3. INTESTATE SUCCESSION

Preliminary notions. In the course of its history Roman law knew three main systems of intestate succession¹—the old civil law which, subject to some modifications, remained formally in force until Justinian’s time, the Praetorian system which was superimposed upon it, and finally the entirely new system with which Justinian replaced both, and which was not only to form the basis of much of the modern Civil law but also, through the Canon law, to exercise an influence on the English law.

Let us suppose a system which offers the inheritance first to the dead man’s children, sharing equally, and then to the nearest blood relatives, thus establishing two classes {ordines} of person entitled. Several questions will arise.

(i)   Suppose that a man dies leaving two surviving sons, A and B. A third son, C, has died before him, but is survived by two sons, Ci and C2. What are the rights of Ci and C2? Three answers are possible. They may be denied any share, on the principle that ‘the nearer² excludes the more remote’, the nearer in this case being A and B. Or the principle of successio per stirpes or ‘representation’ may be applied: the inheritance will be divided equally between the three ‘stems’ {stirpes}; C1 and C2 will ‘represent’ C, and will therefore be entitled to a one-sixth share each. Or, finally, the principle of successio per capita may be applied: the inheritance will be divided equally between as many persons as are entitled, and therefore A, B, Ci, and C2 will each be entitled to a quarter.

(ii)  If there are persons entitled in the class of ‘children’ but they do not choose to make any claim, are the nearest relatives entitled? If they are, there is said to be successio or dinum.

¹      Only the principal features of each are given in what follows.

²                                  For the meaning of ‘nearer’, see immediately below.

(iii)  If the nearest relatives do not choose to make any claim, are the next nearest entitled, and so on? If they are, there is said to be successio graduum—if one ‘step’ or degree within a class refuses, the next is entitled.

(iv)   How are these degrees of nearness calculated ? The Roman rule was to count up to the common ancestor and then down to the person whose entitlement was in question, each generation being reckoned as one step or degree.

Finally, it must be remembered throughout what follows that succession to a Roman citizen was confined to Roman citizens and that therefore, for example, the issue of a marriage between a citizen and a peregrina without conubium could have no claim on their father’s inheritance. Whether they had any claim on their mother’s would depend on her ‘personal’ law.

Civil law. Until modified by imperial legislation, the civil law system was found in two clauses of the Twelve Tables with their interpretatio. The two clauses, as Ulpian knew them, ran: ‘Si intestatus moritur cui suus heres nec escit, adgnatus proxi­mus familiam habeto. Si adgnatus nec escit, gentiles familiam habento.’¹

(a)    Sui heredes have already been defined and the vested character of their interest explained.^{[104] [105]} It is only necessary to add that their shares were determined by the principle of representation {successio per stirpes}. The opening words of the first clause show not only that by the time of the Twelve Tables the making of a will was normal, but also that the rights of the suus heres were taken for granted as part of the aboriginal cus­tomary law. The Twelve Tables merely make provision for the destination of the property in the event of there being no suus heres.

(b)  Proximus adgnatus.

(c)  Gentiles. The nature of the succession of the gentiles and indeed of the gens itself is obscure, since even in the time of Gaius both had long been obsolete. The closest parallel to the gens is the clan, and in historical times the only positive mark of mem­bership of a gens, as now of a clan, was the bearing of a common name. (Thus C. lulius Caesar was a member of the gens lulia and M. Tullius Cicero of the gens Tullia.)

This system naturally reflects the structure of early Roman society. In particular there is, in contrast for example to the older English system of succession to land, no notion of primo­geniture and no preference for males over females. Primo­geniture remained foreign to Roman law throughout its history, but in the later Republic when large fortunes were becoming common, discrimination against women made a hesitating ap­pearance. No woman more remote than a sister could be entitled as proximus adgnatus. Women continued however to be entitled equally with men as sui heredes.

Bonorum possessio ab intestato. Such a narrowly agnatic system as that of the Twelve Tables was out of keeping with the ideas of the society which emerged from the economic and social up­heavals of the second and first centuries b.c. Gaius castigates it for its injustice. In particular, it ignored the ties of blood as such—it excluded all relatives through females and therefore, manus apart, denied succession even between mother and child; and it excluded any child who had been emancipated.

The Edict offered bonorum possessio to four classes, and there was a fixed time within which each class must apply (successio ordinum).

