Intestacy

The comparative simplicity of the law of intestacy serves well as an introduction to the more complex law relating to wills: the latter can be better appreciated if intestacy has been dealt with first.

8.3.1 intestacy under the Twelve Tables

(Inst.Gai.3.1.-76., Inst.3.1., D.38.16.)

The order of succession under the Twelve Tables to the estates of freeborn persons was (i) sui heredes, (ii) the nearest agnate, (iii) the gens.

8.3.1.1 Sul heredes

These were the persons who became sui iuris on the death of the deceased, i.e. all those who had been in his power, comprising children, remoter issue through the male line (e.g. grandchildren), and a wife in a manus marriage (who was regarded for this purpose as his daughter).

Paul, Sabinus, book 2: In the case of sui heredes, it is more clearly evident that the continuation of ownership leads to this, that no inheritance is regarded as having taken place, as if they were already owners, being thought of as in some sense owners even in the lifetime of the father. (D.28.2.11.)

Children adopted by the deceased were sui heredes; so were issue who had been conceived (but not born) at the time of the deceased’s death, providing that they would have been in his potestas had he survived. Stirpital representation applied (each of the deceased persons' children and their families formed a separate stem (stirps) for the purposes of inheritance): grandchildren (or remoter issue) took the share that their deceased parent would have taken, i.e. they 'represented' the par­ent. For example, suppose that A died intestate survived by two sons, B and C, and a grandson, D, the child of E, a deceased son of A. D would take the share that his father would have taken. The inheritance would thus be shared equally between B, C, and D. The position would be the same even if B and C had children of their own. Such children would be A’s grandchildren but, unlike D, they would not have become sui iuris on his death, and therefore were not sui heredes.

8.3.1.2 The nearest agnate

if there were no sui heredes, the inheritance passed to the nearest agnate. In prac­tice, this would often be a brother or sister of the intestate. If there were two or more nearest agnates, i.e. of the same class (e.g. two brothers), they took equally per capita—there was no stirpital representation in this case. Women could take within this class until the later Republic when they were barred, possibly on reasons analogous to the lex Voconia 169 BC (see Van der Meer, T., 'The Voconian Law: Nova or Phoenix?' (1999) 67 TR, 115-23). The exception was that sisters of the intestate were not excluded from taking. The nearest agnate could refuse to accept the inheritance, in which case it passed to the gens (see following), not to the next nearest agnate. When was it determined who was the nearest agnate? Gaius states (Inst.Gai.3.11.) that the relevant time was when it was established that an intestacy had occurred. That would usually be when the intestate died, but not necessarily: he may have left a will which was not shown to be invalid until sometime after his death. In that case the intestacy was not established until that later time.

8.3.1.3 The gens

If there were no sui heredes, and no nearest agnate prepared to accept, the estate passed to the gens, i.e. the deceased's clan. Succession by the gens lends some support to the view that the concept of community of property was known to early Rome; but it is not clear how the rule operated in practice. Succession by the gens declined as an institution during the Republic and became obsolete in the clas­sical period.

8.3.2 Praetorian intervention

Commentingon the intestacy law of the Twelve Tables, Gaius describes it as'strictum', i.e. narrow, tight (Inst.Gai.3.18.). The main drawbacks stemmed from the con­straints of agnatic relationship.

Some of these flaws, but not all, were remedied by praetorian intervention. The praetor could not declare anyone to be heir other than the person entitled under the ius civile. But the praetor was prepared to remedy perceived unfairness by allow­ing a deserving claimant to have bonorum possessio ('possession of property') of the whole or part of the estate, thereby reducing or even negating the entitlement of the ius civile heir. A claim for bonorumpossessio had to be made within a year in the case of ascendants or descendants, otherwise within one hundred days, the period running from the time when the claimant became aware of his rights (or should have done so) and was able to make the claim. Awareness of the right to claim was judged by the test of the bonus paterfamilias:

Ulpian, Edict, book 49: The knowledge required, Pomponius says, is not that which is expected of those skilled in the law, but that which everyone was capable of acquiring either indepen­dently or through others, that is to say, by consulting those wiser than himself in the way in which it is right and proper for a careful head of a household to take advice. (D.38.15.2.5.)

The result of praetorian intervention was that an alternative law of intestacy emerged alongside the ius civile rules under the Twelve Tables. Praetorian interven­tion mitigated some of the worst anomalies in the ius civile rules.

8.3.2.1 The praetorian order of succession

The thrust of the praetorian scheme was the greater recognition of the blood tie, i.e. the rights of cognates:

Ulpian, Edict, book 44: But he divided succession on intestacy into several parts; for he made different degrees, the first of children, the second of heirs at law, the third of cognate rela­tions, and then of husband and wife.

This order of succession operated, as in the case of the Twelve Tables scheme, as an order—if there was a member of a prior class, those in subsequent classes were excluded.

(a) Children (liberi) The important difference from the ius civile rules was that the emancipated children of the intestate were entitled. The class included children who had been given in adoption by the intestate and then emancipated by their adoptive father before the intestate's death. If two or more children were entitled to bonorum possessio, they took equally. Stirpital representation applied, enabling the issue of a deceased child of the intestate to take the share that their parent would otherwise have taken.

