Fourth way of acquiring Property: Succession

Succession has 2 kinds:

1. Testamentary

In testamentary succession, the distribution of goods is done according to the will of the deceased.

2. Legal

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 and 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 help out 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=

1. ascendants,
2. descendants, and
3. collaterals.

• 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.

Initially, collateral succession extended only to the nearest in blood. If he refused it, the goods belonged to the public. But afterwards, the praetor extended it to the seventh in blood.

When a brother died and another succeeded, it was in consequence of their connection with the father, who is the common stock. Therefore, succession of ascendants must have been prior to that of collaterals.

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.

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.

1. One is supposed to belong to the deceased husband
2. One to the wife
3. 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. 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.

Grandchildren do not succeed in place of their deceased father, as among the Romans. However, the English law admits of representation. It prefers ascendants, if males, to collaterals.

Indivisible Inheritance

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. 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.

As late as 1745, this power remained in the Highlands of Scotland. Some gentlemen could bring several hundreds of men into the field.

From Munera and Beneficia to Feudal

These lords had no other way to dispose of their lands, 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 beneficia and have retained the name. Through this, the lords secured their vassals’ fidelity.

Benefices were for life. The property was naturally transferred to the son of the deceased tenant. Gradually, the tenures became hereditary and were called feudal. Thus, the tenant became more independent.

When any chieftain died while his son was a minor, the king appointed a leader who appropriated the land’s profits and emoluments for his own use until the son grew up.

If the chieftain only had a daughter, the lord could have her married to someone and have her husband as his own vassal. The lord was also the guardian of the male heir, and so he could only marry with his consent.

The feudal lord possessed the lands while the child was a minor. When the child grew up, he was obliged to pay a ‘relief’ to recover his lands. This was introduced by the court of the king or lord. The minor was obliged to=

• swear fealty to the court
• promise homage to his superior

Thus, the court and lord held their lands for military service, homage, fealty, wardship, marriage, relief, etc.

Allodial estates were free from all such services. But the estates became feudal for security. This is the sme reason why large landowners paid a feu and swore fealty to the sovereign.

It was very difficult to secure property, especially if it was small, in those early times. Therefore, the division of estates was to be avoided. The division of France led to bad consequences. The division of private estates would have been still worse.

The indivisibility of estates is called the right of primogeniture. This took a long time to enforce because of the opposition from the rest of the sons. In Germany, it did not fully take place before the 17th century.

Eldest Successsion

A single person, naturally the oldest son, was preferred to have such lands. This is because age is not disputable. If it were given to wisest or bravest son, there might be great disputes.

In the beginnings of society, age itself is very much respected. To this day, among the Tatars, the king is not succeeded by his son, but by that one of the royal family who is oldest.

When primogeniture was introduced, it naturally led to succession by representation. The younger brothers would think it difficult that their older brother should be preferred to them. If he died, they would still think it more difficult that his infant son should come in before them. Accordingly in many places, this has been disputed in single combat.

Bruce and Balliol disputed this way. Balliol had the best right since he was descended from the oldest daughter, even if Bruce was a step nearer the common stock.

Initially, the difficulty of introducing this created a new kind of succession.

Brotherly? Successsion

When a father died, his estate went to his eldest son. But if he died while his children were minors, or his father was still alive, then his brother succeeded.

This had one inconvenience. 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.

The brothers naturally thought that they were nearer to the father than any grandson. 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.

This last circumstance afterwards gave rise to lineal succession.

Lineal Successsion

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 they could succeed to lands which required any other kind of service.

There are two kinds of fiefs=

1. Masculine

No woman can succeed. France is an example of this.

2. Feminine

England is an example of this.

Scotch law has quirks with regard to succession of collaterals=

• 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.

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.

Disadvantage of The right of primogeniture

1. The right of primogeniture hinders agriculture.

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.

2. Primogeniture is also hurtful to the family.

While it provides for one, it suffers all the rest in a few generations to be reduced to beggary. However, it has one advantage in succession to a monarchy= It prevents all dangerous rivalries 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.