Heir presumptive

“ The rule, that an heir, taking a benefit by the will, cannot have a resulting trust, would exclude the heirs of William King the testator; as not only the presumptive heir at the time of making the will, but also those who were heirs at the time of his decease; every one of them take benefits by the will.
Wherever there is a consideration, there can be no resulting trust. 7 Bac. Abr. 143. Here marriage was required; and the devisee might have waited twenty years to perform the condition. ”

“ But nowadays Letitia did not remember that, and felt convinced that she had married him because he was heir-presumptive to Lord Frogmore. Who could say now when that designation might be erased from the peerage? And even if it were now erased, there was still the humiliating certainty that Mary—Mary Hill—was my Lady Frogmore, a fact that produced paroxysms almost of madness in the bosom of Mrs. John Parke. And she had a right to be angry. Even Mrs. Hill allowed this. To have had for years only an old bachelor between you and your highest hopes—and then that he should marry at sixty-seven! ”

“ But they couldn’t expect me to consider them before myself,” said Lord Frogmore. “A man likes to have an heir of his own, Rogers—a son of his own to come after him.”
“Yes, he do, my lord,” Rogers said.
“A man loves to have an heir of his own,” repeated the old lord with a beaming face—“his own flesh and blood—his own son to sit in his place. That’s what a man prefers before everything, Rogers.” ”

“ 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. ”

“ At the same time there can be no doubt that the headship of a family must rest with the heir male, and consequently it would seem that in those cases in which the supporters are borne by right of being head of a clan or chief of a name, the right of inheritance would devolve upon the heir male. ”

“ II., therefore, after reciting the act of William, declares, that it shall not be construed to give any right or title to any persons to inherit as heirs, &c. by enabling any such persons to claim, or derive their pedigree, through any alien ancestor, unless the persons so claiming 'were, or shall be, in being, and capable to take the same estate as heir or heirs, &c. by virtue of the said statute, at the death of the person who shall last die seised,' and to whom they shall claim to be heir or heirs. ”

“ Adhering to the use of the phrase in popular language, we must take, as the only circumstances under which the next heir-substitute and the heir-apparent are one and the same person, the case in which the first estate under the entail is limited to a man and the heirs of his body, and the second to his second son and the heirs of his body; then, supposing the eldest son to die in the lifetime of his father, the second son would be both the next heir-substitute and also the heir-apparent. ”

“ 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. ”

“ For whereas previously men had been free to adopt any rule of succession they pleased, and the legitimacy of an heir had scarcely been considered, it now became necessary that the successor to the headship of a family should be legitimate before everything: adoption being declared preferable to the choice of a bastard. But the higher the social grade of the family, the greater the latitude in this respect. ”

“ How can you buy him off when he is the heir? You people are nothing but trustees, who must account to him for every penny. If he claims the peerage and estates, you must accept him. You admit that legally he is the heir. ”

“ Now these expressions plainly indicate, not that the land has descended to the party as heir, but that it is granted to him so absolutely that it may descend to his heir; in other words, that an estate of inheritance, and not merely for life or for years, is granted by the deed. ”

“ In this regard there can be no difference between hereditary and elective monarchies; for the heir cannot inherit more than his ancestor enjoyed, or had a right to enjoy, any more than a successor can succeed to it. ”

“ 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. ”

“ Mary had been seized in the new sense of motherhood with a panic and fear of alarm which nothing could quench. She who had forgiven everything to Letitia, who had thought of nothing either in her madness or her recovery but the interests of her former friend, now feared her as if she were a criminal, and felt that every moment the heir remained in her hands was a moment of danger. “She will do him no harm,” Agnes tried to say. “She is not kind. She does not love him, but she will do him no harm.” Mary would not listen to this voice of reason. ”

“ If none such can be found, we descend another step, namely, to the grandmother by the father, and suppose the estate to have come from her line; and then heirs, first lineal, then collateral, succeed according to their several ranks. If none of these, so that there is no kindred on the side of the father, the presumption is, that this supposed antient feud came from the mother’s family, and therefore the heirs of her male ancestors are to be traced up, and discovered in the same manner; and whenever they fail, the heir of the most remote female ancestor, all through males ”

“ But in the course of nature this holy man will be gathered to his rest, and then his happy family may perhaps not live in such perfect harmony. He is now sixty-five years old, and has thirty sons, so that the question of succession is somewhat difficult, as there is no order of primogeniture. He has the right to choose an heir; and has been urged to do so by his English neighbors, to obviate all dispute to the succession. ”

“ But it was sought to extend that custom to a person who was not immediate heir, but claimed through a. common ancestor, namely, a daughter of the eldest brother of the person last seised. By the 3 & 4 Wm. 4, c. 106, “ descent" shall mean the title to inherit land by reason of a consanguinity, as well where the heir shall be an ancestor or collateral relation, as where he shall be a child or other issue.” The heir must be traced from the purchaser, and throughout the youngest relations are to be preferred. ”

“ It is true the heir at law shall only be disinherited by clear intention; but, if there be ever so little reason in favor of one construction of a devise rather than any other, we are, at least, sure that this is nearer the intention of the testator than that the whole should be void and the heir let in. ”

