But the heir's persona was not even the sum of all the ancestor's rights and duties in connection with real estate.It has been said already that every fee descends specifically, and not as incident to a larger universitas.This appears not so much from the fact that the rules of descent governing different parcels might be different, so that the same person would not be heir to both, as from the very nature of feudal property.Under the feudal system in its vigor, the holding of land was only one incident of a complex personal relation.The land was forfeited for a failure to render the services for which it was granted; the service could be renounced for a breach of correlative duties on the part of the lord. It rather seems that, in the beginning of the feudal period under Charlemagne, a man could only hold land of one lord. Even when it had become common to hold of more than one, the strict personal relation was only modified so far as to save the tenant from having to perform inconsistent services.Glanvill and Bracton a tell us that a tenant holding of several lords was to do homage for each fee, but to reserve his allegiance for the lord of whom he held his chief estate; but that, if the different lords should make war upon each other, and the chief lord should command the tenant to obey him in person, the tenant ought to obey, saving the service due to the other lord for the fee held of him.
We see, then, that the tenant had a distinct persona or status in respect of each of the fees which he held.The rights and duties incident to one of them had no relation to the rights and duties incident to another.A succession to one had no connection with the succession to another.Each succession was the assumption of a distinct personal relation, in which the successor was to be determined by the terms of the relation in question.
The persona which we are seeking to define is the estate.Every fee is a distinct persona, a distinct hereditas, or inheritance, as it has been called since the time of Bracton.We have already seen that it may be sustained by more than one where there are several heirs, as well as by one, just as a corporation may have more or less members.But not only may it be divided lengthwise, so to speak, among persons interested in the same way at the same time: it may also be cut across into successive interests, to be enjoyed one after another.In technical language, it may be divided into a particular estate and remainders.But they are all parts of the same fee, and the same fiction still governs them.We read in an old case that "he in reversion and particular tenant are but one tenant." This is only a statement of counsel, to be sure; but it is made to account for a doctrine which seems to need the explanation, to the effect that, after the death of the tenant for life, he in reversion might have error or attaint on an erroneous judgment or false verdict given against the tenant for life. To sum up the results so far, the heir of modern English law gets his characteristic features from the law as it stood soon after the Conquest.At that time he was a universal successor in a very broad sense.Many of his functions as such were soon transferred to the executor.The heir's rights became confined to real estate, and his liabilities to those connected with real estate, and to obligations of his ancestor expressly binding him.The succession to each fee or feudal inheritance is distinct, not part of the sum of all the ancestor's rights regarded as one whole.But to this day the executor in his sphere, and the heir in his, represent the person of the deceased, and are treated as if they were one with him, for the purpose of settling their rights and obligations.
The bearing which this has upon the contracts of the
deceased has been pointed out.But its influence is not confined to contract; it runs through everything.The most striking instance, however, is the acquisition of prescriptive rights.
Take the case of a right of way.A right of way over a neighbor's land can only be acquired by grant, or by using it adversely for twenty years.A man uses a way for ten years, and dies.Then his heir uses it ten years.Has any right been acquired? If common sense alone is consulted, the answer must be no.The ancestor did not get any right, because he did not use the way long enough.
And just as little did the heir.How can it better the heir's title that another man had trespassed before him? Clearly, if four strangers to each other used the way for five years each, no right would be acquired by the last.But here comes in the fiction which has been so carefully explained.From the point of view of the law it is not two persons who have used the way for ten years each, but one who has used it for twenty.The heir has the advantage of sustaining his ancestor's and the right is acquired.
