Legal succession

“ I am aware of Blackstone's admirable demonstration of the reasonableness of the legal succession, upon the principle of there being the greatest probability that the nearest heir of the person who last dies proprietor of an estate, is of the blood of the first purchaser. But supposing a pedigree to be carefully authenticated through all its branches, instead of mere probability there will be a certainty that the nearest heir male, at whatever period, has the same right of blood with the first heir male, namely, the original purchaser's eldest son. Boswell. ”

“ It is true the court said that the Code of the state 'leaves no room whatever for doubt or surmises as to the fact of the property of a deceased person being transmitted directly and immediately to the legal heir, or, in the absence of forced heirs, to the universal legatee, without any intermediate stage, when it would be vested in the successive representative or in the legal abstract called 'succession. ”

“ One may create an estate which will descend in unbroken succession down the line of inheritance prescribed in the original gift as long as that line should last, instead of descending to all heirs. The successive occupants might draw the rents and cut the wood, but on the death of each, his heir would take possession of an unencumbered interest, unfettered by any liability for the debt of his ancestor or by any disposition made by him during his lifetime e.g. a wife's estate in dower or a husband's estate in courtesy. ”

“ The church takes jurisdiction by 1200 over succession of chattels and succession assumes a testamentary character with witnesses and with an executor to carry out the dead man's will and pay his debts. A will only dealt with the dead man's part of his chattels, the law providing parts for the wife and children. If there were both wife and children, the wife took one-third and the children, except for the heir, one-third and the man could will the remaining third. ”

“ And judgment was given that the entry and feoffment were good and lawful, and the use changed by the first indenture and agreement. Yet error was alleged. The judgment in the assize is affirmed.
The famous Shelley's Case stands for the principle that where in any instrument an estate for life is given to the ancestor, and afterwards by the same instrument, the inheritance is limited whether mediately, or immediately, to his heirs, or heirs of his body, as a class to take in succession as heirs to him, the word "heirs" is a word of limitation, and the ancestor takes the whole estate. ”

“ An heir to the property may be required; but with the facts of life before us, can we be content to allow the adoption of a child by a Temple woman to be so legalised that even if it can be proved to a moral certainty that her intention is to "continue the succession," nothing can be done? ”

“ And every student of technical jurisprudence must have come across the same view, clothed in the language of a rather different school, which, in its rationale of this department of law, treats succession ex testamento as the mode of devolution which the property of deceased persons ought primarily to follow, and then proceeds to account for succession ab intestato as the incidental provision of the lawgiver for the discharge of a function which was only left unperformed through the neglect or misfortune of the deceased proprietor. ”

“ If a man should die intestate, his children shall stand first in the order of succession; if there are no children, the inheritance shall descend to the grandchildren; if there are no grandchildren, then the great-grandchildren shall have a right to it; and if the decedent should leave neither children nor grandchildren, nor father nor mother, then his grandfather or grandmother, should either be living, may claim the inheritance of his estate. ”

“ Again a law was passed, by which the descendants were entitled to one third of the succession, and to one half if there were more than four. In France if a man die leaving one lawful child, he can only dispose of half of his estate by will ”

“ The distribution of and the right of succession to the estates of deceased persons are matters exclusively of state cognizance, and are such as were within the competence of the territorial legislature to deal with as it saw fit, in the absence of an inhibition by congress. ”

“ Heirs apparent are such, whose right of inheritance is indefeasible, provided they outlive the ancestor; as the eldest son or his issue, who must by the course of the common law be heirs to the father whenever he happens to die. Heirs presumptive are such, who, if the ancestor should die immediately, would in the present circumstances of things be his heirs; but whose right of inheritance may be defeated by the contingency of some nearer heir being born: as a brother, or nephew, whose presumptive succession may be destroyed by the birth of a child ”

“ It is certain that, in the old Roman Law of Inheritance, the notion of a will or testament is inextricably mixed up, I might almost say confounded, with the theory of a man's posthumous existence in the person of his heir.
The conception of a universal succession, firmly as it has taken root in jurisprudence, has not occurred spontaneously to the framers of every body of laws. ”

“ 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. ”

“ As to the latter there is nothing that need here be said, save that the law is chiefly guided by the presumed desires of the dead man, and confers the estate upon his relatives in order of proximity. In default of any known relatives the property of an intestate is claimed by the state itself, and goes as bona vacantia to the Crown.
Testamentary succession, on the other hand, demands further consideration. Although a dead man has no rights, a man while yet alive has the right to determine the disposition after he is dead of the property which he leaves behind him. ”

“ By sect. 127 it is provided that any disposition by will, or deed, or descent, by reason whereof any person shall become beneficially entitled in possession or expectancy to any real estate or any interest therein upon the death of any person, shall be deemed to confer a succession. ”