The inclusion of emancipated children could pose problems. A son from a wealthy home might be given substantial property on emancipation and would probably acquire more thereafter. A daughter would sometimes be emancipated on her marriage and be given a dowry. Was it not unfair to allow such children to share the intestate estate equally with the unemancipated children? The praetor certainly thought so—he required a collatio bonorum ('a bringing together of prop­erty') whereby the emancipated child had to bring into account whatever had been acquired on emancipation and thereafter, subject to a few exceptions, e.g. property acquired in military or State service.

Another complication that arose from the admission of an emancipated child to an intestate estate occurred if that child had children of his own. If, on his eman­cipation, they remained in the power of their paterfamilias, i.e. the grandfather, their rights as sui heredes (to the grandfather's intestate estate) would be threatened by their father's application for bonorum possessio. If the application succeeded, the grandchildren might be excluded since they were remoter to the deceased than their father. However, the praetorian edict was eventually amended so that the emancipated child and his children took one single share between them—half to the father, half to the children—subject to his having to make a collatio bonorum.

(b) Heirs-at-law (legitimi) This class comprised those who had a claim under the Twelve Tables, other than children claiming as liberi. The person most likely to be entitled in this class was the nearest agnate. If that agnate did not claim bonorum possessio, remoter agnates were excluded.

(c) Cognates If there was no successful claimant within the first two classes, the nearest cognates took. This was a potentially large class, consisting of blood relations within the sixth (Roman) degree of relationship. If there were two or more nearest cognates, they took equally. There was no stirpital representation. Since this class comprised cognates, relations traced through females were eligi­ble. Children could thus succeed their mothers, and vice versa. The class included children given in adoption, and adoptive relatives (despite the lack of blood tie) providing that there was an agnatic tie between them:

(Jlpian, Edict, book 46:... It comes about, therefore, that a person given in adoption retains the rights of cognate relationship in the family of his natural father, as much as he acquires them in his adoptive family, but he only acquires such relationship in his adoptive family with those to whom he becomes an agnate, but in his natural family, he will retain his relationship with all members. (D.38.8.1.4.)

(d) Husband and wife If there were no claimants within the previous classes, the surviving spouse of the intestate was entitled to bonorum possessio. This rule was not applicable to a widow in a mantis marriage since she was in the class of sui heredes under the Twelve Tables, and thus qualified as an heir-at-law in the praetorian scheme.

This order of intestate succession was clearly an improvement on the arcane rules of the Twelve Tables. The greater emphasis on the blood tie no doubt reflected the realities of family relationships more closely than the ius civile rules. It should not be assumed, however, that bonorumpossessio was exclusively a weapon against the ius civile heir. Quite often such an heir would himself apply for bonorum posses­sio in order to obtain more convenient remedies to enforce his rights than those already afforded him under the ius civile.

8.3.2.2 Operation of the bonorum possessio system

(Inst.Gai.2.147-50., Inst.3.9., and various titles in D.37. and C.6.)

Claims for bonorum possessio were made before the praetor. If a prima facie case was made out, the praetor would make the appropriate grant, enti tling the claimant to seek possession of the estate. But this was no more than a preliminary ex parte hearing. The grant did not vest actual possession in the claimant; it simply entitled him to seek the appropriate remedies (normally the interdict quorum bonorum) to obtain possession. It was only when those remedies were actually sought that the issue whether the claimant was entitled to actual possession of the estate would be fully explored. Even the grant of a remedy was not necessarily the final resolution of the matter, since the ius civile heir might attempt to protect his position by his chief remedy, the hereditatis petitio ('the seeking of the inheritance').

Whether the successful grantee of bonorum possessio eventually prevailed depended on the type of grant. If the grant was cum re (i.e. where there was no civil heir, or the praetor had intervened to change the existing inequitable ruling) the position of the grantee was in effect indefeasible: the hereditatis petitio of the heir could be successfully resisted by an exceptio doli ('the defence of fraud') in favour of the grantee. If the grant was sine re (i.e. where bonorum possessio was merely granted provisionally, subject to the appearance of a civil heir), the grantee was not entitled to plead a defence; the heir prevailed if he proved his entitlement.

What was the benefit, if any, of a grant of bonorum possessio sine re? Superficially, the grantee's position appears weak—it seems that the heir needs only to appear and prove his entitlement in order to prevail. However, the onus is on the heir—he must appear, and within a year, otherwise the grantee will become dominus through usucapion. Who knows what misfortune may befall the heir en route to court? And even if he appears, he will still have to prove his entitlement—possibly a difficult task in some circumstances. It was definitely worth having a grant sine re.

What determined whether a grant was made cum re or sine re? No clear principle can be asserted. Much could depend on the circumstances and on the identity of the claimant. For example, if an heir or liberi obtained bonorum possessio, it was normally cum re. If there were two (or more) applicants, it was possible for one to be made a grant cum re, the other a grant sine re (in appropriate circumstances). The general rule during the Republic was that grants were made sine re; but in the clas­sical period the tendency was increasingly for grants to be made cum re. By the late Empire, grants sine re had become rare.

