September 2, 2025 • 54 mins
Dive into the rich history and intricate details of common law in the United States, exploring its evolution and significance through compelling narratives. (summary by TB27)
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Speaker 1 (00:00):
Lecture ten of the Common Law by Oliver Wendell Holmes Junior.
This recording is in the public domain Successions after Death.
In the lecture on Possession, I try to show that
the notion of possessing a right as such was intrinsically absurd.
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All rights are consequences attached to filling some situation of fact.
A right which may be acquired by possession differs from
others simply in being attached to a situation of such
a nature that it may be filled successively by different persons,
or by anyone without regard to the lawfulness of his
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doing so, as is the case whether the situation consists
in having a tangible object within one's power. When a
right of this sort is recognized by the law, there
is no difficulty in transferring it, or, more accurately, there
is no difficulty in different persons so excessively enjoying similar rights.
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In respect of the subject matter, If A, being the
possessor of a horse or a field, gives up the
possession to B, the rights which B acquires stand on
the same ground as A's did before. The facts from
which A's rights sprang have ceased to be true of
a and are now true of B. The consequences attached
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by the law to those facts now exist for B
as they did for A before. The situation of fact
from which the right spring is a continuing one, and
anyone who occupies it, no matter how has the rights
attached to it. But there is no possession possible of
a contract. The fact that a consideration was given yesterday
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by A to B and a promise received in return
cannot be laid hold of by X and transferred from
A to himself. The only thing which can be transferred
is the benefit or burden of the promise. And how
can they be separated from the facts which gave rise
to them? How, in short, can a man sue or
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be sued on a promise in which he had no
part hitherto It has been assumed, in dealing with any
special right or obligation, that the facts from which it
sprung were true of the individual entitled or bound. But
it often happens, especially in modern law, that a person
acquires and is allowed to enforce a special ight, although
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that facts which give rice to it are not true
of him, or are true of him only in part.
One of the chief problems of the law is to
explain the machinery by which this result has been brought
to pass. It will be observed that the problem is
not co extensive with the whole field of rights. Some
rights cannot be transferred by any device or contrivance, for
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instance a man's right to bodily, safety, or reputation. Others, again,
are incident to possession, and within the limits of that conception,
no other is necessary. As Savigny said, succession does not
apply to possession by itself. But the notion of possession
will carry us but a very little way in our
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understanding of the modern theory of transfer. That theory depends
very largely upon the notion of succession. To use the
work just quoted from Savigny, and accordingly successions will be
the subject of this and the following lecture. I shall
begin by explaining the theory of succession to persons deceased,
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and after that is done, shall pass to the theory
of transfer between living people, and shall consider whether any
relation can be established between the two. The former is
easily shown to be founded a bo fictitious identification between
the deceased and his successor, and as a first step
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to the further discussion, as well as for its own sake,
I shall briefly state the evidence touching the executor, the heir,
and the deviz in order to understand the theory of
our law with regard to the first of these. At
least scholars are agreed that it is necessary to consider
the structure and position of the Roman family as it
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was in the infancy of Roman society. Continental juris have
long been collecting the evidence that in the earlier periods
of Roman and German law alike, the unit of society
was the family. The Twelve Tables of Rome still recognize
the interest of the inferior members of the family in
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the family property. Heirs are called sui heers, that is,
heirs of themselves or of their own property, as is
explained by Gaius Powell says that they are regarded as
owners in in a certain sense, even in the lifetime
of their father, and that after his death they do
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not so much receive an inheritance as obtain the full
power of dealing with their property. Starting from this point,
it is easy to understand that the succession of heirs
to a deceased pate familias in the Roman system, if
the family was the owner of the property administered by
a pate familias, its rights remained unaffected by the death
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of its temporary head. The family continued although the head died,
and when, probably by a gradual change, the pate familias
came to be regarded as owner instead of a simple
manager of the family rights. The nature and continuity of
those rights did not change with the title to them.
The familia continued to the heirs as it was left
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by the ancestor. The heir succeeded not to the ownership
of this or that thing separately, but to the total
hereditas or headship of the family with certain rights of
property as incident, and of course he took this headship
or right of representing the family interests subject to the
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modifications effected by the last manager. The aggregate of the
ancestors rights and duties, or to use the technical phrase,
the total persona sustained by him, was easily separated from
his natural personality. For this persona was but the aggregate
of what had formerly been family rights and duties, and
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was originally sustained by any individual only as the family head.
Hence it was said to be continued by the inheritance,
and when the heir assumed it, he had his action
in respect of injuries previously committed. Thus the Roman heir
came to be treated as identified with his ancestor for
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the purposes of the law. And thus it is clear
how the impossible transfers which I seek to explain were accomplished.
In that instance, rights to which B as B could
show no title, he could readily maintain under the fiction
that he was the same person as a whose title
was not denied. It is not necessary at this point
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to study family rights in the German tribes, but it
is not disputed that the modern executor derives his characteristics
from the Roman heir. Wills also were boiled from Rome
and were unknown to the Germans of Tacitus. Administrators were
a later imitation of executives introduced by statute for cases
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where there is no walth or where that any other
reason executives were wanting. The executor has the legal title
to the whole of the testator's personal estate and generally speaking,
the power of alienation. Formerly he was entitled to the
undistributed residue, not it may fairly be conjectured as legate
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of those specific chattels, but because he represented the person
of the testata and therefore had all the rights which
the test data would have had after his distribution if alive.
The residue is nowadays generally requested by the will, but
it is not even now regarded as a specific gift
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of the chattels remaining undisposed of. And I cannot help
thinking that this doctrine echoes that under which the executor
took in former times. No such rule has governed residuary
devises of real estate, which have always been held to
be specific in England down to the present day, so
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that if a devise of land should fail, that land
would not be disposed of by the residuary clause, but
would descend to the air, as if there had been
no will. Again, the appointment of an executor relates back
to the date of the testator's death. The continuity of
person is preserved by this fiction. As in Rome, it
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was by personifying the inheritance and interim. Enough has been
said to show the likeness between our executor and the
Roman heir, And bearing in mind what was said about
the Herez, it will easily be seen how it came
to be said as it often was in the old
books that the executor represents the person of his testator.
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The meaning of this feigned identity has been found in history,
but the aid which it furnished in overcoming a technical
difficulty must also be appreciated. If the executor represents the
person of the testator, there is no longer any trouble
in allowing him to sue or be sued on his
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testatus contracts. In the time of Edward the Third, when
an action of covenant was brought against executives, per se objected.
I never heard that one should have a writ of
covenant against executors, nor against other person, but the they
one who made the covenant. For a man cannot oblige
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another person to a covenant by his deed, except him
who was party to the covenant. But it is useless
to object that the promise sued upon was made by
A the testator, not by B, the executor, when the
law says that for this purpose B is a. Here
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then is one class of cases in which a transfer
is accomplished by the help of a fiction, which shadows,
as fictions so often do the facts of an early
stage of society, and which could hardly have been invented
had these facts been otherwise. Executors and administrators afford the chief,
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if not the only, example of universal succession in the
English law. But although they succeed per University Tartan, as
has been explained, they do not succeed to all kinds
of property. The personal estate goes to them, but land
takes another course. All real estate not disposed of by
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will goes to the heir, and the rules of inheritance
are quite distinct from those which govern the distribution of chattels. Accordingly,
the question arises whether the English heir or successor to
real estate, presents the same analogies to the Roman heires
as the executor. The English heir is not a universal successor.
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Each and every parcel of land descends as a separate
and specific thing. Nevertheless, in his narrow sphere, he aim
questionably represents the person of his ancestor. Different opinions have
been held as to whether the same thing was true
in early German law. Doctor Laban says that it was.
