Page:The New International Encyclopædia 1st ed. v. 09.djvu/788

* HEIR. 728 HEIR. an act of entry. The chief practical importance of the distinction lay in the fact that inheritance established a merger, or 'confusion,' of the in- herited estate with the personal estate of the heir, and that the heir vas accordingly person- ally liable for the debts of the estate. If these exceeded the assets, the forced succession of the household heir was an injury to him. The prte- tors accordingly, toward the close of the Republi- can period, gave such heirs protection against the creditors of the estate, if they abstained from interfering with the assets — a change which prac- tically abolished the forced or 'necessary' suc- cession. .Tustinian went further; he allowed the heir who promptly made an accurate list of the as.sets tO' take the inheritance without incurring any personal liability for its debts {beneficium iiiventarii) . See Inventory. The position of a testamentary heir at Roman law was substantially identical with that of an English executor wlio is also a residuary legatee. The testamentary heir paid the debts and all .special bequests ilegata), and kept the remainder of the estate. The position of the intestate heir was substantiallj' identical with that of an Eng- lish administrator who is also next of kin. If the Roman heir was an infant or a lunatic, his guardian administered the inheritance. 5Iedi.'Eal Law. To the Germanic peoples, including the English, testaments were originally unknown. They received them through tho Church. Even then they were reluctant to ad- mit that a person could dispose by testament of the real estate, which in the Germanic view belonged to the family rather than to its head. The direct heirs, the 'horn' heirs, had rights in the land of which they could not be deprived. The development of the feudal system empha- sized in the law of succession, as in other fields of the law, the distinction between realty and personalty. To the Church authorities, accord- ingly, mediieval custom assigned not only the execution of testaments disposing of the person- alty, but also, in many countries, the adminis- tration and distribution of the personal estate in cases of intestacy. On the Continent and in Scotland, at the close of the Middle Ages, the reception of the Roman law (see CI^^L Law) efTaced these distinctions : but in England they still underlie the whole law of inheritance and distribution (q.v.). See also Descent. Modern Civil Codes. The modern codes of Europe have reestablished the principle of the universal sticeession ; the estate of a decedent passes as an entirety to the testamentary or legal heir or heirs. The Roman distinction between household heirs and outside heirs has disap- peared: in both eases the inheritance vests at the moment of death ; in both cases there is a right of renunciation, and usually a right of entry, wath the 'benefit of inventory.' In cases of intestacy, the legal heirs administer the estate; the cotirts .appoint administrators only when 'he intestate heirs cannot be found, or when they all renounce the inheritance. Unless a testator has appointed snecial executors, the testamentary heirs liqui- date the estate and pay the legacies and statu- tory shares. In this matter, however, the French law is different. In France, if there be near rela- tives who are entitled to statutory- shares, these. and not the testamentary heirs, administer the estate. The latter are termed 'universal legatees,' and they have the rights of heirs only in the absence of the "legitimate heirs.' Encush and American Law. The feudal separation of real and personal property has maintained itself in the common-law system, even to the present time. It appears in its ex- tremest form in the law of inheritance. The personal property of one who dies intestate passes to a person who may or may not be of the blood of the decedent, and only for purposes of administration, the distribution of the surplus after the payment of debts, etc., being determined by statutes of distribution. Only the real property 'descends.' according to fixed canons of inheri- tance, to the next of blood of the decadent, under the description of the heir. In our legal system, then, the term heir has reference always to the person or persons to whom the real (not the per- sonal) property passes, and that not by will, but only on intestacy. In the main the English canons of descent laid down by Blackstone still govern the determination of the heirship or in- iieritance of estates, though these have been con- siderably modified by statute both in England and the" L'nited States. See Descent. In Scotch late, the term heir is often used in a loose sense to denote the persons entitled to succeed to the heritable as well as to the mov- able estate. In Scotland the same rule exists as in England, that if a person do not liy deed mor- iis cniisa (which operates like an English will) dispone or convey his estate to some other per- son, the law points out who is to take such es- tate, and that person is the heir-at-law. The rules by which the heir to heritable estate in Scotland is pointed out differ considerably from the English rules. These rules are the same as to the descendants of the deceased person. A. But after A's descendants are exhausted, dif- ferences begin ; for then it is not the father, nor yet the eldest brother of A. but the next younger brother of A, who next succeeds ; then the next yotinger again, until the youngest brother — after- whom and his descendants comes A's next elder brother, and so on upward to the eldest brother of all. In Scotland, when females succeed equal- ly, they are called heirs-portioners. The mother never succeeds in any event, or any relatives, ex- cept brothers and sisters german who trace their descent through her. Formerly, ujion the death of the owner, his heritable estate did not immediately vest in the heir, but lay in an intermediate state, then called the hcFrc'litas jaccns. and the person entitled to be the heir had to be summoned to the inheri- tance, and enter upon the estate. This was al- tered by statute in 1874, and the estate now vests at <mce upon the death of the former owner (.37 and 38 Vict., c. 94). The civil-law itile also exists in Scotland, that the heir-at-law takes the estates subject to his ancestor's debts. Formerly, indeed, he used to be liable for all the debts, though far exceeding the property left, provided that he did not take certain precautions to escape this passive representation, as it w"as called ; for the barbarous maxim prevailed, hceres (St cadem persona cum defuncto. Heir Apparent. In the common-law sys- tem, the person who is entitled to succeed to the inheritance of real property if he outlive his ancestor. The term heir alone is not properly applicalile to any one so long as the ancestor from whom he expects to inherit is still alive