When Glanvill 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 their heirs; 3 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. 4 Neither Glanvill nor his Scotch imitator, the Regiam Majestatem, 5 limits the liability to the amount of property inherited from the same source.  This makes the identification of heir and ancestor as complete as that of the Roman law before such a limitation was introduced by Justinian.  On the other hand, a century [348] later, it distinctly appears from Bracton, 1 that the heir was only bound so far as property had descended to him, and in the early sources of the Continent, Norman as well as other, the same limitation appears. 2 The liabilities of the heir were probably shrinking.  Britton and Fleta, the imitators of Bracton, and perhaps Bracton himself, say that an heir is not bound to pay his ancestor’s debt, unless he be thereto especially bound by the deed of his ancestor. 3 The later law required that the heir should be mentioned if he was to be held.

But at all events the identification of heir and ancestor still approached the nature of a universal succession in the time of Bracton, as is shown by another statement of his.  He asks if the testator can bequeath his rights of action, and answers, No, so far as concerns debts not proved and recovered in the testator’s life.  But actions of that sort belong to the heirs, and must be sued in the secular court; for before they are so recovered in the proper court, the executor cannot proceed for them in the ecclesiastical tribunal. 4

This shows that the identification worked both ways.  The heir was liable for the debts due from his ancestor, and he could recover those which were due to him, until [349] 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 warrant property sold by his ancestor to the purchaser and his heirs. 1 It is not necessary, after this evidence that the modern heir began by representing his ancestor generally, to seek for 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 testator, the heir was said to represent the person of his ancestor in the time of Edward I. 2 So, at a much later date, it was said that “the heir is in representation in point of taking by inheritance eadam persona cum antecessore,” 3 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 lawyers of Edward or of James.  Baron Parke, after laying down that in general a party is not required to make profert of an instrument to the possession of which he is not entitled, says that there is an exception “in the cases of heir and executor, who may plead a release to the ancestor or testator whom they respectively represent; so also with respect to several tortfeasors, for in all these cases there is a privity between the parties which constitutes an identity of person.” 4