Succession law

“ The cases of succession will be a relapse of certain goods used by the member of a community to that community and a consequent rearrangement of rights of usage. The law of succession will again be constructed on a personal basis, but this basis will be supplied not by the single individual whose death has had to be recorded but by some community or union to which this individual belonged. (3) The aggregate of goods and claims constituting what is commonly called an inheritance may be considered as a unit having an existence and an object of its own. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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 ”

“ 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 ”

“ 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. ”

“ 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. ”

“ If a child who had not been disinherited—and one improperly disinherited was eventually in the same position—was not instituted to some share, however small, of his parent’s hereditas, he was entitled to have the testament declared null in so far as the institutions in it were concerned, thus opening the succession to himself and the other heirs-at-law, but without affecting accessory provisions, such as bequests, nominations of tutors, &c. ”

“ 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. ”

“ 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. ”

“ To that extent the statute establishes a classification based on the amount of the estate passing under the power of disposition at the time of death as well as the classification, based upon the amount of the legacy received, contained in other provisions of the taxing law.
There are two elements in every transfer of a decedent's estate; the one is the exercise of the legal power to transmit at death; the other is the privilege of succession. ”

“ As to the latter there is nothing that need here be said, save that the law is chiefly guided by the presumed desires of the dead man, and confers the estate upon his relatives in order of proximity. In default of any known relatives the property of an intestate is claimed by the state itself, and goes as bona vacantia to the Crown.
Testamentary succession, on the other hand, demands further consideration. Although a dead man has no rights, a man while yet alive has the right to determine the disposition after he is dead of the property which he leaves behind him. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ It was material, however, with reference to the nature of the suit. For, unless we entirely misunderstand the meaning of the Code of 1889, and of the proceedings under the civil law in case of succession, after the inheritance has been divided, the liability the succession is at an end, and gives place to a personal liability of each heir for the whole debt to the extent of the assets received by him, if he has accepted with benefit of inventory, or, otherwise, in full. Arts. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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? ”

“ 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. ”

“ 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. ”

“ Legacies cannot be made to a larger amount than one-third of the testator's estate without the consent of the heirs.
3. A legacy cannot be left to one of the heirs without the consent of the rest.
4. There is this difference between the property which is the subject of inheritance and that which is the subject of legacy. The former becomes the property of the heir by the mere operation of law; the other does not become the property of the legatee until his consent shall have been obtained either expressly or impliedly. ”