No one is heir of the living.
The heir is one who takes lands of inheritance by descent ; and descent in law is the transmission of the right and title to lands to the heir on the decease of the proprietor, by mere operation of law. The law of descent is therefore that law by which the inheritance of estates is regulated, and by which provision is made for the disposition and succession of lands, in the nature of freehold, in the case of the death of the proprietor without having himself made any previous designation of heirs. And such title by descent or operation of law is distinguished from a title by purchase, inasmuch as the latter may be said to be a title by devise from the ancestor or by grant from the purchaser.
There are two kinds of heirs in the meaning of the word as now under consideration — the one being heir apparent and the other heir presumptive. Heir apparent is he who will necessarily succeed to the real estate of his ancestor undisposed of at the time of his death, if he survives him ; as, the eldest son of the ancestor or his issue. Heir presumptive is he who, if his ancestor should die immediately, would, under existing circumstances, be his heir; but whose right of inheritance may be defeated by some nearer heir coming into existence ; as, a brother or nephew, whose presumptive succession may be destroyed by the birth of a child.
From what has been said, it will be seen, that a man cannot be heir to his ancestor ; nor can he be both heir and ancestor at the same time. But the meaning of the maxim is more particularly with reference to the estate, namely, that no one can be entitled as heir to the estate of his ancestor during the life of the ancestor ; for, were it otherwise, the ancestor would cease to be such, and the heir would take his place as ancestor.
According to the meaning intended to be combed by this maxim, therefore, it is said, that the heir, so long as the ancestor be living, has no estate, nor is he entitled to any during that period, excepting as presumptive and apparent heir ; and the following cases are used to illustrate this : — If an estate be granted to John for life, and afterwards to the heirs of Eichard, the inheritance is neither granted to John nor Eichard, nor can it vest in the heirs of Eichard till his death ; for, according to this rule, during Eichard's life he has no heir. Or, if an estate be limited to A. for life, remainder to the heirs of B. ; if A. die before B., the remainder will be at an end ; for, during B.'s life he has no hei T .
There is no doubt, however, that the operation of this rule may be excluded by express words : as, where lands were devised to the heirs of J. S., then living ; it was held that his eldest son should have them, though, in strictness, he was not his heir during his father's life, but heir apparent only ; but this was by reason of the words “then living,” which made it a description of the person. Again, where there is a devise to A. for life, remainder to the right heirs of B., now living, the remainder vests in the heir apparent of B.
In all cases of devise, the intention of the testator will of course be considered in the application of the rule ; and he who is shown upon the face of the will to be intended to take, will take accordingly, whether he be in fact heir apparent only, or otherwise ; and in cases of doubt the heir will be favoured.
Co. Litt. 8, 22 ; Prec. Chan. 57 ; Noy. Max. 185 ; 2 Bla. Com. ; Jacob Die. Heir; 1 Plowd. 170; Fearne, 359 ; Darbison u. Beaumont, 1 P. Wms. 229 ; Jesson v. Wright, 2 Bligh, 1 ; Doe clem. Winter v. Perratt, 7 Scott N. R. 1 ; Wright v. Atkyns, 17 Ves. 255 ; James v. Richardson, Raym. 330 ; Doe dem. Brooking v. White, 2 W. Bl. 1010 ; Egerton v. Earl Brownlow, 4 H. L. Cas. 103 ; Sladen v. Sladen, 7 L. T. (N.S.) 63 ; Hennessey v. Bray' 9 Jnr. (N.S.) 1065 ; Parker v. Nickson, 8 L. T. (N.S.) 600.