(i)    Liberi. These were children only in a limited and technical sense. The Praetor undertook no sweeping replacement of the agnatic suus heres by the cognatic ‘descendant’. He merely ignored the artificial destruction of the natural agnatic tie by emancipation, and allowed those natural descendants who would, but for emancipation, have been sui to claim bonorum possessio along with the sui. The class also included, consistently with the same principle, those who had been sui but had been given in adoption and subsequently emancipated by their adop­tive father; and conversely it did not include adoptive children who had been emancipated. Liberi, like sui, were entitled per stirpes, and the bonorum possessio was cum re.¹

(ii)  Legitimi. Whoever was entitled under the lex of the Twelve Tables could claim in this class.

(iii)  Cognati. By giving bonorum possessio to the liberi the Praetor would, unless all the liberi were sui, correct the civil law; by giving it to the legitimi he would support the civil law; here he would usually be supplementing it. The cognati were the blood relatives, including of course agnates, and including even those who had become agnates by adoption, but only so long as their artificial relationship had not been terminated by emancipation.

(iv)  Vir et uxor. Last of all comes the husband’s entitlement to his wife’s property and vice versa. To the modern eye the strangest

¹ There is one obvious injustice in this. Suppose, for example, that a man is survived by two sons, S, who was still in potestate at his father’s death, and E who had been emancipated. S and E are equally entitled to bonorum possessio, but S, having been in potestate until his father’s death, has no property of his own and all his acquisitions have been absorbed in the inheritance which E, who may have been given property on emancipation and has retained all his acquisitions since then, now claims to share. For instance, S and E may earlier have been joint-heirs under the will of a wealthy uncle. S’s share will have passed automatically to his father, and the result of E’s being entitled to bonorum possessio will be that he will not only retain his own share of the uncle’s estate but will also be entitled, in effect, to half of S’s share. The Praetor remedied this injustice by what an English lawyer would call a hotchpot rule (collatio bonorum). E would only obtain bonorum possessio if he undertook by stipulation to bring into account a proportion of his own property corresponding to S’s share of their father’s inheritance. feature of the civil law system is the absence of any right of succession of a wife to her husband and vice versa. The Roman saw things differently. His idea of the family was different from ours. If the wife was in manu she was a sua heres to her husband; if she were not in manu she would be a sua heres to her father; if her father had emancipated her, though by the civil law she would have no claim, she would be entitled to bonorum possessio as one of his liberi.

Nevertheless the Praetor did make this ultimate provision for succession between husband and wife. It cannot however have been of great practical importance since it only took effect if there were not even a sixth degree cognate, or none willing to take. In this case too the bonorum possessio was sine re.

This Praetorian system still had two serious defects. The rela­tionship of mother and child was only recognized in the class unde cognati; and the proximus adgnatus was preferred even to less remote cognates. There was scattered legislation in the course of the Empire, but no coherent reform, and Justinian’s Institutes in consequence present an untidy amalgam. Ten years later, however, Justinian initiated a remarkably radical break with the past.

The system of the Novels. In Novels 118 and 127 (a.d. 543 and 548) all vestiges of the suus heres, and of the distinctions between agnate and cognate and male and female, disappear and are replaced by the distinctions between lineal descendants, lineal ascendants, and collaterals. The order of succession was, in its main features, as follows (the nearer in each class excluding the more remote):

(i) Descendants per stirpes.

¹ 'Bonorum possessio under that part of the Edict by which liberi are called (to bonorum possessio).*

(ii)   Ascendants, and brothers and sisters. Children, but not grandchildren, of deceased brothers and sisters took per stirpes if there were a surviving brother or sister with whom to take (i.e. there was representation so long as there survived someone to keep the class of brother and sister alive). Subject to this rule of representation, succession was per capita.

(iii)  The nearest other collaterals, per capita, with no represen­tation, but with unlimited successio graduum. Thus if there sur­vived an uncle, a first cousin (son of a deceased uncle), and a nephew, the uncle and the nephew would be entitled to half each, and the cousin to nothing.

(iv)  The Basilica adds the same last resort as the Praetorian system—husband and wife.

If no claim were made the property went to the Treasury.

The unlimited successio graduum in the class of collaterals is in marked contrast to the modern English law which recognizes (after the surviving spouse, parents, brothers and sisters, grand­parents) no collateral more remote than an uncle or aunt, but does allow unlimited representation of these. Thus, in an extreme case, a great-grandson of an uncle (sixth degree) could succeed, but not the son of a great-uncle (fifth degree). Most modern Civil law systems now limit the claims of collaterals to the sixth degree, or less. German law places no limit, though the system now in force is not Roman. The English rule no doubt reflects the relative weakness of family ties in this country.