The nature and degrees of kindred being thus in ſome meaſure explained, I ſhall next proceed to lay down a ſeries of rules, or canons of inheritance, according to which eſtates are tranſmitted from the anceſtor to the heir; together with an explanatory comment, remarking their original and progreſs, the reaſons upon which they are founded, and in ſome caſes their agreement with the laws of other nations.
I. The firſt rule is, that inheritances ſhall lineally deſcend to the iſſue of the perſon laſt actually ſeiſed, in infinitum; but ſhall never lineally aſcend.
To explain the more clearly both this and the ſubſequent rules, it muſt firſt be obſerved, that by law no inheritance can veſt, nor can any perſon be the actual complete heir of another, till the anceſtor is previouſly dead. Nemo eſt haeres viventis. Before that time the perſon who is next in the line of ſucceſſion is called an heir apparent, or heir preſumptive. Heirs apparent are ſuch, whoſe right of inheritance is indefeaſible, provided they outlive the anceſtor; as the eldeſt ſon or his iſſue, who muſt by the courſe of the common law be heirs to the father whenever he happens to die. Heirs preſumptive are ſuch, who, if the anceſtor ſhould die immediately, would in the preſent circumſtances of things be his heirs; but whoſe right of inheritance may be defeated by the contingency of ſome nearer heir being born: as a brother, or nephew, whoſe preſumptive ſucceſſion may be deſtroyed by the birth of a child; or a daughter, whoſe preſent hopes may be hereafter cut off by the birth of a ſon. Nay, even if the eſtate hath deſcended, by the death of the owner, to ſuch brother, or nephew, or daughter; in the former caſes the eſtate ſhall be deveſted and taken away by the birth of a poſthumous child; and, in the latter, it ſhall alſo be totally deveſted by the birth of a poſthumous ſon[1].
- ↑ Bro. tit. deſcent. 58.