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Zom takes the opposite view. It is commonly supposed that
family ownership, at least of land, came before that of
individuals in the German tribes, and it has been shown
how naturally representation followed from a similar state of things
in Rome. But it is needless to consider whether our
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law on this subject is of German or Roman origin,
as the principle of identification has clearly prevailed from the
time of Glanville to the present day. If it was
not known to the Germans, it is plainly accounted for
by the influence of the Roman law. If there was
anything of the sort in the Salic law, it was
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no doubt due to natural causes similar to those which
gave rise to the principle at Rome. But in either event,
I cannot doubt that the modern doctrine has taken a
good deal of its form and perhaps some of its substance,
from the mature system of the civilians, in whose language
it was so long expressed. For the same reasons that
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have just been mentioned. It is also needless to weigh
the evidence of the Anglo Saxon sources, although it seems
tolerably clear from several passages in the laws that there
was some identification as late as Bracton, two centuries after
the Norman conquest. The heir was not the successor to
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lads alone, but represented his ancestor in a much more
general sense, as will be seen directly. The office of
executor in the sense of Air was unknown to the
Anglo Saxons, and even in Bracton's time does not seem
to have been what it has since become. Though is
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the therefore no need to go back further than to
the early Norman period, after the appointment of executives had
become common, and the heir was more nearly what he
is now. When Glanville wrote a little more than a
century after the conquest, the heir was bound to warrant
the reasonable gifts of his ancestor to the grantees and
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their heirs, and if the effects of the ancestor were
insufficient to pay his debts, the heir was bound to
make up the deficiency from his own property. Neither Glanville
nor his Scotch imitator the Reggiam Magistratum limits the liability
to the amount of property inherited from the same source.
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This makes the identification of air and ancestor was complete,
as that of the Roman law before such a limitation
was introduced by Justinian. On the other hand, a century later,
it distinctly appears from Bracton that the heir was only
bound so far as property had descended to him, And
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in the early sources of the Continent Norman as well
as other the same limitation appears. The liabilities of the
Air were probably shrinking Britain and Fletter, the imitators of Bracton,
and perhaps Bracton himself, say that an heir is not
bound to pay his ancestors debt unless he be thereto
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especially bound by the deed of his ancestor. The later
law required that the heir should be mentioned if he
was to be held, but at all events the identification
of Air and ancestor still approached the nature of a
universal succession in the time of Bracton, as is shown
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by another statement of his he asks if the test
Theata can bequeath his rights of action, and answers no,
so far as concerns debts not proved and recovered in
the testatus life. But actions of that sort belonged to
the heirs and must be sued in the secular court,
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For before they are so recovered in the proper court,
the executor cannot proceed for them in the ecclesiastical tribunal.
This shows that the identification worked both ways. The heir
was liable of the debts due from his ancestor, and
he could recover those which were due to him until
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the executor took his place in the king's courts as
well as in those of the Church. Within the limits
just explained, the heir was also bound to warrn property
sold by his ancestor to the purchaser and his heirs.
It is not necessary after this evidence that the modern
heir began by representing his ancestor generally to seek for
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expressions in later books, since his position has been limited.
But just as we have seen that the executor is
still said to represent the person of his testata, the
heir was said to represent the person of his ancestor
in the time of Edward the First, so at a
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much later date it was said that the heir is
in a representation in point of taking by inheritance. I
adam persona hum at chesore the same persona as his ancestor,
A great judge who died but a few years ago,
repeats language which would have been equally familiar to the
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lawyers of Edward or of James Bound Park. After laying
down that in general, the party is not required to
make profit of an instrument to the possession of which
he is not entitled. Says that there is an exception
in the cases of air and executor, who may plead
olise to the ancestor or test whom they respectively represented.
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So also with respect to several tort feesas. But in
all these cases there is a privity between the parties
which constitutes an identity of person. But this is not all.
The identity of person was carried farther still. If a
man died leaving male children and owning land in fee,
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it went to the oldest son alone, but if he
left only daughters, it descended to them all equally. In
this case, several individuals together continued the persona of their ancestor,
but it was always laid down that they were but
one heir. For the purpose of working out this result,
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not only was one person identified with another, but several
persons were reduced to one. Then they might sustain a
single persona. What was the persona? It was not the
sun of all the rights in dueies of the ancestor.
It has been seen that for many centuries his general
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status the sum of all his rights and duties, except
those connected with royal property, has been taken up by
the executor or administrator. The persona continued by the heir
was from an early day confined to real estate in
its technical sense, that is, to properties subject to feudal principles,
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as distinguished from chattels, which, as Blackstone tells us, include
whatever was not a feud But the heir's persona was
not even the sum of all the ancestors' rights and
duties in connection with royal estate. It has been said
already that every fee descends specifically, and not as incident
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to a larger universi tax. This appears not so much
from the fact that the rules of descent governing different
parcels might be different, so that the same per would
not be heir to boot, as from the very nature
of feudal property. Under the feudal system in its figure,
the holding of land was only one incident of a
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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 coalative 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
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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.
Glanville and Bracton tell us that a tenant holding of
several laws was to do homage for each fee, but
to reserve his allegiance for the lord of whom he
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held his chief estate, but that 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
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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
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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 extinct. Every fee is
a distinct persona, a distinct hereditas or inheritance, as it
has been called since the time of Bracton. We have
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already seen seeing 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 be divided lengths wise,
so to speak, among persons interested in the same way.
At the same time, it may also be cut across
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into successive interests to be enjoyed one after another. In
technical language, it may be divided into a particular state
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
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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 mean the explanation to the
effect that after the deaths of the tenant for life,
he in reversion might have ever or attaint on an
erroneous judgment or false verdict given against the tenant for life.
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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 the time
he was a universal successor in a very broad sense.
Many of his functions as such were soon transferred to
the executor. The heirs rights became confined to real estate
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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 sun, of all the ancestors rights regarded as
one whole. But to this day the executor in his
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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 the 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,
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is the acquisition of prescriptive rights. Take the case of
a right of way. A right of way over a
neighbour'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
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it ten years. Has any right been acquired? If common
sense alone is consulted, the answer must be known. The
ancestor did not get any right because he did not
use the way long enough, and just as little did
the air. How can it better the heir's title the
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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
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years each, but one who has used it for twenty.
The heir has the advantage of sustaining his ancestors, and
the right is acquired. Successions into vivos. I now reach
the most difficult and obscure part of the subject. It
now remains to be discovered whether the fiction of identity
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was extended to others besides the heir and executor. And
if we find, as we do, that it went but
little farther in express terms, the question will still arise
whether the mode of thought, and the conceptions made possible
by the doctrine of inheritance have not silently modified the
law as to dealings between the living. It seems to
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me demonstrable that their influence has been profound, and that
without understanding the theory of inheritance, it is impossible to
understand the theory of transfer into vivos. The difficulty in
dealing with this subject is to convince the skeptic that
there is anything to explain. Nowadays, the notion that a
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right is valuable is almost identical with the notion that
it may be turned into money by selling it. But
it was not always so. Before you can sell a right,
you must be able to make a sale thinkable. In
legal terms, I put the case of the transfer of
a contract at the beginning of the lecture. I have
just mentioned the case of gaining a right by prescription
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when neither party has complied with the requirement of twenty
years adverse use. In the latter instance not even right
at the time of the transfer, but a mere fact
of ten years past. Trespassing away until it becomes a
right of way is just as little susceptible of being
held by a possessory title as a contract. If then
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a contract can be sold if a buyer can add
the time of his seller's adverse user to his own.
What is the machinery by which the law works out
the result? The most superficial acquaintance with any system of
law in its earliest stages would show with what difficulty
and by what slow degrees such machinery has been provided,
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and how the want of it has restricted the sphere
of alienation. It is a great mistake to assume that
it is a mere matter of common sense that the
buyer steps into the shoes of the seller. According to
our significant metaphor, suppose that sales and other civil transfers
had kept the form of war like capture, which it
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seems that they had in the infancy of Roman law,
and which was at least partially retained in one instance
the acquisition of wives after the transaction had in fact
taken the more civilized shape of purchase. The notion that
the buyer came in adversely to the seller would probably
have accompanied the fiction of adverse taking, and he would
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have stood on his own position as founding a new title.
Without the aid of conceptions derived from some other source.
