Heir at law

“ If the estate is derived, to the intestate, by descent, gift or devise; but not derived from a parent, or other kindred; he is made the stock of inheritance, and his next of kin is made his heir at law. But if the estate is derived to him, from a parent or other kindred by descent or devise, then the person from whom it came or descended is made the stock of inheritance; and the next of kin, who is of the blood of that person, is made the heir at law. ”

“ The rule of law, however, is established and certain, that express words of limitation or words tantamount are necessary to pass an estate of inheritance.' And he hence concluded that words tending to disinherit the heir at law, unless the estate is given to some one else were not sufficient to prevent the heir from taking. ”

“ Your brother Phill, d'ye see, says he's heir at law, and so there's a Chancery law-suit about it – But we knows that a will's a will, and the longest purse will carry the day. – Well! the upshot of all is, that, heir at law, or not heir at law, your brother, if he can carry on the suit, which folks be pretty dubous about, will never get no part of it' – 'And, therefore,' said Orlando sharply, 'you will not lend me what I asked? ”

“ One of these consequences was the escheat on the failure of heirs, either by there being none, or by the blood being corrupted by the commission of felony, which in law amounted to the same thing; as no son, uncle, nephew, or cousin, could by law claim as heir by descent to a person attainted. For the legal blood, the title to the inheritance, failed in him the last possessor, by his breach of fealty ”

“ He proceeds at once to the Oath of Allegiance; and after many arguments, which probably most men would admit, he comes to the reasons, which induced the Prince of Orange to act. "Even at Common Law an heir in remainder has just cause to sue him that is in possession, if he makes waste on the inheritance, which is his in reversion. ”

“ The first limitation is to 'the male heirs of my nephew, J. T. M., lawfully begotten, for ever, agreeably to the law of England;' that is, the oldest male heir to take all.
If the clause stopped here, there could be no question in the case. The person who should be the eldest male heir of J. T. M. at the time of his death, would take the estate. But the testator proceeds to prescribe the 'terms' on which such eldest male heir should take. ”

“ Great-grandchildren may inherit as grandchildren, unless a decidedly contrary intention appear in the will; and in several cases it has been decided, that the term relations, or family, in a will, means next of kin. A pecuniary legacy to the heir of a testator is construed to imply the heir-at-law, and not the next of kin, unless the sense of the passage in the will was influenced by the context to mean something else. ”

“ In the English chancery, except in the case of an heir at law or of a rector or vicar, it is not a matter of right. In the American courts of equity we know of no practice establishing an issue as a matter of right. In Virginia and others of our States, the heir's right to an issue is given by statute. ”

“ For instance, if lands are given to a son, who dies, leaving a sister his heir, if the parents have, at any distance of time afterwards, another son, the common law devests the descent upon the sister in favour of such son, and he is entitled to take the estate as heir to his brother. ”

“ A succession is acquired by the legal heir, who is called by law to the inheritance, immediately after the death of the deceased person to whom he succeeds. This rule applies also to testamentary heirs, to instituted heirs, and universal legatees, but not to particular legatees. ”

“ But a slight alteration of the terms of the will may prevent the failure, as in the case of the death of A. before the testator, other persons are named to take; for instance, A.’s legal representatives, or the heir under his will, or to A., B., C., “or to their heirs,” or to A., “and failing him by decease before me, to his heirs,” the legacy, on A.’s so dying, shall vest in such nominees. ”

“ Consequently, if a man die leaving two children, one emancipated, and the other in his power at the time of his decease, the latter is sole heir by the civil law, as being the only family heir; but through the former's being admitted to part of the inheritance by the indulgence of the praetor, the family heir becomes heir to part of the inheritance only. ”

“ Disputes concerning rights or facts involved in the succession are to be adjusted by law, and in event that all of the family lines mentioned in the constitution should be extinguished it would become the duty of the Cortes to make such disposal of the crown as might be adjudged "most suitable to the nation." [851] Both the sovereign and the heir presumptive are forbidden to marry any person who by law is excluded from the succession. They are, indeed, forbidden to contract a marriage at all until after the Cortes shall have examined and approved the stipulations involved. ”

“ It has been determined, time out of mind, that a brother of the half blood shall never succeed as heir to the estate of his half brother, but it shall rather escheat to the king, or other superior lord. Now this is a positive law, fixed and established by custom, which custom is evidenced by judicial decisions; and therefore can never be departed from by any modern judge without a breach of his oath and the law. For herein there is nothing repugnant to natural justice; though the reason of it, drawn from the feodal law, may not be quite obvious to every body. ”

“ A right of way over a neighbor's land can only be acquired by grant, or by using it adversely for twenty years. A man uses a way for ten years, and dies. Then his heir uses it ten years. Has any right been acquired? If common sense alone is consulted, the answer must be no. The ancestor did not get any right, because he did not use the way long enough. And just as little did the heir. How can it better the heir's title that another man had trespassed before him? Clearly, if four strangers to each other used the way for five years each, no right would be acquired by the last. ”

“ The State establishes the procedure governing the probate of wills and the processes of administration. Petitioner's status as heir was thus determined by the law of Massachusetts. That law also regulated the procedure by which his rights as an heir could be vindicated. The state law authorized its courts to supervise the making of agreements compromising contests by heirs of the validity of an alleged will of their ancestor, in order that such compromises shall be just and reasonable with respect to all persons in interest. ”

“ And farther, in case no testament be permitted by the law, or none be made, and no heir can be found so qualified as the law requires, still, to prevent the robust title of occupancy from again taking place, the doctrine of escheats is adopted in almost every country; whereby the sovereign of the state, and those who claim under his authority, are the ultimate heirs, and succeed to those inheritances, to which no other title can be formed. ”

