PRIMOGENITURE may be defined to be that rule of English law by which a title of dignity or an estate in land comes to a person in respect of his being an eldest male. If a man dies seised of real estate, of which he had the absolute ownership, without having made any dis position of it by his last will, the whole descends to the heir at law, or customary heir ; and the heir at law is such by virtue of being the eldest male person of those who are in the same degree of kindred to the person dying, or the re presentative of such eldest male. [DES CENT.] This is a case in which primo geniture operates. A common example of primogeniture is where a father dies absolutely entitled to real estate, and without disposing of it by will, in which case his eldest son takes it all. If land is settled or entailed on a man and his male issue, the eldest son takes the laud by two titles, first as being a male, and next as being the eldest son. The law of primogeniture then only applies in the case of land when the owner dies with out having made any disposition of it by will, or where the land is settled on a man and his male issue. It does not apply when the interest in land is a chattel interest, or a term of years, whatever may be its duration; nor does it apply when real estate descends to daughters as coparceners.
At present, those who ate the absolute owners of large landed estates seldom die without making a disposition of them by will. In the case of lands which are settled, the person in possession is generally tenant for life, and the inherit ance is entailed on the eldest son. When the eldest son is about to marry, it is usual for the father and son to take the usual legal steps (Which they can do as soon as the son is of age) to unsettle the estate and obtain the absolute ownership. They then resettle the estate, making the father tenant for life as Lefore; the son, who was before tenant in tail, is also made only a tenant for life ; and the in heritance is settled, as before, on the eldest son of the intended marriage.
Such eldest son takes the estate, not as heir, and therefore not by the law of pri mogeniture, but he takes it as the person designated by the deed of settlement.
When a man happens to be tenant in tail, he usually takes the legal steps neces sary (which he can do as soon as he is of age) to acquire the absolute ownership of the property, which he then generally settles again by deed or will, or disposes of absolutely.
It is usual in England to settle all large estates, and the object of the settle ment is to keep the estates together, and to perpetuate them in one family ; but there is a limit to this power of settle ment. A man cannot, either by deed or will, settle his land, so as to prevent the absolute ownership of it from being ob tained, for a longer period than a life or lives of persons in existence at the time when the settlement takes effect, and twenty-one years more.
Lands in GAVELRIND and BOROUGH Excitant are an exception to the general rule of law as to the descent of land.
The law of primogeniture then only operates in the cases already explained ; and the system of settlements by which property is kept together in large masses is quite distinct in principle from the law of primogeniture. It is not the result of a law which favours primo geniture, but it is the result of the legal power which an owner of land has over it, and of the habits of the people. The various reasons which have laid the foundation of this habit, and which per petuate it, are foreign to the considera tion of primogeniture as a rule of law.
In Virginia, after the Revolution, an Act was passed for converting estates tail into fee-simple, and at the same time the law of primogeniture was abolished. These laws have so far been in accord ance with or have acted on public opinion, that a parent by his will now generally makes the same disposition of his property as the law makes in case he dies intestate. (Tucker's Life of Jeffer son, i. 96, &c.) (Remarks on Primogeniture and En tails ; Hayes, Introduction to Convey ancing.)