It would have been hard to work out a legal
transfer objects which did not admit of possession. A possible
source of such other conceptions was to be found in
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family law. The principles of inheritance furnished a fiction and
a mode of thought which at least might have been
extended into other spheres. In order to prove that they
were in fact so extended, it will be necessary to
examine once more the law of Rome, as well as
the remains of German and Anglo Saxon customs. I will
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take up first the German and Anglo Saxon laws, which
are the ancestors of our own on one side of
the house. For though what we get from those sources
is not in the direct line of the argument, it
lays a foundation for it by showing the course of
development in different fields. The obvious analogy between purchaser and
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air seems to have been used in the folk laws,
but mainly for another purpose than those which will have
to be considered in the English law. This was to
enlarge the sphere of alienability. It will be remembered that
there are many traces of family ownership in early German
as well as in early Roman law, and it would
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seem that the transfer property, which originally could not be
given outside the family, was worked out through the form
of making the grantee an heir. The history of language
points to this conclusion. Errees, as Beiesla and others have remarked,
for meaning a successor to the poverty of a person deceased,
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was extended to the done mortese causa and even more
broadly to grantes In general. Hereditare was used in like
manner for the transfer of land. Heaven is quoted by
la Ferrier as calling attention to the fact that the
ancient usage was to say echiti for purchase, echthier for purchaser,
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and dishiti for sell. The texts of the sale law
give us incontrovertible evidence a man might transfer the whole
or any part of his property by delivering possession of
it to a trustee, who within twelve months handed it
over to the beneficiaries. To those text to eads whom
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the donor has named herreer dees was hereerz ablauwit Here
then was a voluntary transfer of more or less property
at pleasure to persons freely chosen, who were not necessarily
universal successes. If they ever were, and who nevertheless took
under the name hereered is the word which must have
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meant at first persons taking by descent, was extended to
persons taking by purchase. If the word became enlarged in meaning,
it is probably because the sword which it conveyed was
turned to new uses. The transaction seems to have fallen
halfway between the institution of an heir and a sale.
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The later law of the Rebuarian Franks treats it more
distinctly from the former point of view. It permits a
man who has no sons to give all his property
to whomsoever he chooses, whether relatives or strangers, as inheritance,
either by way of ada fadamire, as the Salk form
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was called, or by writing or delivery. The Lombards had
a similar transfer in which the donee was not only
called herres, but was made liable like an heir, for
the debts of the donor on receiving the property after
the donor's death. By the Salic law, a man who
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could not pay the weir guilt was allowed to transfer
formally his house lot and with it the liability, but
the transfer was to the next of kin. The house
lot or family curtilage at first devolved strictly within the
limits of the family. Here again, at least in England,
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freedom of alienation seems to have grown up by gradually
increased latitude in the choice of successes. If we may
trust the order of development to be noticed in the
early which it is hard to believe accidental, Although the
charters are few, Royal guards at first permitted an election
of heirs among the kindred, and then extended it beyond them.
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In a deed of the year six seventy nine, the
language is as it is granted, So do you hold it?
And your posterity? One century later reads which let him
always possess, and after his death leave to which of
his heirs he will another, and after him, with free
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power of choice, leave to the man of his kin,
to whom he wishes to leave it. A somewhat earlier
charter of seven thirty six goes a step further, so
that as long as he lives, he shall have the
power of holding and possessing, and of leaving it to
whomsoever he choose, either in his lifetime or so certainly
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after his death. At the beginning of the ninth century,
the DONI has power to leave the property to whomsoever
he will, or, in still broader terms, to exchange or
grant in his lifetime, and after his death, to leave
it to whom he chooses, or to sell, exchange and
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leave to whatsoever heir he chooses this choice of heirs,
who calls the couas hhed is epilaui of the Salic
law just mentioned, and may be compared with the language
of a Norman charter of about the year eleven ninety
to w and his heirs, to wit those whom he
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may constitute his heirs. A perfect example of a singular
succession worked out by the fiction of kinship is to
be found in the story of Burnt Meal, an Icelandic
saga which gives us a living picture of a society
hardly more advanced than the Salie and Franks as we
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see them. In the Lex Salika, a law suit was
to be transferred by the proper plaintiff to another, more
verse in the laws and better able to carry it on,
in fact, to an attorney. But a lawsuit was at
that time the alternative of a feud, and both were
the peculiar fare of the family concerned. Accordingly, when a
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suit for killing a member of the family was to
be handed over to a stranger, the innovation had to
be reconciled with the seri that such suit belonged only
to the next of kin. Maud is to take upon
himself Thorgear's suit against Flossi. The killing Helgi, and the
form of the transfer is described as followers. Then Maud
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took Thorgeer by the hand and named two witnesses to
bear witness that Thorgeir Thoufur's son hands me over suit
for manslaughter against Flossi Thord's son, to plead it for
the slaying of Helgi Niall's son, with all these proofs
which have to follow the suit. Thou handest over to
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me this suit to plead and to settle, and to
enjoy all rights in it, as though I were the
rightful next of kin. Thou hands it over to me
by law, and I take it from thee by law. Afterwards,
these witnesses come before the court and bear witness to
the transfer. In like words, he handed over to him
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than this suit with all the proofs and proceedings which
belonged to the suit. He handed it over to him
to plead and to settle, and to make use of
all rights, as though he were the rightful next of kin.
Thorgeir handed it over lawfully, and Maude took it lawfully.
The suit went on notwithstanding the change of hands, as
(36:58):
if the next of kin were plaintive. This is shown
by a further step in the proceedings. The defendant challenges
to of the court on the ground of their connection
with Maud the transferree by blood and by baptism, but
Mood replies that this is no good challenge, for he
challenged them not for their kinship to the true plaintive,
(37:20):
the next of kin, but for their kinship to him
who pleaded the suit, and the other side had to
admit that Maude was right in his law. I now
turned from the German to the Roman sources. These have
the closest connection with the argument, because much of the
doctrine to be found there has been transplanted unchanged into
(37:43):
modern law. The early Roman law only recognized as relatives
those who would have been members of the same patriarchal
family and under the same patriarchal authority. Had the common
ancestor survived as wives part to the families of their
husbands and lost all connection with that in which they
(38:04):
were born. Relationship through females was altogether excluded. The heir
was one who traced his relationship to the deceased through
males alone. With the advance of civilization, this rule was changed.
The praetur gave the benefits of the inheritance to the
blood relations, although they were not heirs and could not
(38:27):
be admitted the succession according to the ancient law. But
the change was not brought about by repealing the old law,
which still subsisted under the name of yus quirilee. The
new principle was accommodated to the old forms via fiction.
The blood relation could sue on the fiction that he
(38:48):
was an heir, although he was not one in fact.
One of the early forms of instituting an heir was
a cell of the familia, or headship of the family
to the intended air, with all its frights and duties.
This cell of the university tax was afterwards extended beyond
(39:09):
the case of inheritance to that of bankruptcy, when it
was desired to put the bankrupt's property into the hands
of a trustee for distribution. This trustee also could make
use of the fiction ensue as if he had been
the bankrupt's heir. We are told by one of the
great Jewish consults that in general, universal successes stand in
(39:33):
the place of heirs. The Roman heir, with one or
two exceptions, was always a universal successor, and the fiction
of airship as such could hardly be used with propriety,
except to enlarge the sphere of universal successions so far
as it extended. However, all the consequences attached to the
(39:56):
original fiction of identity between air and ansets followed, as
of course, to occur. To the case of rights acquired
by prescription. Every universal successor could add the time of
his predecessor's adverse use to his own in order to
make out the right. There was no addition, legally speaking,
(40:18):
but one continuous possession. The express fiction of inheritance perhaps
stopped here, But when a similar joinder of times was
allowed between a legat or device the legatarius and his testator,
the same explanation was offered. It was said that when
(40:40):
a specific thing was left to a person by will,
so far as concerned having the benefit of the time
during which the testator had been in possession, for the
purpose of acquiring a title, the legat was in a
certain sense quasi and heir. Yet alligatorious was not a
universal a sivils cessor, and for most purposes stood in
(41:02):
marked contrast with such successes. Thus the strict law of
inheritance had made the motion familiar that one man might
have the advantage of a position filled by another, although
it was not filled or was only partially failed by himself.
And the second fiction by which the privileges of a
(41:24):
legal heir in this respect, as well as others, had
been extended to other persons, broke down the walls which
might otherwise have confined those privileges to a single case.
A new conception was introduced into the law, and there
was nothing to hinder its further application. As has been shown,
(41:46):
it was applied in terms to a cell of the
university tats for business purposes, and to at least one case.
Whether succession was confined to a single specific thing, why
then might not every gain or sale be regarded as
a succession, so far as to ensure the same advantages.
(42:07):
The joinder of times to make out a title was
soon allowed between buyer and seller, And I have no
doubt from the language always used by the Roman lawyers,
that it was arrived at in the way I have suggested.
A passage from Scavola b. C. Thirty will furnish sufficient proof.
