TITLE 5. $25. The provisions of the two last sections shall extend as well to grants or leases in fee, reserving rents, as to leases for life and for of two last years.36 Application sections. When landlord may use and occupation. $ 26. Any landlord may recover in an action on the case, a rearecover for sonable satisfaction for the use and occupation of any lands or tenements, by any person under any agreement not made by deed: and if any parol demise or other agreement, not being by deed, by which a certain rent is reserved, shall appear in evidence on the trial of any such action, the plaintiff shall not on that account be debarred from a recovery, but may make use thereof as evidence of the amount of the damages to be recovered. 37 Penalty on tenant for not &c. notice served on him. S 27. Every tenant to whom a declaration in ejectment, or any delivering, other process, proceeding or notice of any proceeding, to recover the land occupied by him, or the possession thereof, shall be served, shall forthwith give notice thereof to his landlord, under the penalty of forfeiting the value of three years rent of the premises so occupied by him, which may be sued for and recovered by the landlord or person of whom such tenant holds.38 Certain words not necessary to pass a fee. TITLE V. MISCELLANEOUS PROVISIONS OF A GENERAL NATURE. SEC. 1. Words of inheritance not necessary to convey a fee, &c. 2. Intent of parties to conveyances, to be carried into effect. 3. Purchasers from heirs, not affected by will unless it be recorded, &c. 11. Vested rights, and construction of instruments, not to be affected. S 1. The term "heirs," or other words of inheritance, shall not be requisite to create or convey an estate in fee; and every grant or devise of real estate, or any interest therein, hereafter to be executed, All the estate shall pass all the estate or interest of the grantor or testator, unless the pass, unless, intent to pass a less estate or interest shall appear, by express terms, or be necessarily implied in the terms of such grant. of grantor to &c. Duty of courts in construing conveyances. Wills of real to be $ 2. In the construction of every instrument creating or conveying, or authorising the creation or conveyance of, any estate or interest in lands, it shall be the duty of courts of justice, to carry into effect the intent of the parties, so far as such intent can be collected from the whole instrument, and is consistent with the rules of law. $ 3. The title of a purchaser in good faith and for a valuable conproved and sideration, from the heirs at law of any person who shall have died (36) 1. R. L. p. 363 (37) Ib. p. 444, § 31. (38) Ib. 443, § 29. years, except seised of real estate, shall not be defeated or impaired, by virtue of TITLE 5. any devise made by such person, of the real estate so purchased, un- recorded less the will or codicil containing such devise, shall have been duly within four proved as a will of real estate, and recorded in the office of the surro- when devisee gate having jurisdiction, within four years after the death of the testa- ity, or will tor: except, 1. Where the devisee shall have been within the age of twentyone years, or insane, or imprisoned, or a married woman, or out of the state, at the time of the death of such testator: or, 2. Where it shall appear, that the will or codicil containing such devise, shall have been concealed by the heirs of such testator, or some one of them: In which several cases, the limitation contained in this section shall not commence, until after the expiration of one year from the time when such disability shall have been removed, or such will or codicil shall have been delivered to the devisee or his representative, or to the proper surrogate. under disabil has been concealed. on lands devised, by $ 4. Whenever any real estate, subject to a mortgage executed by Mortgages any ancestor or testator, shall descend to an heir, or pass to a devisee, inherited or such heir or devisee shall satisfy and discharge such mortgage, out of whom to be his own property, without resorting to the executor or administrator of his ancestor, unless there be an express direction in the will of such testator, that such mortgage be otherwise paid. paid. mortgages for ney. S5. Whenever lands are sold and conveyed, and a mortgage is Preference to given by the purchaser at the same time, to secure the payment of purchase mothe purchase money, or any part thereof, such mortgage shall be preferred to any previous judgment which may have been obtained against such purchaser.39 of death in S6. If any person, upon whose life any estate in lands or tene- Presumption ments shall depend, shall remain beyond sea, or shall absent himself, certain cases. in this state or elsewhere, for seven years together, such person shall be accounted naturally dead, in any action concerning such lands or tenements, in which his death shall come in question, unless sufficient proof be made in such case, of the life of such person." 