even disinherit a child in his potestas (suus heres) in favour of a stranger,
so long as he did so in express terms. Institution of a stranger,
without specific mention of the suus heres, however, was fatal, if
the latter was a son; for without express disherison (exheredatio)
his father could not deprive him of the interest he had in the family
property as in a manner one of its joint owners. It can hardly be
supposed that disherison was contemplated by the compilers of
the Tables; it was foreign to the traditional conception of the
family and the family estate. But it was a right whose concession
could not be resisted when claimed as embraced in the uti legassit,
although generally discountenanced, and as far as possible restrained
by the strictness of the rules imposed on its exercise.
In the absence of a testament, or on its failure from any cause, the succession opened to the heirs ab intestato. So Intestate succession. notoriously were the sui heredes entitled to the first place—and that not so much in the character of heirs as of persons now entering upon the active exercise of rights hitherto existing, though in a manner dormant—that the compilers of the XII. Tables thought it superfluous expressly to declare it. “If a man die intestate, leaving no suus heres, his nearest agnate shall have his estate. If the agnate also fail, his gentiles shall have it.” It has been pointed out, in dealing with the tutory of agnates, that the notion of agnation, as a bond distinct from that which connected the gentile members of a clan, was due to the decemvirs. They had to devise a law of intestate tutory and succession suitable alike to the patricians who had gentes and to the plebeians who had none. To put the latter in exactly the same position as the former was beyond their power; for the fact had to be faced that the plebeians had no gentile institutions, and to create them was impossible. The difficulty was overcome by accepting the principle of agnation upon which the patrician gens was constructed, and establishing an agnatic circle of kinsmen (perhaps at first limited to the sixth degree) to which the gens as a collective body should be postponed in the case of the patricians, and which should come in place of it in the case of the plebeians. It was not perfect equalization, but the nearest approach to it that the circumstances permitted. The difference was that, when the agnates of a plebeian intestate failed, his inheritance was vacant; whereas, on failure of those of a patrician, there was devolution to his gens in its collective capacity. Two “interpretations” put upon the statute had an important bearing in this connexion, viz. (1) that, if the nearest agnates in existence declined the succession, those next in degree were not allowed to take it; and (2) that no female agnate could take it more remote than a sister of the deceased intestate. The division among two or more agnates was always per capita, not per stirpes.
The order of intestate succession thus established by the XII. Tables, which prevailed until amended by the praetors probably in the 8th century of the city, was first to the sui heredes of the deceased, next to his nearest agnate or agnates, and finally, if the deceased was a patrician, to his gens.[1] His sui heredes, speaking broadly, were those of his descendants in his potestas when he died who by that event (or even after it, but before his intestacy became manifest) became sui juris, together with his wife in manu (who, as regarded his succession, was reckoned as a daughter); but they did not include children whom he had emancipated or daughters who had passed in manum of a husband. Emancipated children did not even come in as agnates on failure of sui; for emancipation severed the tie of agnation as well as that of potestas. For the same reason no kinsman who had been emancipated, and so cut off from the family tree, could claim as an agnate; for those only were agnates who were subject to the same patria potestas, or would have been had the common family head been still alive.
The opening of a succession (technically delatio hereditatis) in
favour of sui heredes, whether in virtue of a testamentary institution
Position of heirs.
or by operation of law on intestacy, at once invested
them with the character, rights and responsibilities of
heirs. No acceptance was necessary, nor, according to
the rules of the jus civile, was any declinature competent. They
had been all along in a manner joint owners with their parent of
the family estate, which by his death had become, nominally at
least, an inheritance; and, as he had not thought fit to terminate
their interest in it by emancipating or disinheriting them, they were
not now allowed to disown it. Hence they were spoken of as
necessary heirs (heredes sui et necessarii). A slave, too whom his
owner had instituted in his testament with gift of liberty was a
necessary heir: he could not decline, and was invested with the
character of heir the moment the testator died. Not so with stranger
institutes or agnates taking on intestacy: they were free to take or
reject the inheritance as they saw fit; consequently, an act of
acceptance (aditio) was necessary on their part to make them
heirs.
