A philologicall commentary, or, An illustration of the most obvious and useful words in the lavv with their distinctions and divers acceptations, as they are found as well in reports antient and modern as in records and memorials never printed : usefull for all young students of the law / by Edward Leigh ...

HEIR.

Heir, in the legall understanding of the Com∣mon* 1.1 Law implyeth that he is ex justis nuptiis procreatus, for haeres legitimus est quem nuptiae de monstrant, and is he to whom Lands, Tene∣ments, or hereditaments, by the Act of God, and* 1.2 right of blood do descend, of some Estate of In∣heritance.

Every Heir is either a Male or a Female, or an Hermophrodite, that is both Male and Female. And an Hermophrodite (which is also called An∣dr••gynus) shall be Heir, either as Male or Fe∣male according to that kind of the sex which doth prevail.

Hermaphrodita, tam masculo quam foeminae com∣paratur,* 1.3 secundum proeva 'escentiam serus incalescentis, and accordingly it ought to be baptised.

Haeres est quintuplex.

• 1. Iure proprietatis, so the eldest Son shall inherit only before all his Brethren.
• 2. Iure repraesentationis, as where the eldest Sonne dieth, his issue shall inherit before the younger Son, he represents the person of his Father.
• 3. Iure propinquitatis, as propinquus excludit rem••∣tum,* 1.4 & remotus remotiorem.
• 4. Iure sanguinis, so the daughter of the first vent〈…〉〈…〉 shall inherit before the Son of the second.
• ...

• 5. Ratione doni, so the half blood shall inherit, as if a gift be made to one and the Heirs of his body, and he hath issue a son, and a daughter by one venter, and a son by another venter, the Father dies, and the eldest son enters and dies, the young son shall inherit per formam doni, for he claims as heir of the body of the Donee, and not generally as heir of his Brother: otherwise where Land cometh by descent, the rule is pos∣sessio fratris de foedo simplici facit sororem esse hae∣redem,* 1.5 but the Brother ought to be in actual possession of the Fee, and frank-tenement, ei∣ther by his own possession, or the possession of another to make his sister heir, and the reason is, because of all haereditaments in possession, he which claimeth as Heir, ought to make himself Heir by him that was last actually seised. Id. Ib.

But if the King by his Letters Patents make a* 1.6 Baron to him and his Heirs, possession in the el∣der brother of this Dignity cannot make his sister heir, but the brother of the half blood shall inherit, because no possession can be gained of this dignity ••er ped is p••sitionem.

In case of the descent of the Crown, the half blood shall mi••erit. So after the decease of King Edward the sixth, the Crown sell to Queen Mary, and from her to Queen Elizabeth, both which were of the half blood, and vet inheri••ed not only the Lands which King Edward, ••r Queen Mary pur∣chased, but the antient Lands parcell of the Crown also.

A man that is King by descent of the part of his Mother, purchaseth Land•• to him and his hens,

and dyeth without issue, this land shall descend to the heir of the part of the Mother, but in case of a Subject, the heir of the part of a father shall have them.

Notes

• * 1.1

  Cook on Lit. lib. 1. cap. 1. sect. 1.
• * 1.2

  Haeres di∣citur ab haerendo, quia qui haeres est haeret, id est, proximus est sanguine, illi cujus est haeres.
• * 1.3

  Id. Ib.
• * 1.4

  Cook •• Rep. R••t••liff••s Case.
• * 1.5

  Soror est haeres facta, therefore some act must be done to make her Heir, and the younger Brother is haeres natus, if no Act be done to the contrary.
• * 1.6

  Cook ubi supra, and on Lit. l. 1. c. 1. sect. 8. Possessio quasi pedis posi••io. Cook l. 7. of R••p. Ca••v. case. and on Lit. l. 1. c. 1. sect. 8.