decided in the case of Cook v. Hammond, 4 Mason, 467; and although another question was very much controverted in that case, and many authorities were cited, it was not even questioned that the estate vested, at the time of the descent cast, at the" decease of her from whom the inheritance came, and that the shares of the heirs must be determined by the law as it then stood.
At the time of the decease of Mrs. Miller, who was the owner of the estate in fee simple, she left three children, two sons and a daughter. The law then in force, St. 1783, c. 36, § 1, declares, in terms, that “ when any person shall die seized of lands, tenements or hereditaments, not by him devised, the same shall descend in equal shares to and among his children,” &c. “ except the eldest son then surviving, who shall have two shares.” Another clause, <§> 5, secures to the husband of the deceased the estate for his life, as tenant by the curtesy. All these estates vested at the same time, and together exhausted the whole fee simple estate. Of course the reversion was, by force of this enactment, divided into four shares, of which the eldest son took two, and the daughter and younger son, one each.
In opposition to this result it was contended, at the argument, that by the "common rule of descent in force in this Commonwealth, when a life estate intervenes between the death of the owner last seized, and the commencement of the right of the reversioner, the vesting in actual enjoyment is suspended, and then none can take, at the termination of the life estate, except those who can make themselves heirs to the person last actually seized. But the- court are of opinion, 1st, that if this rule prevailed in this Commonwealth, it would not affect the question; and 2d, that this rule does not prevail here, but has been changed by the colonial, provincial and state statutes, and the constructions put upon them by the courts of justice.
We think this rule, where it prevails, does not prevent the estate from being vested. It merely determines that, *400when the particular estate terminates, those only can enter upon the possession and enjoyment of the estate, who can make themselves heirs to him who was last actually seized, and at whose death the particular estate commenced ; that is, that although the remainder or reversion vested in an heir, who has himself deceased, leaving heirs, the estate shall go to him only who is heir of the first purchaser, and not to the heir of a mesne reversioner, who is not of the blood of the first purchaser, if the mesne reversioner happens to have heirs who are not heirs of the first purchaser. The foundation of the rule is, that to make one a stock or root of inheritance, a right or seizin in law is not sufficient, but there must be an actual seizin — a seizin accompanied by an actual possession or a possessio fratris — to constitute such stock. But this is taken with many qualifications not necessary to be specified. It is manifest, however, that this rule, where it exists, does not prevent the estate from vesting. This appears from various considerations. The reversioner may have waste against the tenant in dower or tenant by the curtesy, and upon waste proved, may be put into immediate possession. Such reversioner may alienate his interest or mortgage it, or charge it with his specialty debts. It is therefore an estate, an interest in the land, obtained by the inheritance, by the descent cast, and by force of the rules of law operating upon and giving effect to that event; and though it is enlarged and perfected, and discharged from a burden, on the death of the tenant for life, it does not then originate, nor derive its character from the law then in force.
But even if the vesting of the estate were suspended, until the happening of any event, when the event does happen, the right by descent must depend upon the law, as it stood when the descent was cast. Suppose an estate was granted sixty years ago, in 1785, upon a condition subsequent, and the grantee died the year following ; and now the event happens upon which the estate, by force of the condition, is defeated, and the heirs of .the grantor become entitled to enter; and the question is, who are his heirs? Would it not be those who *401were the heirs of the donor at the time of his decease, in 1786 ? The benefit of the condition, the scintilla juris, then vested in them, viz. the right to enter for condition broken; and whether the condition were broken before or after the change of the law, 1st of January 1790, the same persons would be heirs, constituted so by law, taking in the proportions fixed by that law when they became heirs.
In the present case, it is manifest that whether the rule of law alluded to is in force in this Commonwealth or not, it would make no difference as to the persons who would inherit. Mrs. Alden, the daughter, died during the continuance of the life estate, leaving one daughter, Mrs. Shaw, as her heir at law, who yet survives. Mrs. Shaw was heir as well to her grandmother as to her mother. She could claim as heir to the person last seized; and whether her mother or her grandmother be considered the root of the inheritance. Had she died, living her father, who, by force of the statute would be her heir, but not of the blood of the person last seized, it would have raised the question.
But as I have already stated, this is, perhaps, not material, because the question in this case is, not who is to take, but in what proportions, and under what law. .
But we are of opinion that the rule in question is not in force in this Commonwealth. By our statutes, all real estate, including a vested remainder or reversion, is an inheritable estate. A vested remainder is liable for the owner’s debts, may be alienated, and if not alienated will descend to his heirs. Ames v. Gay, 4 Mason, 492, note. Williams v. Amory, and Whitney v. Whitney, 14 Mass. 20, 88. Russell v. Hoar, 3 Met 187. But this subject is so fully discussed and exhausted by the arguments of counsel and the elaborate opinion of the court, in the case of Cook v. Hammond, 4 Mason, 467, that I have not thought it necessary to go particularly into the grounds of the judgment on this point.