* But a writ 66 66 of lands fhall remain and continue in force until the fame "be burnt, cancelled, torn, or obliterated by the teftator, or his directions, in manner aforefaid, or unless the same be altered "by fome other will or codicil in writing, or other writing of "the devifor; figned in the presence of three or four witnesses declaring the fame; any former law or ufage to the contrary notwithstanding."A man makes his will of lands and afterwards makes a bargain and sale without inrolment, or a feoffment without livery, or a fettlement upon an intended marriage which never takes effect, or marries a woman without making any fettlement, these are all total revacations of his will; or if a woman makes her will and afterwards marries, this is a revocation, although fhe furvives her husband; a mortgage is a revocation pro tanto; thefe are all held to be revocations though not mentioned in the ftatute of frauds; and the cafe now before us feems to me not to be a revocation within that ftatute; but however that be, the jury having found that Mr. Lacy duly made a latter will in 1756 (different from the former), and having found that it is cancelled or destroyed, it ftill exifts, and whatever are the contents thereof, it is that under which Mrs, Harwood must claim. I am therefore of opinion that judgment must be entered for the plaintiff. of error being Judgment for the #plaintiff. brought in the King's Bench, that court unanimonfly reversed this judgment; and a writ of error being brought in parliament, the House of Lords, 9th May 1775, (upon hearing the opinion of the Barons of the Exchequer, in favour of the judgment of the court of King's Bench) affirmed the judgment of rhạt court; fo that there was finally judgment for the defendant. 2 Black. Rep. 937. 2 Black, Rep. Goodtitle, on the demife of Alexander Newman, verfus Martha Newman, widow. C. B. 938. [Being born in one houfe EJECTMENT of lands in the county of Middlefex, tried and receiving- the 7th of May 1773, when a verdict was found for the rents of three plaintiff, fubject to the opinion of this court on the following others by his cafe referved, which states that, mother as guardian, is a fufficient feifin by a pofthumous fon, who died at five weeks old, to bar the descent to his fifters of the half-blood and convey it to a collateral heir.] The cafe. Alexander Newman, the late husband of the defendant Martha Newman, was the purchafer in fee of the premifes in queftion, in the plaintiff's declaration in ejectment mentioned, which confift of the four freehold meffuages or tenements of inheriance herein-after particularly mentioned, viz. 1. A meffuage late in the tenure of Andrews. 4th. And another late in the tenure of Tredway. That Alexander Newman the purchafer had two wives, and had iffue by his first wife two daughters, who were both living at the death of their father, who died feised on the fourth day of June 1760, leaving the defendant Martha Newman his widow, his fecond wife enfient with a fon, who was born fix weeks after the death of the faid Alexander Newman the father, and was baptized by the name of Alexander, and lived five weeks and three days, and then died. And that the leffor of the plaintiff is the heir at law of the aid Alexander Newman the infant fon. That with refpect to the first of the fald meffuages late in the Occupation of Andrews, the fame was in the occupation of the faid Alexander Newman the purchaser who died in the poffeffion thereof, and after his death, the fame continued in the poffeffion of the faid defendant Martha his widow, and of the two daughters of the faid Alexander her husband who refided with her, and were both under age at the time of their father's death, but are fince married. And the faid infant fon was alfo born in the fame houfe, and died therein. 2d. As to the fecond of the faid meffuages in the occupation of Mr. Beer, the faid Mr. Beer lived therein at the time of the death of the faid Alexander Newman, and has continued in poffeffion thereof ever fince, as tenant from year to year, and his rent payable quarterly and he paid to the defendant the widow of the faid Alexander Newman, the quarter's rent which accrued due next after the death of the faid Alexander her husband, and has conftantly paid his rent from that time to the faid defendant. 3d. As to the third meffuage in the occupation of the faid Clack; the faid Clack was in the poffeffion thereof when the faid Alexander Newman died, and hired the fame by the week, and paid fome rent to the defendant the widow, after the death of the faid Alexander the father, before the birth of the fon, and during his life-time, and fome further rent after his death. 4th. As to the fourth meffuage in the occupation of the faid Tredway, the faid Tredway was in poffeffion thereof when the faid Alexander Newman died, and continued in poffeffion two months afterwards, and paid rent to the defendant the widow by weekly payments, fome of which was paid before the birth of the fon, and fome paid afterwards during his life, and the houfe has been fince inhabited by different tenants. LL 3 The Serjeant Wal term laft. The queftion for the opinion of the court is, whether, under thefe circumftances, the plaintiff is intitled to recover in this ejectment any and what part of the above-mentioned premises? This cafe was well argued at the bar in Trinity term laft by Serjeant Walker for the plaintiff, and Serjeant Glynn for the defendant; and in Michaelmas term laft by Serjeant Burland for the plaintiff, and Serjeant Hill for the defendant. It was argued for the plaintiff, that the infant pofthumous ker in Trinity fon died last actually feifed in fee by defcent of the premises in queftion; that upon the death of the father the premises defcended to his two daughters by the firft venter, who, together with the mother being enfient with a fon, were then in rightful poffeffion; that upon the birth of the fon, fix weeks afterwards, the eftate of the daughters was divefted out of them, and the mother then became and was guardian in focage to her fon, and that her poffeffion, and receiving the rents and profits as flated in the cafe, was the actual poffeffion and feifin of the fon, and will carry the defcent of the premises to the leffor of the plaintiff, who is his heir at law. Inft. 11. b. Bro. Defcent, pl. 58. Doct. and Stud. Whitcombe verfus Whitcombe, Preced. in Canc. 280. where the entry of the mother as guardian in focage to her infant fon fhall gain a poffeffio fratris. The poffeffion of a leffee for years is the poffeffion of him who has the freehold; the leffor of the plaintiff as heir at law to the infant