Law of succession

“ But though this is granted, it does not follow in their creed, that any part of the nation have thereupon a right to present the hereditary crown to whom they will. The law of succession, they say, is not to be violated because the king has fled before a popular insurrection; and having permitted his abdication, the next heir becomes king. ”

“ When a Roman citizen died intestate or leaving no valid Will, his descendants or kindred became his heirs according to a scale which will be presently described. The person or class of persons who succeeded did not simply represent the deceased, but, in conformity with the theory just delineated, they continued his civil life, his legal existence. The same results followed when the order of succession was determined by a Will, but the theory of the identity between the dead man and his heirs was certainly much older than any form of Testament or phase of Testamentary jurisprudence. ”

“ It is certain that, in the old Roman Law of Inheritance, the notion of a will or testament is inextricably mixed up, I might almost say confounded, with the theory of a man's posthumous existence in the person of his heir.
The conception of a universal succession, firmly as it has taken root in jurisprudence, has not occurred spontaneously to the framers of every body of laws. ”

“ A succession is acquired by the legal heir, who is called by law to the inheritance, immediately after the death of the deceased person to whom he succeeds. This rule applies also to testamentary heirs, to instituted heirs, and universal legatees, but not to particular legatees. ”

“ Limitations In Respect Of Succession Outside The Direct Line Of Descent.
The right of succession limited to the great-grandchild of the common ancestor. The Gortyn law quoted above in the previous section goes on:—
v. “If (a man or woman die and) they have no children, the deceased's brothers and brother's children or grandchildren shall have the property. If there are none of these, the deceased's sisters, their children or grandchildren. If there are none of these, to whom it descends of whatever grade they be, they shall inherit the property.” ”

“ And every student of technical jurisprudence must have come across the same view, clothed in the language of a rather different school, which, in its rationale of this department of law, treats succession ex testamento as the mode of devolution which the property of deceased persons ought primarily to follow, and then proceeds to account for succession ab intestato as the incidental provision of the lawgiver for the discharge of a function which was only left unperformed through the neglect or misfortune of the deceased proprietor. ”

“ If the rites are not properly performed or not performed by the proper person, no relation is considered as established between the deceased and anybody surviving him; the law of succession does not apply, and nobody can inherit the property. ”

“ In one place there are three families from which the chief is chosen in rotation. The law of succession is rather remarkable, the eldest brother inheriting property in preference to the son; and if a married man dies, his children belong to his widow’s eldest brother, who not unfrequently converts them into property by selling them to the slave dealers. ”

“ The question of the succession is settled by the Constitution Act, and no alteration is possible in justice, that does not fully reserve the rights of all living beings. I am first in the order of succession, and no law of man can take it from me excepting with my full consent. ”

“ The law of succession, as with the Celts of Scotland, prescribed that the eldest surviving brother of the deceased monarch should be elected to his throne, and, failing him, the eldest nephew. But incompetent persons were almost invariably ignored by the elective body, although the choice was limited to one family. ”

“ Article Thirteen The Head of State, upon the advice of the Council of the Realm, may propose to the Cortes that there be excluded from the succession those royal persons lacking the necessary capacity to rule or who, because of their notorious departure from the fundamental principles of the State or because of their acts, deserve to lose the rights of succession established in this Law. ”

“ A succession to one had no connection with the succession to another. Each succession was the assumption of a distinct personal relation, in which the successor was to be determined by the terms of the relation in question.
The persona which we are seeking to define is the estate. Every fee is a distinct persona, a distinct hereditas, or inheritance, as it has been called since the time of Bracton. We have already seen that it may be sustained by more [352] than one where there are several heirs, as well as by one, just as a corporation may have more or less members. ”

“ Again a law was passed, by which the descendants were entitled to one third of the succession, and to one half if there were more than four. In France if a man die leaving one lawful child, he can only dispose of half of his estate by will ”

“ Heirs apparent are such, whose right of inheritance is indefeasible, provided they outlive the ancestor; as the eldest son or his issue, who must by the course of the common law be heirs to the father whenever he happens to die. Heirs presumptive are such, who, if the ancestor should die immediately, would in the present circumstances of things be his heirs; but whose right of inheritance may be defeated by the contingency of some nearer heir being born: as a brother, or nephew, whose presumptive succession may be destroyed by the birth of a child ”

“ The examples of succession by Primogeniture which were found among the Benefices may, therefore, have been imitated from a system of family-government known to the invading races, though not in general use. Some ruder tribes may have still practised it, or, what is still more probable, society may have been so slightly removed from its more archaic condition that the minds of some men spontaneously recurred to it, when they were called upon to settle the rules of inheritance for a new form of property. ”

“ The law of hereditary succession, as ancient and universal as that of property itself, the law of testamentary disposition, the complement of the former, so long established in most countries as to seem a natural right, have invested the individual possessor of the soil with such a fictitious immortality, such anticipated enjoyment, as it were, of futurity, that his perpetual ownership could not be limited to the term of his own existence, without what he would justly feel as a real deprivation of property. ”

“ In point of fact, we know of no period of Roman jurisprudence at which the place of the Heir, or Universal Successor, might not have been taken by a group of co-heirs. This group succeeded as a single unit, and the assets were afterwards divided among them in a separate legal proceeding. When the Succession was ab intestato, and the group consisted of the children of the deceased, they each took an equal share of the property; nor, though males had at one time some advantages over females, is there the faintest trace of Primogeniture. ”

