Front Page Titles (by Subject) CHAPTER 1: INHERITANCE - A Concise History of the Common Law
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
CHAPTER 1: INHERITANCE - Theodore Frank Thomas Plucknett, A Concise History of the Common Law 
A Concise History of the Common Law (Indianapolis: Liberty Fund, 2010).
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The copyright to this edition, in both print and electronic forms, is held by Liberty Fund, Inc.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
During most of the Anglo-Saxon period the law of succession must have been customary. Surviving written sources give us only occasional glimpses, and the lack of genealogical material prevents us drawing any safe conclusions from its actual results in family history. Holders of folkland can hardly have been able to modify the devolution of their property to any great extent, and even the privileged bookland owner (as we shall see in dealing with the early history of wills) had only imperfect means at his disposal when he tried to direct the future course of his fortune. In the absence of precise information, even fundamental questions can receive but conjectural answers. The most striking example is the revival from time to time of the view that the Anglo-Saxons had a family community as a land-owning entity.1 English legal historians in general are inclined to reject this view, but the fact that it is still maintained will remind us how inconclusive the evidence is on Anglo-Saxon inheritance law.
INHERITANCE IN THE NORMAN PERIOD
Our material begins to be abundant in the Norman age, when it shows us that the family groups, if such there were, have already dissolved, leaving a true system of inheritance by individuals from individuals. The sanctity of inheritance as the great safeguard of family security is a theme which runs continually through the history of property. It would be hard to find a more striking illustration than the charter of 1066: the Conqueror’s message of reassurance to the nation was in terms which all could appreciate: “I will that every child be his father’s heir.”1
We may doubt whether that promise was kept any more faithfully than most political promises. William, like others in his position, might argue with some fairness that circumstances were changing so rapidly that the best endeavours to provide stability could only have partial success. In fact, the reorganisation of the country upon feudal lines soon produced drastic changes upon the old system of inheritance. The crown made exacting demands of forfeitures from traitors which were a most serious breach in the old idea of inheritance,2 and mesne lords secured corresponding escheats when their tenants committed felony. “Father to the bough, son to the plough” was a rule of law in Kent, and a deep-rooted sentiment everywhere else. The principle of forfeiture was designed to weaken the power of opposition to the Crown at the expense of possibly innocent members of the rebel’s family. To some extent it succeeded, but very often a traitor’s lands were later restored to his family; later, adventurous politicians or turbulent gentry resorted to entails3 or uses4 in order to protect their families. In the end the power of parliament (either by statute or by acts of attainder) over-rode all these devices.
These losses were balanced by gains in other directions. The Conquest had settled many families which looked for their economic foundation to purely feudal holdings. As we have seen, the Crown and other lords regarded these grants as being for life only, but a long and persistent struggle ended with the recognition of the heritability of these fiefs5 —indeed, the word fee finally became a term of art for a heritable interest in land, so thorough was the victory of the family principle over political feudalism. In other ranks of the feudal hierarchy a somewhat similar struggle was in progress, lesser tenants finally achieving the same terms against their lords as the tenants in chief had won from the king.
THE HEIR IN THE TWELFTH CENTURY
These alternations of success and failure, however, were comparatively minor matters compared with the great revolution of the twelfth century which produced primogeniture and freedom of alienation. The story has already been briefly told;1 here we are concerned with the profound change it wrought in the conception of inheritance. The heir acquired a newer significance with his new right to the whole of the land. So great a disturbance of ancient rules made free alienation a necessity, as we have seen; but free alienation in turn placed immense new powers in the hands of landowners. They secured the stability of their gifts by burdening their heirs with warranties, and these warranties were not only duties to defend the title, but also disabilities which barred the warrantor from recalling the gift.2 The makers of deeds soon proceeded further to make their heirs liable for their debts, and if this practice had ever become permanent, the heir would have become in a large measure the representative of his ancestor.3 To this point we shall have to return later.
THE RULES OF DESCENT
Above all, these changes induced a complete revision of the canons of descent in order to fit them into the primogenitary system. The old Anglo-Saxon rules determined the persons among whom the heritage was to be divided; the rules of Glanvill’s day determined who was to become the “heir” entitled to take the whole.