40 guardians, over after have ceased. $7. Every person, who, as guardian or trustee for an infant, and Liability of every husband seised in right of his wife only, and every other per- &c. holding son having an estate determinable upon any life or lives, who, after their estates the determination of such particular estate, without the express consent of the party immediately entitled after such determination, shall hold over and continue in possession of any lands, tenements or hereditaments, shall be adjudged to be a trespasser; and every person and his executors and administrators, who shall be entitled to such lands, tenements or hereditaments, upon the determination of such particu (39) 1. R. L. p. 375, § 15. (40) Ib. p. 103, § 1. CHAP. 2 lar estates, may recover in damages against every such person so holding over, and against his, her or their executors or administrators, the full value of the profits received during such wrongful possession. 41 Remedies of reversioners, &c. Remedies of joint tenauts, &c. "Real estate" and 8. A person seised of an estate in remainder or reversion, may maintain an action of waste or trespass, for any injury done to the inheritance, notwithstanding any intervening estate for life or years." $9. One joint tenant or tenant in common, and his executors or administrators, may maintain an action of account, or for money had and received, against his co-tenant for receiving more than his just proportion; and the like action may be maintained by them against the executors or administrators of such co-tenant.43 $10. The terms "real estate," and "lands,” as used in this Chap"lands" de ter, shall be construed as co-extensive in meaning with lands, tenements and hereditaments. fined. Vested rights, and construc ments, not to 11. None of the provisions of this Chapter, except those contion of instru- verting formal trusts into legal estates, shall be construed as altering or impairing any vested estate, interest or right; or as altering or affecting the construction of any deed, will or other instrument, which shall have taken effect at any time before this Chapter shall be in force as a law. CHAP. II. Of Title to Real Property by Descent. SEC. 1. General rule as to the order in which real estate shall descend. 2. Rule as to lineal descendants in equal degrees of consanguinity. 3. Rule when any children are living and any have died leaving descendants. 5. In what cases inheritance to go to father. 6. When inheritance to go to mother for life; when in fee. 7. When collateral relatives to inherit; rnle if there are several of equal degrees. - S. Brothers and sisters and their descendants, when, and in what shares, to inherit 9. Rule in last section to apply to all other direct lineal descendants of brothers and sisters, of unequal degrees. 10. Brothers and sisters of father, and their descendants, when, and in what shares, to inherit. 11. When brothers and sisters of mother, and their descendants, to inherit. 12. In what case brothers and sisters of mother, and their descendants, to be preferred to those of father. 13. When brothers and sisters of both father and mother, and their descendants, to inherit equally. 14. When mother of illegitimate intestate, and her descendants, to inherit. 15. Rule as to relatives of the half blood. 16. In cases not provided for, rules of common law to prevail. 17. Rule when but one heir; when several, to hold as tenants in common. 18. Posthumous descendants and relatives, to inherit as if born in life of intestate. 19. Illegitimate children and relatives, not to inherit. (41) 1 R. L. p. 167, § 7. (42) Ib. p. 527, § 33. (43) Ib. p. 90 § 2. SEC. 20. This Chapter not to affect estates by the curtesy or in dower, or limitations by CHAP. 2. deed or will. 21. Descent of estates in trust. 22. Alienism of ancestor not to preclude inheritance. 23. Advancement of real and personal estate, if equal to share of an heir, to be set off against it. 24. If not equal, to be deducted, so that all the shares may be equal. 25. Value of advancement, how ascertained. 26. Certain expenses and gifts, not to be deemed advancements. 27. Definition of terms "real estate" and "inheritance." 