HERES
HERES,
Greek
The Athenian laws of inheritance are to be explained under this title.
The subject may be divided into five parts, of which we shall speak:
1st, of personal capacity to inherit; 2ndly, of the rules of descent and
succession; 3rdly, of the power of devising; 4thly, of the remedies of
the heir for recovering his rights; 5thly, of the obligations to which
he succeeded.
1. Of personal Capacity to inherit.
To obtain the right of inheritance as well as citizenship (
ἀγχιστεία and
πολιτεία), legitimacy was a necessary qualification.
Those children were legitimate who were born in lawful wedlock or in
concubinage with an Athenian woman after legitimation. The validity
of a marriage depended partly on the capacity of the contracting
parties, partly on the nature of the contract. On the first point
little needs to be noticed here, except that brother and sister by
the same mother (
uterini) were
forbidden to marry (not in Egypt: cf. Theocrit. 17.128 ff.,
ἐκ θυμοῦ στέργοισα κασίγνητόν τε πόσιν
τε); but consanguinity in general was so far from being
deemed an objection, that marriage between collateral relations was
encouraged, in order to keep the property in the family (Andoc.
c. Alcib. § 33 ; Lys.
c.
Alcib. 1.41; Dem.
c. Leoch. p. 1083.10; c.
Eubul. p. 1305.21;
Plut.
Cim. 4,
Themist. 32). The contract was
[p. 1.944]made by the husband with the father,
brother, or grandfather
πρὸς
πατρὸς of the intended wife (Dem.
c.
Leoch. p. 1095.49; Lex ap. [Dem.]
c. Steph.
ii. p. 1135.18): then only was she properly betrothed (
ἐγγυητή). An heiress, however, was
assigned, or adjudged, to the next of kin (
ἐπιδικασθεῖσα) by process of law, as explained
under
EPICLERUS
(Isae.
Philoct. § 14,
ἢ ἐγγυηθεῖσαν κατὰ τὸν νόμον ἢ
ἐπιδικασθεῖσαν: the
ἐγγύη is
γάμου ἀπογραφή,
Hesych. sub voce). No ceremony was
necessary to ratify the contract; but it was usual to betroth the
bride in the presence of witnesses, and to give a marriage feast,
and invite the phratores of the husband, for the sake of publicity.
[
GAMELIA] Children
of an Athenian mother, not born in wedlock, possessed civic rights
(
ἐλεύθεροι), and their father
could procure for them heritable rights only by an act of
legitimation (
ποιεῖσθαι, Andoc.
de Myst. § 124; Dem.
c.
Boeot. i. p. 1003.29). Without this act of
legitimation--which was possible only if the mother was an Athenian
[
CONCUBINA]--such
childen possessed no right of succession (
νόθῳ μηδὲ νόθῃ εἶναι ἀγχιστείαν, Isae.
Philoct. § 47, etc.;
Att.
Process, ed. Lipsius, p. 501 ff.).
2. Of the Rules of Descent and Succession.1
Here we would premise that, as the Athenian law made no difference in
this respect between real and personal estate, the words
“heir,”
“inherit,” etc., will be applied indiscriminately to
both. When an Athenian died leaving sons, they shared the
inheritance (
ἰσόμοιροι, Isae.
Philoct. § 25), like our heirs in
gavelkind, and as they now do in France: this was also the case when
the sons were by different mothers (Dem.
pro Phorm.
p. 954.32), or when a person, after having adopted a son, had sons
of his own (Isae.
Philoct. § 63); for any
one adopted into another family lost all rights of succession in the
one from which he sprang (Isae.
Astyph. § 2;
Arist. § 4; Dem.
c.
Leoch. p. 1089.28). The eldest son had no essential
advantage over the others (Philippi,
Gesch. d. att.
Bürgerr. p. 193; in Dem.
pro
Rhorm. p. 955.34 f.,
πρεσβεῖά τε
τὴν συνοικίαν ἔλαβε κατὰ τὴν διαθήκην).
Sometimes the sons lived on the joint, undivided property, sometimes
they divided the money and possessed the other inheritance in common
(Aeschin.
c. Tim. § 102; Dem.
c.
Leoch. p. 1086.18; [Dem.]
c. Eubul. et
Mnes. p. 1149.34; Harpocr. s. v.
κοινωνικῶν; Lys.
c. Diog. §
4, etc.).
Sisters had no claims to a share, but it was incumbent upon the
brothers to give them suitable marriage portions; they were then
called
ἐπίπροικοι (Harpocr. s. v.
ἐπίδικος). There was no
positive law making it imperative on a brother to give his sister a
portion of a certain amount; but the moral obligation to assign her
a fortune corresponding to his own rank was strengthened by custom
and public opinion, insomuch that if she was given in marriage
portionless, it was deemed a slur upon her character
(Schömann
ad Isae. p. 233).
Mantitheus gave each of his two sisters a portion
[p. 1.945]of 20 minas, although the property left him was not
large (Lys.
pro Mant. § 10; cf. Isae.
Pyrrh. §§ 51, 49; Dem.
c. Aphob. ii. p. 834.65;
c. Boeot.
ii. p. 1014.19,
ἐκδοθεῖσα ὑπὸ τῶν
ἀδελφῶν τῶν αὑτῆς, ὥσπερ οἱ νόμοι
κελεύσυσιν).
On failure of sons and their issue, daughters and daughters' children
succeeded [
EPICLERUS]; daughters and the children of deceased daughters
took
per stirpes (Grasshoff,
Symb. ad doctrin. jur. attic. de heredit. pp.
23-30). There seems to have been no limit to the succession in the
descending line (Isae.
Ciron. § 34). If the
deceased left grandsons by different sons, it is clear that they
would take the shares of their respective fathers. So if he had a
grand-daughter by one son, and a grandson by another, the latter
would not exclude the former, as a brother would a sister, but both
would share alike. Of this there is no direct evidence; but it
follows from a principle of Attic law, by which, on the birth of a
son, his title to his father's inheritance, or to a share thereof,
immediately accrued; if then he died before his father, but leaving
issue, they claimed their grandfather's inheritance as representing
him. It was otherwise with daughters. Their title did not thus
accrue; and therefore it was the practice for the son of an heiress
to be adopted into his maternal grandfather's house, and to become
his son in point of law.
On failure of lineal descendants the collateral branches were
resorted to. And first came the issue of the same father with the
deceased; viz. brothers and brothers' children, the children of a
deceased brother taking the share of their father (Isae.
Hagn. § 1 ff.;
Apollod.
§ 5 f. etc.); and after them, sisters and sisters'
children, among whom the principle of representation also prevailed
(Isae.
Apollod. § 19. In Dem.
c.
Macart. p. 1067.51, Meier,
Opusc. i. p.
237 n., inserts
ἀδελφὰς καὶ
παῖδας between
ἢ ἀδελφῶν
παῖδες and
ἐξ αὐτῶν κατὰ
ταὐτὰ λαγχάνειν); sisters' children took
per stirpes.
Next come the descendants of the same grandfather with the deceased:
uncles (Grasshoff,
l.c. p. 67 ff.), cousins
and cousins' children, aunts and their issue. Here the law declared
that males and the issue of males should be preferred to females and
their issue:
οἳ ἂν ἐκ τῶν αὐτῶν ὦσι,
κἂν γένει ἀπωτέρω τυγχάνωσιν ὄντες, Isae.
Apollod. § 20; cf. Dem.
c.