(42:27):
Joinder of possessions, He says, that is, the right to
add the time of one's predecessors holding to one's own
clearly belongs to those who succeed to the place of others,
whether by contract or by wealth. The heirs and those
who are treated as holding the place of successes are
allowed to add their testator's possession to their own. Accordingly,
(42:51):
if you sell me a slave, I shall have the
benefit of your holding. The joinder of times is given
to those who succeed to the place of another Ulpian
sites alike phrase from a Jurish consult of the time
of the andonies to whose place I have succeeded by
inheritance or purchase, or any other right. Sou chedeirh in
(43:15):
lacum aliorum, like sustinere bessonan, is an expression of the
Roman lawyers to those continuations of one man's legal position
by another, of which the type was a succession of
heir to ancestor. Sou chedirh alone is used in the
sense of inherit and suksasio in that of inheritance. The
(43:41):
succession par excellence was the inheritance, and it is believed
that scarcely any instance will be found in the Roman
sources where succession does not convey that analogy and indicate
the partial assumption, at least of a persona formerly sustained
by another. It clearly does so in the passage before us,
(44:04):
but the succession which admits a joinder of times is
not hereditary succession alone in the passage which has been cited,
Sciavola says that it may be by contract or purchase
as well as by inheritance or will. It may be
singular as well as universal. The jewis often mentioned andesthetically
(44:25):
universal successions and those confined to a single specific thing.
Ulpian says that a man succeeds to another's place, whether
his succession be universal or to the single object. If
further evidence were wanting for the present argument, it would
be found in another expression of opience. He speaks of
(44:48):
the benefit of joinder as derived from the persona of
the gaunt. He to whom a thing is granted shall
have the benefit of joinder from the persona of his gaunt.
A benefit can be derived from a persona except by
sustaining it it father appears pretty plainly from Justinian's institutes
(45:09):
and the digest that the benefit was not extended to
purchases in all cases until a pretty late period. Saviny
very nearly expressed the truth when he said somewhat broadly
that every acesior, for whatever purpose, presupposes nothing else than
relation of juridical succession between the previous and present possessor.
(45:34):
The succession does not apply to possession by itself. And
I may add, by way of further explanation, that every
relation of juridical succession presupposes either an inheritance or relation
to which, so far as it extends, the analogies of
the inheritance may be applied. The way of thinking which
(45:55):
led to the acesial or joined of times is equally
visible in other cases. The time during which a former
owner did not use an easement was imputed to the
person who had succeeded to his place. The defense that
the plaintiff had sold and delivered the thing in controversy
was available not only to the purchaser, but to his
(46:18):
heirs or to a second purchaser even before delivery to him,
against the successes of the seller, whether universal or only
to the sing in question. If one used a way
wrongfully as against the predecessor in title, it was wrongful
as against the successor, whether by inheritance, purchase, or any
(46:40):
other right. The former oath of a party to an
action was conclusive in favor of his successes, universal or singular.
Successes by purchase or gift, had the benefit of agreements
made with the vender. A multitude of general expressions show
that for most purposes, whether of action or defense, the
(47:03):
buyer stood in the shoes of the seller. To use
the metaphor of our own law, and what is more
important than the result, which often might have been reached
by other ways. The language and analogies are drawn throughout
from the succession to the inheritance. Thus understood, there could
not have been a succession between a person dispossessed of
(47:26):
a thing against his wealth and the wrongful possessor. Without
the element of consent, there is no room for the
analogy just explained Accordingly, it is laid down that there
is no joint of times when the possession is wrongful,
and the only enumerated means of succeeding in orem are
by will, say, on gift, or some other right. The
(47:49):
argument now returns to the English law, fortified with some
general conclusions. It has been shown that in both the
systems from whose union our law arose, the rules governing
conveyance or the transfer of specific objects between living persons
were deeply affected by notions drawn from inheritance. It had
(48:10):
been shown previously that in England the principles of inheritance
apply it directly to the singular succession of the heir
to a specific fee, as well as to the universal
succession of the executor. It would be remarkable, considering their history,
if the same principles had not affected other singular successions. Also,
(48:31):
it will soon appear that they have. And not to
be too careful about the order of proof, I will
first take up the joint of times in prescription, as
that has just been so fully discussed. The English law
of the subject is found on examination to be the
same as the Roman in extent, reason and expression. It
(48:53):
is indeed largely copied from that source. For servitudes such
as rights of way, light and the like form the
chief class of prescriptive rights and our law of servitudes
is mainly Roman. Prescriptions, it is said, are properly personal,
and therefore are always alleged in the person of him
(49:14):
who prescribes this, that he and all those whose estate
he has, et cetera. Therefore a bishop or a parson
may prescribe. For there is a perpetual estate and a
perpetual succession, and the successor has the very same estate
which his predecessor had, for that continues though the person alters,
(49:37):
like the case of the ancestor and the heir. So
in a modern case where by statute twenty years dispossession
extinguished the owner's title, the Court of Queen's Bench said
that probably the right would be transferred to the possessor
if the same person or several persons claiming one from
the other by descent, will or convey, had been in
(50:00):
possession for the twenty years. But such twenty years possession
must be either by the same person or several persons
claiming one from the other, which is not the case here.
In a word, it is equally clear that the continuous
possession of privies in title or in Roman phrase successes
(50:22):
as all. The effect of the continuous possession of one,
and that such an effect is not attributed to the
continuous possession of given persons who were not in the
same chain of title. One who dispossesses another of land
cannot add the time during which his diseased z has
used a way to the period of his own use,
(50:45):
while one who purchased can. The authorities which have been
quoted make it plain that the English law proceeds on
the same theory as the Roman. One who buys land
of another gets the very same est thing which his
celler had. He is in of the same fie or hereditas,
(51:06):
which means, as I have shown, that he sustains the
same persona. On the other hand, one who wrong forly
dispossesses another a diceizar gets a different distinct is in
of a new fee, although the land is the same,
And much technical reasoning is based upon this doctrine in
(51:27):
the matter of prescription. Therefore, by a an seller were
identified like air and ancestor. But the question remains whether
this identification or fruit in other parts of the law also,
or whether it was confined to one particular branch. While
the Roman law was grafted upon the English stock, there
(51:49):
can be no doubt which answer is most probable, but
it cannot be proved without difficulty. As has been said,
the heir ceased to be the general representative of his
ancestor at an early date, and the extent to which
even he was identified came to be a matter of discussion.
Common sense kept control over fiction here is elsewhere in
(52:12):
the common law. But there can be no doubt that
in matters directly concerning the estate, the identification of air
and ancestor has continued to the present day, and as
an estate in fee simple has been shown to be
a distinct persona, we should expect to find a similar
identification of buyer and seller in this part of the law.
(52:35):
If anywhere where the land was devised by will, the
analogy applied was peculiar ease, For although there is no
difference in principle between a device and a piece of
land by will and a conveyance of it by deed,
the dramatic resemblance of a devizee to an heir is
stronger than that of a guarantee. It will be remembered
(52:59):
that one of the roomans Jewis said that a legatarius
Degaete or Devizi was in a certain sense quasi affairs.
The English courts have occasionally used similar expressions. In a
case where Testata owned a rent and divided it by
will among his sons, and then one of the sons
(53:21):
brought debt for his part, two of the judges, while
admitting that the Testata could not have divided the tenant's liability,
thought that it was otherwise was a guard to a
division by will. Their reasoning was that the device is
quasi an act of law which shall inenure without atonement,
and shall make a sufficient privity, and so it may
(53:44):
well be apportioned by this means. So it was said
by Lord Ellenver in a case where lesser and his heirs,
when titled to terminate elease on notice, that a devisi
of the land as eirees factus, would be understood to
have the same right. But wills of land were only
(54:05):
exceptionally allowed by custom until the reign of Henry the Ax,
And as the main doctrines of conveyancing had been settled
long before that time, we must look further back into
other sources for their explanation. We shall find it in
the history of warranty. This and the modern law of
covenants running with the land will be treated in the
(54:27):
next lecture. End of electure ten
Lecture ten of the Common Law by Oliver Wendell Holmes Junior.
This recording is in the public domain Successions after Death.
In the lecture on Possession, I try to show that
the notion of possessing a right as such was intrinsically absurd.
(00:21):
All rights are consequences attached to filling some situation of fact.
A right which may be acquired by possession differs from
others simply in being attached to a situation of such
a nature that it may be filled successively by different persons,
or by anyone without regard to the lawfulness of his
(00:41):
doing so, as is the case whether the situation consists
in having a tangible object within one's power. When a
right of this sort is recognized by the law, there
is no difficulty in transferring it, or, more accurately, there
is no difficulty in different persons so excessively enjoying similar rights.
