20 Basics of Roman and Jewish Intestacy

REUVEN YARON

(THE HEBREW UNIVERSITY OF JERUSALEM)*

Our conversation today is an exercise in comparison of laws (popularly, but inexactly, known as “comparative law”). In an age in which “relevance” is often considered a precondition for the budgeting of time and effort, it may be desir­able to commence with some general remarks concerning the purpose of com­parison.

Comparison aims at better understanding of a given legal problem. One may commence the query within one’s own or “proper” law, may pursue it in some other major modern law (English, French, German, or Italian—you name it) or within a major historic system, such as Roman law. Comparison should grant us sharper focus, new insights, a more exact and critical appraisal.

* This paper was originally meant to be read to Alan Watson’s students, during a visit at the University of Georgia School of Law, in February 1997. When Alan indicated that he would prefer a topic more in concert with the subject of his course (on “Legal Borrowings”), I was glad to fall in with his wish. The unchanged text retains its form as a lecture. It is now offered to Alan as a token of my esteem and affection. way (concerning the inheritance by such a child), but they may also concern the corresponding question of inheritance from him/her. A preliminary question may arise: “born out of wedlock” is a general description; in a great majority of cases it refers to no more than that the mother of the child and her partner were not husband and wife. It cannot be doubted that the attitude of very many people to such an occurrence has changed considerably. But there are other variants which will cause more consternation, more outrage, such as where the child is the result of adultery, or in the most extreme case, of incest. Will the law of inher­itance distinguish between these variant situations? It seems that the English language uses (or used) the noun “bastard” without differentiating between the various cases. But changing attitudes may bring about a change of usage. I guess that some would nowadays hesitate to call the child of unwed parents a “bas­tard”. (And note well: It is not the attitude to the child that has changed, but the way in which society reacts to the circumstances of its conception.)

In Hebrew, by contrast, there never was a general term describing “a child born out of wedlock”. In strict legal usage, the Hebrew non-equivalent, mamzer, refers exclusively to a child of adultery or of incest. For all these dis­tinctions and more our system of law (whatever “our” may refer to) will provide answers—at least we may hope that it will.

We might then wish to ask whether our home-grown replies are really satis­factory. To gain additional insight, finally to form our own opinion, we may go shopping for ideas in other, foreign enactments, judgments or scholarly writ­ings. If our quest is limited to one particular, perhaps rather narrow problem, the result may go one way or the other. If one starts—rather myopically and naively—from an a priori belief that “we are the best”, it may even happen that this belief is vindicated; but one must be ready to realize that “it ain’t necessar­ily so”. Over a wider range of questions we may expect a mixed bag of results. Occasionally “we” shall prevail, but on other occasions “we” may fail. Let us remember that this is not a game of football, and the question which system of law won the contest is of little significance.

The question to be asked concerning a given provision of law is whether the result obtained is satisfactory, and that on two levels. First, whether it could be deemed satisfactory at the time of its enactment. That is a significant point; one must avoid the cardinal sin of anachronism, must muster sufficient empathy to examine a given law from the point of view of a contemporary member of that society. More often than not it will originally have served what was considered a desirable purpose; yet occasionally it will have been misconceived from the very outset, may have caused harm and damage, until it met its deserved fate of being abandoned. And sometimes law reform is lagging far behind; it is easier to freeze and do nothing than to enact a change, even if urgently needed. To mention only one example: it took English law about 150 years to get rid of the doctrine of common employment.

Secondly, if it has passed its first test, if one approves of its launching, we will have to consider how well it fared as time—possibly a very long time—has gone by. What may have been good and proper may eventually have gone sour, have outlived its usefulness, may have survived only because of the fact that change is so very difficult to achieve.

But enough of these generalities. It is now high time to turn to our declared topic, the essentials of Roman and Jewish laws of intestacy. Note that we have confined our discourse to one part only, and this the smaller one, of the laws of succession. We deal only with the case in which the deceased had refrained from any interference in the course which the distribution of his estate was going to follow. And we shall concentrate on simple cases, such as are sufficient to demonstrate main premises, which will determine the direction along which matters will develop. And we shall commence with Roman law, since it is the much better known legal system, which in its late shape has influenced the law down to our times. This statement is not meant to exclude the adoption of notions which have their roots elsewhere.

