Chapter 4: Fourth way of acquiring property: Succession
Succession is either:
- testamentary or
- In testamentary succession, the distribution of goods is done according to the will of the deceased.
- In legal succession, the law distributes the goods of the deceased to those whom the deceased is presumed to have chosen, according to some lawyers
- But this supposes that testamentary succession came before legal succession, which is contrary to experience.
In a rude period, a man rarely had the full property of his goods during his lifetime.
- He could not have had a power to dispose of them after his death.
In all nations, the dead person's relatives succeeded long before testaments were invented.
- Testamentary succession were first introduced by:
- The twelve tables at Rome, and
- the laws of Solon at Athens
- But long before this, there was legal succession in Rome and Athens.
The claim of the heir of blood is always thought the preferable one.
- But this claim is never founded on the presumed will of the deceased.
The succession in the earliest times were more founded on the connection of goods than of persons
- Father and sons lived together.
- They were joint acquirers of any property that they had.
- When the father died, the children had a joint right to the goods, not so much on account of their relation to the father as on account of their labour in acquiring them.
- The mother and the children would therefore continue in possession.
Among the Romans, the wife was considered as a daughter.
- She had her share accordingly.
- If any of the children were settled out of the family or were emancipated, they had no share in the succession, because they ceased to cooperate with the rest in acquiring the goods.
- When families in this way lived together, it was necessary to prohibit marriages of cousins.
- When men’s sons and grandsons lived in the same house, if all succeeded equally it was called successio secundum capita.
- But if the grandson succeeded only to his father’s part it was secundum stirpes.
- If a man had three sons who were all dead, but the oldest had left behind him one son, the second two, and the third three, by the former rule, on the death of their grandfather, each would have a sixth.
- But by the latter rule:
- the son of the oldest would have a third alone
- the two sons of the second a third between them, and
- the three sons of the third a third among them.
- The grandsons were their father's representatives.
- The right of representation is the same with the successio secundum stirpes.
- Among the Romans, the right of representation was introduced:
- in favour of the strong, and
- in prejudice of the weak.
- But in Britain it is the contrary.⚓✪
Among the Romans, a son could not succeed to the mother when she died because she was considered as a daughter of the family.
- Therefore everything she had belonged to the husband.
- If the husband died first, the wife shared with her children, and then went home to her father’s house, and succeeded anew to her father.
But in times of more refinement under the emperors, the mother could succeed to the son, and the son to the mother
- Anciently, when a son died, no one succeeded to him, because he and everything he had belonged to his father.
- Caesar first made a law that a son might possess as his own whatever he:
- got in war, or
- acquired by the liberal arts
Three classes of men may succeed:
Those in an upper line may succeed to those in a lower.Those in a lower to those in an upper line, or those of the same line to one another.Collateral succession at first extended only to the nearest in blood
- descendants, and
When a brother died and another succeeded, it was in consequence of their connection with the father, who is the common stock.
- If he refused it, the goods belonged to the public
- But afterwards, the praetor extended it to the seventh in blood.
But the right of descendants is stronger than either of these, because the son’s claim on the father is stronger than that of the father on the son.The principles of succession in moveables are founded on the community of goods which took place anciently in families.
- Therefore, succession of ascendants must have been prior to that of collaterals.
The different state of families in our country makes a big difference between our law and Roman law.
- Among us, the wife is much more considerable than a daughter.
- Accordingly the wife succeeds to more.
When the husband dies, the goods are supposed to be divided into three equal parts.
- One is supposed to belong to the deceased husband
- One to the wife
- One to the children:
- However, the husband can dispose of his part by testament, which the wife cannot.
A forisfamiliated son is not in the same condition with an emancipated son among the Romans.
Grandchildren do not succeed in place of their deceased father, as among the Romans.However, the English law admits of representation.
- He can succeed with his brothers;
- only if he has got a portion he must bring it into the common stock at his father’s death.
- It prefers ascendants, if males, to collaterals.
Indivisible inheritance was introduced by the feudal law.
When the nations that conquered the Roman Empire settled in the West of Europe, an inequality of fortune necessarily ensued.
- The great had no way of spending their fortunes but by hospitality.
- They necessarily acquired prodigious influence over their vassals.
- They gave out their lands merely to maintain their dependents.
- The Saxon word 'farm' signifies victuals
The chieftains were the sole administrators of justice in their own territories, through their influence.
As late as 1745, this power remained in the Highlands of Scotland
- It was the interest of government to authorize this jurisdiction, as it was the only method of preserving peace, and as the superior was the leader both in peace and war.
These lords had no other way to dispose of their lands.
- Some gentlemen could bring several hundreds of men into the field.
