Praetorian Intestate Succession

As Roman society developed, the system of intestate succession elaborated by the Law of the Twelve Tables proved inadequate in several respects.

Among the principal defects was that the system excluded from succession emancipated children or children given in adoption, relations through females, collaterals with respect to whom the agnatic bond had been broken by capitis deminutio, female agnates beyond the degree of sisters and blood relations (cognati). To address these and other disadvantages, the praetor introduced a series of edicts whereby a new system of intestate succession was gradually developed that finally replaced the old order of the ius civile. In these edicts the praetor promised to grant certain persons, who otherwise could not inherit, the possession of the deceased person's estate (bonorum possessio) on the understanding that they could acquire ownership of such estate as ‘praetorian’ or ‘bonitary’ owners by means of prescription.^{^[1048]} Following an application by the interested party, the praetor investigated whether the applicant belonged to one of the groups to which bonorum possessio was promised and, if this was the case, granted the interdictum quorum bonorum. By means of this interdict the assets of the deceased’s estate could be claimed from anyone who held them as an heir or simply as a possessor without a title (sine causa) and once in possession, usucapio of 1 year rendered the possessor heir (heres). Although the praetor could not designate anybody as an heir against the existing rules of the ius civile, he could place a person in the position of an heir and thereby achieve the same end result.^{^[1049]}

The first group of persons who could acquire bonorum possessio were the liberi, comprising the descendants of the deceased (including emancipated children), irrespective of whether or not they became sui iuris on his death.^{^[1050]} If there were no liberi or if the existing liberi did not apply for bonorum possessio within the prescribed time, the second group that could demand possession were the legitimi, i.e. those persons that could inherit in accordance with the Law of the Twelve Tables (sui heredes, proximi agnati, gentiles).

The third category of persons who could request possession in default of the above-mentioned groups were the proximi cognati, i.e. all blood relations of the deceased through males or females up to and including the sixth degree.^{^[1051]} Finally, the surviving husband or wife of the deceased could request bonorum possessio in accordance with the edictum unde vir et uxor. This would only apply in the case of a marriage sine manu where both spouses were sui iuris.^{^[1052]}

In default of all the above-mentioned groups, the inheritance was treated as property without an owner (bona vacantia) and devolved on the state treasury (fiscus).^{^[1053]}

The praetorian system of intestate succession described above remained in place until the time of Justinian. However, several modifications to that system were introduced during the Principate age to strengthen the position of blood relatives and, more specifically, to improve the rights of succession between mother and child. This was a logical consequence of the increasing emancipation of women especially after the marriage sine manu became the prevailing form of marriage in Rome. The most important of these changes were effected by means of two senatorial resolutions: the senatus consultum Tertullianum, passed in the time of Hadrian (ad 117-138); and the senatus consultum Orfitianum (ad 178). The former granted a mother who had the ius liberorum^{^[1054]} a right of succession on intestacy to her children’s inheritance,^{^[1055]} while according to the latter the children were the first to succeed to the estate of a mother who died intestate.^{^[1056]}

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Source: Mousourakis G.. Fundamentals of Roman Private Law. Springer, 2012.— 366 p.. 2012

Praetorian Intestate Succession

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