(01:02):
In respect of the subject matter, If A, being the
possessor of a horse or a field, gives up the
possession to B, the rights which B acquires stand on
the same ground as A's did before. The facts from
which A's rights sprang have ceased to be true of
a and are now true of B. The consequences attached
(01:24):
by the law to those facts now exist for B
as they did for A before. The situation of fact
from which the right spring is a continuing one, and
anyone who occupies it, no matter how has the rights
attached to it. But there is no possession possible of
a contract. The fact that a consideration was given yesterday
(01:47):
by A to B and a promise received in return
cannot be laid hold of by X and transferred from
A to himself. The only thing which can be transferred
is the benefit or burden of the promise. And how
can they be separated from the facts which gave rise
to them? How, in short, can a man sue or
(02:09):
be sued on a promise in which he had no
part hitherto It has been assumed, in dealing with any
special right or obligation, that the facts from which it
sprung were true of the individual entitled or bound. But
it often happens, especially in modern law, that a person
acquires and is allowed to enforce a special ight, although
(02:32):
that facts which give rice to it are not true
of him, or are true of him only in part.
One of the chief problems of the law is to
explain the machinery by which this result has been brought
to pass. It will be observed that the problem is
not co extensive with the whole field of rights. Some
rights cannot be transferred by any device or contrivance, for
(02:56):
instance a man's right to bodily, safety, or reputation. Others, again,
are incident to possession, and within the limits of that conception,
no other is necessary. As Savigny said, succession does not
apply to possession by itself. But the notion of possession
will carry us but a very little way in our
(03:18):
understanding of the modern theory of transfer. That theory depends
very largely upon the notion of succession. To use the
work just quoted from Savigny, and accordingly successions will be
the subject of this and the following lecture. I shall
begin by explaining the theory of succession to persons deceased,
(03:41):
and after that is done, shall pass to the theory
of transfer between living people, and shall consider whether any
relation can be established between the two. The former is
easily shown to be founded a bo fictitious identification between
the deceased and his successor, and as a first step
(04:01):
to the further discussion, as well as for its own sake,
I shall briefly state the evidence touching the executor, the heir,
and the deviz in order to understand the theory of
our law with regard to the first of these. At
least scholars are agreed that it is necessary to consider
the structure and position of the Roman family as it
(04:24):
was in the infancy of Roman society. Continental juris have
long been collecting the evidence that in the earlier periods
of Roman and German law alike, the unit of society
was the family. The Twelve Tables of Rome still recognize
the interest of the inferior members of the family in
(04:44):
the family property. Heirs are called sui heers, that is,
heirs of themselves or of their own property, as is
explained by Gaius Powell says that they are regarded as
owners in in a certain sense, even in the lifetime
of their father, and that after his death they do
(05:06):
not so much receive an inheritance as obtain the full
power of dealing with their property. Starting from this point,
it is easy to understand that the succession of heirs
to a deceased pate familias in the Roman system, if
the family was the owner of the property administered by
a pate familias, its rights remained unaffected by the death
(05:29):
of its temporary head. The family continued although the head died,
and when, probably by a gradual change, the pate familias
came to be regarded as owner instead of a simple
manager of the family rights. The nature and continuity of
those rights did not change with the title to them.
The familia continued to the heirs as it was left
(05:53):
by the ancestor. The heir succeeded not to the ownership
of this or that thing separately, but to the total
hereditas or headship of the family with certain rights of
property as incident, and of course he took this headship
or right of representing the family interests subject to the
(06:13):
modifications effected by the last manager. The aggregate of the
ancestors rights and duties, or to use the technical phrase,
the total persona sustained by him, was easily separated from
his natural personality. For this persona was but the aggregate
of what had formerly been family rights and duties, and
(06:36):
was originally sustained by any individual only as the family head.
Hence it was said to be continued by the inheritance,
and when the heir assumed it, he had his action
in respect of injuries previously committed. Thus the Roman heir
came to be treated as identified with his ancestor for
(06:57):
the purposes of the law. And thus it is clear
how the impossible transfers which I seek to explain were accomplished.
In that instance, rights to which B as B could
show no title, he could readily maintain under the fiction
that he was the same person as a whose title
was not denied. It is not necessary at this point
(07:20):
to study family rights in the German tribes, but it
is not disputed that the modern executor derives his characteristics
from the Roman heir. Wills also were boiled from Rome
and were unknown to the Germans of Tacitus. Administrators were
a later imitation of executives introduced by statute for cases
(07:43):
where there is no walth or where that any other
reason executives were wanting. The executor has the legal title
to the whole of the testator's personal estate and generally speaking,
the power of alienation. Formerly he was entitled to the
undistributed residue, not it may fairly be conjectured as legate
(08:06):
of those specific chattels, but because he represented the person
of the testata and therefore had all the rights which
the test data would have had after his distribution if alive.
The residue is nowadays generally requested by the will, but
it is not even now regarded as a specific gift
(08:28):
of the chattels remaining undisposed of. And I cannot help
thinking that this doctrine echoes that under which the executor
took in former times. No such rule has governed residuary
devises of real estate, which have always been held to
be specific in England down to the present day, so
(08:49):
that if a devise of land should fail, that land
would not be disposed of by the residuary clause, but
would descend to the air, as if there had been
no will. Again, the appointment of an executor relates back
to the date of the testator's death. The continuity of
person is preserved by this fiction. As in Rome, it
(09:11):
was by personifying the inheritance and interim. Enough has been
said to show the likeness between our executor and the
Roman heir, And bearing in mind what was said about
the Herez, it will easily be seen how it came
to be said as it often was in the old
books that the executor represents the person of his testator.
(09:37):
The meaning of this feigned identity has been found in history,
but the aid which it furnished in overcoming a technical
difficulty must also be appreciated. If the executor represents the
person of the testator, there is no longer any trouble
in allowing him to sue or be sued on his
(09:58):
testatus contracts. In the time of Edward the Third, when
an action of covenant was brought against executives, per se objected.
I never heard that one should have a writ of
covenant against executors, nor against other person, but the they
one who made the covenant. For a man cannot oblige
(10:20):
another person to a covenant by his deed, except him
who was party to the covenant. But it is useless
to object that the promise sued upon was made by
A the testator, not by B, the executor, when the
law says that for this purpose B is a. Here
(10:40):
then is one class of cases in which a transfer
is accomplished by the help of a fiction, which shadows,
as fictions so often do the facts of an early
stage of society, and which could hardly have been invented
had these facts been otherwise. Executors and administrators afford the chief,
(11:01):
if not the only, example of universal succession in the
English law. But although they succeed per University Tartan, as
has been explained, they do not succeed to all kinds
of property. The personal estate goes to them, but land
takes another course. All real estate not disposed of by
(11:24):
will goes to the heir, and the rules of inheritance
are quite distinct from those which govern the distribution of chattels. Accordingly,
the question arises whether the English heir or successor to
real estate, presents the same analogies to the Roman heires
as the executor. The English heir is not a universal successor.
(11:50):
Each and every parcel of land descends as a separate
and specific thing. Nevertheless, in his narrow sphere, he aim
questionably represents the person of his ancestor. Different opinions have
been held as to whether the same thing was true
in early German law. Doctor Laban says that it was.
(12:12):
Zom takes the opposite view. It is commonly supposed that
family ownership, at least of land, came before that of
individuals in the German tribes, and it has been shown
how naturally representation followed from a similar state of things
in Rome. But it is needless to consider whether our
(12:33):
law on this subject is of German or Roman origin,
as the principle of identification has clearly prevailed from the
time of Glanville to the present day. If it was
not known to the Germans, it is plainly accounted for
by the influence of the Roman law. If there was
anything of the sort in the Salic law, it was
(12:55):
no doubt due to natural causes similar to those which
gave rise to the principle at Rome. But in either event,
I cannot doubt that the modern doctrine has taken a
good deal of its form and perhaps some of its substance,
from the mature system of the civilians, in whose language
it was so long expressed. For the same reasons that
(13:18):
have just been mentioned. It is also needless to weigh
the evidence of the Anglo Saxon sources, although it seems
tolerably clear from several passages in the laws that there
was some identification as late as Bracton, two centuries after
the Norman conquest. The heir was not the successor to
(13:39):
lads alone, but represented his ancestor in a much more
general sense, as will be seen directly. The office of
executor in the sense of Air was unknown to the
Anglo Saxons, and even in Bracton's time does not seem
to have been what it has since become. Though is
(13:59):
the therefore no need to go back further than to
the early Norman period, after the appointment of executives had
become common, and the heir was more nearly what he
is now. When Glanville wrote a little more than a
century after the conquest, the heir was bound to warrant
the reasonable gifts of his ancestor to the grantees and
(14:22):
their heirs, and if the effects of the ancestor were
insufficient to pay his debts, the heir was bound to
make up the deficiency from his own property. Neither Glanville
nor his Scotch imitator the Reggiam Magistratum limits the liability
to the amount of property inherited from the same source.
