Right of succession

“ 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.” ”

“ 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. ”

“ And, even in those instances where the succession has been violated, the crown has ever been looked upon as hereditary in the wearer of it. Of which the usurpers themselves were so sensible, that they for the most part endeavoured to vamp up some feeble shew of a title by descent, in order to amuse the people, while they gained the possession of the kingdom. And, when possession was once gained, they considered it as the purchase or acquisition of a new estate of inheritance, and transmitted or endeavoured to transmit it to their own posterity, by a kind of hereditary right of usurpation. ”

“ In European monarchies, the right of succession is justly esteemed a fundamental; and even though the whole legislature be vested in a single person, it would never be permitted him, by an edict, to disinherit his lawful heir, and call a stranger or more distant relation to the throne. ”

“ There exists in the whole a right of succession, which can be lawfully obstructed only in a portion of it, by public authority, that of the ecclesiastical magistrate, who gives occasionally 271an exclusive title, in such portion, to the succession of some family, or to an individual, who has a fair claim to be favoured by such a distinction ”

“ And it is no objection to this definition that an inheritance comprises things which are corporeal; for the fruits of land enjoyed by a usufructuary are corporeal too, and obligations generally relate to the conveyance of something corporeal, such as land, slaves, or money, and yet the right of succession, the right of usufruct, and the right existing in every obligation, are incorporeal. ”

“ In the same manner that men succeed to the power, do they also succeed to the right of succession. 19. Furthermore, by the same reason that men succeed to the power, do they also succeed to the right of succession. For if the first-born die before the father, it will be judged that he transferred his right of succession unto his children ”

“ When neither long possession, nor present possession, nor conquest take place, as when the first sovereign, who founded any monarchy, dies; in that case, the right of succession naturally prevails in their stead, and men are commonly induced to place the son of their late monarch on the throne, and suppose him to inherit his father's authority. ”

“ It is not therefore any injury to the people for a monarch to dispose of the succession by will; though by the fault of many princes, it hath been sometimes found inconvenient. Of the lawfulness of it, this also is an argument; that whatsoever inconvenience can arrive by giving a kingdom to a stranger, may arrive also by so marrying with strangers, as the right of succession may descend upon them: yet this by all men is accounted lawful. ”

“ 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. ”

“ Although therefore for all ordinary purposes a son had no claim on the paternal estate beyond his maintenance, his right of succession might easily grow up in the eye of the law as an available asset capable of forfeiture with the theoretical assumption that the scapegrace was unfit to hold his position in the family.220 His future portion, thus becoming deprived of a representative, might be wholly or in part confiscated to the State. ”

“ FN 20 In examining the different titles to authority in government, we shall meet with many reasons to convince us, that the right of succession depends, in a great measure on the imagination. Mean while I shall rest contented with observing one example, which belongs to the present subject. Suppose that a person die without children, and that a dispute arises among his relations concerning his inheritance ”

“ And therefore this hereditary right should be kept so sacred, as never to break the succession, unless where the preserving of it may endanger the constitution; which is not from any intrinsic merit, or unalienable right in a particular family, but to avoid the consequences that usually attend the ambition of competitors, to which elective kingdoms are exposed; and which is the only obstacle to hinder them from arriving at the greatest perfection that government can possibly reach. ”

“ The right of excluding an unworthy heir from the succession was supported not only by the plain and fundamental principles of civil society, which establish the interest of the people to be the paramount object of political institutions, but by those of the English constitution. ”

“ No experience has taught us that in any other course or method than that of an hereditary crown our liberties can be regularly perpetuated and preserved sacred as our hereditary right. An irregular, convulsive movement may be necessary to throw off an irregular, convulsive disease. But the course of succession is the healthy habit of the British Constitution. ”

“ The heir being considered as having succeeded to the deceased from the instant of his death, the first effect of this right is that the heir transmits the succession to his own heirs, with the right of accepting or renouncing, although he himself have not accepted it, even in case he was ignorant that the succession was opened in his favor. ”

“ Descent, or hereditary succession, is the title whereby a man on the death of his ancestor acquires his estate by right of representation, as his heir at law. An heir therefore is he upon whom the law casts the estate immediately on the death of the ancestor: and an estate, so descending to the heir, is in law called the inheritance. ”

“ 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. ”

“ 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 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. ”

“ Accordingly, we have restored the old rules in their integrity, and made the law on this subject an exact copy of the Twelve Tables, by enacting, in our constitution, that all 'statutory' successors, that is, persons tracing their descent from the deceased through males, shall be called alike to the succession as agnates on an intestacy, whether they be males or females, according to their proximity of degree; and that no females shall be excluded on the pretence that none but sisters have the right of succeeding by the title of kinship. ”

“ As the necessary preservation of order and tranquillity precludes the possibility of any one taking possession, there clearly remains nothing but an hereditary succession ab intestato to be decided by the State. But to transfer to the political power such a mighty positive influence as it would acquire by the right of settling this hereditary succession, and by utterly abolishing the personal will of the ancestor, is forbidden by the principles we have already agreed upon. ”

“ And whereas the laws expressly assign this right to those most nearly related, it will be easy to ascertain to whom these inheritances severally belong. And it is evidently reasonable that the succession in these cases should belong to those who would have stood in the place of nearest affinity, had the deceased experienced a natural death. ”

“ 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. ”

“ 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 ”

“ 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. ”

“ 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. ”

“ The laws pertaining to the succession to property, to the duties of guardians, to the rights of wards, to legacies, to bequests in trust, and to the general limitation of testamentary powers were singularly clear. The regulations in reference to intestate succession, and to the division of property among males and females, were wise and just; we find no laws of entail, no unequal rights, no absurd distinction between brothers, no peculiar privileges given to males over females, or to older sons. ”

“ 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? ”

“ In this regard there can be no difference between hereditary and elective monarchies; for the heir cannot inherit more than his ancestor enjoyed, or had a right to enjoy, any more than a successor can succeed to it. ”

“ 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. ”

“ We cannot choose the father as qualified, and tie ourselves to the successors, be what they will. 6. If a king be not born heir of a kingdom, then is he not king by birth; but he is not born heir of a kingdom; for, a mean cannot be born to inherit the end, the king is but a mean for the kingdom's preservation. If the kingdom be his, by birth, as an inheritance, why may he not upon necessary occasions sell his inheritance? But if he sell it, then all confess he is no more king. 7. If that which makes a king cannot be transmitted from father to son; then succession, by birth, cannot make a king ”

“ 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. ”

“ The founders of our English monarchy might perhaps, if they had thought proper, have made it an elective monarchy: but they rather chose, and upon good reason, to establish originally a succession by inheritance. This has been acquiesced in by general consent; and ripened by degrees into common law: the very same title that every private man has to his own estate. Lands are not naturally descendible any more than thrones: but the law has thought proper, for the benefit and peace of the public, to establish hereditary succession in one as well as the other. ”

“ When we see the miseries which are entailed on present and future generations by disputed claims to the crown, we shall more than ever value the principle of a regulated succession, subject to no challenge or controversy. ”

“ 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. ”

“ 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. ”