These new rules, it is clear, were worked out within the general framework of the parentelic system. How old that system may have been, in England and elsewhere, is a question which has been lengthily debated, and in any case it is a question which can only be discussed by comparing several systems of old law. Its essence is to be found in the rules of descent set forth in Blackstone,4 who wrote while the system, in its most developed form, was still in force. Those rules are of two sorts, first, to determine the group (parentela) in which the heir must be sought, and secondly, to identify the heir within the proper group. The choice of the parentela is comparatively easy. The decedent’s own descendants obviously come first. If there is no heir among them, “the right resorts” (as the Year Books put it) to the descendants of the decedent’s father (thus leaving us the choice between brothers, sisters, nephews, nieces and their issue); if this parentela provides no heir, the right resorts again to the next senior parentela, that is to say, the descendants of the decedent’s grandfather (and here we have to choose among his uncles, aunts, cousins); and so on, until an heir is found.
The choice of the heir within a given parentela is a more complicated matter, and was governed by principles, some of which are obvious, and others the result of obscure historical forces. Thus it is obvious that the decedent’s descendants should first be called, and it is not unnatural that a living person should exclude his own descendants. Some momentous decisions seem to have been reached in quite early times. Thus the rule that males exclude females of equal degree is certainly very old—much older than primogeniture.1 As everyone knows, the Salic law absolutely excluded females from the inheritance of ancestral land,2 but there is no trace of so rigid a rule in England, where they were merely postponed.
At the head of each parentela stands a lineal ancestor of the decedent—his father, grandfather, etc. Will they become heirs if the decedent has left no issue? The Salic law was explicit on the point: in such a case the father and mother will inherit.3 This rule seems simple and natural, but by the time of Glanvill our law had excluded all ascendants. The Libri Feodorum give no reason for the rule that a fief cannot ascend,4 and there is no visible connection between this Italian exposition and our own law, which seems to have reached the same result independently. Our rule, moreover, did not prevail in Normandy and so is almost certainly of native growth. Maitland has sought the origin of our exclusion of ascendants in the old rule, stated by Glanvill, that one cannot be lord and heir, i.e. a lord cannot be the heir of a tenant who has done homage to him.5 Glanvill’s discussion comes at the moment when the law was trying to make the necessary adjustments after the acceptance of the new rule of primogeniture. Families were used to the old scheme of partition among sons, and felt the need of curbing the excessive rights of the first-born with his new claim to the whole inheritance. Fathers redressed the balance by making inter vivos grants to younger sons (by subinfeudation), and Glanvill’s rule is designed to prevent such land coming back, on the death without issue of a younger son, (a) to the father, or (b) to the eldest son. The feeling seems to have been that the eldest son has enough already, and so should not inherit from a younger brother, either directly or through his father; it would be more equitable that such a gift should go to the next youngest son rather than enrich the line of the heir to the main part of the fortune.1 It needed but a slight change for this maxim that a lord cannot be heir, to become a rule that a father cannot inherit, because at this moment the father was very generally the lord. The rule, even in England, is therefore the outcome of feudal conditions.
Quia Emptores2 naturally prevented the creation of such a situation in the future, since it forbade subinfeudation, but by this time the mischief was done.3 Moreover, the rule only applied when the tenant had done homage,4 and (on the analogy of the maritagium5 ) lords might omit this important formality. If they did, the result was not unlike an entail with a reversion, and in practice the entail solved the difficulty, for the reversioner did not inherit from the previous tenant.
In fact, the situation is not so simple. At the head of a parentela there stands not only a father, but also a mother, and sometimes a choice must be made between them. Our law naturally returned to the mother’s kin those lands which had descended from her side of the family.6 If the decedent was a purchaser, however, this principle gives no guidance, and we are left with a preference for the male line.7
REPRESENTATION: THE CASUS REGIS
Suppose a decedent is survived by his second son, and also by the son of his predeceased eldest son: which will inherit, the grandson or the son? Under the oldest Frankish law surviving sons would exclude the grandsons. Very slowly this rule was abandoned. In France Childebert II legislated in 596 in favour of the grandson and the representative principle,1 and in Germany a judicial duel in the presence of Otto I in 938 established the same result.2 The great solemnity of these solutions shows how difficult the problem was felt to be; another aspect of the matter is the long succession of wicked uncles which it is customary to mention in this connection, from Clothar in the sixth century, to King John and Richard III. The fact that these tragedies were felt to be necessary seems to indicate a growing sense that the grandchild rightfully ought to represent his deceased parent for the purposes of inheritance.