“ Very closely connected with the subject of inheritance is the question as to how far contracts between living persons may be transmitted to their heirs. We shall find the answer to this question in the principle we have already established: this is, that a man during lifetime may restrict his actions and alienate his property just as he pleases, but is not allowed to limit the actions of his heir after his own death, or, under such circumstances to make any other disposition except such as would secure a valid succession to his property. ”

“ And, even in those instances where the succession has been violated, the crown has ever been looked upon as hereditary in the wearer of it. Of which the usurpers themselves were so sensible, that they for the most part endeavoured to vamp up some feeble shew of a title by descent, in order to amuse the people, while they gained the possession of the kingdom. And, when possession was once gained, they considered it as the purchase or acquisition of a new estate of inheritance, and transmitted or endeavoured to transmit it to their own posterity, by a kind of hereditary right of usurpation. ”

“ 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. ”

“ The fidei commissum originated in a prayer, petition, or request, of a testator upon his instituted heir, to deliver the inheritance, or some portion of it, to a designated person. Every testament being originally a law of succession, proposed by the testator, and consented to by the Roman people, the language of legislation, that is, of mandate and authority, was essential to its validity. Precatory words were insufficient to raise an obligation upon the heir, or to vest property in the donee. ”

“ And it is no objection to this definition that an inheritance comprises things which are corporeal; for the fruits of land enjoyed by a usufructuary are corporeal too, and obligations generally relate to the conveyance of something corporeal, such as land, slaves, or money, and yet the right of succession, the right of usufruct, and the right existing in every obligation, are incorporeal. ”

“ Without the existence of some very artificial rule of procedure, it is difficult to see how such a judgment, quoad the deceased person, or his estate in succession, can have any binding effect without being amended. ”

“ When the phenomena of primitive societies emerge into light, it seems impossible to. dispute a proposition which the jurists of the 17th century considered doubtful, that Intestate Inheritance is a more ancient institution than Testamentary Succession. As soon as this is settled, a question of much interest suggests itself, how and under what conditions were the directions of a will first allowed to regulate the devolution of authority over the household, and consequently the posthumous distribution of property. ”

“ The only purpose, we believe, for which the like writ was allowed by the common law, in a matter of civil right, was to protect the rightful succession to the property of a deceased person against fraudulent claims of bastards, when a widow was suspected to feign herself with child in order to produce a supposititious heir to the estate, in which case the heir or devisee might have this writ to examine whether she was with child or not, and, if she was, to keep her under proper restraint till delivered. ”

“ If a child who had not been disinherited—and one improperly disinherited was eventually in the same position—was not instituted to some share, however small, of his parent’s hereditas, he was entitled to have the testament declared null in so far as the institutions in it were concerned, thus opening the succession to himself and the other heirs-at-law, but without affecting accessory provisions, such as bequests, nominations of tutors, &c. ”

“ 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. ”

“ Taking the principal types in a logical sequence, which differs from the historical one, we may say that the aggregate of things and claims relinquished by a deceased person may: (1) pass to relatives or other persons who stood near him in a way determined by law. Should several persons of the kind stand equally near in the eye of the law the consequence would be a division of the inheritance. The personal aspect of succession rules in such systems of inheritance. (2) The deceased may be considered as a subordinate member of a higher organism—a kindred, a village, a state, &c. ”

“ But the new rule of descents created by that act, is known to the proprietor in his life time, and if that pleases him not, the statute of wills, of the same date, is placed in his hands, and enables him to control the act of descents. Again; it is a maxim that nemo est haeres viventis. In life, the relation of father and child exists between legitimates, but not between illegitimates. The relation of ancestor and heir, presumptive or expectant, may exist while the former is still living. But the legal relation of ancestor and heir never does exist until the death of the father. ”

“ 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. ”

“ Illegitimate children acknowledged by their fathers are 'natural children.' Natural children can take from their father by intestate succession 'to the exclusion only of the State.' They may be bequeathed property by their father only to the extent of either one-third or one-fourth of his estate and then only if their father is not survived by legitimate children or their heirs. ”

“ The effect of allowing it would be, not to annul or invalidate the will, but merely to displace it, in the administration of the succession, to the extent required by their indefeasible interest in it. It was objected to the jurisdiction of the court that the succession had been closed by a previous judgment sending the widow and testamentary heir into possession; but the exception was overruled on the ground that the suit was of probate jurisdiction. ”

“ If a man had no legitimate children, he could leave his whole inheritance to his natural children, or to their mother; but if he had lawful children, he could leave only one twelfth to the natural children and their mother. If the father died intestate, without leaving a lawful wife or issue, his natural children and their mother were entitled to one sixth of the succession, and the rest was divided among the lawful heirs. ”