HEIR. 



ble, when it cannot be approached. See 



HEIR, in law, is he to whom lands, te- 

 nements, hereditaments, by the act of 

 God and right of blood, descend of some 

 estate of inheritance. 



HEIR apparent. No person can be heir 

 in fact until the death of his ancestor ; yet 

 he who stands nearest in degree of kin- 

 dred to the ancestor is called, even in his 

 life-time, heir apparent. 



And the law takes notice of an heir 

 apparent, so far as to allow the father to 

 bring an aciion of trespass for taking 

 away his son and heir, the father being 

 guardian by nature to his son, where any 

 lands descend to him. 



The heir, heir general, or heir at com- 

 mon law, is he, who, after his father's or 

 ancestor's death, has a right to all his 

 lands, tenements, and hereditaments ; 

 but he must be of the whole blood, not 

 a bastard, alien, &c. None but the heir 

 general, according to the course of the 

 common law, can be heir to a warrantry, 

 or sue an appeal of the death of his an- 

 cestor. 



A custom in particular places varying 

 the rules of descent at common law is 

 good ; such is the custom of gavel-kind, 

 by which all the sons shall inherit, and 

 make but one heir to their ancestor. 

 The general custom of gavel-kind lands 

 extends to sons only, but a special cus- 

 tom, that if one brother die without 

 issue, all his brothers may inherit, is 

 good. 



To prevent injury to creditors by the 

 alienation of the lands descended, &c. 

 and depriving them of their claim on the 

 lands, it is enacted by 3 and 4 William 

 and Mary, c. 14, that in all cases, where 

 any heir at law shall be liable to pay the 

 debt of his ancestor, in regard of any 

 lands, tenements, or hereditaments, de- 

 scending to him, and shall sell, alien, 

 and make over the same before any ac- 

 tion brought or process used out against 

 him, such heir at law shall be answerable 

 for such debt or debts in an action or ac- 

 tions of debt to the value of the said land 

 so by him sold, alienated, or made over ; 

 in which case all creditors shall be pre- 

 ferred, in the same order as in actions 

 against executors and administrators, and 

 such execution shall be taken out upon 

 any judgment or judgments so obtained 

 against such heirs, to the value of the said 

 land, as if the same were his own proper 

 debts ; saving that the lands, tenements, 

 and hereditaments, bonajide alienated be- 

 fore the action brought, shall not be liable 



to such execution. Provided, that wherq 

 any action of debt upon any speciality is 

 brought against any heir, he may plead 

 riens per descent at the time of the original 

 writ brought, or the bill filed against 

 him ; and the plaintiff in such action may 

 reply, that he had lands, tenements, or 

 hereditaments from his ancestor before 

 the original writ brought, or the bill filed ; 

 and if upon issue joined thereupon, it be 

 found for the plainthT, the jury shall in- 

 quiry of the value of the lands, tenements, 

 or hereditaments, so descended, and 

 thereupon judgment shall be given, and 

 execution shall be awarded as aforesaid ; 

 hut if judgment be given against such 

 heir, by confession of the action, confess- 

 ing the asseis descended, or upon demur- 

 rer, or nihil dixit, it shall be for the debt 

 and damages, without any writ to enquire 

 of the lands, tenements, or hereditaments, 

 so descended. 



Before this statute, if the ancestor had 

 devised away the lands, a creditor by spe- 

 ciality had no remedy, either against the 

 heir or devisee. But by this statute it is 

 enacted, that all wills and testaments, 

 limitations, dispositions, or appointments, 

 of or concerning any manors, messuages, 

 lands, tenements, or hereditaments, or of 

 any rent, profit, term, or charge, out of 

 the same, whereof any person at the time 

 of his decease shall be seized in fee-sim- 

 ple, possession, reversion, or remainder, 

 or have power to dispose of the same by 

 his last will and testament, shall be deem- 

 ed and taken only against such creditor 

 as aforesaid, his heirs, successors, execu- 

 tors, administrators, and assigns, and 

 every of them, to be fraudulent, and 

 clearly, absolutely, and utterly void, frus- 

 trate, and of none effect ; any pretence, 

 colour, feigned or presumed considera- 

 tion, or any other matter or thing, to the 

 contrary notwithstanding. And in those 

 cases every such creditor may maintain 

 his action of debt upon his said lands 

 and specialities, against the heir at law of 

 such obligor, and such devisee and devi- 

 sees, jointly, by virtue of this act ; and 

 such devisee and devisees shall be liable 

 and chargeable for a false plea by him or 

 them pleaded, in the same manner as 

 any heir should have been for false plea 

 by him pleaded, or for not confessing the 

 lands or tenements to him descended. 

 Provided, that where there hath been or 

 shall be any limitation or appointment, 

 devise, or disposition, of any manors, 

 messuages, lands, tenements, or heredita- 

 ments, for the raising or payment of any 

 real or just debt, or any portion, sum or 