(14:46):
This makes the identification of air and ancestor was complete,
as that of the Roman law before such a limitation
was introduced by Justinian. On the other hand, a century later,
it distinctly appears from Bracton that the heir was only
bound so far as property had descended to him, And
(15:07):
in the early sources of the Continent Norman as well
as other the same limitation appears. The liabilities of the
Air were probably shrinking Britain and Fletter, the imitators of Bracton,
and perhaps Bracton himself, say that an heir is not
bound to pay his ancestors debt unless he be thereto
(15:31):
especially bound by the deed of his ancestor. The later
law required that the heir should be mentioned if he
was to be held, but at all events the identification
of Air and ancestor still approached the nature of a
universal succession in the time of Bracton, as is shown
(15:51):
by another statement of his he asks if the test
Theata can bequeath his rights of action, and answers no,
so far as concerns debts not proved and recovered in
the testatus life. But actions of that sort belonged to
the heirs and must be sued in the secular court,
(16:11):
For before they are so recovered in the proper court,
the executor cannot proceed for them in the ecclesiastical tribunal.
This shows that the identification worked both ways. The heir
was liable of the debts due from his ancestor, and
he could recover those which were due to him until
(16:31):
the executor took his place in the king's courts as
well as in those of the Church. Within the limits
just explained, the heir was also bound to warrn property
sold by his ancestor to the purchaser and his heirs.
It is not necessary after this evidence that the modern
heir began by representing his ancestor generally to seek for
(16:55):
expressions in later books, since his position has been limited.
But just as we have seen that the executor is
still said to represent the person of his testata, the
heir was said to represent the person of his ancestor
in the time of Edward the First, so at a
(17:15):
much later date it was said that the heir is
in a representation in point of taking by inheritance. I
adam persona hum at chesore the same persona as his ancestor,
A great judge who died but a few years ago,
repeats language which would have been equally familiar to the
(17:38):
lawyers of Edward or of James Bound Park. After laying
down that in general, the party is not required to
make profit of an instrument to the possession of which
he is not entitled. Says that there is an exception
in the cases of air and executor, who may plead
olise to the ancestor or test whom they respectively represented.
(18:03):
So also with respect to several tort feesas. But in
all these cases there is a privity between the parties
which constitutes an identity of person. But this is not all.
The identity of person was carried farther still. If a
man died leaving male children and owning land in fee,
(18:24):
it went to the oldest son alone, but if he
left only daughters, it descended to them all equally. In
this case, several individuals together continued the persona of their ancestor,
but it was always laid down that they were but
one heir. For the purpose of working out this result,
(18:45):
not only was one person identified with another, but several
persons were reduced to one. Then they might sustain a
single persona. What was the persona? It was not the
sun of all the rights in dueies of the ancestor.
It has been seen that for many centuries his general
(19:05):
status the sum of all his rights and duties, except
those connected with royal property, has been taken up by
the executor or administrator. The persona continued by the heir
was from an early day confined to real estate in
its technical sense, that is, to properties subject to feudal principles,
(19:26):
as distinguished from chattels, which, as Blackstone tells us, include
whatever was not a feud But the heir's persona was
not even the sum of all the ancestors' rights and
duties in connection with royal estate. It has been said
already that every fee descends specifically, and not as incident
(19:48):
to a larger universi tax. This appears not so much
from the fact that the rules of descent governing different
parcels might be different, so that the same per would
not be heir to boot, as from the very nature
of feudal property. Under the feudal system in its figure,
the holding of land was only one incident of a
(20:11):
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 coalative 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
(20:34):
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.
Glanville and Bracton tell us that a tenant holding of
several laws was to do homage for each fee, but
to reserve his allegiance for the lord of whom he
(20:56):
held his chief estate, but that 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
(21:18):
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
(21:38):
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 extinct. Every fee is
a distinct persona, a distinct hereditas or inheritance, as it
has been called since the time of Bracton. We have
(21:59):
already seen seeing 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 be divided lengths wise,
so to speak, among persons interested in the same way.
At the same time, it may also be cut across
(22:20):
into successive interests to be enjoyed one after another. In
technical language, it may be divided into a particular state
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
(22:42):
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 mean the explanation to the
effect that after the deaths of the tenant for life,
he in reversion might have ever or attaint on an
erroneous judgment or false verdict given against the tenant for life.
(23:07):
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 the time
he was a universal successor in a very broad sense.
Many of his functions as such were soon transferred to
the executor. The heirs rights became confined to real estate
(23:31):
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 sun, of all the ancestors rights regarded as
one whole. But to this day the executor in his
(23:52):
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 the 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,
(24:19):
is the acquisition of prescriptive rights. Take the case of
a right of way. A right of way over a
neighbour'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
(24:40):
it ten years. Has any right been acquired? If common
sense alone is consulted, the answer must be known. The
ancestor did not get any right because he did not
use the way long enough, and just as little did
the air. How can it better the heir's title the
(25:00):
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
(25:22):
years each, but one who has used it for twenty.
The heir has the advantage of sustaining his ancestors, and
the right is acquired. Successions into vivos. I now reach
the most difficult and obscure part of the subject. It
now remains to be discovered whether the fiction of identity
(25:45):
was extended to others besides the heir and executor. And
if we find, as we do, that it went but
little farther in express terms, the question will still arise
whether the mode of thought, and the conceptions made possible
by the doctrine of inheritance have not silently modified the
law as to dealings between the living. It seems to
(26:07):
me demonstrable that their influence has been profound, and that
without understanding the theory of inheritance, it is impossible to
understand the theory of transfer into vivos. The difficulty in
dealing with this subject is to convince the skeptic that
there is anything to explain. Nowadays, the notion that a
(26:29):
right is valuable is almost identical with the notion that
it may be turned into money by selling it. But
it was not always so. Before you can sell a right,
you must be able to make a sale thinkable. In
legal terms, I put the case of the transfer of
a contract at the beginning of the lecture. I have
just mentioned the case of gaining a right by prescription
(26:52):
when neither party has complied with the requirement of twenty
years adverse use. In the latter instance not even right
at the time of the transfer, but a mere fact
of ten years past. Trespassing away until it becomes a
right of way is just as little susceptible of being
held by a possessory title as a contract. If then
(27:15):
a contract can be sold if a buyer can add
the time of his seller's adverse user to his own.
What is the machinery by which the law works out
the result? The most superficial acquaintance with any system of
law in its earliest stages would show with what difficulty
and by what slow degrees such machinery has been provided,
(27:39):
and how the want of it has restricted the sphere
of alienation. It is a great mistake to assume that
it is a mere matter of common sense that the
buyer steps into the shoes of the seller. According to
our significant metaphor, suppose that sales and other civil transfers
had kept the form of war like capture, which it
(28:01):
seems that they had in the infancy of Roman law,
and which was at least partially retained in one instance
the acquisition of wives after the transaction had in fact
taken the more civilized shape of purchase. The notion that
the buyer came in adversely to the seller would probably
have accompanied the fiction of adverse taking, and he would
(28:24):
have stood on his own position as founding a new title.
Without the aid of conceptions derived from some other source.