Macart. p. 1067.51. Thus the grandson of an uncle would
exclude the daughter of an uncle, and the grandson of an aunt would
exclude the daughter of an aunt. On the same principle Isaeus
(
Apollod. l.c.) contends that the son of a female
first cousin prevented his mother's sister from inheriting, although
he was further removed from the deceased by one degree; whilst when
a brother dies without issue, his sister and the son of a deceased
sister would share the inheritance in equal parts. The various
explanations of
οἱ ἂν ἐκ τῶν αὐτῶν
ὦσι are fully discussed by Grasshoff,
l.c. p. 60 ff. (cf.
Att.
Process, ed. Lipsius, p. 586, n. 275), who adopts that of
Schömann: “praeferri viros virisque prognatos (scil.
feminis iisque qui a feminis descendant), si ex iisdem sint
(scil. e quibus feminae et qui a feminis descendant), etiamsi
propinquitate sint remotiores (scil. quam feminae et qui a
feminis descendant).” Since the law about the preference
of males to females is sometimes quoted without any limitation as to
its application (Dem.
c. Macart. p. 1077.78;
c. Leoch. p. 1084.12, p. 1098.62), Buermann
(
Rhein. Mus. 1877, p. 365) looks
upon this as a mere artifice of the speaker. The law (Isae.
Hagn. § 2, etc.) is said to limit the
ἀγχιστεία at the
παῖδες ἀνεφιῶν (and descendants,
Att. Process, ed. Lipsius, p. 586, n. 275): on
this Eubulides founds his pretension to the estate of Hagnias;
because he claims as representative (son by adoption) of his
maternal grandfather, who was first cousin to Hagnias; whereas the
father of his opponent, Macartatus, was second cousin to Hagnias,
and as the speaker adds, “it is not proper for any person to
possess the estate of Hagnias who belongs to a different branch
of the family, as long as there remains any person who sprang
from the branch of Hagnias” (Dem.
c.
Macart. p. 1058.27 f.).
On failure of first cousins and their issue, the inheritance went to
the half-blood by the mother's side (
κατὰ τὰ
αὐτά): brothers and sisters, uncles and aunts
πρὸς μητρὸς and their
children. But if there were no maternal kinsmen within the legal
degree, it returned to the
agnati, or
next of kin on the paternal side (
τοὺς πρὸς
πατρός), whose proximity was traced by counting the
degrees from the common ancestor (Isae.
Hagn.
§ 1 ff.).
The succession of parents to their children is a matter of dispute
among the learned, and the reader is referred to
Att.
Process, ed. Lipsius, p. 579 ff, where the different
opinions of the scholars who have treated that question are
criticised. From the silence of the orators and the absence of any
example, it may be inferred that parents could not inherit at
Athens. At Athens the maxim
hereditas nunquam
ascendit held only of lineal, not of collateral
ascent. For example, an uncle might inherit (Isae.
Cleon. § 45 f.). So also he might marry the
heiress, as next of kin (Isae.
Pyrrh.
§§ 63, 74).
3. Of the power of Devising.2
That the owner had power to alienate his property during his
lifetime, and that such alienation was valid in point of law, both
as against the heir and all the rest of the world, is beyond a
doubt.
Every man of full age and sound mind, not under durance or improper
influence ([Dem.]
c. Steph. ii. p. 1133.16; Isae.
Philoct. § 9),
[p. 1.946]who was not
ὑπεύθυνος (Aeschin.
c. Ctes. § 21), was competent to make a
will; but if he had a son, he could not disinherit him (Dem.
c. Lept. p. 488.102; Isae.
Pyrrh.
§ 68--yet see Dion. Halic.
A. R. 2.26,
ἐξελάσαι τῆς οἰκίας καὶ χρήματα μὴ
καταλιπεῖν); although his will might take effect on
the contingency of the son not completing his seventeenth year
([Dem.]
c. Steph. ii. p. 1136.24). Legacies might be
given to friends and relations, especially to those who performed
the office of an executor or testamentary guardian (Dem.
c.
Aphob. i. p. 814, §§ 4, 5; p. 827.43;
pro Phorm. p. 955.34 f.;
c. Steph.
i. p. 1110.28; cf. the will of Conon in Lys.
de
Bon. Arist. § 39 f.:
τῇ μὲν Ἀθηνᾷ καθιέρωσεν εἰς ἀναθήματα καὶ τῷ
Ἀπόλλωνι εἰς Δελφοὺς πεντακισχιλίους στατῆρας, τῷ δὲ
ἀδελφιδῷ τῷ ἑαυτοῦ, ὃς ἐφύλαττεν αὐτῷ καὶ
ἐταμίευε πάντα τὰ ἐν Κύπρῳ, ἔδωκεν ὡς μυρίας
δραχμάς, τῷ δὲ ἀδελφῷ τρία τάλαντα, τὰ δὲ λοιπὰ τῷ
ϝἱεῖ κατέλιπε, τάλαντα ἑπτακαίδεκα, i. e. not
nearly half his estate). And in the division of property among sons,
the recommendations of the father would be attended to (Dem.
c. Macart. p. 1055.19;
pro Phorm.
p. 955.34). Also a provision, not exceeding a thousand drachmas,
might be assigned to an illegitimate child (Harpocr. s. v.
νοθεῖα; five hundred drachmas, Schol. on
Aristoph. Birds 1655). Nor
could a man separate his estate from his daughter (Isae.
Pyrrh. §§ 42, 68 f.), though he
might devise the estate to any person on condition of his marrying
her.
It was only when a man had no issue that he was at full liberty to
appoint an heir. His house and heritage were then considered
desolate (
ἔρημος καὶ ἀνώνυμος),
a great misfortune in the eyes of an Athenian; for every head of a
family was anxious to transmit his name and religious usages to
posterity. The same feeling prevailed among the Greeks in more
ancient times. We learn from Hesychius and the
Etymol.
Mag. that distant relations were called
χηρωσταί, because, when they inherited,
the house was
χηρεύων καὶ
ἔρημος. (See
Hom. Il.
5.158;
Hes. Th. 607.) To
obviate this misfortune an Athenian might adopt a son either during
his lifetime (Isae.
Menecl. § 10 ff.;
Apollod. § 1
ff.; Dem.
c. Spud. p. 1028.3;
c.
Leoch. p. 1086.19) or by will (Isae.
Apollod.
§ 1;
Astyph. § 1;
Arist. § 9, etc.) from any
citizen's family. An adopted son might not bequeath by will
τὰ ἐν τῷ οἴκῳ ὅτῳ ἂν ποιηθῇ
(Dem.
c. Leoch. p. 1100.67 f.); Apollodorus
interprets this law to apply also to those who had been made
citizens ([Dem.]
c. Steph. ii. p. 1133.15,
ἐπεποίητο ὑπὸ τοῦ δήμου πολίτης).
Wills were in writing (even the will of Hercules is represented as in
writing,
παλαιὰν δέλτον ἐγγεγραμμένην
ξυνθήματα,
Soph. Trach. 157 f.), and usually
had one (Dem.
c. Aphob. ii. p. 840.15) or more
attesting witnesses--friends or relatives of the testator--whose
names were inserted in the will (Isae.
Astyph.
§ 12,
ἐγγεγράφθαι ἐν τῷ
γραμματείῳ: not superscribed, as Heraldus,
Animadv. 2.5, 16, 20, thought), but who were not
required to sign it nor were even necessarily made aware of its
contents (Isae.