- So they gave some of them as munera which were revocable at their pleasure
- They gave others as beneficia which continued during life and returned to the lord after their decease
The clergy's benefices were on this foundation.
As benefices were for life, the property of them naturally came to be extended to the son of the deceased tenant.
- They have retained the name.
- Through this, the lords secured their vassals' fidelity.
When any chieftain died and left his son a minor, the king appointed a leader to the vassals during the minority, and appropriated the profits and emoluments arising from the lands to his own use.
- Gradually, the tenures became hereditary and were called feudal.
- Thus, the tenant became more independent.
Allodial estates were free from all such services.
- When a female succeeded, the lord could dispose of her in marriage, as it was reasonable that he should name the husband who was to be his own vassal.
- As the lord was guardian of the heir male, it was also thought unreasonable that he should marry without his consent.
- As the feudal lord possessed the lands during a minority, before the minor could recover his estate, he was obliged to pay a 'relief'.
- This was introduced by the court of the king or lord.
- The minor was obliged to swear fealty to the court before he could recover his estate.
- He was also obliged to promise homage to his superior before he could enter on possession.
- Thus they held their lands of the superior for military service, homage, fealty, wardship, marriage, relief, etc.
- But as it was for security of property to hold of some great man who could protect the proprietor from violence, the generality of estates became feudal.
- For the same reason men possessed of great estates paid feu and swore fealty to the sovereign.
It must have been a very difficult to secure property, especially if it was small, in those early times.
The consequences of dividing the kingdom of France were sufficiently experienced.
- Therefore, nothing could have a worse consequence than the division of estates.
However, on account of the opposition from the rest of the sons, it was long before the right of primogeniture or the indivisibility of estates could be introduced.
- It would have been still worse in private estates.
But as the circumstances necessarily required it, estates were at last made indivisible.
- In Germany, it did not fully take place before the last century.
This legal preference must be given for some quality that is altogether indisputable.
- Since a single person was to be preferred, the oldest son would naturally be the person.
In the beginnings of society age itself is very much respected.To this day, among the Tartars, the king is not succeeded by his son, but by that one of the royal family who is oldest.
- If it were to be given to wisdom or valour, there might be great disputes.
- But among brothers there can be [no] contest who is the oldest.
When primogeniture was introduced, it would naturally occasion succession by representation because:
Bruce and Balliol disputed on this account.
- Initially, the younger brothers would think it hard that their older brother should be preferred to them.
- If he died, they would still think it harder that his son, an infant, should come in before them.
- Accordingly in many places, this has been disputed in single combat
Initially, the difficulty of introducing this created a new species of succession.
- According to our notions, Balliol had the best right, for he was descended from the oldest daughter, though Bruce was a step nearer the common stock.
This had one inconvenience:
- Through it, when a father died, his estate went to his eldest son.
- But his brother, not his sons, succeeded:
- if he died while his children were minors, or
- if he died while his father was alive.
The brothers naturally thought that they were nearer to the father than any grandson.
- On the death of the youngest his sons were preferred to those of the other brothers.
- By the Roman law, a grandson succeeded only to his father’s part.
- He might succeed as a son, but not as an oldest son.
This last circumstance afterwards gave rise to lineal succession.When this difficulty is gotten over, there is little dispute about collateral succession.In feudal lordships, women could not succeed, as she was incapable of military services.
- But this was a hardship to the brother’s claim.
- So it was also a hardship to cut off the grandson's reasonable expectation if his father had lived.
There are two kinds of fiefs:
- But they could succeed to lands which required any other kind of service.
- France is an example of this.
- England is an example of this.
There are some niceties whimsical enough in the Scotch law with regard to succession of collaterals.
By the English law, the old brother excludes the whole blood from one half of the estate by conquest, in other countries the preference is not so great
- If the second brother has an estate and dies, it goes to the third and not to the oldest, who is supposed to have been sufficiently provided for.
- Conquest on the contrary ascends, but it does not go to the oldest, but to the immediately older brother.
The right of primogeniture hinders agriculture.
Primogeniture is also hurtful to the family.
- If the whole estate were divided among the sons, each one would improve his own part better than one can improve the whole.
- Besides, tenants never cultivate a farm so well as if it were their own property.
However, it has one advantage in succession to a monarchy:
- While it provides for one, it suffers all the rest in a few generations to be reduced to beggary.
- It prevents all dangerous rivalships among the brothers.
There are some other kinds of succession in other countries.
- In some countries, the youngest son succeeds to the father.
- There is something like this among our tenants to this day.
- The older sons are provided for as they grow up.
- The youngest, remaining with the father, succeeds to him.
Next: Chapter 4b