Roman intestacy is extremely family-centered. Indeed there is nothing sur­prising about this. What makes it nevertheless noteworthy is the consistency or single-mindedness which is its hallmark; occasionally this will unavoidably guide the law(yers) towards logical conclusions, even when the results obtained will be less than convenient.

Two provisions of the XII Tables (assigned by tradition to the middle of the fifth century BC) are our starting point: XII T. 5.4 reads: “If there dies intestate (one) who has no suus heres, the nearest kinsman [adgnatus proximus] shall have the household”. The next passage (5.5) provides that in the absence of a kinsman, the clansmen shall have the household.

Who is a suus heres? The term is difficult to translate and, faute de mieux, I have followed the ad sensum rendering “immediate heir” used by Bill Gordon and Olivia Robinson in their 1988 translation of Gaius. The detailed interpreta­tion of suus heres is firmly established in Gaius 3.1-3.^[494] To qualify as suus heres, the claimant (male or female) had to be subject to the “paternal power” (patria potestas) until the head of the family died.

Now about the different position of the deceased’s daughter. There is no “maternal power”, and it is this negative rule which limits this main case (hence the rules governing it) to inheritance from a male.²

So we have learned that the road to the status of suus heres depends on his (her) having been subject to the potestas of the deceased. The next question then will be, how did this potestas come into being? Here a further component, namely marriage, enters the picture. A person is subject to potestas only if he/she is the offspring of a legitimate marriage (iustum matrimonium).³ It was this triple cord of iustum matrimonium, leading to patria potestas, culminating in the position of suus heres, which gives Roman intestacy its special character, and which I had in mind when describing it as “extremely family-centered”.

Some remarks about legitimate marriage are now called for. It includes two rather different stages, reflecting the fact that in Roman eyes a person could belong only to one family. Where is a married woman to belong? To the family into which she is born (and where, let us recall, she could gain the position of a sua heres)? Or else to the family of her husband, whom she had followed? Very early Roman law had preferred the second choice, and the rest followed, simply and if you wish, beautifully. This was marriage cum manu, which involved the transplant of the wife into the family of the husband; she and her property came under the husband’s potestas (and for her case the special designation manus was coined); if the old man (her father-in-law) was still alive, manus was vested in him (not very elegant this, married to one, subject to the authority of another, but we hear of no harm). Her position in the sphere of inheritance was taken care of; the widow was regarded as the sister of her children and inherited a child’s share (i.e. she was regarded as the husband’s sua heres). So the principle of membership in one family only was preserved. All this looks quite neat, but came soon to be regarded as highly inconvenient. Steps were taken to circum­vent marriage cum manu, to abort it. The technique of achieving this need not be discussed here in detail. The switch from manus-marriage to “free” marriage (liberum matrimonium) was, one may assume, mainly motivated by considera­tions of a pecuniary nature. A wealthy bride (that is one who had already inher­ited) may have been loath to give up her separate property; or else her brothers (who as her guardians had to approve her marriage) might have been unwilling to see a chunk of the estate pass into foreign hands. Or else a rich heiress-to-be might be unwilling to forgo her prospects.

However, it is a common observation that “there ain’t no such thing as a free lunch”. The preservation of the principle of “one family only” exacted its price; the absence of manus did not indeed affect the recognition of the union, in abstracto, as a iustum matrimonium. This meant that children would come

²We shall remark later on succession from a woman.

³ In developed Roman law a posthumous son would also count as suus heres, even though he had in fact never been under potestas.

under the potestas of the father, and would eventually claim their right as sui heredes. So far, so good. But it meant also that, in liberum matrimonium, the wife had not only a priori forgone her place within the family of her husband (remember that each of the spouses had his/her separate family), but also that there was no family link between her and her husband, between her and her chil­dren, and this (negative) state of affairs extended specifically also to the sphere of succession. The basic result: the mother’s estate would go neither to her hus­band (if still alive) nor to her offspring, and (reciprocally) she would not inherit from husband or offspring. All her succession-related ties were with her agnatic relations, in her father’s family.