Nicostr. § 13). These
witnesses could therefore only bear witness to the fact that a will
had been made (
καταλιπεῖν
διαθήκας), not to the genuineness of the will produced.
It was considered a badge of fraud if wills were made secretly or in
the presence of strangers (Isae.
Astyph. § 7
ff.). It was not necessary that the testator should write or even
sign the will himself; but he sealed it (Isae.
Apollod, § 1;
Aristoph. Wasps 584. From Dem.
c. Aphob.
ii. p. 837.5, it does not follow that the witnesses sealed it as
well: cf. Philippi,
Symb. ad doctr. jur. att. de
syngraphis, p. 9) and deposited it (sometimes in several
copies, Isae.
Apollod. § 1; Lys.
c.
Diog. § 7) with friends or a magistrate (Isae.
Philoct. § 7;
Astyph.
§ 5 f.; Dem.
pro Phorm. p. 946.7--Isae.
Cleon. § 14 f.). A will was ambulatory
until the death of the maker; he might revoke it (
ἀνελεῖν, λῦσαι, Isae.
Cleon. §§ 14, 18 ff.) either by
destroying it or by declaring before witnesses that it was void
(
ὡς οὐκέτ᾽ αὐτῷ κέοιθ᾽ ἡ
διαθήκη, Isae.
Philoct. § 32; a
new will did not in itself revoke an old one), or he might make
additions either to the will itself (
προσγράφαι) or by a separate, codicil (Isae.
Cleon. § 25). (
Att.
Process, ed. Lipsius, p. 589 ff.)
With respect to the proceeding by which a father publicly renounced
his paternal authority over his son, see
APOKERYXIS
4. On the Remedies of the Heir for recovering his Rights.
A son, whether natural or adopted during the owner's lifetime (Dem.
c. Leoch. p. 1086.19: the statement in Isae.
Pyrrh. § 61, is too wide), or other male
descendant, might enter and take possession of the estate
immediately after the owner's death (
ἐμβατεύειν εἰς τὰ πατρῷα, Isae.
Pyrrh. § 62;
εἰς τὸ
χωρίον,
Astyph. § 3;
εἰς τὴν
οὐσίαν, Dem.
c. Leoch. p. 1090.32,
etc.). If he was prevented by
ἐξαγωγὴ from so doing, he might bring an action of
ejectment against the intruder [
EXOULES DIKE]. Any one who disturbed a minor
or a woman in the enjoyment of their patrimony was liable to a
criminal prosecution (
κακώσεως
εἰσαγγελία, Isae.
Pyrrh. § 62).
If any one brought forward legal claims to the estate, he tendered
an affidavit (
διαμαρτυρία) sworn
either by himself or by another, e. g. the
κύριος (Dem.
c. Leoch. p. 1096.54;
Isae.
Pyrrh. § 2 f.). wherein he declared
that the estate was not the subject of litigation (
μὴ ἐπίδικον εἶναι τὸν κλῆρον,
Isae.
Philoct. § 4); he also deposited the
tenth part of the value of the property in dispute (
παρακαταβολή). If then the suitor was
resolved to prosecute his claim, he had no other course but to
procure a conviction of the witness (who had sworn the affidavit) in
an action for false testimony (
δίκη
φευδομαρτυριῶν). With respect to the original cause,
nothing further was determined than that it could or could not be
entertained; if the court decided that the suit could be
entertained, the parties proceeded to trial in the manner explained
below. When the parties proceeded at once to the trial (without
διαμαρτυρία), it was called
εὐθυδικίᾳ εἰσιέναι or
εἰσέρχεσθαι (Isae.
Apollod. § 13;
Philoct.
§ 3).
Other heirs-at-law and claimants by adoption or devise were not at
liberty to enter, until the estate was formally adjudged to them.
The proper course was to make application to the archon, who
attended at his office for that purpose every month in the year
except the last (Scirophorion; [Dem.]
c. Stephan. ii.
p. 1136.22,
lex), or, in case of
metoecs and foreigners,
[p. 1.947]to the polemarch
(
l.c. § 23). This application
was called
λῆξις or
ἐπιδικασία τοῦ κλήρου: to make an
application,
λῆξιν λαγχάνειν, or
λαγχάνειν, or
ἐπιδικάζεσθαι τοῦ κλήρου. The archon
caused this application to be inscribed on the
σαϝίς and to be read out at the first regular
assembly held after he had received notice; probably at the same
assembly the herald asked
εἴ τις
ἀμφισβητεῖν ἢ παρακαταβάλλειν βούλεται τοῦ κλήρου ἢ
κατὰ γένος ἢ κατὰ διαθήκας (Dem.
c.
Macart. p. 1051.5). The different explanations given by
the grammarians as to the difference in meaning between
ἀμφισβητεῖν and
παρακαταβάλλειν can scarcely be correct;
παρακαταβάλλειν seems to imply a claim
to the estate, whilst
ἀμφισβητεῖν,
a term of more general import, simply means disputing and objecting
to the claim made. The deposit (
παρακαταβολή) was the tenth part of the value of the
property in dispute: it was returned to the party if successful; if
not, it went to the treasury. In Isae.
Nicostr.
§ 11, a severer penalty is suggested for those who claim an
estate
κατὰ δόσιν, i. e.
κατὰ διαθήκας, viz. that they should
pay to the treasury a sum equal to the value of the estate, if
unsuccessful.
If no other claimant appeared, the archon adjudged the estate to the
first suitor before a heliastic court (
ἐπεδίκασεν αὐτῷ τὸν κλῆρον: cf. Isae.
Pyrrh. § 43). If, however, there were
adverse claims, he proceeded to prepare the cause for trial
(
διαδικασία τοῦ κλήρου).
First came the
ἀνάκρισις, in the
usual way, except that no party was considered as plaintiff or
defendant; and the bills in which they set forth their respective
titles were called
ἀντιγραφαί
(Harpocr. s.v. Dem.
c. Leoch. p. 1092.39; [Dem.]
c. Olymp. p. 1175.31). The dicasts were then to
be summoned, and, whatever the number of parties, one court was held
for the decision of all their claims. If any one neglected to attend
on the appointed day, and had no good excuse to offer, his claim was
struck out of the record (
διεγράφη ἡ
ἀμφισβήτησις), and the contest was carried on
between the remaining parties, or, if but one, the estate was
awarded to him ([Dem.]
c. Olymp. p. 1174.26). The
trial was thus managed. The dicasts had to give their verdict either
for one person proving a title to the whole, or for several persons
coming in under the same title, as (for instance) two brothers
entitled each to a moiety. One balloting box therefore was provided
for every party who appeared in a distinct interest (Isae.
Hagn. § 21) [
PSEPHUS]. The speeches were measured by the
clepsydra. Each claimant had an
ἀμφορεὺς of water for his first speech and three
χοεῖς for the second; in Dem.
c. Macart. p. 1052.8, the speaker complains that
he had only
πέμπτον μέρος τοῦ
ὕδατος to conduct the case of Phylomache: there were
altogether five claimants, but the brothers Glaucus and Glaucon came
in under the same title, claiming a moiety each, hence one balloting
box was provided for the two together, but they had each as much
time allowed as every other claimant Caillemer,
l.c. p. 161 f.). That these arrangements gave rise to
fraud and collusion, is clearly shown in the cases above cited.
The verdict, if fairly obtained, was final against the parties to the
cause, unless the defeated party won a
δίκη
φευδομαρτυριῶν (Isae.
