I will take up first the German and Anglo-Saxon laws which are the ancestors of our own on one side of the house.  For although what we get from those sources is not in the direct line of the argument, it lays a foundation for it by showing the course of development in different fields.

The obvious analogy between purchaser and heir seems to have been used in the folk-laws, but mainly for another purpose than those which will have to be considered in the English law.  This was to enlarge the sphere of alienability.  It will be remembered that there are many traces of family ownership in early German, as well as in early Roman law; and it would seem that the transfer [356] of property which originally could not be given outside the family, was worked out through the form of making the grantee an heir.

The history of language points to this conclusion.  Heres, as Beseler 1 and others have remarked, from meaning a successor to the property of a person deceased, was extended to the donee mortis causa, and even more broadly to grantees in general.  Hereditare was used in like manner for the transfer of land.  Hevin is quoted by Laferriere 2 as calling attention to the fact that the ancient usage was to say heriter for purchase, heritier for purchaser, and desheriter for sell.

The texts of the Salic law give us incontrovertible evidence.  A man might transfer the whole or any part of his property 3 by delivering possession of it to a trustee who, within twelve months, handed it over to the beneficiaries. 4 To those, the text reads, whom the donor has named heredes (quos heredes appellavit).  Here then was a voluntary transfer of more or less property at pleasure to persons freely chosen, who were not necessarily universal successors, if they ever were, and who nevertheless took under the name heredes.  The word, which must have meant at first persons taking by descent, was extended to persons taking by purchase. 5 If the word became enlarged in meaning, it is probably because the thought which it conveyed was turned to new uses.  The transaction seems [357] to have fallen half-way between the institution of an heir and a sale.  The later law of the Ripuarian Franks treats it more distinctly from the former point of view.  It permits a man who has no sons to give all his property to whomsoever he chooses, whether relatives or strangers, as inheritance, either by way of adfathamire, as the Salic form was called, or by writing or delivery. 1

The Lombards had a similar transfer, in which the donee was not only called heres, but was made liable like an heir for the debts of the donor on receiving the property after the donor’s death. 22 By the Salic law a man who could not pay the wergeld was allowed to transfer formally his house-lot, and with it the liability.  But the transfer was to the next of kin. 3