28 & 29. Construction of certain expressions used in this Chapter. SECTION 1. After this Chapter shall take effect, the real estate of General rule every person, who shall die without devising the same, shall descend der in which in manner following: 1. To his lineal descendants: 2. To his father: 3. To his mother: and 4. To his collateral relatives: Subject in all cases to the rules and regulations herein after prescribed. as to the or real estate shall descend scendants degrees. $ 2. If the intestate shall leave several descendants in the direct Lineal deline of lineal descent, and all of equal degree of consanguinity to such being in equal intestate, the inheritance shall descend to such persons in equal parts, however remote from the intestate, the common degree of consanguinity may be.1 scendants of S3. If any of the children of such intestate be living, and any be children livdead, the inheritance shall descend to the children who are living, and ing, and deto the descendants of such children as shall have died; so that each dead children child who shall be living, shall inherit such share as would have descended to him, if all the children of the intestate who shall have died leaving issue, had been living; and so that the descendants of each child who shall be dead, shall inherit the share, which their parent would have received if living.2 section to ap scendants of grees. $ 4. The rule of descent prescribed in the last section, shall apply Rule in last in every case where the descendants of the intestate, entitled to share ply to all de in the inheritance, shall be of unequal degrees of consanguinity to the unequal de intestate; so that those who are in the nearest degree of consanguinity, shall take the shares which would have descended to them, had all the descendants in the same degree of consanguinity, who shall have died leaving issue, been living; and so that the issue of the descendants who shall have died, shall respectively take the shares, which their parents, if living, would have received.2 $5. In case the intestate shall die without lawful descendants, and When father leaving a father, then the inheritance shall go to such father, unless to inherit. the inheritance came to the intestate, on the part of his mother.3 (1) 1 R. L. p. 52, § 3, first rule. (2) Ib. second rule. (3) Ib. third rule. When mo for her life. CHAP. 2. $6. If the intestate shall die without descendants and leaving no father, or leaving a father not entitled to take the inheritance under ther to inherit the last preceding section, and leaving a mother, and a brother or sister, or the descendant of a brother or sister, then the inheritance shall descend to the mother during her life, and the reversion to such brothers and sisters of the intestate as may be living, and the descendants of such as may be dead, according to the same law of inheritance When to in herein after provided. If the intestate in such case, shall leave no brother or sister, nor any descendants of any brother or sister, the inheritance shall descend to the mother in fee. herit in fee. Collateral relatives. Rule when all of diffe rent degree. Brothers and sisters. Their descendants. Rule if such descendants are of unc qual degrees. Brothers and sisters of fa $7. If there be no father or mother, capable of inheriting the estate, it shall descend, in the cases herein after specified, to the collateral relatives of the intestate; and if there be several such relatives, all of equal degree of consanguinity to the intestate, the inheritance shall descend to them in equal parts, however remote from the intestate, the common degree of consanguinity may be.1 S8. If all the brothers and sisters of the intestate be living, the inheritance shall descend to such brothers and sisters; if any of them be living, and any be dead, then to the brothers and sisters, and every of them who are living, and to the descendants of such brothers and sisters as shall have died; so that each brother or sister who shall be living, shall inherit such share as would have descended to him or her, if all the brothers and sisters of the intestate, who shall have died leaving issue, had been living; and so that such descendants shall inherit the share, which their parent would have received, if living. $9. The same law of inheritance, prescribed in the last section, shall prevail, as to the other direct lineal descendants of every brother and sister of the intestate, to the remotest degree, whenever such descendants are of unequal degrees. $ 10. If there be no heir entitled to take under either of the prether, and ceding sections, the inheritance, if the same shall have come to the intestate on the part of his father, shall descend, their descendants. 1. To the brothers and sisters of the father of the intestate in equal shares, if all be living: 2. If any be living, and any shall have died leaving issue, then to such brothers and sisters as shall be living, and to the descendants of such of the said brothers and sisters as shall have died: 3. If all such brothers and sisters shall have died, then to their descendants: In all cases, the inheritance shall descend in the same manner, as if all such brothers and sisters, had been the brothers and sisters of the intestate. (4) 1 R. L. p. 52, § 3, 4th and 5th rules. |