Hagn. §
45;
Dicaeog. § 14), or put forth a different
claim (Dem.
c. Macart. p. 1051.4 ff.). But any other
person, who by absence or unavoidable accident was prevented from
being a party, might afterwards bring an action against the
successful candidate, to recover the estate. If the estate had been
claimed
κατὰ δόσιν and adjudged,
it was necessary first to prove that the will was not genuine,
before the estate could be claimed
κατὰ
γένος (Isae.
Nicostr. § 25).
The claimant was obliged to pay his deposit (which, if he was
unsuccessful, was paid to the party in possession), summon the
defendant, and proceed in other respects as in an ordinary suit.
This he might do at any time during the life of the person in
possession, and within five years after his death (Isae.
Pyrrh. § 58; [Dem.]
c.
Olymp. p. 1175.29 f.; Dem.
c. Macart. p.
1054.16). (
Att. Process, ed. Lipsius, p. 603 ff.)
5. Of the Obligations to which the Heir succeeded.
The first duty of an heir, as with us of an executor, was to bury the
dead and perform the customary funeral rites (
τὰ νομιζόμενα ποιεῖν, Aeschin.
c.
Tim. § 13 f.); the guardian acted as representative
for the heir under age (Isae.
Cleon. § 10).
It is well known what importance was attached to this by the
ancients (cf. Gortyn Code, 10.42 ff.). The Athenian law regulated
the time of burial, and the order in which the female relations
should attend (Dem.
c. Macart. p. 1071.62; Antiph.
de Choreut. § 34). if no money was left
to pay the expenses of burial, still the nearest relatives were
bound to defray them; and if they neglected to perform their duty,
the chief magistrate (
δήμαρχος) of
the demus in which the death took place, after warning them by
public notice (
ἀνελεῖν καὶ καταθάφαι καὶ
καθᾶραι τὸυ δῆμον), got the work done by contract,
paid for it himself, and was then empowered to sue them for double
the amount. When a rich man died, there was no backwardness about
his funeral. It is rather amusing to see how eagerly the relations
hastened to show respect to his memory, as if to raise a presumption
of their being the heirs (Isae.
Nicostr. §
19;
Astyph. §§ 4, 32;
Ciron. §§ 21-24; Dem.
c.
Leoch. p. 1090.32).
Children who neglected to bury their parents were liable to a
criminal prosecution (
γραφὴ κακώσεως
γονέων), just as they were for refusing to support or
assist them in their lifetime. The word
γονεῖς in this case includes all ancestors
(
Att. Process, ed. Lipsius, p. 355).
Among heritable obligations may be reckoned that of marrying a poor
heiress (
θῆσσα), or giving her in
marriage with a portion [
EPICLERUS]
3
[p. 1.948]
A son or a grandson could not renounce the succession, but a brother
might, provided he had not yet entered upon the inheritance ([Dem.]
c. Lacrit. p. 924.4). The heir succeeded to all
the claims and the liabilities of the deceased, even beyond the
value of the assets, and entering upon an involved (
ὑπόχρεως) property might lead to the
loss of the heir's own property ([Dem.]
c. Timoth. p.
1196.43 ; Dem. c.
Aphob. ii. p. 836.2;
c.
Everg. p. 1148.32; Lys.
de pec.
publ. § 3 ff.; Isae.
Arist. § 15 f.); fourteen years after
Aristaechmus had been sued by his wards, Nausimachus and Xenopithes,
and received a release from them, they brought a
δίκη βλάβης against his heirs (Dem.
c. Nausim. p. 988.13 ff.), and Callippus brought
a fresh action (
ἀργυρίου) against
Apollodorus after his father's death (Dem.
c.
Callipp. p. 1240.14 ff.). Of course, in case of a mortgage,
he was entitled only to the surplus of the mortgaged property,
remaining after payment of the debt charged thereon (Dem.
c.
Spud. p. 1030.7).
State debtors, such as farmers of the public revenue who had made
default, or persons condemned to pay a fine, were disfranchised
(
ἄτιμοι) until they had
settled the debt; and the disgrace extended to their posterity. Thus
Cimon, son of Miltiades, was compelled to pay a fine of fifty
talents which had been imposed on his father; and the story is, that
Callias advanced him the money, in return for the hand of his sister
Elpinice. (Dem.
c. Androt. p. 603.34;
c.
Timocr. p. 762.201;
c. Theocr. p.
1326.17;
c. Macart. p. 1069.58; and Andoc.
de
Myst. § 73.) When the whole of a man's property
was confiscated, of course nothing could descend to his heir. It
seems to have been a common practice, in such a case, for the
relations of the deceased to conceal his effects, or to lay claim to
them by pretended mortgages. Against these frauds there were severe
penalties, as may be seen from the speeches of Lysias
c.
Philocr. and
de Bon. Arist.
(Meier,
de Bon. Damn. p. 212).
The posterity of those who were put to death by the people, or were
convicted of certain infamous crimes (
ὁπόσοι
κλοπῆς ἢ δώρων ὄφλοιεν, Andoc.
de
Myst. § 74: cf. Dem.
c. Mid. p.
551.113,
lex), inherited the
ἀτιμία of their ancestors, a
damnosa hereditas, which they could not
decline or escape from. (Ps.-
Plut.
Vit. X. Orat. p. 834 A; Dem.
c.
Aristocr. p. 640.62,
lex; c. Macart. p.
1069.57,
lex.) It may be compared to
the corruption of blood following upon attainder in the feudal law.
Privileges, on the other hand,
σίτησις ἐν
Πρυτανείῳ, προεδρία, ἀτέλεια were hereditary in
the families of Harmodius, Aristogiton, and others (Isae.
Dicaeog. § 47: cf. Dem.
c.
Lept. p. 466.29;
Plut. Dem.
31;
PRYTANEUM),
ἀτέλεια in the
families of Conon and Chabrias; in other instances the granting of a
privilege was personal (
C. I. A. ii. No. 251, etc.),
and was only by a special clause extended to the eldest descendant
(
ἐκγόνεν τῷ πρεσβυτάτῳ ἀεί,
C. I. A. ii. No. 331, etc.; Ps.-
Plut. Vit. X. Orat. p.
850 F, p. 851 D).
Isaeus tells us that parents who apprehended their own insolvency
used to get their children adopted into other families, that they
might escape the consequences (
Arist.
§ 17). This however, could not be done, after the infamy
had once attached (Meier,
de Bon. Damn. pp. 106, 136;
Aeschin.
c. Ctes. § 21); and from Ps.-Plut.
l.c. p. 834 A, we learn that those who
received the descendants of Archeptolemus and Antiphon into their
family incurred the same penalty.
We find no mention of property escheating to the state for want of
heirs. This probably arose from a principle of Athenian law,
according to which no civic family was suffered to expire; and
therefore the property of an intestate was always assigned to such
person as was most fit to be his successor and representative.
If a manumitted slave died without leaving children, his property
fell to his patron and his patron's family (Isae.
Nicostr. § 9); sometimes the owner specially
reserved to himself the right of succession (
Inscr.
recueillies à Delphes par Wescher et Foucart,
p. 226 ff.). The property of metoecs fell to their relations ([Dem.]
c. Steph. ii. p. 1135.22); in default of
relations, it fell to the state (Meier,
l.c.
p. 148) or to the
προστάτης
(Caillemer,
l.c. p. 141). (
Att.