“ There is no doubt, that in general, the entry of one heir will enure to the benefit of all, and that if the entry is made as heir, and without claim of an exclusive title, it will be deemed an entry not adverse to, but in consonance with, the rights of the other heirs. But it is as clear, that one heir may disseise his co-heirs, and hold an adverse possession against them, as well as a stranger. And, notwithstanding an entry as heir, the party may, afterwards, by disseisin of his co-heirs, acquire an exclusive possession upon which the statute will run. ”

“ What would happen, do you suppose, if Sarah and I were both to die without finding an heir? What does happen, by the bye, when such a thing occurs; does it go to the crown?”
“My dear lady, I would not give much for the crown’s chance,” said Cresswell, with, a little shrug of his shoulders. “Heirs-at-law are never so far lost or mislaid but they turn up some time. Birds of the air carry the matter when there’s an estate in question. There’s nothing so safe to be found, in my humble opinion, as an heir-at-law.” ”

“ The heir being considered as having succeeded to the deceased from the instant of his death, the first effect of this right is that the heir transmits the succession to his own heirs, with the right of accepting or renouncing, although he himself have not accepted it, even in case he was ignorant that the succession was opened in his favor. ”

“ It is true that the settlement is all we could desire—but if Tisch is at the back of it, her husband being the heir, how can we know what may happen—and your father an old man, and me with so little experience in the ways of the world——”
“But, mother,” said Agnes, with hesitation, “Mary is not so old, she is only two years older than I am. She may have——”
“Oh, my dear! Heaven forbid there should be any family!” ”

“ Oh, Letitia, I think my heart will break!”
“Oh, my dear,” said Letitia, “I know all about hearts breaking. It never stops you from having your own way. What is the use of saying you would rather die? Would you rather die with all the good things in life before you?{161} Nonsense, Mary! Don’t talk to me as if I didn’t know all about it. Now you’ll be petted and feted and made as if there never was the like before. You and your baby—while my poor Duke, my Duke, that was the real, rightful heir——”
Mrs. John burst forth in sobs and tears, and the room grew darker and darker. ”

“ 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. ”

“ We also have granted to all the freemen of our kingdom, for us and for our heirs for ever, all the underwritten liberties, to be had and holden by them and their heirs, of us and our heirs for ever; If any of our earls, or barons, or others, who hold of us in chief by military service, shall die, and at the time of his death his heir shall be of full age, and owe a relief, he shall have his inheritance by the ancient relief--that is to say, the heir or heirs of an earl, for a whole earldom, by a hundred pounds ”

“ There is not a debitum justitice to a man's next heir; there is only a debitum caritatis. It is plain, then, that I have morally a choice, according to my liking. If I have a brother in want, he has a claim from affection to my assistance; but if I have also a brother in want, whom I like better, he has a preferable claim. The right of an heir at law is only this, that he is to have the succession to an estate, in case no other person is appointed to it by the owner. ”

“ 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 may enter into the land before admittance; may take the profits; may punish any trespass done upon the ground [17] ; nay, upon satisfying the lord for his fine due upon the descent, may surrender into the hands of the lord to whatever use he pleases. For which reasons we may conclude, that the admittance of an heir is principally for the benefit of the lord, to intitle him to his fine, and not so much necessary for the strengthening and compleating the heir's title. ”

“ Descent, or hereditary succession, is the title whereby a man on the death of his ancestor acquires his estate by right of representation, as his heir at law. An heir therefore is he upon whom the law casts the estate immediately on the death of the ancestor: and an estate, so descending to the heir, is in law called the inheritance. ”

“ By the custom of "curtesy of the nation", he held this land for his lifetime if he had a child born of the marriage, even if his wife predeceased him. If a man remained on the family land, he had no right to marry. Often, there were agreements over land holdings that were recorded in the manor books. For instance, it was common for a father or mother to hand his or her holding over to the heir in exchange for sustenance in old age. An heir usually did not marry until after receiving his land. ”

“ The words are not only personal to him, but restricted likewise to a particular place and time; and accordingly, in antient times, we find many persons summoned to one parliament, omitted in the next, and summoned perhaps to the third. There is not a word therein that hints at giving the least right to an heir; and what reason can be assigned why a man, by this writ, should gain an estate of inheritance in a peerage, when, in letters patents, it is admitted that he gains only an estate for life, without the word heirs. ”

“ But my comfort in it all is this—that no harm has been done. I don’t understand your talk about a child. John Parke, my husband’s brother, is of course Lord Frogmore; and Letitia is Lady Frogmore: and I am the Dowager; that is all as plain as daylight. And,” said Mary, rising, her eyes full of tears, her gesture full of dignity, “if they think I grudge it they are very, very wrong. I wish them a happy life and long, long years to bear their new name; and my own comfort in losing my dear lord is that no harm has been done to them.” ”

“ But the simplest plan of avoiding the difficulty was for the paterfamilias to regulate his succession by testament; and this was probably had recourse to, not so much for instituting a stranger heir when a man had no issue—according to patrician notions his duty then was to perpetuate his family by adopting a son—as for partitioning the succession when he had more children than one. ”