“ When the heir of the crown, at the decease of the king, is under age, the council of state shall issue summons to the representatives to meet. The estates of the realm shall have the right, without regard to the will of a deceased king concerning the administration, to appoint one or several guardians, to rule in the king's name, according to this fundamental law, till the king becomes of age. ”

“ At the beginning of the ninth century the donee has power to leave the property to whomsoever he will, or, in still broader terms, to exchange or grant in his lifetime, and after his death to leave it to whom he chooses,—or to sell, exchange, and leave to whatsoever heir he chooses. /1/ This choice of heirs [359] recalls the quos heredes appellavit of the Salic law just mentioned, and may be compared with the language of a Norman charter of about the year 1190: "To W. and his heirs, to wit those whom he may constitute his heirs." ”

“ The heir has the advantage of sustaining his ancestor's and the right is acquired.
LECTURE X. — SUCCESSIONS INTER VIVOS
I now reach the most difficult and obscure part of the subject. It remains to be discovered whether the fiction of identity was extended to others besides the heir and executor. And if we find, as we do, that it went but little farther in express terms, the question will still arise whether the mode of thought and the conceptions made possible by the doctrine of inheritance have not silently modified the law as to dealings between the living. ”

“ It was material, however, with reference to the nature of the suit. For, unless we entirely misunderstand the meaning of the Code of 1889, and of the proceedings under the civil law in case of succession, after the inheritance has been divided, the liability the succession is at an end, and gives place to a personal liability of each heir for the whole debt to the extent of the assets received by him, if he has accepted with benefit of inventory, or, otherwise, in full. Arts. ”

“ Thus the heir continued to represent his ancestor in the latter's rights and obligations by way of warranty, after the executor had relieved him of the debts, just as before that time he had represented his ancestor in all respects.
If a man was sued for property which he had bought from another, the regular course of litigation was for the defendant to summon in his seller to take charge of the defence, and for him, in turn, to summon in his, if he had one, and so on until a party was reached in the chain of title who finally took the burden of the case upon himself. ”

“ Having laid down the rules of descent in the old feudal law, in regard to the sons of the last possessor, it will be proper next to mention how far it admitted representation, or collateral succession; for at first both were excluded. If a man had two sons, one of which died before him, leaving a son, the grandson could not succeed to his grandfather, but the uncle was sole heir. ”

“ A thing is in abeyance which for any cause happens to be disused, not when it is by enactment forbidden to be used; as a title is in abeyance, not when there is no heir (in which case it is extinct) , but when the heir is unknown, or the pretensions of two or more claimants undetermined; when the heir is not forbidden, as the heir, to take it if he be the heir, but only whilst there may be doubt whether he be the heir or not. But here, it is assumed by the very act of legislation that something is known to be the law, so that p. 35you despair of getting rid of it but by altering the law ”

“ II. In the event that the heir to the Crown, according to the order established in the preceding paragraph, has not reached the age of thirty when the throne becomes vacant, his public functions shall be exercised by a Regent appointed in accordance with Article Eight of this Law, until the heir reaches the legal age. ”

“ There are some covenants on which no one shall have an action, but the party to the covenant, or his heir, and some covenants have inheritance in the land, so that whoever has the land by alienation, or in other manner, shall have action of covenant; [or, as it is stated in Fitzherbert's Abridgment, /1/ the inhabitants of the land as well as every one who has the land, shall have the covenant;] ”

“ At first it was doubted whether proof of such a secret trust ought to be allowed, even as against the heir. /1/ It was allowed, however, in the end, /2/ and then the principle of succession was extended to the assign. But it never went further. Only those who were privies in estate with the original feoffee to uses, were bound by the use. A disseisor was no more bound by the confidence reposed in his disseisee, than he was entitled to vouch his disseisee's warrantor. ”

“ In the same manner, should a specialty creditor choose that his claim shall be satisfied from the assets in the hands of [Pg 40] the heir, the heir shall be entitled to a recompense out of the personal estate.
But the principles of these rules do not extend so far as to enable one claimant to overrule the rights of another, and a pecuniary legatee will not, consequently, stand in the place of a specialty creditor in his right against any lands specifically devised, though he will against those which have descended in an ordinary manner. ”

“ The joinder of times is given to those who succeed to the place of another. Ulpian cites a like phrase from a jurisconsult of the time of the Antonines,—"to whose place I have succeeded by inheritance, or purchase, or any other right." /2/ Succedere in locum aliorum, like sustinere personam, is an expression of the Roman lawyers for those continuations of one man's legal position by another of which the type was the succession of heir to ancestor. ”

“ By this act it was decreed, that “all wills and testamentary limitations, dispositions or appointments of real estates, whereof any person shall be seized in fee simple, in possession, reversion or remainder, or have power to dispose of by will, shall be deemed fraudulent and void as against creditors, by bond, covenant, or other specialty binding his heir,” and right of action is given the creditors against the heir or devisee. ”

“ Where the land was devised by will, the analogy applied with peculiar ease. For although there is no difference in principle between a devise of a piece of land by will and a conveyance of it by deed, the dramatic resemblance of a devisee to an heir is stronger than that of a grantee. It will be remembered that one of the Roman jurists said that a legatarius (legatee or devisee) was in a certain sense quasi heres. ”

“ Yea, and so us'd it that, were it not here apparent that thou art heir apparent- But I prithee, sweet wag, shall there be gallows standing in England when thou art king? and resolution thus fubb'd as it is with the rusty curb of old father antic the law? ”