Some sort of representation is logically implied in the parentelic system as soon as an elder parentela is called to the succession,3 but it was only gradually that this fact was recognised. The assize of mort d’ancestor was not open to a grandson who claimed that his grandfather had died seised. But if this seems to deny the principle of representation, the acceptance of the principle may be argued from the fact that mort d’ancestor lies for a nephew on the death of his uncle. In Glanvill’s day the king’s court was hesitating whether to admit the son of a predeceased elder son or the younger son of the decedent.4 Here, as in many other cases, the voluntary dispositions of parties finally became rules of law. In England the head of a family would often persuade his lord to take the homage of his eldest son in order to make the inheritance doubly sure. If this had been done, the issue of the eldest son would represent him if he predeceased his father.5 A similar process is observable on the continent.6 This tendency was interrupted by the famous casus regis, the accession of King John in 1199. Henry II had four sons, Henry, Richard, Geoffrey and John. Henry died without issue in his father’s lifetime; Richard I therefore succeeded Henry II. On the death without issue of Richard I, the claimants were Arthur (son of Geoffrey who had previously died), and John. Richard I himself seems to have finally designated John as his successor, and in any case John promptly snatched the inheritance. This incident was regarded for a time as settling the principle both in England and Normandy (where it soon earned the name of la mauvaise coutume).7 Judged even from the immediate political standpoint, the rule was unfortunate; John was not a model king, and the principle actually provided Louis VIII with some sort of claim to the English throne.1 The murder of Arthur in 1203 added little to John’s title, for Arthur had a sister, Eleanor, who thereupon became the representative of John’s elder brother Geoffrey. After John’s death, his son and successor, Henry III (1216), lived for many years with the knowledge that Eleanor’s claim was senior to his, and took the precaution of keeping her in captivity until her death without issue in 1241.
From John’s accession in 1199, therefore, until Eleanor’s death in 1241, an English court could hardly apply the representative principle in favour of a nephew against an uncle without thereby denying the title of the reigning monarch.
What to do in such cases was more than the court would undertake to decide. As early as 1201 a nephew who sued his uncle was told that the judgment depended on the wish of the king.2 As soon as a policy appears, it seems to be that which Glanvill suggested while the question was still open (although as yet uncomplicated by the casus regis), namely, whichever got there first, nephew or uncle, was to succeed. Glanvill justifies this on the principle that melior est condicio possidentis;3 his rule may be a distant echo of an old notion which favoured the claimant who was at the dead man’s hearth when he died4 —as late as 1304 the Year Books may speak occasionally of the astrier, the hearth-child.5 By the end of Edward I’s reign this compromise is being abandoned; perhaps another royal case had now established the principle of representation when Balliol succeeded against Bruce in the great plea for the Scottish crown before the English king as overlord.6
THE PROBLEM OF THE DISTANT HEIR
If the parentelic system had been enforced to its logical limits there would have been nothing to prevent the succession of an heir, however distant, provided there were proof of his relationship. In point of fact, however, the course of history does not show us a series of attempts to apply a preconceived theory of descent. The parentelic system itself was only evolved gradually, beginning no doubt with those fairly close relationships which commonly occur in the normal family pedigree. The old laws set limits: the Salic law apparently would not go beyond the sixth parentela; the neighbouring Ripuarian law stopped at the fifth; the Lombardic law admitted the seventh. We seem to have had no such rules in England,1 but instead we had a characteristic procedural limitation. The would-be heir, if he is too distant to use the summary action of mort d’ancestor or the more solemn actions of aiel, besaiel or cosinage, will be put to his ultimate remedy of the writ of right. Now a demandant in a writ of right must prove (a) that an ancestor of his was seised, and (b) that he is that ancestor’s heir. In other words, his count and his writ must select one parentela (the most ancient one of which there are still surviving members) and show that he is the best representative of that line. It would have been perfectly consistent with this style of pleading if there had been a rule that demandants could not claim on the seisin of an ancestor more than so many generations removed from the demandant. It so happened, however, that English courts were more interested in the presumed possibility of proof than in the remoteness of the heir. Our oldest date of limitation was the death of Henry I on 1 December 1135; no claim could be founded on a seisin earlier than that day.2 That limitation was felt to be too long when it passed the century, and so a statute of 1236 fixed a new date—construed as being Henry II’s coronation on 19 December 1154 (a period of over eighty years).3 By 1275 this period had grown to a hundred and twenty years, and so a new date was fixed, the coronation of Richard I on 3 September 1189.4 Our legislature seems to have felt that, roughly, a century was a suitable limit. As things stood in 1275, therefore, claims rooted only three or four generations back might be barred. Unfortunately, no further changes were made5 until 1540, when it was noticed that three and a half centuries were a severe tax on the memory, with resulting peril to men’s consciences; it was therefore enacted that no seisin could found a claim in a writ of right unless it was within sixty years of the date of the writ.6 Late in the middle ages and until 1540, therefore, extremely remote claims could be made, but in England the objection to them was based upon difficulty of proof and the unsettling of respectably old titles, rather than upon any conceptions of inheritance as such.
