
    Baker vers. Mattocks. 
    
    1763.
    The Prov. St. of 4 W. & M. by which Lands descend to all the Children, and which empowers the Ancestor to convey or devise them at his Pleasure, does not extend to Estates tail, but leaves them as at the Common Law. Cushing, J., & Hutchinson, C. J., diss.
    
    
      THE Question in this Case was, whether Estates in Tail are partable in this Province, by the Province Law.
    
      
      Mr. Fitch in Favour of the Partability.
    
    The Design of the Province Law (
      
      ) was to alter the Common Law Descent. All Estates Tail at Common Law were Fee Simple conditional. Co. Lit. 20 a. ’Tis the Statute of Westminster that forms Estates Tail. This Statute does not alter the Course of the Common Law Descents, it only limits them. Co. Lit. 19 a. Co. Lit. 110 b. This is the Case of Gavelkind Lands. Yin. Tit. Gavelkind, B.
    
      Justice Russell.
    
    The Common Law never took Place with Regard to Gavelkind Lands, but the Common Law takes Place here unless in Case of particular Estates.
    
      Mr. Gridley.
    
    The Tail is only cut out of Fee Simple, it is only excluding others to whom it would otherwise descend.
    
      Mr. Thacher.
    
    But for the Province Law, neither Fee Simple or Tail would be partable. The Question then is, whether this Law is extended to Estates Tail; by this Law, every Person shall have Right of Disposition, and if no such be made, then follow the Rules of Descent. ’Tis certain the Legislature had Fee Simple only in Contemplation; both would have gone according to the Common Law of England, but our Fee Simple is by this Act taken out of that Course, while the Fee Tail is not. The Statute of Westminster left Gavelkind as it found it. Lilly, 648. ’Tis otherwise with Regard to our Province Law, which shall alter no further than its Design to alter.
    
      Mr. Otis.
    
    The Manner of Succession, if traced to its Original, is merely arbitrary; the Law of Nature is a Stranger to it; by that, no Man has a Right to more than his Life. States have an undoubted Right to settle it as they please: I lay this in Answer to the Argument of the Natural Right of Descent to all the Children alike. When once any State has settled the Course of Descents among them, ’tis of great Importance that the Principles should be kept to. The Method of Descent in England to the elded: Son is 700 Years—nay, as old as the Common Law itself. I conclude that before the Conquest the Right of Primogeniture did not take Place; somewhere between William 1 and Henry 1 it arose, but that does not affect the Case; it is now, and long has been so settled. Now as the Province Law has altered this Rule of Descent with Regard to the Fee, the Question is, whether of Consequence it has altered the Course of Tails. No Statute can alter the Course of the Law further than the express Words of the Statute. Viner, Tit. Tail. It has been doubted whether any Alteration at all by our Province Law is good; it has been determined to be good at Home in the Case of Fee Simple, and for the Reason given in our Law, which does not hold with Regard to Tails.
    
      Mr. Gridley.
    
    The Question is, whether as Fee Simple is partable by Custom or by Law of the Land, Tail is not also partable; that is the Case in the Custom of Gavelkind. Fee Simple contains in it Fee Tail, which is a Part of it; as it was in the Fee Simple, it must be the Course of Descent in the Fee Tail. Heirs in Fee Simple are Heirs in Fee Tail; only certain Heirs are excluded, cut out, and ’tis an universal Interpretation of these limited Estates, that they should follow the Rule of Fee Simple. Now shall we take the Course of our Estates Tail from our own Fee Simple, out of which they are created, and interpret the Rule of their Descent by it, or to interpret our Tails shall we have Recourse to the Fee Simple of England to judge of our Tail?
    
      Justice Oliver.
    
    Till the Statute De Donis, Tails were Fee Simple Conditional; by that, Estates Tail were created. We brought over both the Common Law and Statute with us. () This Law of ours relates particularly to Fee Simple, and I think does not affect Estates Tail, but leaves them as in England. I am against the Partability.
    
      Justice Russell.
    
    The very Intent of Tails was to secure Estates in Familys, and keep them together. The Intent ought to be observed, but would be destroyed by such a Construction of the Law. I am therefore against the Partability.
    