Process, ed. Lipsius, pp. 588, 598 ff.) [
C.R.K] [
H.H]
(Appendix). The Thirty
are said (100.35), to have struck out in Solon's law relative to the
right of bequest (
περὶ τοῦ δοῦναι τὰ
ἑαυτοῦ ᾧ ἂν ἐθέλῃ) the provisions
ἐὰν μὴ μανιῶν ἢ γηρῶν ἢ γυναικὶ
πιθόμενος, to limit the opportunities of the
sycophants (
ὅπως μὴ ᾗ τοῖς συκοφάνταις
ἔφοδος).
2. Roman
Heres or
heredes signifies the person or persons who succeeded to the
entire inheritance of a deceased person under the rules of the Jus
Civile; this was a species of universal succession, the whole property
being considered a
universitas [
UNIVERSITAS]. Such a
succession comprehended all the rights and liabilities of the person
deceased, except in so far as they terminated with his life, and was
expressed by the term
hereditas. The word
hereditas is accordingly defined to be
a succession to all the rights of property of the deceased (
Dig. 50,
16,
24). As universal successor, the heres was
subject to the debts of the deceased, as if he himself had contracted
them. Several heredes (
coheredes) succeeded
together to the entire inheritance, though they might take in different
proportions. The word
hereditas may also
mean the property and other rights which are the object of the
succession. The terms
familia pecuniaque
were used to denote the family and proprietary rights of a
paterfamilias, and so sometimes express the rights which devolved on the
heres (
Cic. de Inv. 2.5.
0, 148;
de Legg. 3.3, 7; Gaius, 2.104; cf.
Cic. Top. 6; FAMILIA); but
they do not necessarily refer to inheritance, and therefore the
definition of
hereditas by those words
would be incomplete. The universal succession of the heres who was
entitled to the succession by civil law must be distinguished from the
universal succession of the
bonorum
possessor, whose title to the inheritance was a praetorian one
[
BONORUM
POSSESSIO]. The succession of a
legatarius differed from that of a heres, in that it was only
a singular one, and consequently a legatarius incurred no liability for
the debts of the deceased. The etymological relation of the word
heres to
herus seems probable, both being connected with
hir =
χείρ
(Curtius,
Gr. Etym. 199).
A person might become a heres (1) by being named, as, such (
institutus, scriptus, factus) in a will,
executed by a competent person, according to the fo<*>ms
required by law [
TESTAMENTUM]; or (2) if a person died intestate (
intestatus), or having made a will which was not
valid, the
[p. 1.949]inheritance came to those to whom
the law gave it under the rules of intestacy, and was called
hereditas legitima or
ab
intestato. But a man could not die testate as to part of
his property and intestate as to another part, except he were a soldier
( “cujus sola voluntas in testando spectatur” ).
Accordingly, if a man gave a part of the hereditas to one heres or more,
and did not dispose of the rest, the heres or heredes
ex testamento necessarily took the whole. (Inst. 2.14.5;
Cic. de Inv. 2.2. 1;
Vangerow,
Pandekten, § 397).
(1.) The institution of a heres was that formality which could not be
dispensed with in a will. If the testator named no heres or heredes, and
complied with all the other legal forms, still his disposition of his
property was not a will (
Dig. 29,
7,
20). A will might
contain other dispositions besides that of naming a heres, as bequests
of legacies, appointment of guardian, &c.; but these were not
essential to its validity. The testator might either name one person as
heres or he might name several persons as coheredes, and he might divide
the hereditas among them as he pleased. The shares of the heredes were
generally expressed by reference to the divisions of the as: thus,
“heres ex asse” is heres to the whole property;
“heres ex dodrante,” heres to three-fourths;
“heres ex semuncia,” heir to one twenty-fourth (
Cic. Att. 13.4. 8,
7.8; Cic.
pro
Caecina, 6, 17; Inst. 2.14.5). If there were several
heredes named, without any definite share being given to them, the
property belonged to them in equal shares. A heres might be instituted
either unconditionally (
pure), or on the
fulfilment of a condition (
sub conditione),
but the institution could not be made defeasible on the occurrence of a
future event, nor could it be limited to take effect for a certain
period, since a person who once became universal successor always
remained so (
semel heres, semper heres). As
to conditions which the heres was bound to perform, they might be any
that were not contrary to positive law or positive morality, such as the
setting up of statues (
Cic. Ver. 2.8,
9,
14), or changing the name (
ad Att. 7.8). Immoral
and impossible conditions were treated as if there were no conditions
mentioned (
pro non scripto, Inst. 2.14,
10). In order that a testamentary succession should take place, the
testator must have the right of making a will (
testamenti factio activa). In order to have this
capacity, he must be civis or at least have the jus commercii, and not
be under any special disability (
intestabilis). Further the person dying must have such rights
as are capable of being transmitted to another; consequently a
filiusfamilias could not institute a heres any more than a slave, except
in respect of his
peculium castrense and
quasi-castrense. Also the person who is
instituted heres must have a legal capacity to be heres. He must have
this capacity at the time of the institution, or the institution is
null; and in order to take he must have the capacity to take (Inst.
2.19, 4) at the time of the testator's death, and at the time of his
accepting the inheritance. This capacity might be expressed by the
phrase “testamenti factio” (
passiva), an expression which had reference not only to the
legal capacity of the testator, but also to the legal capacity of the
person named heres. As a general rule, only Roman citizens could be
named as heredes in the will of a Roman citizen; but a slave could also
be named heres, though he had no power to make a will, and a
filiusfamilias could also be named heres, though he was under the same
incapacity; for a slave, if he belonged to the testator, could, by his
master's testament, receive his freedom and become heres; and if he
belonged to another, he took the inheritance for the benefit of his
master; the filiusfamilias in like manner acquired it for his father,
though in the time of Justinian the latter had only a usufruct in it.
Persons not Roman citizens, who had received the commercium, could be
instituted heredes, and could take legata, but Latini Juniani were an
exception to this rule, they being incapable of either making or taking
under a will.
Heredes were either
necessarii, sui et
necessarii, or
extranei. The
heres necessarius was a slave of the testator, who was made a heres and
liber at the same time; and he was called
necessarius because of the necessity he was under of
accepting the hereditas. Thus he became heres by operation of law
without any act of his own. A slave was sometimes appointed heres, if
the testator thought that he was not solvent, for the purpose of evading
the ignominy which was a consequence of a person's property being sold
to pay his debts, as explained by Gaius (2.154, &c.). In this
case the property of the freedman, acquired after manumission, was
relieved from all liability on account of the debts of the deceased. The
heredes sui et necessarii were those filii-or filiae-familias in the
power of the deceased at the time of his death, who by that event became
sui juris: thus a grandson or
granddaughter could not be
suus heres,
unless their father had ceased to be in the power of the deceased in the
lifetime of the latter, either by death, adoption, or capitis deminutio.
Gaius tells us that these heirs are called self-successors,
“because they are members of the family (
domestici heredes), and even in the lifetime of the
parent are deemed to a certain extent coproprietors” (Poste's
Gaius, 2.157). The property of the
family was regarded in early times as joint rather than several, and so
the children of the family only continued in their enjoyment of it when
the paterfamilias died. “
Sui heredes
are called necessary, because they have no alternative, but, willing
or unwilling, both in testacy, they become successors”
(Gaius,
l.c.). For a comparison of the Greek law
of inheritance on this subject, cf. F. Schulin,
Das Griechische
Testament, &c.; Leist,
Graeco-ital.
