Literal Meaning
God alone, not man can make an heir.
Explanation
Heir in common law does not have the same significance it has in civil law; for the civilians call him an heir, “qui ex testament succedit in universum jus testatoris”( who proceeds from the testament of the testator ‘s place on the universal right), but by Common Law he is only heir which succeeds by right of blood.
The maxim, Deus solus haeredem facere potest non homo states that God alone and not man can make an heir. This means that no instrument or act in law can make one an heir. The maxim is applied in the law of succession. The word heir in legal understanding, signifies him to whom lands, tenements or hereditaments by the act of God and right of blood, descend of some estate of inheritance, for deus solus haeredem facere potest non homo and he only is heir who is ex justis nuptiis procreates (born out of lawful marriage). This means that one can only be an heir if one is born out of a lawful and legitimate marriage and is an heir by blood.
This maxim had been long accepted by the Christian Canon law and held a restrictive position in English Civil Law. This principle did not permit any adoption of children as it only accepted heirs by blood. Thus, adoption was not recognised in England.
Origin
This legal maxim was a long accepted restrictive position in Christian Canon law and English civil law and has a Latin origin.
Illustration
In the 19th Century, the Raja of Jhansi, Gangadhar Rao Newalkar, adopted a son to secure the line to the throne. After the Raja’s death Rani of Jhansi, Lakshmi Bai sought to install her adopted son to the throne but Lord Dalhousie, the Governor General of India, refused to recognise the adoption for deus solus haeredem facere potest non homo and decided to annex Jhansi under Doctrine of Lapse.
Case Reference
In the Nigerian case of Adeseye v. Taiwo[1], it was held that God alone is able to make an heir and not man.
In the Indian case of Dwarkadas Damodar v. Dwarkadas Shamji[2], the Bombay High Court stated. “The heirs are the legal representatives and they represent the estate of the deceased for the purpose of interest established by way of a resulting trust just as would the executor or administrator. Their representation dates from the same period at the reversion under the resulting trust, whether foreseen or unforeseen, having vested as a transferable interest in the deceased, vests on her death in her representative. The representative by inheritance is to be found according to law at the moment of the death of the deceased, the maxim being solus deus haeredem facere potest non homo.”
In the Hardenbergh case[3], the wife and daughter of the deceased had renounced their claim as heirs after the death of the deceased, so the property passed to the other heirs. An action was brought against the wife and daughter in the tax court issuing a gift tax against the property they would have received had they not renounced their claim. On the application of the maxim, the court said: “The property involved was inherited by the petitioners as heirs under the laws of Minnesota, and … an heir has no power to prevent by renunciation the vesting of title in himself immediately upon the death of the descendant.” Since the wife and daughter could not renounce because they were heirs, it followed that their renunciation took effect as gratuitous conveyances and were therefore subject to gift tax.
Edited by Vigneshwar Ramasubramania
Approved & Published – Sakshi Raje
Reference:
[1] (1956) 1 F. S. C. 84
[2] (1915) 17 BOMLR 938
[3] Hardenbergh v. Commissioner, 17 T. C. 166, 169-70 (1951).
