Roman intestate succession1
For the Romans, the law of succession was dealt with as part of the law of things, or property law,2 as succession was regarded as a manner in which ownership of things could be acquired, such as sale and purchase. Succession was regarded as an acquisitio per universitatem, acquisition of ownership of the estate of the deceased in its entirety. This differs from our modern notion of succession in that most jurisdictions do not recognise universal acquisition of the estate, but only devolution of the assets in the estate. In contrast, the Roman heir inherited both the assets and the liabilities. Should the estate be bankrupt, the heir was liable for the debts that the estate could not pay.
Elsewhere in Roman law of testate succession I dealt with the notion of the persona of the individual that the Romans thought devolved at death upon the heir. In fact, long before classical times intestacy (= dying without leaving a valid will) had become unusual, even if not unknown. Accordingly, a feeling had developed which has been called “a horror of intestacy”, although Buckland3 thinks this description of Plautus’4 is an exaggeration. The fact is that Romans placed a very high premium upon the making of a will, and wills were regarded as sacrosanct, and in fact, every will was stored in the Temple of Vesta and guarded by the Vestal Virgins.
The earliest knowledge we have of the topic comes from the lex XII tabularum. According to the XII tables, all persons in potestate (= under the power of the paterfamilias) and who upon the death of the paterfamilias become sui iuris (i.e. “emancipated” from the patria potestas), regardless of whether they are blood relations or adopted, or even family, are regarded as sui heredes (heirs in own right) who are obliged to inherit, whether they wish to or not . They were regarded as heredes sui et necessarii and inherited per stirpes, per stake (each sui heres forming one stake), and representation was allowed (if e.g. one child was predeceased but left his own issue, they inherited the predeceased parent’s share, representing him or her only in that share per capita). Only if there were no sui heredes did the estate devolve upon the proximi agnati (closest relatives regardless of blood), per capita (as opposed to per stirpes, and no representation was possible, i.e. if one of the proximi agnati was predeceased, nothing devolved upon his or her heirs as would have been the case with the sui heredes). Proximi agnati unlike the sui heredes had an election, and were at liberty to decline to inherit (which they would if there was the possibility of having to contribute to pay any debts of the deceased).
This arrangement of the XII tables was not without problems. It left already emancipated children out of the equation, as they would not become sui iuris upon the death of the paterfamilias, having already been emancipated, and also left children who would not become sui iuris at his death out of inheriting (such as daughters who would now fall under the patriapotestas of the elder son). It was furthermore not necessarily based on blood relationship, and also left the spouse who had married in a manner that left her retaining her status of sui iuris, out of the loop.
The consequence was that the praetor adapted the rules of intestate succession in his edict. The praetor could, however, not create an heir. So what he did do, in terms of the law of things, he cleverly created classes of person whom he would grant certain protection by vesting them with the right to apply for bonorum possessio (possession of the things in the estate). Instead of inheriting as an heir would, the individual(s) granted the interdictum quorum bonorum (= the right to recover possession of the things in the estate from whoever held it) could now take possession of the estate, and being protected by the interdict, could obtain ownership by way of usucapio (= usucaption or acquisitive prescription) after one year.
The classes of person the praetor granted the right to were:
· Liberi being children of the deceased, regardless of whether they will beome sui iuris or not upon his death. They inherit per stirpes and representation is allowed.
· Legitimi, being all those who were entitled to inherit according to the ius civile (strict civil law), i.e. the sui heredes, the proximi agnati and the gentiles (further clansmen).
· Proximi cognati (closer blood relatives).
· Vir aut uxor, husband or wife, i.e. the surviving spouse.
The praetor also allowed the protection regardless of sex, in contrast to the XII tables which allowed succession only through the male line. The closer relations exluded further removed relations, and the estate devolved upon closest relation(s) who applied to the praetor. Where there were more applicants related in the same degree, they inherited per capita (i.e. no representation).
While the senatusconsultum Tertullianum in the reign of Hadrian improved the rights of a mother to the estate of her deceased child, and the senatusconsultum Orfitianum from approximately the reign of Diocletian vested children with first dibs on the estate of their mother, this arrangement remained in force much without change until Justinian instituted a new arrangement, based on cognatio. Justinian allowed intestate succession according to the following rule:
· First in line: Descendentes, all children and further issue of the deceased. Distribution per stirpes and respresentation is allowed.
· If no descendentes survived the deceased (or he died without issue), adscendentes (parents and further up, the first in line to the exclusion of further generations) and siblings. In this case, the estate would devolve first upon parents, and if they are predeceased, the estate would “sink” to brothers and sisters of the deceased. If there are no surviving sibings, the estate would “climb” to grandparents, from where it would first “sink” to their heirs, and if none, “climb” again and so on.
· Siblings of the half blood.
· Further blood relations in the side line.
· Surviving spouse (last to inherit).
Where there were no heirs of this list, the estate fell to the fiscus as bona vacantia (unclaimed assets).
1The issue can not be treated fully or exhaustively in this format. This node does not pretend to be anything more than a very brief outline of the topic.
2Property law and the law of things are two different branches of law in our modern understanding of things. The law of things deals with relationships between subjects (persons, entities) and things capable of being owned or possessed, ownership and possession being two different, albeit related relationships. Property law concerns itself only with the law of ownership of things, and not of other relationships between the thing owned and third parties.
3 A Textbook of Roman Law, Cambridge 1950.
4 Curculio 5.2.24.
Several readers seem to experience difficulty with the per capita / per stirpes distinction. If the deceased has five sui heredes heirs (i.e. heirs that have no choice but to inherit), each of them constitutes a stirps (literally a stem or branch of a plant or tree but untranslateable in this form into modern English, which I consequently translate as a “stake” to convey the notion of their proprietary interest in the estate). The estate will be divided into five. Should any one (or more) of these heirs have predeceased the person from whom they would have received an inheritance, their respective heirs are substitued in his / her (or their) place, and these latter substitute heirs receive the fifth portion of the estate, sharing that portion equally per capita, i.e. per individual. Where we deal with any heirs that are not heredes sui et necessarii, i.e. they have an election as to whether they want to accept the assets and liabilities of the estate, they inherit per capita, and where one (or more) is (are) predeceased, their heirs do not become substitutes for them, and the other heirs receive a proportionately larger portion of the estate.
· My thanks to DonJaime who raised this issue first.