THE LAW AND CUSTOM OF PRIMOGENITURE 361 



middle and lower orders of society, " divorced from the soil " 

 in this country, and by the landless members of the upper 

 orders. Nor must it be forgotten that, by English law, ordinary 

 leaseholds, whether they consist of lands or houses, count as 

 personalty and are distributed as such on intestacy ; whereas 

 money in trust for investment in land counts as realty and falls 

 under the same rule of inheritance. Vast leasehold interests 

 are constantly included in settlements of personalty, and few of 

 these settlements, whether made on the marriage of a duke's 

 younger son or on the marriage of a shopkeeper, exhibit any 

 bias towards primogeniture. In most instances, the funds are 

 directed to be invested for the benefit of all the sons and 

 daughters of the marriage equally, though a power is usually 

 reserved to the parents of modifying this distribution by "ap- 

 pointment," at their own discretion. The same course is gen- 

 erally followed by testators possessed of small landed estates 

 purchased with their own earnings, who, for the most part, 

 devise their- land to trustees for sale, and direct the proceeds 

 to be divided among their children. In families of the yeoman 

 class, the ordinary practice appears to be that hereditary property 

 should go to the eldest son, but that, in accordance with the 

 Scotch rule of legitim, younger children should be compensated, 

 so far as possible, for their disinherison and that, if burdened 

 with mortgages, the land should be sold for the equal benefit of 

 all. Even the rude wills and settlements drawn up by priests 

 or schoolmasters for Irish peasant farmers, among whom the 

 instincts of proprietorship are cherished in their intensest form, 

 embody the principle of gavelkind and not of primogeniture. 

 Though often destitute of any legal validity, and purporting to 

 dispose of an interest which has no existence in law, they usually 

 disclose a clear intention to place the younger children on a 

 tolerably equal footing with the eldest son, either by the sub- 

 divisions of which Irish landlords complain so much, or by heavy 

 charges on the tenant-right. 



It may, therefore, be safely affirmed that primogeniture, as 

 it prevails in England, has not its root in popular sentiment, or 

 in the sentiment of any large class, except the landed aristocracy 



