Intestate Succession Under the Law of the Twelve Tables
The order of intestate succession as prescribed by the Law of the Twelve Tables placed the sui heredes as the first priority, thereafter the proximi agnati and finally the gentiles.[1043]
The first group of heirs entitled to the estate were the sui heredes; that is, those free persons who fell under the potestas of the deceased and who became sui iuris on his death.
As a rule, this group included the testator’s children (filii familias and filiae familias) and further descendants (e.g. grandchildren) who did not themselves have a male ascendant who would become sui iuris on the testator’s death; his adoptive children; his wife, if she had been married to him in manu; his children born after his death (postumi); and children with respect to whom the testator had commenced emancipation proceedings that had not yet been completed.[1044] The sui heredes succeeded equally and were compelled to inherit irrespective of whether they wished to do so (hence they were also called heredes sui et necessarii).[1045]If there were no sui heredes, the estate was transferred to the nearest agnatic relatives (proximi agnati). This group was comprised of the collaterals who, through the male line, were most closely related to the deceased and had previously fallen under the potestas of a common paterfamilias. As a rule, this group included the brothers and sisters of the testator as well as his uncles and aunts or the nearest descendants of these persons. The nearest kin succeeded to the exclusion of those who were further removed. In the event there was more than one agnate of the same degree of kinship, the testator’s property was divided per capita, i.e. each of them obtained an equal share, without the possibility of representation. For example, if there were two brothers they each obtained equal shares and excluded nephews and nieces of the testator related through a deceased third brother. Otherwise than in the case of the sui heredes, the proximi agnati could lawfully refuse to accept the succession (hence they were described as heredes voluntarii), in which case the second tier of nearest agnati could succeed.[1046]
Finally, if there were neither sui heredes nor proximi agnati the estate devolved on the gens or clan of the deceased—a group of families claiming descent from a common ancestor and connected to each other on the grounds of certain common interests.[1047]
5.2.2
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