The change in marriage practice might have (one might say, ought to have) encouraged concomitant change in the sphere of succession, to alleviate the anomalies just mentioned. Yet in fact for the time being (and we shall see that this was a very long time) nothing happened. The reason may have been that, unlike succession, liberum matrimonium was not rooted in legislation, but rather owed its existence to legal inventiveness, to astute legal advice provided by clever lawyers. At an early stage, the introduction of liberum matrimonium may have reflected the whims and wishes of a small number of the rich. Nobody need have foreseen the phenomenal success of liberum matrimonium, which soon largely pushed aside the old-established, venerable marriage cum manu. When this shift had taken place, the majority who adhered to the new form of marriage had become accustomed to the problems which we have noted, and adjusted to the idiosyncrasies to which they had given rise. Be that as it may, manus eventually became near-extinct, surviving only for religious purposes (certain priesthoods were open only to the offspring of manus marriage). At long last, the advent of Christianity as the ruling faith signalled its disappear­ance.

In the meantime, the retreat from “one family” proceeded, with glacial speed, over many centuries. The first cautious, one might say hesitant, steps were taken by the praetor when he began (some time in the course of the last century BC) to grant bonorum possessio unde cognati (referring to all persons related by blood); but he did so only if there had been no claim in the categories unde liberi (corresponding to sui heredes) and unde legitimi (which included the agnates entitled under statutory provisions, i.e. the XII Tables). At the end of his list of potential claimants we find a category unde vir et uxor, taking note of claims by widowers and widows (from liberum matrimonium). This is no more than an abstract, token recognition of the existence of the problem, of a very limited practical import. Only in the absence of any relative (agnate or cognate) would the surviving spouse have access to the estate of the deceased. A change in the position of the widow will take place only in Justinian’s Novel 53.6 (of 537).

In the course of the second century AD two decisions of the Senate were pro­mulgated, both concerning aspects of the relationship between the mother and her children. Both deviated in some measure from the principle of “one family”. A senatusconsultum Tertullianum (of the time of Hadrian) granted the mother a share in the estate of her childless son, in competition with her daughters (sis­ters of the deceased); but if there was a further son of hers demanding a share, the mother lost her claim altogether.

More far-reaching was a senatusconsultum Orfitianum (of AD 178), con­cerning inheritance by son and/or daughter from their mother. Until then, remember, they got nothing. As long as there were agnatic claimants, all that the deceased had owned fell to those agnatic relations. Now, under the provisions of the senatusconsultum, son and daughter were catapulted to the top of the list of heirs, altogether displacing the members of the deceased’s paternal family, e.g. her brother, sister, or uncle, etc. “Altogether” is slightly exaggerated: the rights of son/daughter were personal, and if they happened to die prior to their mother, their claims died with them, did not pass to an offspring of theirs. So, after all, the agnatic members of the family still had their chance.

A word now about the child born out of wedlock (spurius or vulgo quaesitus). He/she is recognised as cognate of the mother, and they seem to have benefited from the SC Orfitianum.^[495] But the vulgo quaesitus is denied any link (agnatic or cognatic) with the father.^[496]

We return to the general topic. Throughout the post-classical centuries, lead­ing up to Justinian, one may observe a movement away from agnatic to cognatic ideas, but even within his Digest and Code the equality of paternal and mater­nal families was not achieved. This task had to await legislation in Justinian’s Novels.^[497]

In 543, just nine years after the promulgation of the Digest, the time had come for a really revolutionary reconstruction of Roman intestate succession. In Novel 118, chapter 4, the purposes of a reform of intestacy are set out loud and clear. Let us allow the text to speak for itself:

“We wish that there should be no difference, in whatever succession or inheritance, between those males and females who are called to inheritance, whom we have decided to be called to the inheritance jointly, whether they were linked to the deceased through male or female person. But in all successions we order that the dif­ference of agnates and cognates be voided, which were treated of in earlier laws, whether through a female person or through emancipation or in some other fashion, and we order that without any difference of this kind all may come according their degree of blood-relationship to the intestate succession of their relations.”

