
    Ebenezer Wells versus Elizabeth Prince.
    Upon the death of a, devisor dying seised, the devisee is not seised, until an entry be made for his use, unless the tenements devised be vacant and unoccupied.
    The same law applies to a remainder man.
    But if a stranger is in possession, under or acknowledging the title of the devisee or remainder man, it is equivalent to an actual entry.
    “ Elizabeth Prince is attached to answer unto Ebenezer Wells, in a plea of land, wherein the said Ebenezer demands against the said Elizabeth one undivided fifth part of the following pieces of land situate in said Boston, &c. And whereupon the said Ebenezer complains, and says, that Francis Wells, of said Boston, Esquire, his father, at said Boston, on the third day of October, in the year oí our Lord 1766, being seised of all and singular the above-described lands and tenements, with the appurtenances, in his demesne as of fee, taking the profits thereof to the yearly value of one thousand dollars, made his last will and testament, duly executed to pass real estate, in writing, and therein and thereby, among other things, gave and devised the aforesaid lands and appurtenances to his wife, Susanna Wells, for and during her natural life, and at her death equally to his sons Ebenezer, &c., [naming six others,] and his daughters Catharine, &c., [naming five others,] to have and to hold to the aforesaid sons and daughters and their heirs forever, from and after the death of the said Susanna; and the said Francis, the testator, thereafterwards on the same day died so seised of said lands and appurtenances, and the said will of the said Francis was thereafter-wards, on the 17th of October, in the same year, duly proved, approved, and allowed, whereby the said Susanna became legally seised of the same described premises for and during her natural life, and the said sons and daughters of the said Francis, the testator, became seised as of- fee and right of and in the remainder of the same lands and appurtenances, expectant * on the death of the said Susanna, and afterwards, viz., [ * 65 ] at said Boston, on the first day of January, in the year of our Lord 1795, the said Susanna, wife of the said testator, died, and afterwards, on the same day, at said Boston, certain of the said sons and daughters of the said Francis, the testator, viz., the said Samuel, &c., [naming seven others,] died without an issue and intestate, by means whereof the said Ebenezer Wells, the demandant, became seised of one undivided fifth part of the said lands and appurtenances, as of fee and right, and ought now to be in quiet seisin and possession thereof accordingly. Yet the said Elizabeth Prince hath since illegally entered into the same premises, and still unjustly deforces him.”
    Upon the trial of this action, on the general issue pleaded, before ParJcer, J., at the last November term, the demandant proved the seisin c-f Francis Wells, the demandant’s father, by purchase, and the devise, as alleged; but there being no evidence of any entry by Susanna, the devisee for life, or of any act of ownership exercised by her during her life, and the demandant never having entered, or in any wise occupied the demanded premises, the judge directed the jury that the action was not maintained, and a verdict was accordingly returned for the tenant.
    Upon this direction of the judge, the demandant moved for a new trial, and the action stood continued to this term.
    And now Amory, in support of the motion, argued that a will of lands duly executed with all the legal formalities, and afterwards regularly proved and allowed, constitutes a seisin, and vests the estate without an actual entry ; in the same manner that deeds or other conveyances of lands, &c., signed, sealed, acknowledged, and recorded, pass the same lauds, &c., without any other act or ceremony whatsoever. 
    
    
      Watkins
    
    
       divides ancestors, from whom an inheritance may be derived, into those who have taken by purchase, and those who have themselves succeeded by descent to the hereditaments claimed ; and as to those who have taken by purchase he says, “ that the fixing of the property in the premises conveyed in the person so [ * 66 ] taking, is sufficient to * render them transmissible to the right heirs of the person in whom the property is so fixed. When a person, therefore, claims by descent from such first 'purchaser, he need only allege such fixture of property, and is by no means obliged to show an actual seisin in the person from whom he claims.”
    A last will duly proved, &c., as well as a deed duly executed and recorded, are understood, by virtue of our statutes relating to those subjects respectively, to fix the property in the lands devised or conveyed; and the devisee or grantee may bring his action for possession, without an actual entry and seisin.
    