Rechtsgesch. 1.81. &c.; and for ancient German law
respecting,
Das Kind in der Were: cf. Behrend,
Anwang und Erbengewere, cit. by Sohm,
Inst. § 97, n. 2-4.) Thus the succession of the
suus heres is assumed in the Twelve
Tables as a matter of course; and as they were already in possession of
the inheritance, no formal act of entry (
cretio) could ever have been required of them. Hence, too,
the inheritance could not be acquired against them by
usucapio pro herede (Gaius, 2.58; 3.201). The involuntary
succession of this class of heredes was a great hardship to them in the
event of an insolvent inheritance; hence the praetor permitted them to
abstain from the succession (
abstinere se ab
[p. 1.950]hereditate), and
to allow the creditors to sell the property (an instance is mentioned by
Cic. Phil. 2.16,
42); he also gave the same privilege to a
person in the semi-servile state of mancipium, if the latter was
manumitted and made heres. [
MANCIPIUM] All other heredes, being independent of the
deceased, are called
extranei. Thus the
emancipated children of a person would be
extranei
heredes to him. So, too, as a mother had no potestas over
her children, they were
extranei heredes
when instituted in her will.
Extranei or
voluntarii
heredes did not acquire the inheritance until they had
accepted it by their own free act. The act of entering on an inheritance
by extraneus heres (
hereditatem adire）
might be effected either by an express declaration of intention or by
conduct from which an intention to be heres could be inferred; and if it
was once carried out, it could not be revoked. Thus, if extranei heredes
meddled with the property of the deceased (
pro herede
gerere), they could not afterwards disclaim the
inheritance, unless they could claim relief from the praetor on some
special ground, as if the person who so meddled was under twenty-five
years of age and so belonged to a class who were relieved by the praetor
in all cases where they were over-reached [
CURATOR], and also in cases where they had
accepted an insolvent inheritance (
damnosa
hereditas). The Emperor Hadrian gave this relief to a person
above twenty-five years of age who had accepted an inheritance and
afterwards discovered that it was encumbered with a heavy debt (Gaius,
2.163). These rules as to the acquisition of an inheritance apply both
to testamentary and intestate succession. But a testator might fix in
his will a certain time for the
cretio
hereditatis; that is, for them to determine whether they would
take the hereditas or not: hence the phrase
cernere
hereditatem (
Cic. Att. 11.1.
2). The determination was expressed by a formal act of taking
possession of the inheritance. Thus, if the testator had written in his
will “Heres Titius esto,” he might add, “Cernitoque
in centum diebus proxumis quibus scies poterisque; quod ni ita
creveris exheres esto.” (Gaius, 2.165;
Cic. de Orat. 1.22.) If the extraneus
wished to take the hereditas, he was required to make a formal
declaration of his intention within the time named (
intra diem cretionis). The formal words of
cretio, which were declared before witnesses in
the house of the deceased (Voigt,
Die Zwölf
Tafeln, 2.372), were “eam hereditatem adeo
cernoque.” Unless he did this, he lost the hereditas, and he
could not obtain it merely by acting as heres (
pro
herede gerendo). If a person was named heres without any
time of cretion being fixed, or if he succeeded (
legitimo jure) to the property of an intestate, he might
become heres without any formal declaration of his intention, and might
take possession of the hereditas when he pleased; but the praetor was
accustomed, upon the demand of the creditors of the testator or
intestate, to name a time within which the heres should take possession,
and, in default of his doing so, he gave the creditors permission to
sell the property. The common form of cretion in a will (
vulgaris cretio) has been already mentioned.
Sometimes the words “quibus sciet poteritque” were omitted,
and it was then specially called “cretio certorum dierum”
or “cretio continua,” which was the more disadvantageous to
the heres, as the days began to be reckoned, or, as we say, the time
began to run immediately, and it was not reckoned from the time when the
heres knew that he was named heres, and had no impediment to his
cretion.
Perhaps in ancient Roman law a heres extraneus or voluntarius could only
acquire the inheritance by a formal act of
cretio, and so in the legal terminology of the classical
jurists we find that the term
pro herede
gerere signified any informal act of entering upon an
inheritance as distinguished from the more regular and formal mode
(Gaius, 2.167; Ulp. 22.25). The principle of cretio may thus have been
applicable at first in the case of intestate as well as testamentary
succession, the object of the cretio clause in a will having been to
limit the time within which the formal act of entering upon the
inheritance must take place (Voigt,
Jus
Naturale, iii. n. 223;
Die Zwölf
Tafeln, 2.372). The formalities of cretio had become obsolete
before the time of Justinian (Cod. 6, 30, 17; cf. Cod. Theod. 8, 18, 8).
It was not unusual to make several degrees of heredes in a will, which
was called
substitutio (Inst. 2.15). Thus
in the formula beginning “Titius heres esto,” after the
words “exheres esto,” the testator might add, “tum
Maevius heres esto cernitoque in diebus centum,” &c.,
and he might go on substituting as far as he pleased. The person first
named as heres (
primo gradu) became heres
by the act of cretion; and the substitutus (
secundus
heres, cic.
Top. 10; Hor.
Sat. 2.5, 48;
Tac. Ann.
1.8) was then entirely excluded. If the words “si non
creveris” were not followed by words of exheredation, this
gave some advantage to the first heres; for instance, if he neglected
the formality of cretion and only acted as heres, he did not lose all,
but shared the hereditas equally with the substituted person. This was
the old rule; but a constitution of M. Aurelius made the acting as heres
equivalent to cretion, provided that such acting took place within the
time of cretion. (Compare Gaius, 2.177, &c. with Ulpian,
Frag. 22.34.) It was common for a testator to
substitute one of his own slaves in the last place, so as to avoid dying
intestate, since his slave could not refuse the inheritance.
In the case of
liberi impuberes, who were in the
power of a testator, there might be not only the kind of substitution
just mentioned (
vulgaris substitutio), but
the testator might declare that if such children should die under the
age of puberty, some person whom he named should be heir to the impubes.
This was expressed thus, “Si prius moriatur quam in suam tutelam
venerit” (
Cic. de
Inv. 2.4. 2,
Top. 10; Gaius, ii 179),
for the termination of impuberty and of the tutela were coincident.
[
CURATOR] Thus, as
Gaius remarks, one testamentary disposition comprised two hereditates,
the testator being obliged to make a will for himself at the same time
that he made a will for his son. This was called
pupillaris substitutio (Inst. 2.16). This kind of
substitution was contained in a clause by itself, and in a separate part
of the will, which was secured by the testator's own thread and seal,
with a provision in the first part of the
[p. 1.951]will
that this second part should not be opened so long as the son lived and
was impubes. A paterfamilias could substitute heredes for those in his
power, who were impuberes, whether he instituted or disinherited such
children in his own will. The object of this substitution was to avoid
intestacy. The substitution ceased to have any effect when the child
became pubes, and so capable of making a will for himself.
Gaius observes (2.183) that all his remarks with reference to
substitution for children impuberes at the time of the parent's death,
apply to posthumous children, of which there is an example cited by
Cicero (
Top. 10, “Si filius natus esset in decem
mensibus,” &c.). According to the analogy of
substitutio pupillaris, ascendants were in the
time of Justinian allowed to institute heredes for their descendants,
who were insane, in case they should die without recovering their
senses: this was called
substitutio quasi
pupillaris or
exemplaris (Inst.
