Universal succession and hereditas

Succession (successio), in general, means taking the place or position pre­viously occupied by another person. By far the most important case of

The law of succession 163 succession was succession upon death, i.e., the succeeding of an heir in the legal position of the deceased, for which the Latin term was hereditas (inheritance).

The primitive law of succession reflected the cohesion of the patriarchal family. The father survived in his sons, who were also his heirs. The heir, therefore, perpetuated the father’s personality and continued fulfilling the family duties (worship, administration of property, etc.). Roman jurists euphemistically called the deceased de cuius, an abbreviation of the Latin de cuius bonis agitur (he whose estate is concerned). This Latin expression continues to be used in many legal systems of the civil law tradition.

Succession was originally universal in the sense that it encompassed, as a unit, all the rights and duties of the deceased. Universality did not mean totality; it did not demand the appointment of just one heir. Much as the condition of son is not weakened by the fact of having siblings, the condition of heir was not diminished by the sharing of an inheritance with other heirs. The coheir, too, was universal in the sense of being entitled to a certain portion or quota of the entire estate, and not simply to particular items. Thus, according to this principle of universality, the share of a coheir increased when another coheir failed to take his share upon intestacy or under the will (ius adscres- cendi). The later Roman jurists applied the term succession to refer also to the acquisition of individual items, e.g., by legacy or donation mortis causa (Ulpian, D. 39.2.24.1a). This general distinction in Roman law between universal and singular succession has prevailed in modern law.

In general, we could say that rights related to property law and the law of obligations (so-called patrimonial rights) usually survived death, but there were important exceptions. Strictly personal rights and duties were excluded: for instance, the patria potestas was extinguished with the death of the father. Marriage was evidently extinguished with the death of one of the spouses. Usufruct, too, as a strictly personal real right, was extinguished by the death of the usufructuary. Some contractual relations (partnership and mandate) were extinguished by the death of a party, and penal actions were extinguished by a debtor’s death. Possession, as a de facto condition, passed to the heir only once he came to physically hold the thing belonging to the estate.