The lawful heir is he whom wedlock shows so to he.
“Haeres” is said to be he “ qui ex justis nuptiis procreatus ;'' for, ”haeres legitimus est quern nuptise demonstrant ;“ and is he to whom lands, tenements, and here- ditaments by the act of God and right of blood descend ; for ”solus Deus heeredem facere potest, non homo.“
Bastards, or “nullius filii” — born out of wedlock, or not within a competent time after its determination — cannot be heirs, the maxim in reference thereto being, ”Qui ex damnato coitu nascuntur, inter liberos non computantur.“ Nor an alien born, though born in wedlock, unless the mother be a natural born subject, or until naturalised ; nor one attaint of high or petit treason, or murder. A hermaphrodite may be heir, and take according to that sex which is most prevalent ; but a monster not having human shape, cannot. A deformed person may be heir, so may idiots and lunatics.
The word “heir” is nomen collectivum, and extends to all heirs ; and under heirs the heirs of heirs in infinitum are comprehended ; and consanguinity, or kindred, which creates the heir, is defined to be, ”Vinculum personarum ab eodem stipite descendentium,“ or the connexion or relation of persons descended from the same stock or common ancestor.
The valid marriage of the ancestor is, under this rule, necessary to constitute the heir. Marriage may be proved by reputation, and strict evidence of the regularity of the marriage need not in the first instance be given ; and a marriage in a parish church, with the usual forms, by a person acting as minister, is of itself presumptive evidence of a regular and legal marriage. But where that prima facie evidence is rebutted, and the parties are put to strict proof ; as, where a title by descent is disputed, and is the subject of inquiry, all the forms of the marriage ceremony are then necessary to be proved, and those differ even in the United Kingdom, according to whether or not the ceremony took place in England, Ireland, or Scotland. For instance, a person born in Scotland of parents not married till after the birth, though legitimate by the law of Scotland, cannot inherit the real estate in England of his father ; nor can the father of a man born before marriage in Scotland of his parents succeed to real estate whereof the son had died seized in England. Again, though the strict forms of the marriage ceremony have been gone through, the marriage may be proved to be otherwise void, and the heir who was before apparent, by such proof be shown to be illegitimate. Where, however, the marriage is in all respects valid and indisputed, the heir is ”quern nuptise demonstrant.“ This rule is peculiarly applicable to the common law of England, by which no one can inherit any land who was not born after the lawful marriage according to the common law of England of the parents ; and differs from the civil and canon law, which legitimises the children born out of wedlock by the after marriage of their parents, by the rule, ” Pater est quern nuptise demonstrant.“ And this difference is thus expressed by Glanvil : — ” Orta est qusestio, si quis antequam pater matrem suam desponsaverat fuerit genitus vel natus, utrurn talis filius sit legitimus haeres, cum postea matrem suam desponsaverat : et quidem licet secundum canones et leges Eomanas talis filius sit legitimus hseres ; tamen secundum jus et consuetudinem regni nullo modo tanquam haeres inheereditate sustinetur, vel hseredi- tatem de jure regni petere potest.“
Co. Litt. 3, 7, 8 ; Jlirr. c. 2, s. 15 ; Bract. 1. 2, fol. 62 b ; Nov. 89, >,. 8 ; 2 Inst. 97 ; Glan. lib. 7, c. 15 ; Jacob Die. ; 53 Geo. 3, c. 145 ; 7 & 8 Vict, c. 66 ; 3 & i Will. 4, o. 106 ; Re Don's Est. 27 L. J. 98, Ch. ; Doe dem. Birtwistle v. Vardill, 2 CI. & Fin. 571 ; Me Dominigo Capedevieille, 11 L. T. (N.S.) 89 ; R. r. Sourton, 5 A. & E. 186 ; Reed v. Passer, Peake Cas. 233 ; 4 Geo. ^. 76; Mainwaring's Case, 26 L. J. 10, M. C.