fon, who by his guardian [his mother] was laft actually feifed of the freehold, has a good title to recover and Co. Litt. 15, treating of fect 41. S. P. the doctrine of poffeffio fratris, and 3 Rep. 41, 42. Ratcliffe's Cafe make this clear beyond a doubt.A copyholder in fee by licence makes a leafé for years, the leffee enters, the copyholder having iffue a fon and daughter by one venter, and a fon by another, dies; the eldeft fon dies before admittance; it was adjudged that the land fhall defcend to the daughter of the whole blood; that the defcent of copyholds of inheritance fhall be directed according to the maxims and rules of the common law. 4 Rep. 21. Moore 125. pl. 272. In the prefent cafe the infant fon was in poffeffion as much as it is poffible for an infant to be, for he was born, lived and died in one of the meffuages in queftion; which undoubtedly gives a title to the heir of the whole bloodThe law will prefume that the mother entered rightfully as guardian to her infant fon, and not wrongfully. Co. copy holder, Dyer 291, 292. S. P. 13 Viner, 512. Serjeant Glynn in Trin. term laft, For the defendant it was argued-That poffeffio fratris, is a very rigid rule and principle of law, which ought not to be extended, but conftrued as favourable as may be in behalf of the daughters in the prefent cafe, who are clearly heirs to their father father the purchafer in fee, the infant fon being dead without illue. That, to make a poffeffio fratris, there ought to be an actual feifin, that a poffible, conftructive feifin in law, is not fufficient to take the eftate from the daughters, and that the infant fon was never actually feifed. It is not found or ftated in the cafe, that his mother entered as his guardian, but that she and the two daughters of her husband continued in the poffeffion from the time of his death, and that fix weeks after his death the fon was born, and died in the fame houfe; that this was a continuance of the old eftate in herself and the daughters, or in the daughters only, for the law will adjudge the poffeffion in those who lad lawful right to have poffeffion, [namely] the daughters.That the court cannot determine upon the facts ftated in the cafe, whether the mother was in poffeffion as guardian to her fon, or how otherwife; fhe had a right to have her quarentine, (viz.) to continue in her late husband's capital melfluage for forty days after his deceafe, fhe does continue, and at the end of the forty days the daughters are there to take poffeffion.-That it does not appear by any act ftated in the cafe whether the continued in poffeffion as guardian to her infant fon, or as a trefpaffer, or for her quarentine, in order to have her dower, which The could not have without it's being affigned to her. Gould Juftice-If dower be not affigned to her within forty days, may the not continue until it be affigned to her? I think the court would not turn her out until dower was affigned to her. Counsel for the defendant-It must be admitted that the heir has no right to turn her out before dower be affigned to her. But the court is now upon the conftruction of a hard and fevere law, which is not to be favoured; will the court then fay that the mother held the lands as guardian to her fon, when the might be in poffeffion and hold the fame in fome other way, or under fome other right, or pretended right, for any thing that appears to the court by the flate of the cafe?Upon the death of the father, the law did caft the defcent in fee upon the daughters, who being in poffeffion were actually feifed; if the daughters were actually feifed of the freehold, that feifin of the freehold could not be divefted out of them by the birth of a pofthumous fon, without an actual entry and claim, for a feifin in law will not be fufficient in this cafe to carry the eftate to the leffor of the plaintiff.The feifin of the daughters is actual and in fact, but the feifin of the infant was only afeifin in law at moft: IL 4 In breaking the cafe on the first argu term laft. moft; the right was in the fon, but the actual freehold and feifen is in the daughters; fo the leffor of the plaintiff cannot recover, the fon never having been actually feifed. Gould Juftice-I do not mean to give any opinion at prefent; the queftion is, whether the pofthumous fon died laft actually ment in Trin. Jefed in fee of the premifes in queftion? I take it that a feifin in law is not a fufficient poffeffio fratris; if a man is feifed in fee-fimple, and hath iffue a fon and daughter by one venter, and a fon by another venter, and dies, and the eldest son enters and dies without iflue, the daughter fhall have the land, and not the younger fon, yet the younger fon is heir to his father, but not to his brother; but if the elder fon doth not enter into the land after the death of his father, but die before any entry made by him, then the younger brother may enter and fhall have the land, as heir to his father; but where the eldest fon in the case aforefaid enters after the death of his father and hath poffeffion, there the fifter fhall have the land, becaufe poffeffio fratris de feodo fimplici facit fororem effe hæredem. Litt. fect. 8. If the elder fon die before he hath entered, I apprehend the younger brother takes no notice of his elder brother, but makes himfelf heir to his father. Lord Coke well obferves that almoft every word of this fection of Littleton is operative and material; that the brother must be in actual poffeffion, or his fifter cannot inherit; there must be an act done by him to gain poffeffion, in order to make her his heir, she must be hæres facta: there must be an actual entry by her brother, or by his guardian in chivalry or in focage, to make her his heir. The father dies in one of the houfes in queftion, leaving his wife enfient in poffeffion of all the premises in queftion, the being intitled to quarentine, might be holding the premises by way of compulfion to have her dower affigned to her; but there is no fact ftated in this cafe to fhew in what way the claimed to keep poffeffion and take the rents and profits, whether to compel aflignment of power, or to maintain her fon and the daughters of her late husband, or as guardian in focage to her fon, for the being the next of blood to whom the inheritance cannot defcend, was his lawful guardian in focage. Co. Litt. 88. a. I fay, nothing of this appears to the court; which will hardly incline to favour a poffeffio fratris in this cafe. The birth of the fon in one of the houfes was accidental, which feems to me not fufficient to give him actual feifin; I think, as at prefent advifed, it ought to appear to the court that |