8.3.3 Classical legislation

A number of enactments were made in the classical period affecting succession on intestacy. The most important were the S. C. Tertullianum c. AD 130 and the S. C. Orphitianum AD 178. See Frier and McGinn, Casebook, 339-41.

8.3.3.1 5. C. Tertullianum

(Inst.3.3., D.38.17., C.6.56.)

This was probably the first resolution of the Senate to be formally recognized as having direct, binding legal force (see 2.3.2.2). The purpose was to improve the posi­tion of mothers as regards the intestate estates of their children. Under the Twelve Tables, a mother had no rights of intestate succession to her children, as we have seen, except if she was a wife in a manus marriage. The S. C. Tertullianum applied to mothers with the ius liberorum, i.e. those who had given birth to three children or more (four if a freedwoman). This statute was partly a throwback to the Augustan policy of encouraging an increase in the birth rate. On the death intestate of the mother's child, the order of succession was as follows: liberi (of the intestate); father; brothers of the whole blood; sisters of the whole blood and the mother—the sisters and the mother formed one class. Thus, the mother took if the intestate child died

without issue and a father and a brother of the whole blood. If any sisters survived the intestate, the mother took half, the other half going to the sister(s). In the later Empire the Tertullian order was applied to mothers even if they failed to satisfy the requirements of the ius liberorum.

As a general rule, the S. C. Tertullianum was not intended to alter the order of suc­cession under the previous law, but to provide a different scheme in the particular scenario specified. Indeed, it was an important principle under the enactment that it was not to give a person, apart from the mother, any greater rights than under the previous law.

8.3.3.2 S. C. Orphitianum

(Inst.3.4.)

This enactment dealt with the converse case—the rights of children to succeed on their mother's intestacy. It represented a major departure from the old principle of agnatic succession because it gave children, whether legitimate or illegitimate, the primary right to succeed to their mother's estate. Previously under the ius civile, the nearest agnate would have taken.

These two senatus consulta constituted a radical change in some respects—the first recognition of the blood tie in the ins civile law of intestacy. But the reform was rather narrow in scope: 'What puzzles us concerning these two enactments is not that succession is granted to blood-relations, but that this was done so reluctantly and incompletely’ (Schulz, E, Classical Roman Law (1951), 226-7).

8.3.4 Justinian's reforms

In the later Empire, further modifications were made to the law of intestacy, mostly aimed at diminishing the relevance of agnatic succession. Justinian introduced a new scheme of intestate succession (in Novellae enacted in AD 543 and 548) whereby the old rules and concepts were replaced by a system that emphasized the cognatic relationship. However, Justinian's scheme preserved the familiar rule that membership of a prior class excluded subsequent classes. The order was as follows:

(a) Descendants This class comprised children and remoter issue, the nearer excluding the more remote. Descendants were determined purely by blood, except that adopted children were included. The principle of stirpital representation applied, so that remoter issue took the share that their parents would have taken had the latter not predeceased the intestate.

(b) Ascendants and full brothers and sisters This was a single category—-if the intestate was survived by ascendants and brothers and sisters of the whole blood, then they all shared equally. Stirpital representation applied to deceased broth­ers and sisters. Thus, if Balbus died intestate, survived by his father, brother, and a nephew (the child of a deceased sister), they each took one third of the estate. However, the representation rule applied only if there was a surviving brother or sister. Therefore, if only his father and a nephew had survived Balbus, the father took the whole inheritance. If no ascendant survived, the property went exclusively to any brothers and sisters of the whole blood, stirpital representa­tion applying. Where the intestate was survived by two or more ascendants, the nearer excluded the more remote, e.g. a father of the intestate would exclude the grandfather.

(c) Brothers and sisters of the half-blood Stirpital representation applied: children of deceased members of this category took the share that would have gone to their parent.

(d) Nearest other collaterals They shared equally if they were of equal degree; if not, the nearer degree excluded the more remote. There was no stirpital representation.

(e) Surviving spouse The surviving spouse appears rather low in the order com­pared to modern systems of intestacy (under which the spouse often takes the bulk of the estate). However, the rules on the destination of the dowry on the death of a spouse were of considerable benefit to the survivor. Rights in the dowry, if unsat­isfied from the dotal property, were a first charge on the deceased’s estate under Justinian (see 5.2.5.4).

If there were no claimants in the previous categories, the estate passed to the imperial treasury as bona vacantia, i.e. unclaimed property. The concept of bona vacantia has survived to the present day, as has much of Justinian's intestacy regime. Apart from the relatively low position (within the order), of the surviving spouse, the rules would not seem out of place in modern law. For example, in both French and German law children are regarded as the primary heirs to the exclusion of other relatives. This is subject to the right of the surviving spouse to a quarter of the estate absolutely (German law) or to a usufruct in a quarter (French law). See Stein, Legal Institutions, 178-9. (This rule only applies, however, where there are children and a surviving spouse. If one or all of the children have predeceased, the spouse will receive more than a quarter of the estate.)

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