Well, the style is indeed Byzantine, but the substance was a very real achieve- ment.^[498]

And with this we take (temporarily) leave of Rome and Byzantium, and turn to the Bible and Talmud. Let me commence with some few, condensed general remarks about the term “Jewish law”. It extends over a period of about three millennia, from the Hebrew Bible down to the present. To avoid misconcep­tions, it is necessary to distinguish between various periods. Specially important is the distinction between biblical and Talmudic sources. The former are avail­able in the writings comprising the Hebrew Bible, the latter are to be found in the various Talmudic texts, commencing with Mishnah and Tosefta. Private documents have survived in small numbers, and their contribution is accord­ingly limited.^[499]

Biblical provisions on succession are very few. Numbers 27 presupposes a system of all-male succession. A man would be succeeded by his sons, brothers, father’s brothers, etc. The specific question in Numbers 27 arose—so the bibli­cal narrative relates—from the case of a deceased who had no son, only daugh­ters. They complained about being left out, their plea was accepted, their claim recognised. This provided the occasion for setting out a general sequence of heirs (verses 8 to 11):

“(8) And to the sons of Israel speak as follows: If a man die and have no son, you shall transfer his inheritance to his daughter. (9) And if he have no daughter, then you shall give his inheritance to his brothers. (10) And if he have no brothers, then you shall give his inheritance to the brothers of his father. (11) And if his father have no brothers, then you shall give his inheritance to his next of kin, of his family, and he shall inherit it.”

We are told that this decree gave rise to a counter-complaint by the deceased’s tribe: if the daughter married outside the tribe, that would diminish the land owned by them. In repsonse to this argument, the Bible imposes tribal endogamy: the heiresses have to marry within the tribe (Numbers 36).

The only further biblical provision concerns primogeniture, within the spe­cific context of polygamy:

“(15) If a man have two wives, one beloved and another hated, and they have born him sons, the beloved and the hated; and the firstborn son be hers that was hated. (16) Then it shall be, when he fixes what of his property (each of his) sons is to inherit, he shall not prefer the son of the beloved above the son of the hated, who (is the real) first­born. (17) For he shall recognise the firstborn son of the hated, to give him double of all that he has. For he is the beginning of his strength; the right of the firstborn is his.” (Deuteronomy 21)

By Talmudic times the tribes had disappeared, so tribal endogamy had become inoperative. The two other provisions were the slender foundations on which Talmudic law built its superstructure of intestacy; it retains fully the preference accorded to male heirs, even though mitigated by the priority granted to widow and daughter concerning a right to maintenance out of the deceased’s estate. And, of course, a wealth of detail is added to make the biblical provisions more readily applicable.

Some further basic rules are formulated. We meet once more the agnatic prin­ciple, allotting the inheritance to those who trace their connection with the deceased through males (for example: “The father’s family is called family, the mother’s family is not called family”—Babylonian Talmud, Baba Bathra 109b). It sounds almost Roman, doesn’t it?^[500] But there is another Talmudic rule to be taken into account: Mishnah Baba Bathra 8.2, interpreting Numbers 27.8, pro­vides as follows: “... the son has preference over the daughter, and all the off­spring of the son have preference over the daughter. The daughter has preference over the brothers (of the deceased), and the offspring of the daughter have preference over the brothers...”. When occasionally the two rules (the agnatic principle and what one may call the “preference”—or “representa­tion”—rule) are in collision, it is “preference” that prevails. The simplest case is that mentioned last, “daughter’s offspring vis-a-vis deceased’s brother”: “pref­erence” prevails, i.e., son or daughter of the deceased’s daughter (who are not agnates of their maternal grandfather) displace his (agnatic) brother. It could not have happened in Roman law, where the agnatic rule is decisive.

