The heir at law.

tive.

will; if it should not be swallowed up by his debts; and if he should not have been either traitor or murderer, his lands will descend (subject to any rights of his wife) to the heir at law. The heir, as we have before observed (x), is a person appointed by the law. He is called into existence by his ancestor's decease, for no man during his lifetime can have an heir. Nemo est hæres viventis. A man may have an heir apparent, or an heir presumpHeir apparent. tive, but until his decease he has no heir. The heir apparent is the person, who, if he survive the ancestor, must certainly be his heir, as the eldest son in the lifetime of Heir presump his father. The heir presumptive is the person, who, though not certain to be heir at all events, should he survive, would yet be the heir in case of the ancestor's immediate decease. Thus an only daughter is the heiress presumptive of her father: if he were now to die, she would at once be his heir; but she is not certain of being heir; for her father may have a son, who would supplant her, and become heir apparent during the father's lifetime, and his heir after his decease. An heir at law is the only person in whom the law of England vests property, whether he will or not. If I make a conveyance of land to a person in my lifetime, or leave him any property by my will, he may, if he pleases, disclaim taking it, and in such case it will not vest in him against his will (y). But an heir at law, immediately on the decease of his ancestor, becomes presumptively possessed, or seised in law, of all his lands (z). No disclaimer that he may make will have any effect, though of course he may, as soon as he pleases, dispose of the property by an ordinary conveyance. A title as heir at law is not nearly so frequent now as it was in the times when the right of alienation was more restricted. And when it does occur, it is

The heir cannot disclaim.

(x) Ante, p. 61.

(2) Watkins on Descents, 25, (y) Nicloson v. Wordsworth, 2 26 (4th ed. 34). Swanst. 365, 372.

descents.

often established with difficulty. This difficulty arises, more from the nature of the facts to be proved, than from any uncertainty in the law. For the rules of descent have now attained an almost mathematical accuracy, so that, if the facts are rightly given, the heir at law can at once be pointed out. This accuracy of the Gradual prolaw has arisen by degrees, by the successive determina-gress of the law tion of disputed points. Thus, we have seen that, in the early feudal times, an estate to a man and his heirs simply, which is now an estate in fee simple, was descendible only to his offspring, in the same manner as an estate tail at the present day; but in process of time collateral relations were admitted to succeed. When this succession of collaterals first took place is a question involved in much obscurity; we only know that in the time of Henry II. the law was settled as follows:In default of lineal descendants, the brothers and sisters came in; and if they were dead, their children; then the uncles and their children; and then the aunts and their children; males being always preferred to females (a). Subsequently, about the time of Henry III. (b), the old Saxon rule, which divided the inheritance equally amongst all males of the same degree, and which had hitherto prevailed as to all lands not actually the subjects of feudal tenure (c), gave place to the feudal law, introduced by the Normans, of descent to the eldest son or eldest brother; though among females the estate was still equally divided, as it is at present. And, about the same time, all descendants in infinitum of any person, who would have been heir if living, were allowed to inherit by right of representation. Thus, if the eldest son died in the lifetime of his father, and left issue, that issue, though a grandson or granddaughter only, was to

be preferred in inheritance before any younger son (d). The father, moreover, or any other lineal ancestor, was never allowed to succeed as heir to his son or other descendant; neither were kindred of the half-blood admitted to inherit (e). The rules of descent, thus gradually fixed, long remained unaltered. Lord Hale, in whose time they had continued the same for above 400 years, was the first to reduce them to a series of canons (f); which were afterwards admirably explained and illustrated by Blackstone, in his well-known Commentaries; nor was any alteration made till the enactment of the recent act for the amendment of the law of inheritance (g), A.D. 1833. By this act, amongst other important alterations, the father is heir to his son, supposing the latter to leave no issue; and all lineal ancestors are rendered capable of being heirs (h); relations of the half-blood are also admitted to succeed, though only on failure of relations in the same degree of the whole blood (i). The act has, moreover, settled law of descent to distant heirs.

a doubtful point in the

The rules of descent, as modified by this act, will be

found at large in the next chapter.

CHAPTER IV.

OF THE DESCENT OF AN ESTATE IN FEE SIMPLE.

scent.

We shall now proceed to consider the rules of the de- Rules of descent of an estate in fee simple, as altered by the recent act for the amendment of the law of inheritance (a). This act does not extend to any descent on the decease of any person, who may have died before the first of January, 1834 (b). For the rules of descent prior to that date, the reader is referred to the Commentaries of Blackstone (c), and to Watkins's Essay on the Law of Descents.

1. The first rule of descent now is, that inheritances Rule 1. shall lineally descend, in the first place, to the issue of the last purchaser in infinitum. The word purchase has Purchase. in law a meaning more extended than its ordinary sense : it is possession to which a man cometh not by title of descent (d): a devisee under a will is accordingly a purchaser in law. And, by the recent act, the purchaser from whom descent is to be traced, is defined to be, the last person who had a right to the land, and who cannot be proved to have acquired the land by descent, or by certain means (e) which render the land part of, or descendible in the same manner as, other land acquired by descent. This rule is an alteration of the old law, which was, that descent should be traced from the person who last had the feudal possession or seisin, as it was called; last possessed.

Descent formerly traced from the person

(a) Stat. 3 & 4 Will. IV. c. 106. (b) Sect. 11.

(d) Litt. s. 12.

(e) Escheat, Partition and In

(c) 2 Black. Com. c. 14.

closure, s. 1.

Objection to the alteration.

the maxim being seisina facit stipitem (f). This maxim, a relict of the troublesome times when right without possession was worth but little, sometimes gave occasion to difficulties, owing to the uncertainty of the question, whether possession had or had not been taken by any person entitled as heir; thus, where a man was entering into a house by the window, and when half out and half in, was pulled out again by the heels, it was made a question, whether or no this entry was sufficient, and it was adjudged that it was (g). These difficulties cannot arise under the new act; for now the heir to be sought for is not the heir of the person last possessed, but the heir of the last person entitled who did not inherit, whether he did or did not obtain the possession, or the receipt of the rents and profits of the land. The rule, as altered, is not indeed altogether free from objection; for it will be observed that, not content with making a title to the land equivalent to possession, the act has added a new term to the definition, by directing descent to be traced from the last person entitled, who did not inherit. So that if a person, who has become entitled as heir to another should die intestate, the heir to be sought for is not the heir of such last owner, but the heir of the person from whom such last owner inherited. This provision, though made by an act consequent on the report of the Real Property Commissioners, was not proposed by them. The commissioners merely proposed that lands should pass to the heir of the person last entitled (h), instead, as before, of the person last possessed; thus facilitating the discovery of the heir, by rendering a mere title to the lands sufficient to make the person entitled the stock of descent, without his obtaining the feudal possession, as before required. Under the old law, as well as under the present, descent was confined within the limits

(f) 2 Black. Com. 209; Watk. Descent, c. 1, s. 2.

(g) Watk. Descent, 45 (4th ed.

53).

(h) Thirteenth proposal as to Descents.