Upon this there has been much controversy. “In all the literature which enshrines the pretended philosophy of law, there is nothing more curious than the pages of elaborate sophistry in which Blackstone attempts to explain and justify the exclusion of the half-blood.” So wrote Sir Henry Maine.1 Maitland also rejected Blackstone’s neo-feudalism, merely mentioned Maine’s “agnatic family” explanation, and noted that Maine had mis-read Norman law. In Maitland’s view,2 our rule excluding the half-blood was neither old nor particularly interesting, and its origin lay in nothing more profound than “a few precedents” reaching a “capricious” solution.
The early cases, such as those in Bracton’s Note Book, only deal with part of the problem. For the most part they are merely concerned to show that female representatives of the whole-blood will take before males of the half-blood. Whether this means that the half-blood is totally excluded, or only postponed, is not so clear. In one case3 judgment was given for representatives of the whole-blood of a purchaser against the representative of the half-blood, the successful parties basing their claim, and the court its judgment, on the fact that this land had not descended from the common father of the half-brothers. This seems to hint that half-brothers might succeed one another as heirs to land coming from their common parent.
At first sight this might seem plausible, but examination will show that it is counter to common law principles, and especially to the rule seisina facit stipitem—in other words, successive heirs do not take because each in turn is the heir of some more or less remote ancestor, but because each is the heir of his immediate predecessor.4 Thus either of two half-brothers may become the heir of his father, but once a half-brother has been seised a new line of descent begins. The sources of our exclusion of the half-blood seem to be twofold. In the first place, the requirement that the heir must be the heir of the person last seised (seisina facit stipitem) is not, on the face of it, obvious. Its origin possibly lies in the assize of mort d’ancestor where the demandant necessarily made himself the heir of the one last seised.5 In a writ of right, on the other hand, the demandant made himself heir of some ancestor of his, and for some time lawyers suspected that these different methods might possibly produce different results.6 There is no evidence that they ever did, and it seems that the principle of seisina facit stipitem was soon accepted as applying to writs of right as well. The second source of the rule excluding the half-blood must be found in the new rule of primogeniture. Where equal partition prevailed it was natural to ignore the distinction between issue of different marriages, for all the issue were equally the heirs, at least of their common parent.1 Even in England, all the daughters become parceners in their mother’s inheritance although they have different fathers.2 Had it not been for primogeniture the same might have become the rule for sons. Moreover, for a time our early rule seems to have been that parceners are “one heir”. Hence if two half-sisters are parceners and one dies without issue, the other gets the whole—not because she has inherited from her half-sister, but because there is a right of accruer between the people composing the parcenary which is itself one heir.3
All our cases, from 1200 onwards,4 run on the principle that possessio fratris facit sororem heredem; no case has been found in which the half-blood succeeded. The rule of exclusion is therefore as old as the revolution which imposed primogeniture upon the common law.
This conclusion is very different from Maitland’s view that the rule of exclusion is post-Bractonian, and still uncertain in the early fourteenth century. The causes for this divergence are instructive, for they bring us back to the problem of Bracton. It is only in the pages of Bracton,5Fleta6 and Britton7 that we find the inheritance of the half-blood. To maintain such a doctrine Bracton has to deny expressly the rule that seisina facit stipitem,8 and Britton even allows a half-brother to inherit a stepfather’s land—a proposition which the courts expressly denied.9 Litigants joined the text writers in trying to get recognition for the half-blood. The bench sometimes spoke emphatically in favour of admitting the half-blood, and at least once the half-blood was admitted—but in spite of his brave words, Spigurnel, J., carefully based his decision on other grounds.10 When Inge, J., said, “we do not find that the heir by the second wife should be barred either by usage or by law,” Bereford, C. J., characteristically replied, “Nom de Dieu! you will find it in the law of England”.11 All the cases support Bereford’s claim. Where, then, did Bracton get his notion? Not in “the law of England” assuredly; but there is a passage in his master Azo where the half-blood is admitted,1 and many continental customs were taking that shape. It may be no coincidence that Inge, too, had also been looking at foreign books.2
The commons petitioned in parliament for legislation in favour of the half-blood, but in vain.3
THE CREATION OF HEIRS
As a result of the sanctity attaching to the idea of inheritance, there was naturally a feeling that the system with its growing mass of rigid rules was beyond human control. “God alone can make an heir”, said Glanvill,4 and earlier still in France it was said that “heirs are born, not made by writings”—gignuntur heredes, non scribuntur. For all that, attempts were constantly being made to direct the course of an inheritance. We have seen that a father might persuade the lord to take his eldest son’s homage, and thus ensure the sucession of the grandchildren.5 So too the Anglo-Saxon charter sometimes professed to make an heir.6 In the Norman period tenants of church estates occasionally talk of instituting heirs7 and still later examples sometimes turn up.8 With the firm refusal of the king’s court to hear anything resembling a devise of land, it therefore followed logically that the institution of heirs, calls to succession, adoption9 and the like devices must also fail. The one possible method was the entail, and this was confined as yet within a very narrow pattern of possible dispositions, and above all, it was irrevocable. It is not surprising that landowners turned to the use, precarious as it was, in order to obtain testamentary powers over their land.
