OF LAWFUL HEIRS, AND BASTARDS, MALE OR FEMALE, OF FULL AGE OR MINORS; AND OF THE CUSTODY AND PRIVILEGE OF MINORS; AND CONCERNING ULTIMATE HEIRS, WHO ARE THE LORDS WHEN THE FEE FALLS INTO THEIR HANDS; AND OF THE HEIRS OF INTESTATES; AND OF USURERS, AND THEIR HEIRS; AND OF MARRIAGE-HOOD AND OTHER THE DONATIONS OF ANCESTORS; AND OF THEIR TESTAMENTS AND DEBTS, ALL WHICH THEIR HEIRS ARE BOUND TO WARRANT.
CHAP. I.
The term Dower is received in a different acceptation in the Roman Code, according to which, that portion which is given to a Man with a Woman is, properly speaking, termed Dower; but this corresponds with what is usually called, Marriage-hood.[197] Every freeman possessed of Land may give a certain part of it with his Daughter, or with any other Woman, in Marriage-hood, whether he has any Heir, or not; or whether his Heir, supposing he has one, consent to such a disposition, or not—nay, though the Heir expressly dissent from, and forbid it. Every one may also give a certain part of his freehold Estate[198] to any person he chuses, in remuneration of his services, or to a religious Establishment in Free-Alms;[199] that, if seisin follow up the Donation, the Land shall perpetually remain to the person to whom it is given and his Heirs, if the terms of the Gift go to that extent. But, if such a Donation should not be followed up by seisin, nothing can, after the death of the Donor, be claimed with effect in virtue of it, contrary to the will of the Heir; because such a disposition is usually interpreted by the Law of the Realm, rather as a naked promise, than a real promise or donation. Though it is thus, generally speaking, lawful for a man, in his lifetime, freely to dispose of the reasonable part[200] of his Land, in such manner as he may feel inclined, yet the same permission is not allowed to any one on his death-bed; because the distribution of the Inheritance would, probably, be then highly imprudent,[201] were such an indulgence conceded to men, who, in the glow of a sudden impulse, not unfrequently lose both their memory and reason.
Hence, it is to be presumed, that if a Man laboring under a mortal disease, should then for the first time set about making a disposition of his Land, a thing never thought of by him in the hour of health, that the act is rather the result of the Mind’s Insanity than of its deliberation. But yet a Gift of this description, if made to any one by the last Will, shall be valid, if done with the consent of the Heir, and confirmed by his acquiescence in it. When a Man gives part of his Land in Marriage-hood, or in any other manner, his Land consists either of that which is inheritable only, or of that which he has purchased only, or of both descriptions. If he possess inheritable Land only, he may, as we have already observed, give a certain portion of it to any stranger at his pleasure.[202] But if he has many sons born in Wedlock,[203] he cannot, correctly speaking, without the consent of his Heir, give any part of his Inheritance to a younger son; because, if this were permitted, it would then frequently happen that the Eldest son would be disinherited, owing to the greater affection which Parents often feel towards their younger children.
But, it may be asked, whether a man, having a Son and Heir, can give any part of his Inheritance to his illegitimate son? If he can, it follows, that the condition of the illegitimate son would, in this respect, be preferable to that of the younger son born in Wedlock; and yet the Law is so.[204] But, if the person, desirous of making a donation of part of his Lands, possess only such as he has purchased, he may then make such Gift; provided it does not extend to the whole of his purchased Lands, because he cannot disinherit his Son and Heir.[205] Yet, if he has not any Heir, male or female, of his own Body, he may, indeed, consult his own inclination in making an absolute gift, either of part or of the whole of his purchased Lands.[206] And, if the person to whom the gift be made obtain Seisin of it, during the life of the Donor, it is not in the power of any more remote[207] Heir to invalidate such Gift. Thus may a man give, in his lifetime, the whole of his purchased Land; but he cannot make any one his Heir to it, neither a College, nor any particular individual, it being an Established Rule of Law, that God alone, and not Man, can make an Heir.[208] If, however, a Man possess both inheritable and purchased Lands, it is then unquestionably true, that he may absolutely give any part or the whole of the latter to such person as he pleases;[209] and of his inheritance he may notwithstanding dispose, according to what we have already observed, provided such disposition be a reasonable one. It should be observed, that, if a Man, having Lands in free socage,[210] has many sons, who are all in equal proportions to be admitted to the Inheritance, then, it is unquestionably true, that their Father cannot give a greater part of his inheritable Land or of his purchased, if he possess no inheritable, to any one of the sons, than the reasonable part which would fall to such son of the whole paternal Inheritance.[211] But the Father can in his lifetime give to either of his Sons such a part only of his inheritable free socage Land, as such son would be intitled to upon the death of his father by the Rule of succession. Yet, by reason of the liberality which Parents are in the habit of exercising towards their sons, or even towards other persons, questions of Law frequently arise concerning donations of this description. Let us suppose, that a Knight or a freeman, having four, or a greater number of sons, all born in Wedlock of one Mother, should, with the consent of the Heir previously obtained, (in order to prevent disputes) give to one of his sons—let us say, to the second and his Heirs, a certain reasonable part of his Inheritance—Let us suppose, that the son, to whom the Gift has been made, received Seisin, and, during his Life, took the profits and proceeds, and that he died in such Seisin, leaving not only his Father, but all his Brothers yet living.
Very obscure, indeed, is the Law, and considerable the debate and contention among the most skilful of that Profession, when this point occurs or may occur in the King’s Court, in order to ascertain, who ought by law to succeed to the Inheritance. The Father contends, that he ought to retain to himself the Seisin of his departed son, and thus desires, that the Land which had emanated from his Bounty should again return to him. Upon this question being agitated in Court, the Eldest son will answer to the Father, in the act of claiming the Land, that the latter ought not to be heard upon the subject, as it is a general principle of the Law of the Realm, that no one can be at once Lord and Heir of the same Tenement.[212] But, by force of the same principle, the third son attempts to repel the Eldest son, from the inheritance in question.
For, since the Eldest son is the Heir to the whole Inheritance, he cannot be at once Lord of it and Heir; especially, if the father of the Eldest son happen to be dead, such son would be Lord of the whole Inheritance. But, then, by the Law of the Realm, the Land cannot remain to him, for the reason we have mentioned. If, therefore, he cannot retain it absolutely, how can he claim it by the rule of succession? By a parity of reasoning it seems, that the third son shall exclude all the others.
A similar doubt arises, when any one has conceded and given a certain portion of his Land to his younger Brother, and his Heirs. Let us suppose, that the latter dies, without leaving any Heir of his own body, and the former seizes into his own hands the Land of his deceased Brother, as being vacant and within his Fee, against whom his own two sons pray an Assise, concerning the death of their Uncle. Upon the suit proceeding, the Eldest son may plead against his Father, and the youngest son against his Elder Brother, in the manner before mentioned. But it is evident, that the Father cannot by any means, consistently with the Law of the Realm, retain the Land in question, as he cannot at once be Lord and Heir. Nor, indeed, does the Law admit of Land so given again reverting to the Donor, when Homage has followed the Gift,[213] if the person to whom the Gift is made has any Heir, of his own body, or even more remote. Besides, Land which is thus given, like certain other Inheritances, naturally descends to the Heirs by the rule of succession, but never naturally ascends.[214] Thus the Plea, between the Father and the Eldest son, shall cease—but it shall proceed, between the Eldest son and the youngest, in the manner we have already described.