It would have been hard to work out a legal
transfer objects which did not admit of possession. A possible
source of such other conceptions was to be found in
(28:45):
family law. The principles of inheritance furnished a fiction and
a mode of thought which at least might have been
extended into other spheres. In order to prove that they
were in fact so extended, it will be necessary to
examine once more the law of Rome, as well as
the remains of German and Anglo Saxon customs. I will
(29:07):
take up first the German and Anglo Saxon laws, which
are the ancestors of our own on one side of
the house. For though what we get from those sources
is not in the direct line of the argument, it
lays a foundation for it by showing the course of
development in different fields. The obvious analogy between purchaser and
(29:31):
air seems to have been used in the folk laws,
but mainly for another purpose than those which will have
to be considered in the English law. This was to
enlarge the sphere of alienability. It will be remembered that
there are many traces of family ownership in early German
as well as in early Roman law, and it would
(29:53):
seem that the transfer property, which originally could not be
given outside the family, was worked out through the form
of making the grantee an heir. The history of language
points to this conclusion. Errees, as Beiesla and others have remarked,
for meaning a successor to the poverty of a person deceased,
(30:14):
was extended to the done mortese causa and even more
broadly to grantes In general. Hereditare was used in like
manner for the transfer of land. Heaven is quoted by
la Ferrier as calling attention to the fact that the
ancient usage was to say echiti for purchase, echthier for purchaser,
(30:39):
and dishiti for sell. The texts of the sale law
give us incontrovertible evidence a man might transfer the whole
or any part of his property by delivering possession of
it to a trustee, who within twelve months handed it
over to the beneficiaries. To those text to eads whom
(31:01):
the donor has named herreer dees was hereerz ablauwit Here
then was a voluntary transfer of more or less property
at pleasure to persons freely chosen, who were not necessarily
universal successes. If they ever were, and who nevertheless took
under the name hereered is the word which must have
(31:24):
meant at first persons taking by descent, was extended to
persons taking by purchase. If the word became enlarged in meaning,
it is probably because the sword which it conveyed was
turned to new uses. The transaction seems to have fallen
halfway between the institution of an heir and a sale.
(31:46):
The later law of the Rebuarian Franks treats it more
distinctly from the former point of view. It permits a
man who has no sons to give all his property
to whomsoever he chooses, whether relatives or strangers, as inheritance,
either by way of ada fadamire, as the Salk form
(32:08):
was called, or by writing or delivery. The Lombards had
a similar transfer in which the donee was not only
called herres, but was made liable like an heir, for
the debts of the donor on receiving the property after
the donor's death. By the Salic law, a man who
(32:28):
could not pay the weir guilt was allowed to transfer
formally his house lot and with it the liability, but
the transfer was to the next of kin. The house
lot or family curtilage at first devolved strictly within the
limits of the family. Here again, at least in England,
(32:48):
freedom of alienation seems to have grown up by gradually
increased latitude in the choice of successes. If we may
trust the order of development to be noticed in the
early which it is hard to believe accidental, Although the
charters are few, Royal guards at first permitted an election
of heirs among the kindred, and then extended it beyond them.
(33:14):
In a deed of the year six seventy nine, the
language is as it is granted, So do you hold it?
And your posterity? One century later reads which let him
always possess, and after his death leave to which of
his heirs he will another, and after him, with free
(33:36):
power of choice, leave to the man of his kin,
to whom he wishes to leave it. A somewhat earlier
charter of seven thirty six goes a step further, so
that as long as he lives, he shall have the
power of holding and possessing, and of leaving it to
whomsoever he choose, either in his lifetime or so certainly
(34:00):
after his death. At the beginning of the ninth century,
the DONI has power to leave the property to whomsoever
he will, or, in still broader terms, to exchange or
grant in his lifetime, and after his death, to leave
it to whom he chooses, or to sell, exchange and
(34:21):
leave to whatsoever heir he chooses this choice of heirs,
who calls the couas hhed is epilaui of the Salic
law just mentioned, and may be compared with the language
of a Norman charter of about the year eleven ninety
to w and his heirs, to wit those whom he
(34:41):
may constitute his heirs. A perfect example of a singular
succession worked out by the fiction of kinship is to
be found in the story of Burnt Meal, an Icelandic
saga which gives us a living picture of a society
hardly more advanced than the Salie and Franks as we
(35:02):
see them. In the Lex Salika, a law suit was
to be transferred by the proper plaintiff to another, more
verse in the laws and better able to carry it on,
in fact, to an attorney. But a lawsuit was at
that time the alternative of a feud, and both were
the peculiar fare of the family concerned. Accordingly, when a
(35:25):
suit for killing a member of the family was to
be handed over to a stranger, the innovation had to
be reconciled with the seri that such suit belonged only
to the next of kin. Maud is to take upon
himself Thorgear's suit against Flossi. The killing Helgi, and the
form of the transfer is described as followers. Then Maud
(35:49):
took Thorgeer by the hand and named two witnesses to
bear witness that Thorgeir Thoufur's son hands me over suit
for manslaughter against Flossi Thord's son, to plead it for
the slaying of Helgi Niall's son, with all these proofs
which have to follow the suit. Thou handest over to
(36:12):
me this suit to plead and to settle, and to
enjoy all rights in it, as though I were the
rightful next of kin. Thou hands it over to me
by law, and I take it from thee by law. Afterwards,
these witnesses come before the court and bear witness to
the transfer. In like words, he handed over to him
(36:34):
than this suit with all the proofs and proceedings which
belonged to the suit. He handed it over to him
to plead and to settle, and to make use of
all rights, as though he were the rightful next of kin.
Thorgeir handed it over lawfully, and Maude took it lawfully.
The suit went on notwithstanding the change of hands, as
(36:58):
if the next of kin were plaintive. This is shown
by a further step in the proceedings. The defendant challenges
to of the court on the ground of their connection
with Maud the transferree by blood and by baptism, but
Mood replies that this is no good challenge, for he
challenged them not for their kinship to the true plaintive,
(37:20):
the next of kin, but for their kinship to him
who pleaded the suit, and the other side had to
admit that Maude was right in his law. I now
turned from the German to the Roman sources. These have
the closest connection with the argument, because much of the
doctrine to be found there has been transplanted unchanged into
(37:43):
modern law. The early Roman law only recognized as relatives
those who would have been members of the same patriarchal
family and under the same patriarchal authority. Had the common
ancestor survived as wives part to the families of their
husbands and lost all connection with that in which they
(38:04):
were born. Relationship through females was altogether excluded. The heir
was one who traced his relationship to the deceased through
males alone. With the advance of civilization, this rule was changed.
The praetur gave the benefits of the inheritance to the
blood relations, although they were not heirs and could not
(38:27):
be admitted the succession according to the ancient law. But
the change was not brought about by repealing the old law,
which still subsisted under the name of yus quirilee. The
new principle was accommodated to the old forms via fiction.
The blood relation could sue on the fiction that he
(38:48):
was an heir, although he was not one in fact.
One of the early forms of instituting an heir was
a cell of the familia, or headship of the family
to the intended air, with all its frights and duties.
This cell of the university tax was afterwards extended beyond
(39:09):
the case of inheritance to that of bankruptcy, when it
was desired to put the bankrupt's property into the hands
of a trustee for distribution. This trustee also could make
use of the fiction ensue as if he had been
the bankrupt's heir. We are told by one of the
great Jewish consults that in general, universal successes stand in
(39:33):
the place of heirs. The Roman heir, with one or
two exceptions, was always a universal successor, and the fiction
of airship as such could hardly be used with propriety,
except to enlarge the sphere of universal successions so far
as it extended. However, all the consequences attached to the
(39:56):
original fiction of identity between air and ansets followed, as
of course, to occur. To the case of rights acquired
by prescription. Every universal successor could add the time of
his predecessor's adverse use to his own in order to
make out the right. There was no addition, legally speaking,
(40:18):
but one continuous possession. The express fiction of inheritance perhaps
stopped here, But when a similar joinder of times was
allowed between a legat or device the legatarius and his testator,
the same explanation was offered. It was said that when
(40:40):
a specific thing was left to a person by will,
so far as concerned having the benefit of the time
during which the testator had been in possession, for the
purpose of acquiring a title, the legat was in a
certain sense quasi and heir. Yet alligatorious was not a
universal a sivils cessor, and for most purposes stood in
(41:02):
marked contrast with such successes. Thus the strict law of
inheritance had made the motion familiar that one man might
have the advantage of a position filled by another, although
it was not filled or was only partially failed by himself.
And the second fiction by which the privileges of a
(41:24):
legal heir in this respect, as well as others, had
been extended to other persons, broke down the walls which
might otherwise have confined those privileges to a single case.
A new conception was introduced into the law, and there
was nothing to hinder its further application. As has been shown,
(41:46):
it was applied in terms to a cell of the
university tats for business purposes, and to at least one case.
