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 action 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 315:ry, 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, bona fide alienated be fore the action brought, shall not be liable to such execution. Provided, that where any action of debt upon any speciality is brought against any heir, he may plead piens per deecent at the time of the original writ brought, or the bill filed against him ; and the plaintiff in such action may reply, that lie 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 plaintiff, the jury shall in quire of the value of the lands, tenements, or hereditaments, so descended, and thereupon judgment shall be given, and execution shall be awarded as aforesaid ; but if judgment be given against such heir, by confession of the action, cunfess ing the assets descended, or upon demur rer, or nihil dixit, it shall be for the debt and damages, without any writ to enquire of the land; 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 plc, 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 i contrary notwithstanding. And n 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 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 Sums of money, for any child or children of any person, other than the heir at law, in pursuance of any marriage contract, or agreement in writing, bona fide made be fore such marriage ; the same and every of them shall be in full force, and the same manors, &c. may be holden and en joyed by every such person, his heirs, executors, administrators, and assigns, fbr whom the said limitation, appoint ment, devise, or disposition, was made, and by his trustee, his heirs, executors, administrators, and assigns, for such es tate or interest as shall be so limited or appointed, devised or disposed, until such debt or debts, portion or portions, shall be raised, paid, and satisfied. And every devisee made liable by this act shall be liable and chargeable in the same manner as the heir at law, by force of this act, notwithstanding the lands, tene ments, and hereditaments, to him or them devised, shall be aliened befbre the action brought. In the construction of this sta• tote it has been held, that though a man is prevented from defeating his creditors by will, that yet any settlement or dispo sition he shall make in his life-time of his lands, whether voluntary or not, will be good against bond creditors ; for that was not provided against by the statute, which only took care to secure such creditors from any imposition, which might be supposed in a man's last sick ness; but if he gave away his estate in his life-time, this prevented the descent of so much to the heir, and consequently took away their remedy against him, who was only liable in respect of the lands de scended ;. and as a bond is no lien what soever on the lands in the hands of the obligor, much less can it be so, when they are given away to a stranger.
Hem looms, in law, are such goods and personal chattels, as, contrary to the na ture of chattels, shall go by special cus tom to the heir, along with the inherit ance, and not to the executor of the last proprietor.