      
      
        Stat. 1783, c. 37.
    
    
      
      
        Law of Descents, c. 1, § 2.
      
    
   The opinion of the Court was delivered as follows by

Parsons, C. J.

It appears from the count that the plaintiff demands one fifth part of certain lands therein described. The title he shows is, that his father, Francis, being seised in fee, devised the lands to his mother, Susanna, for life, remainder in fee equally to him and to his twelve brothers and sisters ; that his father died seised ; that thereupon his mother was seised for her life; and upon her death, and upon the death without issue of eight of his brothers and sisters, he claims one fifth of the premises in fee, and of which he is deforced by the tenant.

Thé demandant, having this title, may have a remedy either by a Formedon in remainder, or, having entered after the death of the donee for life, by a writ of entry declaring on his own seisin. He has elected the former remedy, and he must set out the gift, the seisin of the first donee, and his title to one.fifth, and that on the death of the tenant for life the right to one fifth remained to him. These are stated in this count, except that, instead of alleging that the right remained to him, he has averred that on the death of his brothers and sisters without issue, and of the donee for life, he by means thereof became seised as of fee and right.

On the trial, he proved the gift, his title to one fifth, and the death of the donee for life; but gave no evidence of her ever having been seised under the devise. The judge was of opinion that, if his declaration was considered as a count in Formedon in remainder, it was necessary not only to allege *the seisin [ *67 ] of the first donee under the gift, but that it must also be proved.

As the demandant has also averred his own seisin in fee after the death of the donee for life, and if a verdict had been found for him, the declaration, though very informal, might possibly have been considered as a count in a writ of entry, and the informality cured by the verdict on the ground that the title was good, but defectively set forth, — the judge was of opinion that on this view the demandant must prove a seisin in himself after the death of the donee ; but he gave no evidence of any seisin in himself. The judge, therefore, directed the jury to find a verdict for the tenant.

This direction is objected to, not on the ground that seisin in the donee must be proved, if the count was considered as in Formedon, nor on the ground that the seisin of the demandant need not be proved in a writ of entry on his own seisin, but because, as it is urged, that such is in law to be presumed from the fact that the testator died seised. And a devise by will is compared to a conveyance by deed acknowledged and registered.

Upon considering the objection, we are all satisfied that the opinion and direction of the judge was right. It is a general rule of law, that, on the death of the devisor dying seised, the devisee is not seised, until an entry be made for his use, or some other act done, which in law is considered as having the effect of an entry. The exception to the rule is, when the tenements devised are vacant and without an occupant. In such case, an entry has been held not to be necessary. For although he may enter on the land, yet there is no person on whom he can enter. But there was no evidence that the tenements devised were vacant, and it is not a fact to be presumed. The same law applies to a remainder man, who is a purchaser. There must be, after the death of the tenant of the particular freehold estate, an entry, or an equivalent act, before he is seised, unless the land be vacant and unoccupied.

We have mentioned an act equivalent to an entry. We do not mean to confine this act to a claim, where no entry can be made; but if a stranger is in possession, under or acknowledging the title of the devisee or remainder man, it is equivalent to an actual entry. In the present case, there was no evidence * that the tenant for life died seised, and a fortiori the [ * 68 ] entry of the remainder man, or of some person for him or holding under him, must be proved.

Dexter and C. Jackson for the tenant

The effect of deeds acknowledged and recorded is not analogous. The statute of 1783, c. 37, provides that conveyances of land, by any person having right to convey, by a deed executed, acknowledged, and recorded, shall be good without any other ceremony. The intent of the statute was to provide a substitute for a feoffment with livery of seisin. The livery of seisin is made to give notoriety to the alienation. This purpose is better effected by the registry. But there is no statute, which provides that the probate and registry of a will shall pass the lands therein devised.

Upon the whole, our opinion is, that the verdict stand.

Leave was afterwards given the demandant to discontinue paying costs.  