The brother's possession. This is a technical phrase which is applied in the English law relating to descents. By the common law, the ancestor from whom the inheritance was taken by descent, must have had actual seisin of the lands, either by his own entry, or by the possession of his own, or his ancestor's lessee for years, or by being in the receipt of rent from the lessee of the freehold. But there are qualifications as to this rule, one of which arises from the doctrine of possesio fratris. The possession of a tenant for years
, guardian or brother, is equivalent to that of the party himself, and is termed in law possessio fratris. Litt. sect. 8 Co. Litt. 15 a; 3 Wils. 516 7 T. R. 386 2 Hill Ab. 206.
2. In Connecticut, Delaware, Georgia, Massachusetts, New Jersey, New York, Ohio, Pennsylvania, Rhode Island, South Carolina, Virginia, and probably in other states, the real and personal estates of intestates are distributed among the heirs, without any reference or regard to the actual seisin of the ancestor. Reeve on Des. 377 to 379; 4 Mason's R. 467; 3 Day's R. 166; 2 Pet. R. 59. In Maryland, New Hampshire, North Carolina, and Vermont, the doctrine of possessio fratris, it seems, still exists. 2 Peters' Rep. 625; Reeve on Desc. 377; 4 Kent, Com. 384, 5.