/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/
But this is not all. The identity of person was carried [350]
farther still. If a man died leaving male children, and owning
land in fee, it went to the oldest son alone; but, if he left
only daughters, it descended to them all equally.
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