Heir. In primitive systems of law the heir is the person who performs the sacred rites on the death of his ancestor, and to whom, as representing his ancestor, the property of the deceased is transferred. There are traces of this primitive conception in the history of Roman law. The later Roman law regards the heir as an universal successor, on whom all the rights and liabilities of the ancestor devolve. An heir might be named by will; in case of intestacy, the law pointed out the line of succession; in some cases equity gave possession to a person who was permitted by a fiction to call himself heir, though not legally entitled to inherit. The liabilities of an heir were restricted by rules which enabled him to separate his own estate from that of the deceased; after Justinian's time this was done by 'making an inventory;' and this 'benefit of inventory' is a feature of modern codes founded on the civil law. It is to be observed that the Roman heir united in himself the rights of the heir, executor, and devisee of English law.
In English law the heir is not the universal successor, but the person who succeeds to the real property of a deceased person not disposed of by will. He is bound by covenants, &c. which have been made binding on the land; the property which descends to him has been made assets for payment of debt generally; but if the personal estate be sufficient, the executor is the person by whom debts should be paid. The heir is ascertained at the moment of death; thus it is not technically correct to speak of the eldest son of a living person as his heir; the son is heir-apparent—i.e. it is evident that he will be the heir if he survives. If a father or brother is nearest in succession to a living person, we call him heir-presumptive; he will be the heir if he survives, and if no nearer heir is born. An heir must be sought among persons related by consanguinity to the deceased, males being preferred. Of males in the same degree, the eldest is sole heir; females in the same degree succeed as co-heiresses or coparceners. By the Inheritance Act of 1833 it is directed that descent is to be traced from the last purchaser—i.e. the last person who acquired the land otherwise than by descent. Formerly an estate could not ascend from son to father; but the act places the father next in succession after children and other descendants. For a tabular view of the order of succession, see Williams, On Real Property, or Paterson's Compendium of English and Scotch Law. The heirs-general are the heirs ascertained according to the foregoing rules, as distinguished from the restricted class (heirs of the body, heirs-male, heirs-female, &c.) pointed out by the terms of an entail. Where no heir can be found, the land is escheated to the feudal superior to whom it is held—i.e. usually to the crown. When a person dies intestate, his real estate vests at once in the heir; the heir becomes seised in law without entry on the estate or other formality. The rule which permits an heir to shift the liability for debts to the personal estate was formerly applied even to mortgages; but Locke King's Act, passed in 1854, makes a mortgage debt a charge on the land, unless a contrary intention is expressed.
The law of succession in Ireland is the same as in England.
In Scotch law the term heir is less strictly defined than in English law. It is used to include persons who succeed to movables. It also includes persons who take, not by descent, but by gift; thus, for example, 'heirs of destination' or 'heirs of provision' would be described as devisees or donees in English law. 'Heir-apparent,' in Scots law, means an heir who has not made up his titles, the heir-apparent of English law being included under the name of heir-presumptive; but since the Conveyancing (Scotland) Act of 1874 the inheritance vests on the death of the owner, and the heir is not required to make up titles. By the same act it is provided that an heir shall not be liable for the debts of his ancestor beyond the value of the estate. When heritable property has not been settled or disposed of by the owner, the heir of line is sought among the legitimate kin of the deceased. As in England, males are preferred; of males in the same degree, the eldest is sole heir; females inherit together as 'heirs-portioners.' But in Scotch, as compared with English law, certain points of difference are to be observed. (1) After descendants are exhausted, it is not the father, but the next younger brother who is next in succession; then the next younger again, and so on to the youngest brother, after whom and his descendants comes the next elder brother, and so on up to the eldest brother. Formerly 'fee of conquest'—i.e. land purchased by the deceased—went to the next elder brother, and so on, in preference to the next younger; but the distinction between conquest and heritage was abolished in 1874. (2) The mother never succeeds in Scotland, nor any relatives who trace through her, except brothers and sisters german. (3) Persons born illegitimate, but rendered legitimate by the subsequent marriage of their parents, are permitted to succeed. See the comparative tabular view in Paterson's Compendium.
In England the term 'hereditaments' is used to denote those parts of a man's property which will, if not disposed of, descend to the heir. In Scotland heritable property includes leaseholds, which in
England are treated as personal property; certain classes of annuities are also heritable, which would in England be personal.
HEIRS-PORTIONERS, in Scotch law, mean either two or more females, being sisters, or sisters and the children, male and female, of deceased sisters, who are entitled to succeed to heritable estate when their ancestor dies without leaving male issue. Thus, if A dies leaving three daughters, all three succeed equally if alive; or if some have already died leaving children, then the children represent the parent, and succeed to the parent's share along with the surviving sisters, all being called heirs-portioners. In such cases the eldest heir-portioner is entitled to the mansion-house of an estate in the country over and above her equal share of the rest. But she has no such right to a house in town, or to a country villa. She alone also takes a peerage or dignity, if there is any in the family. In England coparceners, though resembling heirs-portioners, have not identical rights.