Bracton: Thorne Edition: English. Volume 3, Page 278

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Volume 3, Page 278

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[001] he undertakes the journey, he transmits no seisin to his heirs because he does not
[002] die seised.¹ [I say this if after the gift the donee is in seisin by livery at some hour of
[003] the day.] The [same] may also be said of one whose ancestor is seised on the day he
[004] assumed the habit of religion and makes a gift on that day, before the assumption of
[005] the habit; let his heir take nothing by the assise because an ancestor who was seised
[006] did not assume the habit. Thus it is evident and is true that no one except that heir
[007] whose ancestor dies seised will obtain by the assise. And it is clear that he who gives
[008] and has the power to give transfers the right he has, whether it is the possessory
[009] right or the mere right; that is, if he gives what is his own he provides the other with a
[010] free tenement at once; if he gives another's property he does not. What seisin ought to
[011] be called firm and good, and what tenuous, may be seen above in the title on gifts,
[012] where [more] on this matter may be found.² The writ also speaks of the term of
[013] limitation,³ [let the same be done as above in the other assises.]

If he is the nearer heir.

[015] The writ also has the words ‘and if such a one is the nearer heir,’ in which connexion
[016] we must consider the differences between heirs and their kinds. [The matter of
[017] legitimate heirs and bastards belongs to the tractate on bastardy, when bastardy is
[018] put forward by way of exception.]⁴ ⁵<He may be called the first or nearer heir whom
[019] no one antecedes, the last whom no one follows.⁶ The word ‘heir’ refers not only to the
[020] next heir but to those further removed, for the heir of an heir and so on is included
[021] in the term ‘heir.’>⁷ Here we must explain briefly who are sons and heirs, who are
[022] sons and not heirs, and who are neither sons nor heirs.

Of the kinds of heirs.

[024] It is clear that some children are sons and heirs, as those born of lawful marriages
[025] and sprung from a father and mother (or one of them) having an inheritance, because
[026] ‘heir’ is derived from ‘inheritance,’ not ‘inheritance’ from ‘heir.’ Conversely,
[027] there are sons who are not heirs, as where no inheritance descends, from the father's
[028] side or the mother's.⁸ One may be a son and heir on the father's side only, when the
[029] inheritance descends only from the father, not from the mother, and thus he is the
[030] mother's son but not her heir, and conversely if the inheritance descends only from
[031] the mother.⁹ If it descends from both he will then be the son and heir of both. As one
[032] may at the outset be a son and heir of one or of both, as was said, so he may cease to
[033] be a son and heir, as where the father and mother or one of them makes a gift of
[034] the whole inheritance, leaving nothing

Notes

1. B.N.B., no. 1563 (margin): ‘Nota quod potest quis esse seisitus die quo iter [arripuit] et eodem die dare et ita non mori seisitus in itinere’

2. Supra ii, 101, 123, 127

3. Deleted

4. Infra iv, 294 ff.

5. Supra i, 403: marginal in OA, clearly Bractonian

6. D. 50.16.92; supra ii, 195

7. D. 50.16.65

8. Supra ii, 187

9. Ibid.