But the question [369]
remains whether this identification bore fruit in other parts of
the law also, or whether it was confined to one particular
branch, where the Roman law was grafted upon the English stock.
There can be no doubt which answer is most probable, but it
cannot be proved without difficulty. As has been said, the heir
ceased to be the general representative of his ancestor at an
early date. And the extent to which even he was identified came
to be a matter of discussion. Common sense kept control over
fiction here as elsewhere in the common law. But there can be no
doubt that in matters directly concerning the estate the
identification of heir and ancestor has continued to the present
day; and as an estate in fee simple has been shown to be a
distinct persona, we should expect to find a similar
identification of buyer and seller in this part of the law, if
anywhere.
Where the land was devised by will, the analogy applied with
peculiar ease. For although there is no difference in principle
between a devise of a piece of land by will and a conveyance of
it by deed, the dramatic resemblance of a devisee to an heir is
stronger than that of a grantee. It will be remembered that one
of the Roman jurists said that a legatarius (legatee or devisee)
was in a certain sense quasi heres.
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