When Glanvill wrote, a little more than a century after the
Conquest, the heir was bound to warrant the reasonable gifts of
his ancestor to the grantees and their heirs; /3/ and if the
effects of the ancestor were insufficient to pay his debts, the
heir was bound to make up the deficiency from his own property.
/4/ Neither Glanvill nor his Scotch imitator, the Regiam
Majestatem, /5/ limits the liability to the amount of property
inherited from the same source. This makes the identification of
heir and ancestor as complete as that of the Roman law before
such a limitation was introduced by Justinian. On the other hand,
a century [348] later, it distinctly appears from Bracton, /1/
that the heir was only bound so far as property had descended to
him, and in the early sources of the Continent, Norman as well as
other, the same limitation appears. /2/ The liabilities of the
heir were probably shrinking. Britton and Fleta, the imitators of
Bracton, and perhaps Bracton himself, say that an heir is not
bound to pay his ancestor's debt, unless he be thereto especially
bound by the deed of his ancestor. /3/ The later law required
that the heir should be mentioned if he was to be held.
But at all events the identification of heir and ancestor still
approached the nature of a universal succession in the time of
Bracton, as is shown by another statement of his. He asks if the
testator can bequeath his rights of action, and answers, No, so
far as concerns debts not proved and recovered in the testator's
life. But actions of that sort belong to the heirs, and must be
sued in the secular court; for before they are so recovered in
the proper court, the executor cannot proceed for them in the
ecclesiastical tribunal. /4/
This shows that the identification worked both ways. The heir was
liable for the debts due from his ancestor, and he could recover
those which were due to him, until [349] the executor took his
place in the King's Courts, as well as in those of the Church.
Within the limits just explained the heir was also bound to
warrant property sold by his ancestor to the purchaser and his
heirs. /1/ It is not necessary, after this evidence that the
modern heir began by representing his ancestor generally, to seek
for expressions in later books, since his position has been
limited. But just as we have seen that the executor is still said
to represent the person of his testator, the heir was said to
represent the person of his ancestor in the time of Edward I. /2/
So, at a much later date, it was said that "the heir is in
representation in point of taking by inheritance eadam persona
cum antecessore," /3/ the same persona as his ancestor.
Public-domain text, read in full here on John Shaqi.
Reviews
Reviews
No reviews yet
Be the first to share your thoughts on this work.
Elsewhere in the archive
Join the Discussion
Join the discussion
Sign in to leave a comment or review.
Sign InorCreate an account