Intestate Succession in Justinian's Law
Although the praetorian intestate succession along with the modifications effected by the above-mentioned senatorial resolutions was initially retained by the drafters of the Justinianic codification, Justinian in the late stages of his reign introduced a completely new system of intestate succession based on blood relationship (cognatio) by means of two important Novels (Novellae 118 and 127).
Under the new system, the descendants (descendentes) of the deceased were the first to succeed, regardless of whether they were related through the male or female line.
Adopted and legitimized descendants were also included.[1057] The testator’s estate was divided per stirpes[1058] and representation (representatio) was possible.If there were no descendants, the estate devolved on the ascendants (adscendentes) and the brothers and sisters of the deceased. Where there were only ascendants, the nearer excluded the more remote. If there were more than one ascendant in the same degree (e.g. two grandfathers and a grandmother), the estate was divided and each line of ascendants (i.e. the paternal and maternal line) was given half of the estate. That half portion was then divided per capita among the nearest ascendants of each line. If there were surviving full brothers and sisters of the deceased, besides the ascendants, the estate was divided among the nearest ascendants and the brothers and sisters per capita—in this case the estate was not divided between the two lines of ascendants. Where there were no ascendants, the estate was divided per capita between the brothers and sisters with representatio being allowed.
Children (but not further descendants) of a deceased brother or sister could succeed in the place of such brother or sister by way of representatio.If there were no members of the second group, half-brothers and half-sisters inherited per capita, and representation by their children (but not by further descendants) was also recognized.
Where there were no representatives of the three classes mentioned above, all other blood relatives had a turn at succession with no limit of remoteness.[1059] The estate was again divided per capita among the cognati with the nearer degree excluding the more remote and without the possibility of representation.
Furthermore, although it was not expressly stated, it would appear that if there were no blood relatives at all the surviving spouse could succeed as a last resort.
If the deceased left no interstate heirs, the estate became bona vacantia and was acquired by the state treasury (fiscus).[1060]
5.3
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