This was a formal declaration before witnesses, which got the name of cretio.[2] It was not unusual for a testator, in instituting an heir, to require that he should make a formal declaration of acceptance within a limited time, failing which his right should pass to a substitute, who in turn was required to enter within a certain time; and so on with any number of substitutes, the series ending with one of his slaves, who became heir without entry, and thus saved the testator from the disgrace of post mortem bankruptcy in the event of the inheritance proving insolvent. The uri legassit of the Tables, as interpreted by the pontiffs, conferred upon a testator very great latitude of testamentary disposition, even to the extent of disherison of sui heredes. This was a course, however, that was probably rarely resorted to unless when a child had been guilty of gross ingratitude, or when the parent had reason to believe his estate was insolvent and desired to protect his children from the responsibilities of inheritance. Usually his sui, if he had any, would be his institutes, and the purpose of the testament either to apportion the estate amongst them as he thought expedient, or to give him an opportunity of appointing tutors, bequeathing legacies, or enfranchising slaves. On intestacy the sui took equally but per stirpes; that is to say, grandchildren by a son who had predeceased or been emancipated, but who themselves had been retained in their grandfather's potestas, took amongst them the share to which their father would otherwise have been entitled, instead of taking equal shares with their surviving uncles. It was by no means unusual, when the whole inheritance descended to sons, for them to hold it in common for many years as quasi partners (consortes); but any one of them was entitled at any moment to claim a partition which was effected judicially, by an arbitral procedure introduced by the XII. Tables, termed a judicium (or arbitrium) familiae erciscundae. Where two or more strangers were instituted testamentarily, whether to equal or unequal shares, if one of them failed either by predecease or declinature his share accrued ipso jure to the others; for it was a rule that early became proverbial that a man could not die partly testate and partly intestate. There was the same accrual among agnates on intestacy; and both they and stranger testamentary institutes had the same action for division of the inheritance that was made use of by sui heredes.
According to Gaius it was as a stimulus to heirs to enter as soon as possible to an inheritance that had opened to them, and thus Usucapio pro herede. make early provision alike for satisfying the claims of creditors of the deceased and attending to his family sacra, that the law came to recognize the somewhat remarkable institution of usucapion or prescriptive acquisition of the inheritance in the character of heir (usucapio pro herede). Such usucapion was impossible—there was no room for it—if the deceased had left sui heredes; for the inheritance vested in them the moment he died. But, if there were no sui heredes, then any person taking possession of the property that had belonged to the deceased, and holding it for twelve months without interruption, thereby acquired it as if he were heir: in fact, according to the views then held, he acquired the inheritance itself. Gaius characterizes it as a dishonest acquisition, inasmuch as the usucapient knew that what he had taken possession of was not his. But, as already explained, the usucapion of the XII. Tables did not require bona fides on the part of the uscapient; he might acquire ownership by prolonged possession of what he knew did not belong to him so long as he did not appropriate it theftuously, i.e. knowing that it belonged to another. But an inheritance unappropriated by an heir who had nothing more than a right to claim it belonged in strictness to no one; and there was no theft, therefore, when a person took possession of it with a view to usucapion in the character of heir. There can be little doubt that on the completion of his possession he was regarded as heir just as fully as if he had taken under a testament or as heir-at-law on intestacy—that is to say, that he was held responsible to creditors of the deceased and required to charge himself with the family sacra. Gaius does not say as much; but both the Coruncanian and the Mucian edict[3] imposed the latter burden upon him who had usucapted by possession the greater part of a deceased person's estate; and it is but reasonable to suppose that the burden of debts must in like manner have fallen on the usucapient or usucapients in proportion to the shares they had taken of the deceased's property.
