The persona which we are seeking to define is the estate.  Every fee is a distinct persona, a distinct hereditas, or inheritance, as it has been called since the time of Bracton.  We have already seen that it may be sustained by more [352] 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 it be divided lengthwise, so to speak, among persons interested in the same way at the same time:  it may also be cut across into successive interests, to be enjoyed one after another.  In technical language, it may be divided into a particular estate 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 are but one tenant.” 1 This is only a statement of counsel, to be sure; but it is made to account for a doctrine which seems to need the explanation, to the effect that, after the death of the tenant for life, he in reversion might have error or attaint on an erroneous judgment or false verdict given against the tenant for life. 2

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 that time he was a universal successor in a very broad sense.  Many of his functions as such were soon transferred to the executor.  The heir’s rights became confined to real estate, 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 sum of all the ancestor’s rights regarded as one whole.  But to this day the executor in his 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 their rights and obligations.

The bearing which this has upon the contracts of the [353] deceased has been pointed out.  But its influence is not confined to contract; it runs through everything.  The most striking instance, however, is the acquisition of prescriptive rights.  Take the case of a right of way.  A right of way over a neighbor’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 it ten years.  Has any right been acquired?  If common sense alone is consulted, the answer must be no.  The ancestor did not get any right, because he did not use the way long enough.  And just as little did the heir.  How can it better the heir’s title that 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 years each, but one who has used it for twenty.  The heir has the advantage of sustaining his ancestor’s and the right is acquired.