      Justice Cushing.
    
    This Point is of great Consequence to the Province, and it would be attended with great Difficulty at this Day to determine, that Estates Tail were partable, the general Tenor having been otherwise, yet if the Law is plain, as I hold it is, I don’t fee how if can be help’d. If there was no other than Fee Simple intended by the Prov. Law; yet as it was there settled, who were Heirs, that settled Estates of Inheritance, all being made out of Fee Simple, and being a Limitation, not an Alteration. This is the Manner of Construction of the Law at Home; Where Fee Simple is partable, so are Estates Tail; and where Fee Simple descends to the eldest Son, so does Tail.
    
      Justice Lynde.
    Had there been no particular Law of our Province, I should have thought Fee Simple and Tail would have gone alike, but now I think by our Law, Fee Tails are exempted and left at Common Law. Fee Estates only are directed to descend to all the Children, and with Reason. It seems directly against the Reason and Intent of Estates Tail that they should be partable, and that they are not made partable by this Law, is my Opinion.
    
      
      
        Formedon in the descender. The declaration alleged a gift in tail to Samuel and Constance Mattocks, and a descent according to the form of the gift to Samuel, the son of the donees, and to the said Samuel’s eldest son, who died leaving the plaintiff and another daughter, who died leaving a son, who died without issue, “after whole death the whole right to the demanded premises came to the plaintiff according to the form of the gift.” The special verdict found that Samuel, the grandfather of the plaintiff, made a deed of the premises to the defendant, one of his younger sons, and that there were many other descendants of the original donees besides the parties to this case; “and if it shall appear to the Court upon the whole that the said Samuel and Constance, the donees, took an estate in tail, and that the said estate tail is not made partible by the law of this Province, then the jury find for the appellant possession of the premises filed for and costs; otherwise they find for the appellee costs.”
    
    
      
      (2) Prov. St. 4 W. & M. This was the law by which the right of primogeniture was first abolished in the Province, for the reasons set forth in the preamble as follows:
      “Whereas estates in these plantations do confist chiefly of lands which have been subdued and brought to improvement by the industry and labour of the proprietors, with the assistance of their children, the younger children generally having been longest and most serviceable unto their parents in that behalf, who have not personal estate to give out unto them in portions, or otherwise to recompense their labour.
      “ Sect. 1. Be it therefore enacted,” &c., “that every person lawfully seised of any lands, tenements, or hereditaments within this province, in his own proper right in see dimple, shall have power to give, dispose, and devise as well by his last will and testament in writing as otherwise by any act executed in his life, all such lands, tenements, and hereditaments to or among his children or others as he shall think sit at his pleasure, and if no such disposition, gift, or devise be made,” then prescribing the rules of descent to all the children. Anc. Chart. 230.
    
    
      
      (3) S. P, 1 Mass. 60, 61. 2 Mass. 534. 8 Pick. 316. 13 Met. 68.
      
    
   . Ch. Justice.

It seems evident to me that it is the Spirit of the English Law, that all Inheritances should follow the Method of Fee Simple: If it was now a thing intirely upon the Law I should not have the least Difficulty of thinking Fee Tail, as well as Fee Simple, was partable; but it has been so long thought otherwise here, and this has been the uninterrupted contemporaneous Exposition of the Law, and many Judgments of Court founded on it, that it creates a great Difficulty, and I am glad that the Point is determined without me, for how such a Custom can prevail against plain Law, I doubt. () 
      
      (4) Judge Trowbridge, in an opinion given upon the will of Shute Shrimpton Yeomans, who died in 1769, (for an opportunity of examining which we are indebted to Edmund Trowbridge Dana, Esq.,) took the same view of the law as the Chief Justice and Justice Cushing in this case. But the law in this State has since been settled in accordance with the decision of the majority of the Court. Corbin v. Healy, 20 Pick. 516. Wight v. Thayer, 1 Gray, 284, 286. It was not until after the Revolution that the provisions for barring entails by common deed of warranty were enacted. St. 1791, c. 60. And even at the present day this cannot be done by will. Gen. Sts. c. 92, § t. 6 Gray, 24.
     