Whether succession was confined to a single specific thing, why
then might not every gain or sale be regarded as
a succession, so far as to ensure the same advantages.
(42:07):
The joinder of times to make out a title was
soon allowed between buyer and seller, And I have no
doubt from the language always used by the Roman lawyers,
that it was arrived at in the way I have suggested.
A passage from Scavola b. C. Thirty will furnish sufficient proof.
(42:27):
Joinder of possessions, He says, that is, the right to
add the time of one's predecessors holding to one's own
clearly belongs to those who succeed to the place of others,
whether by contract or by wealth. The heirs and those
who are treated as holding the place of successes are
allowed to add their testator's possession to their own. Accordingly,
(42:51):
if you sell me a slave, I shall have the
benefit of your holding. The joinder of times is given
to those who succeed to the place of another Ulpian
sites alike phrase from a Jurish consult of the time
of the andonies to whose place I have succeeded by
inheritance or purchase, or any other right. Sou chedeirh in
(43:15):
lacum aliorum, like sustinere bessonan, is an expression of the
Roman lawyers to those continuations of one man's legal position
by another, of which the type was a succession of
heir to ancestor. Sou chedirh alone is used in the
sense of inherit and suksasio in that of inheritance. The
(43:41):
succession par excellence was the inheritance, and it is believed
that scarcely any instance will be found in the Roman
sources where succession does not convey that analogy and indicate
the partial assumption, at least of a persona formerly sustained
by another. It clearly does so in the passage before us,
(44:04):
but the succession which admits a joinder of times is
not hereditary succession alone in the passage which has been cited,
Sciavola says that it may be by contract or purchase
as well as by inheritance or will. It may be
singular as well as universal. The jewis often mentioned andesthetically
(44:25):
universal successions and those confined to a single specific thing.
Ulpian says that a man succeeds to another's place, whether
his succession be universal or to the single object. If
further evidence were wanting for the present argument, it would
be found in another expression of opience. He speaks of
(44:48):
the benefit of joinder as derived from the persona of
the gaunt. He to whom a thing is granted shall
have the benefit of joinder from the persona of his gaunt.
A benefit can be derived from a persona except by
sustaining it it father appears pretty plainly from Justinian's institutes
(45:09):
and the digest that the benefit was not extended to
purchases in all cases until a pretty late period. Saviny
very nearly expressed the truth when he said somewhat broadly
that every acesior, for whatever purpose, presupposes nothing else than
relation of juridical succession between the previous and present possessor.
(45:34):
The succession does not apply to possession by itself. And
I may add, by way of further explanation, that every
relation of juridical succession presupposes either an inheritance or relation
to which, so far as it extends, the analogies of
the inheritance may be applied. The way of thinking which
(45:55):
led to the acesial or joined of times is equally
visible in other cases. The time during which a former
owner did not use an easement was imputed to the
person who had succeeded to his place. The defense that
the plaintiff had sold and delivered the thing in controversy
was available not only to the purchaser, but to his
(46:18):
heirs or to a second purchaser even before delivery to him,
against the successes of the seller, whether universal or only
to the sing in question. If one used a way
wrongfully as against the predecessor in title, it was wrongful
as against the successor, whether by inheritance, purchase, or any
(46:40):
other right. The former oath of a party to an
action was conclusive in favor of his successes, universal or singular.
Successes by purchase or gift, had the benefit of agreements
made with the vender. A multitude of general expressions show
that for most purposes, whether of action or defense, the
(47:03):
buyer stood in the shoes of the seller. To use
the metaphor of our own law, and what is more
important than the result, which often might have been reached
by other ways. The language and analogies are drawn throughout
from the succession to the inheritance. Thus understood, there could
not have been a succession between a person dispossessed of
(47:26):
a thing against his wealth and the wrongful possessor. Without
the element of consent, there is no room for the
analogy just explained Accordingly, it is laid down that there
is no joint of times when the possession is wrongful,
and the only enumerated means of succeeding in orem are
by will, say, on gift, or some other right. The
(47:49):
argument now returns to the English law, fortified with some
general conclusions. It has been shown that in both the
systems from whose union our law arose, the rules governing
conveyance or the transfer of specific objects between living persons
were deeply affected by notions drawn from inheritance. It had
(48:10):
been shown previously that in England the principles of inheritance
apply it directly to the singular succession of the heir
to a specific fee, as well as to the universal
succession of the executor. It would be remarkable, considering their history,
if the same principles had not affected other singular successions. Also,
(48:31):
it will soon appear that they have. And not to
be too careful about the order of proof, I will
first take up the joint of times in prescription, as
that has just been so fully discussed. The English law
of the subject is found on examination to be the
same as the Roman in extent, reason and expression. It
(48:53):
is indeed largely copied from that source. For servitudes such
as rights of way, light and the like form the
chief class of prescriptive rights and our law of servitudes
is mainly Roman. Prescriptions, it is said, are properly personal,
and therefore are always alleged in the person of him
(49:14):
who prescribes this, that he and all those whose estate
he has, et cetera. Therefore a bishop or a parson
may prescribe. For there is a perpetual estate and a
perpetual succession, and the successor has the very same estate
which his predecessor had, for that continues though the person alters,
(49:37):
like the case of the ancestor and the heir. So
in a modern case where by statute twenty years dispossession
extinguished the owner's title, the Court of Queen's Bench said
that probably the right would be transferred to the possessor
if the same person or several persons claiming one from
the other by descent, will or convey, had been in
(50:00):
possession for the twenty years. But such twenty years possession
must be either by the same person or several persons
claiming one from the other, which is not the case here.
In a word, it is equally clear that the continuous
possession of privies in title or in Roman phrase successes
(50:22):
as all. The effect of the continuous possession of one,
and that such an effect is not attributed to the
continuous possession of given persons who were not in the
same chain of title. One who dispossesses another of land
cannot add the time during which his diseased z has
used a way to the period of his own use,
(50:45):
while one who purchased can. The authorities which have been
quoted make it plain that the English law proceeds on
the same theory as the Roman. One who buys land
of another gets the very same est thing which his
celler had. He is in of the same fie or hereditas,
(51:06):
which means, as I have shown, that he sustains the
same persona. On the other hand, one who wrong forly
dispossesses another a diceizar gets a different distinct is in
of a new fee, although the land is the same,
And much technical reasoning is based upon this doctrine in
(51:27):
the matter of prescription. Therefore, by a an seller were
identified like air and ancestor. But the question remains whether
this identification or fruit in other parts of the law also,
or whether it was confined to one particular branch. While
the Roman law was grafted upon the English stock, there
(51:49):
can be no doubt which answer is most probable, but
it cannot be proved without difficulty. As has been said,
the heir ceased to be the general representative of his
ancestor at an early date, and the extent to which
even he was identified came to be a matter of discussion.
Common sense kept control over fiction here is elsewhere in
(52:12):
the common law. But there can be no doubt that
in matters directly concerning the estate, the identification of air
and ancestor has continued to the present day, and as
an estate in fee simple has been shown to be
a distinct persona, we should expect to find a similar
identification of buyer and seller in this part of the law.
(52:35):
If anywhere where the land was devised by will, the
analogy applied was peculiar ease, For although there is no
difference in principle between a device and a piece of
land by will and a conveyance of it by deed,
the dramatic resemblance of a devizee to an heir is
stronger than that of a guarantee. It will be remembered
(52:59):
that one of the roomans Jewis said that a legatarius
Degaete or Devizi was in a certain sense quasi affairs.
The English courts have occasionally used similar expressions. In a
case where Testata owned a rent and divided it by
will among his sons, and then one of the sons
(53:21):
brought debt for his part, two of the judges, while
admitting that the Testata could not have divided the tenant's liability,
thought that it was otherwise was a guard to a
division by will. Their reasoning was that the device is
quasi an act of law which shall inenure without atonement,
and shall make a sufficient privity, and so it may
(53:44):
well be apportioned by this means. So it was said
by Lord Ellenver in a case where lesser and his heirs,
when titled to terminate elease on notice, that a devisi
of the land as eirees factus, would be understood to
have the same right. But wills of land were only
(54:05):
exceptionally allowed by custom until the reign of Henry the Ax,
And as the main doctrines of conveyancing had been settled
long before that time, we must look further back into
other sources for their explanation. We shall find it in
the history of warranty. This and the modern law of
covenants running with the land will be treated in the
(54:27):
next lecture. End of electure ten
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