“ When the phenomena of primitive societies emerge into light, it seems impossible to. dispute a proposition which the jurists of the 17th century considered doubtful, that Intestate Inheritance is a more ancient institution than Testamentary Succession. As soon as this is settled, a question of much interest suggests itself, how and under what conditions were the directions of a will first allowed to regulate the devolution of authority over the household, and consequently the posthumous distribution of property. ”

“ For it is only the Common Will in the Civil state that maintains the possession of the Inheritance or Succession, while it hangs between Acceptance or Rejection and specially belongs to no particular individual. ”

“ When a Roman citizen adrogated a son, i.e. took a man, not already under Patria Potestas, as his adoptive child, he succeeded universally to the adoptive child's estate, i.e. he took all the property and became liable for all the obligations. Several other forms of universal succession appear in the primitive Roman Law, but infinitely the most important and the most durable of all was that one with which we are more immediately concerned, Hæreditas or Inheritance. Inheritance was a universal succession occurring at a death. The universal successor was Hæres or Heir. ”

“ Having laid down the rules of descent in the old feudal law, in regard to the sons of the last possessor, it will be proper next to mention how far it admitted representation, or collateral succession; for at first both were excluded. If a man had two sons, one of which died before him, leaving a son, the grandson could not succeed to his grandfather, but the uncle was sole heir. ”

“ It shall not be necessary for minor heirs to make any formal acceptance of a succession that may fall to them, but such acceptance shall be considered as made for them with benefit of inventory by operation of law, and shall in all respects have the force and effect of formal acceptance.' 'Art. ”

“ It was originally a military order for the purpose of supporting military government (for such were all governments founded in conquest) ; and to keep up a succession of this order for the purpose for which it was established, all the younger branches of those families were disinherited and the law of primogenitureship set up.
The nature and character of aristocracy shows itself to us in this law. It is the law against every other law of nature, and Nature herself calls for its destruction. Establish family justice, and aristocracy falls. ”

“ The church takes jurisdiction by 1200 over succession of chattels and succession assumes a testamentary character with witnesses and with an executor to carry out the dead man's will and pay his debts. A will only dealt with the dead man's part of his chattels, the law providing parts for the wife and children. If there were both wife and children, the wife took one-third and the children, except for the heir, one-third and the man could will the remaining third. ”

“ In whatever light hereditary succession, as growing out of the will and testament of some former generation, presents itself, it is an absurdity. A cannot make a will to take from B the property of B, and give it to C; yet this is the manner in which (what is called) hereditary succession by law operates. A certain former generation made a will, to take away the rights of the commencing generation, and all future ones, and convey those rights to a third person, who afterwards comes forward, and tells them, in Mr. ”

“ But in the course of nature this holy man will be gathered to his rest, and then his happy family may perhaps not live in such perfect harmony. He is now sixty-five years old, and has thirty sons, so that the question of succession is somewhat difficult, as there is no order of primogeniture. He has the right to choose an heir; and has been urged to do so by his English neighbors, to obviate all dispute to the succession. ”

“ This I take to be the true reason of the constant preference of the agnatic succession, or issue derived from the male ancestors, through all the stages of collateral inheritance; as the ability for personal service was the reason for preferring the males at first in the direct lineal succession. ”

“ It is also true that men's notions of the right of succession to property in general were becoming more strict and definite, and very possibly the importance of the succession involved in this particular case had its effect. ”

“ An heir to the property may be required; but with the facts of life before us, can we be content to allow the adoption of a child by a Temple woman to be so legalised that even if it can be proved to a moral certainty that her intention is to "continue the succession," nothing can be done? ”

“ But the simplest plan of avoiding the difficulty was for the paterfamilias to regulate his succession by testament; and this was probably had recourse to, not so much for instituting a stranger heir when a man had no issue—according to patrician notions his duty then was to perpetuate his family by adopting a son—as for partitioning the succession when he had more children than one. ”

“ The heir has the advantage of sustaining his ancestor's and the right is acquired.
LECTURE X. — SUCCESSIONS INTER VIVOS
I now reach the most difficult and obscure part of the subject. It remains to be discovered whether the fiction of identity was extended to others besides the heir and executor. And if we find, as we do, that it went but little farther in express terms, the question will still arise whether the mode of thought and the conceptions made possible by the doctrine of inheritance have not silently modified the law as to dealings between the living. ”

“ Often, too, the desired successor gains but envy for his share of the inheritance, and by his sudden death hands over the whole amount of the succession, which he has hardly entered upon, to strangers. ”

“ Must we not conclude, therefore, that whenever a person is born, the others must crowd closer together; and, by reciprocity of obligation, that if the new comer is afterwards to become an heir, the right of succession does not give him the right of accumulation, but only the right of choice? ”

“ For whereas previously men had been free to adopt any rule of succession they pleased, and the legitimacy of an heir had scarcely been considered, it now became necessary that the successor to the headship of a family should be legitimate before everything: adoption being declared preferable to the choice of a bastard. But the higher the social grade of the family, the greater the latitude in this respect. ”