An interesting case, because of the attending controversy, is the competition between the deceased’s daughter and his granddaughter (the daughter of a pre­deceased son).^[501] The dispute was between Pharisees and Sadducees. The former applied the preference or representation rule, the latter would have the two women divide the inheritance. The former relied on the fact that the grand­daughter could have competed as an equal with her (dead) father’s brothers (had there been any) whereas her aunt (the deceased’s daughter) could not have competed with them. The Sadducees pointed to the fact that the deceased’s daughter was directly related to her deceased father, the granddaughter was more remote, claiming through her predeceased father. While it is not difficult to follow the Pharisee reasoning, I would regard the Sadducee approach as more convenient. Incidentally, the Pharisee view prevailed.^[502]

We come now to the concluding part of this chapter. As already noted, Roman law took a uniformly negative stand on intestacy claims by persons born out of wedlock. How does Jewish law view these problems? Not without diffi­culty did they arrive at their rulings:

“If a man has any kind of brother, that imposes the levirate marriage on his wife; and he is his brother for every purpose, unless he was the son of a slave-woman or a gen­tile woman. If a man has any kind of son, he exempts the wife of his father from the levirate marriage, he is culpable if he strikes or curses his father, and he is his son for every purpose, unless he was the son of a bondwoman or a gentile woman.” (Mishnah Yevamoth 2: 5)

Note how the text avoids calling a spade a spade, preferring the circumlocu­tion “any kind of brother/son”; it is only the Talmud, Yevamoth 22ab, which explains (to my mind correctly): “any son—to include what? Said Rabbi Jehuda: To include the mamzer; for every purpose; to what does this apply? to inherit from him, and to contract uncleanness for him (by attending his burial)”.

Discomfort with the topic can be observed in a lengthy and convoluted pas­sage in Tosefta Yevamoth, chapter 3: “They asked Rabbi Eliezer [about 100 CE]: A mamzer, what is he to inherit? He said to them, what is he �?to unshoe?’^[503] And what is he to unshoe? He said to them, what is he to inherit? And what is he to inherit? He said to them, what is he to whitewash his house? He said to them, what is he to whitewash his grave? He said to them, what is he to raise dogs? What is he to raise dogs?” And so on. At the end of the passage a later hand added: “And it is not that R. Eliezer wanted to divert them [by this mean­ingless heaping of question upon question]; rather he did not say anything that he had never heard [from his teachers]”. Well, I do not accept that: if that had indeed been Rabbi Eliezer’s reason, he would simply have said so.

Another passage, Tosefta Baba Bathra 7:1, takes us further: “... the mamzer passes his inheritance to his relations”. This concerns inheritance from the mamzer.

A final question comes from a later source: Maimonides, Successions 1:7: “All related illicitly, inherit as if legitimate. How? For example, if he had a mamzer son, or a mamzer brother—these are as other sons or other brothers to inherit. But his son from a slave-woman or from a gentile woman is not a son for any purpose, and does not inherit at all”. This is not an innovation. Maimonides is merely summing up. And his concise, five-words-formulation of the main sub­stance of the rule (in Hebrew: kol haqerovin ba �?averah yorsin kikheserim), also the examples and exceptions, are followed in the later compendia of law, Tur- Chosen-Mispat 276:10, and Shulhan Arukh Chosen Mispat 276:6. And this is Jewish law up to the present.^[504]

Jewish law on succession by a mamzer might have a practical obstacle to overcome, that of evidence. Regularly (though not necessarily always) the iden­tity of the mother will be not be in doubt; often the fact that a child is a mamzer will be conclusively established by the prolonged absence of the husband. Proving the identity of the father is a very different task. A statement of his, admitting fatherhood, is accepted.^[505] More often than not, the wife’s paramour will deny all and everything. The child of an unwed mother will have to face similar problems; his claims against an unestablishable father will have had lit­tle chance of success. Even if cohabitation was not denied, this is, in itself, not proof of fatherhood. Modern science may make a significant difference. A refusal to participate in paternity tests may in some instances be interpreted as indicating bad faith.

It is time to sum up: that the two systems share some features (e.g. the agnatic principle) need cause no surprise. More interesting are the differences. Some may be due to the stricter structure of Roman family law. The situation of what one may call “problem” children is significantly better in Jewish law than it ever was in Roman law. But even though this is interesting, its overall importance should not be exaggerated; after all, this is not a main issue in intestacy. In Jewish law, the discrimination against daughter and wife was and remains a sore point, which is not resolved by provisions concerning maintenance. Another point: Roman law, or its Byzantine successor, managed to discard agnatic succession and the “one family” principle, but this momentous change left no impression on the development of Jewish intestacy. So each of the two systems went its separate way. And in both instances “separate” was not the best.