2.16, 1; Cod. 6, 26, 9). It was not required in this latter substitution
that the ascendant should have the descendant in his power.
If an extraneus was made heres, there could be no substitution to the
effect that, if he died within a certain time, another person should be
heres; for, as we have observed, a person when he had once become heres
continued such. The heres might, however, be charged with a
fidei-commissum to transfer the inheritance, in which case he was
heres fiduciarius [
FIDEICOMMISSUM].
If a man's own slave was made heres by his will, it was necessary that he
should be made free also by the will; the words were, “Stichus
servus meus liber heresque esto.” But by the law of Justinian
the manumission of a slave who had been instituted heres by his master
was implied. If a slave who had been instituted was manumitted by his
master in his lifetime, he did not become heres necessarius, but might
accept the inheritance or refuse it. If he was sold by his master in his
lifetime, he could take possession of the inheritance with the
permission of his new master, who thus became heres through the medium
of his slave. If the slave who was made heres was at that time the
property of another person, and not of the testator, he could not take
the inheritance without the consent of his master, for if he lost it his
master became heres; if such slave was manumitted before “taking
possession of the inheritance,” he might accept it or refuse
it as he pleased.
If a man had a son in his power, he was bound either to make him heres,
or to exheredate him (
exheredem facere）
expressly (
nominatim). If he passed him
over in silence (
silentio praeterierit),
the will was altogether void (
inutile, non jure
factum).
Daughters and grandchildren, who were
sui
heredes, could be exheredated by a general clause
“ceteri exheredes sunto.” If they were passed over in
silence, the will would still be a valid will ; but they took a certain
portion of the inheritance by accretion, as it was termed (
scriptis heredibus adcrescunt). Thus, if the
heredes instituti were
sui, the person or
persons passed over took an equal share with them. If the heredes
instituti were
extranei, the person or
persons passed over took a half of the whole inheritance; but according
to praetorian law the person so passed over might claim what he would
have been entitled to if the deceased had died intestate (
bonorum possessio contra tabulas). A rescript of
the Emperor M. Aurelius limited the amount which women could take by the
bonorum possessio to that which they could take under the Jus Civile by
accretion; and the same was the law in the case of emancipated females.
The rules relating to exheredation were altered by the 115th Novella of
Justinian.
It was necessary either to institute as heredes, or to exheredate
posthumous children
nominatim, otherwise
the will which was originally valid became invalid (
ruptum); and the will became invalid by the birth either
of a posthumous son or daughter, or, as the phrase was,
“adgnascendo rumpitur testamentum” (
Cic. de Or. 1.5. 7).
Postumi were not only those who were
born after the testator's will was made, and came into his power or
would have come into his power if he had lived, but also those who might
become the
sui heredes of the testator by
the death of some other person in the testator's lifetime. Thus, if a
testator's son, who was in his power, had children, and the son died in
the testator's lifetime, the grandchildren became
sui
heredes, and the testament became
ruptum by this
quasi
agnatio; it was therefore a necessary precaution to institute
as heredes or to exheredate such grandchildren. The adoption of a son by
the testator, on his taking a wife
in manum
after the making of the will, had likewise the effect of invalidating
it, unless provision was made for the case. Forms were gradually
established by which different classes of
postumi
sui could be either instituted or disinherited.
Postumi alieni,--i.e.
postumi who would not have been in the power of the
testator--could not be instituted in a will till the time of Justinian,
who allowed such an institution. The word
postumus has clearly the same signification as
postremus, and literally means a child born
last. The passage of Gaius is defective when he treats of
postumi; but the definition of
postumi, as preserved in the epitome of Gaius,
appears to be exact: “Postumorum duo genera sunt; quia postumi
adpellantur hi, qui post mortem patris de uxore nati fuerint, et
illi qui post testamentum factum nascuntur.” Sometimes the
word
postumus is defined only as a child
born after a father's death, as we see in some of the
Glossae and in Plutarch (
Plut.
Sull. 37); but there is no proof that the meaning was limited
to such children, and the passages sometimes cited as being to that
effect (
Dig. 50,
16,
164;
28,
3,
3) have been
misunderstood. Other cases in which a valid will became invalidated are
more properly considered under
TESTAMENTUM
If an ingenuus died intestate, either from not having made a will, or
having made a will but not in due form, or having made a will in due
form which afterwards became invalid (
ruptum,
initium, inofficiorum, or if there was no heres under the will
(
destitutum), the hereditas, according
to the law of the Twelve Tables, came to the
sui
heredes, and was then called
legitima
hereditas (Gaius, 2.3, 2). The
sui
heredes were, as we have seen, descendants in the power of
the deceased at the time of his death, who by that event became
sui juris. Adopted children were considered the
same as other children; Justinian, however, made considerable
modifications
[p. 1.952]however, made considerable
modifications in this rule. A wife married
in manum
viri under the early law being considered as a daughter,
and a daughter-in-law (
nurus) married in the
same way being considered a granddaughter, were
sui
heredes. Posthumous children, who would have been in the
power of the intestate if he were living, were treated as if they had
been born in his lifetime, and so were
sui
heredes.
The
sui heredes took the hereditas in equal
shares, if they were children of the deceased. If there was a son or
daughter, and children of a son deceased, the children of the deceased
son took the portion which their parent would have taken. Thus the
distribution among grandchildren was always
in
stirpes--that is, among the stocks or stems sprung from
the ancestor--and not
in capita, or among
the individuals in equal proportions: thus, if there were a son, and the
sons of a deceased son, the son would take half the hereditas, and the
sons of the deceased son would divide the other half. If an intestate
had no
sui heredes, the Twelve Tables gave
the hereditas to the agnati (Gaius, 3.9). The agnati were all those who
would be under the power of a common ancestor if he were alive. [See
COGNATI] The hereditas
did not belong to all the agnati, but only to those who were nearest at
the time when it was ascertained that a person had died intestate. If
the nearest agnatus either refused to take the inheritance or died
before he had taken possession of it, in neither case did the next in
succession, as agnatus, take the inheritance, for the Jus Civile
recognised no
successio graduum. He was the
nearest agnatus who was nearest at the time when it was ascertained that
a person had died intestate, and not he who was nearest at the time of
the death, since the intestate heir could not be in question until it
was certain that the deceased had left no will. If there were several
agnati in the same degree, and any one refused to take his share or died
before he had assented to take it, such share accrued (
adcrevit) to those who consented to take the
hereditas.
In the case of women there were some peculiarities. The hereditates of
women intestate came to their agnati just as the inheritances of males;
but women who were beyond the degree of consanguinei (a term which
legally means brothers and sisters) could not take
hereditates ab intestato according to the interpretation
of the Twelve Tables, though the law itself contained no such
restriction. Thus a sister might take from a brother or sister as
legitima heres; but an aunt or a
brother's daughter could not be
legitima
heres. Justinian put women on the same footing as men in this
respect. The principle of Roman law which gave to those who came into
the potestas or manus the quality of children of the family, was
followed in this case also: a mother or a stepmother who had come
in manum viri thereby obtained the
status of a daughter; and consequently, as to legitimate succession,
there were the same relations between such mother or stepmother and the
husband's children as there were among the husband's children
themselves. But from the latter period of the republic the wife did not,
as a rule, come
in manum viri; and so as
the mother and her children belonged to different familiae, they had no
reciprocal rights of succession to one another.