THE POSITION OF THE HEIR
If a stranger “abates” or “intrudes” upon land whose owner has just died seised, he has committed no disseisin. The lawful heir cannot say that he was disseised unless he had in fact been previously seised. In other words, the heir does not inherit his ancestor’s seisin.1 Like everyone else, an heir cannot acquire the privileges of seisin unless he enters, stays in, and conducts himself like the peaceful holder of a free tenement. Until then he has, for a short time, a right of entry and thenceforward only a right of action in which he must prove the seisin of the decedent and his own “right” descending to him from the person last seised. While seisin was still of this simple character—we might almost say, a state of facts rather than a legal abstraction—it was quite impossible to speak of seisin being hereditary. Some steps in that direction were taken, however. We never went so far as those French and German custumals which held that le mort saisit le vif,2der Todte erbt den Lebendigen. The common law solution began by recognising that an heir might obtain a legally recognised seisin somewhat easily; merely to place his foot upon his inheritance sufficed in 1305.3 By Littleton’s day this doctrine has expanded considerably. The conception of an “estate” in land enabled theorists to say that an heir, even though he has not entered, nevertheless has a “freehold in law which is cast upon him by force of the descent”, of which he is seised in law (Littleton even goes so far as to say that if he dies without entering, his widow is still dowable).4 The common law had therefore travelled far from the early physical conception of seisin and was conferring upon an absent heir a seisin as rarefied and artificial as that seisin which was later the creature of the statute of uses.
The rights of an heir to land were thus gradually being intensified. On the other hand, the heir was soon relieved of his liability (apart from specialty) for the decedent’s debts, and the final recognition under Edward I of the representative character of executors completed the process. The age of Glanvill and Bracton felt Romanist influences sufficiently to play with the idea that our feudal heir might be turned into a true representative of the decedent. The temporary success of this movement was possibly won at the expense of the Church, and it was certainly to the Church that the ground was finally lost.5 By the reign of Henry VIII it had to be explained that in England haeres is called executor—a doctrine long familiar to mediaeval canonists and civilians.6
THE HEIR IN THE NINETEENTH CENTURY
Confined within the limits of real property law, the position of the heir became an historical curiosity.1 The heavy feudal burdens on heirship incited conveyancers to find means of disguising heirs under the form of purchasers,2 and the combined effects of this and of the devisability of land since 1540 deprived the more recondite portions of the law of inheritance of much of their practical importance. Consequently Blackstone’s chapter on descent is purely mediaeval in substance, and there was little legislation to consider until the nineteenth century. In 1833 the Inheritance Act made important changes, although retaining the fundamental conception of an heir at common law. The ancient principle of seisina facit stipitem was abolished, and instead of it the last purchaser became the root of descent; ascendants and the half-blood were admitted.3
More serious were the changes which slowly began to undermine the whole mediaeval conception of inheritance. The strong contrast between an heir and a personal representative had been maintained ever since its establishment early in the fourteenth century. The rule stated by Fleta4 that an heir was not liable for the decedent’s debts unless specially bound by deed, still represented the law with fair accuracy5 until 1833. In that year the land of a decedent was made assets for the payment of debts of all descriptions.6 At long last, therefore, land came to be treated as merely one form of wealth among many, which were to be equally available for the discharge of the decedent’s debts. By the time this had become familiar, the heir’s position began to look anomalous, as well as causing inconvenience. Although shorn of his mediaeval prerogatives, he still inherited the land, subject to the equitable rights accorded to creditors by statute. By 1897 it was felt simpler to abolish the mysterious process of inheritance, and by statute land was made to devolve upon the decedent’s personal representatives as trustees for the heir.7 This greatly facilitated the payment of debts, and possibly for the first time in our history gave us a single representative for all purposes. Having reached that stage, it was only logical to extend the scheme for the distribution of chattels to land also,8 and with it to extinguish the most ancient institution of English private law.