If a person died leaving no
sui heredes, but
only a brother and another brother's children, the brother took all as
the nearest agnatus. If there was no brother surviving, and only
children of brethren, the hereditas was divided among all the children
in capita; that
is, the whole was equally divided among all the children. If
there were no agnati, the Twelve Tables gave the hereditas to the
gentiles [
GENS].
Gaius (3.18 f.) briefly recapitulates the strict law of the Twelve Tables
as to the hereditates of intestates:--Emancipated children could claim
nothing, as they had ceased to be
sui
heredes; so, too, persons who had ceased to be agnati by
reason of capitis deminutio were excluded from the second order [
CAPUT]; if the next agnatus
did not take possession, he who was next in order could not for that
reason make any claim; feminae agnatae who were beyond the degree of
consanguineae were shut out; cognati, whose kinship depended on a
female, had nomutual rights of succession, and consequently there were
no such mutual rights between a mother and her children, unless the
mother had come
in manum viri, and so the
rights of consanguinity had been established between them. In short,
only those who belonged to the same familia could succeed to one
another, according to Jus Civile; the nearest relations had no rights,
if they did not belong to this group. Gaius proceeds to show (3.25 f.)
how these inequitable rules of the civil law were modified by the
praetor's edict, which recognised to some extent the principle of
cognation, as giving a right to the succession [
BONORUM
POSSESSIO]. The principle of cognation was gradually recognised by
the statute law under the Imperial legislation. Thus the S. C.
Tertullianum, enacted under Hadrian, gave a mother the right of
succeeding to her children, subject to certain conditions; and in the S.
C. Orfitianum, passed under Marcus Aurelius 178 A.D., children were given the right of succeeding to their
mother.
Justinian in his 118th Novella remodelled the law of intestate
succession, making the principle of cognation the basis of it and
disregarding that of agnation.
The heres represented the testator or intestate (
Cic. de Leg. 2.1. 9), and
had not only a claim to all his property, and all that was due to him,
but was bound by all his obligations, except those which were put an end
to by death. He succeeded to the sacra familiaria, and was bound to
maintain them, but only in respect of the property, for the obligation
of the sacra privata was attached to property and to the heres only as
the owner of it. Hence the expression “sine sacris
hereditas” meant an hereditas unencumbered with sacra (Plaut.
Capt. 4.1, 8;
Trin. 2.4,
83; Festus, s. v.
sine sacris hereditas).
The sacra familiaria or privata were, in the case of small estates, a
great burden to the heres. It was also a religious duty of the heres to
bury the deceased (cf. Plaut.
Men. 3.2, 27;
Paul. Diac. 77, 18).
The heres on acquiring an hereditas was, as we have seen, personally
liable on account of the obligations of the deceased, but the
legislation of Justinian released him from all the debts and obligations
of the testator or intestate, beyond
[p. 1.953]what the
property would satisfy, provided he made out an inventory (
inventarium) of the property in a certain form
and within a certain time (Cod. 6, 30, 22). The heres, after satisfying
the debts of the deceased, was bound to pay the legacies out of the
surplus; but before doing so he was entitled to deduct a fourth for
himself, if the bequests exhausted the estate, so as not to leave him
this amount. [LEGATUM; FIDEICOMMISSUM.]
The heres could claim any property which belonged to the testator or
intestate by
hereditatis petitio (
Dig. 5,
3,
20), which was an action brought against anyone
who retained the property of the deceased either on the claim of being
heres (
pro herede possidet) or simply as
possessor (
pro possessore possidet). The
action properly belonged to the heres only, though it was in later Roman
law extended to the bonorum possessor or praetorian heir as an equitable
action. Each heir only claimed his own share (
Cic. pro Rosc. Com. ch. 18). The coheredes
shared among themselves the property and bore their share of the debts
in the same proportion. For the purpose of partition and settling the
affairs of the testator, a sale was often necessary (
Cic. Att. 11.1. 5). If the parties could
not agree about the partition, any of them might institute a partition
suit, called
actio familiae erciscundae [FAM. ERC. ACT.].
The hereditas might be alienated by the form of
in
jure cessio, according to the law as explained by Gaius
(2.35-37; 3.85, 87). The nearest agnate, having a right to succeed in
case of intestacy, was the only kind of heir who could alienate his
right to take the inheritance; the alienee in this case could acquire
the inheritance, just as if he had been legitimus heres.
The scriptus heres or heir instituted in a will could only alienate when
he had already acquired the inheritance; and after such alienation by
anyone who had actually become heres, he still remained heres (
semel heres, semper heres), and consequently
answerable to creditors, but all debts due to them as heredes were
extinguished.
The effect of a transfer of an hereditas by heres fiduciarius is
explained under the head of
FIDEICOMMISSUM
In early Roman law a mala-fide possessor could acquire property belonging
to the inheritance against the heres by usucapion in one year, the
object of this rule being to compel the heres to enter on the
inheritance without loss of time, so that the sacra might be performed
and the creditors satisfied (Gaius, 2.54, 55;
Cic. Att. 1.5,
6; Sen.
de Ben. 6.5, 3;
Cic.
pro Flacc. 34, 85: cf. Voigt,
Zwölf Tafeln, 2.106). The effect of this
usucapion was put an end to by the S. C. Juventianum.
From the time of a man's death until it was determined who was his heres,
the hereditas was without an owner, and was said
jacere. When a heres was ascertained, such person was
considered to possess all the rights incident to the hereditas from the
time of the death of the testator or intestate. But this does not
explain how we are to view the hereditas in the interval between the
death of the former owner and the time when the heres is ascertained.
During such interval, according to one form of expression used by the
Roman jurists, the hereditas is a juristical person (
vice personae fungitur), and is the domina, that is the
domina of itself; according to another form of expression, it represents
the defunct, and not the person of the future heres. The relation to the
legal capacity of the defunct is this: slaves generally belonged to an
hereditas. A slave, as is well known, could acquire property for his
living master, even without his knowledge; but the validity of the act
of acquisition, in some cases, depended on the legal capacity of his
master to acquire. Now, while the hereditas was without an ascertained
owner, many acts of a slave by which the hereditas might receive
additions were strictly void, and such acts could only have their legal
effect on the supposition that the slave had an owner of a sufficient
legal capacity; and accordingly the law gave validity to the acts of the
slave by relation to the known legal capacity of the late owner, and not
by reference to the yet unascertained owner who might not have such
legal capacity. The hereditas jacens, then, has no owner except an
artificial one, but the property continues during this interval in the
same legal condition as if the deceased were still living; from the
moment that the heres is ascertained, he is considered to have been
heres from the time of the death of the deceased. (Savigny,
System, 2.102; Windscheid,
Pandekten,
3.531; Sohm,
Institutionen, § 96, iii.). The
hereditates of freedmen are more properly considered under LIBERTI and PATRONI.
(Gaius, 2.99-190, 3.1-24; Ulpian,
Fragm. xxii.;
Dig. 28,
29; Vangerow,
Pandekten, vol. ii.; Windscheid,
Pandekten, vol. iii.; Hunger,
Das Erbrecht
; Gans,
Das Erbrecht in weltge-schichtlicher
Entwickelung; V. Dalwick,
Versuch einer
philosophischen--juristischen Darstellung des Erbrechts;
Lassalle,
Das Wesen des römischen und germanischen
Erbrechts, &c.; Mayer,
Die Lehre von dem
Erbrecht, &c.; Köppen,
System des
heutigen römischen Erbrechts; Schirmer,
Handbuch des römischen Erbrechts.）
[
G.L] [
E.A.W]
