CHAPTER III. Of Succession by Law according to the Novels. III. THE law of succession to the property of those CHAP. who died intestate, from the time of the Twelve Tables to that of Justinian, has been explained, and it consists of the provisions of the Decemviral law gradually extended and enlarged by the equitable edicts of the Prætor; four of which Justinian retained, viz. unde liberi, unde legitimi, unde cognati, and unde vir et uxor; and these are acknowledged as law in the Institutes, Digest and Code. This union of legal and edictal rights, the latter the necessary consequence of the deficiency of the former, was at best but a patchwork affair; and therefore Justinian, before the close of his reign, remodelled and simplified the law of intestate succession. This he did by the 118th Novel, which was Novel 118, published on the seventh day before the kalends of and its August, in the eighteenth year of his reign, A.D. 543. By this constitution all distinctions between the sui and emancipati, and between the agnati and cognati were abolished, and the succession was reduced to the simple division of 1. Descendants. 2. Ascendants. 3. Collaterals. ants. I. Descendants, i.e. the children and grand- Succession children of the intestate, succeed, the former in of descendcapita, the latter in stirpes, dividing the property equally among them. These are legitimi, or legitimati, adoptivi, and illegitimi, without regard to sex. and per Sons and daughters succeed in capita, i.e. In capita sharing the property equally among them; if any stirpes. of them have died before the father or grandfather, 1 Nov. 118, ad finem. BOOK leaving issue, their children take along with their III. uncles and aunts per stirpes, i.e. they take their parents' share, dividing by the number of themselves: thus Then B, C and D would take each a third of the estate in capita, whether they had been emancipated or not; but as B and Chave died before A, their children, the grandchildren of A, take their respective parents' shares per stirpes, by the right of representation; x, y and z will therefore each have a third of their parents' portion, and c will Legitimati take the whole share of C. Illegitimate children and adop- duly legitimated shared with those born legitimate, but they must be plene legitimati; and adopted children also, provided the adoptio were plena1. tivi. 2. Ascendants. Right of succession between as Thus descendants, of whatever degree, male or female, excluded all other relations, whether ascendants or collaterals; and in the order of descendants no regard was had to primogeniture; and no preference in respect to sex2. Secondly, if there be no descendant-for if there be one, he or she excludes every one else then the succession devolves upon the ascendants; and here, as there is no right of representation, the nearer excludes the more remote. If there be ascendants in the same degree, they share equally; and it must be observed, that the cendants right of succession between ascendants and descendscendants ants is reciprocal, and therefore where the natural reciprocal. son cannot succeed to his father, neither can he and de succeed to his uncle by the father's side; but as he could succeed to his mother by the sctum orphitianum, therefore he could succeed his maternal uncles. 1 Colq. 1432-3. 2 Nov. 118. c. I. 3 Colq. 1437. Let G be the person deceased intestate, leaving alone. E and F, his father and mother, also A and B, and C and D, his paternal and maternal grandparents respectively, surviving. Then E and F, his father and mother, would first take the property equally, the nearer in degree excluding the more remote; and if one of his parents only survived, that one would take the whole. Next, suppose the parents be dead, the grandparents surviving them, then one moiety of G's property goes to A and B, the other to C and D; and if A the paternal grandfather be dead, B the paternal grandmother will take one moiety, the other being shared by C and and D the maternal grandparents; and this is what Succession the civilians mean by the succession being in lineas, in lineas. half going to one side, and half to the other. (2.) Ascendants together with brothers and estate is divided into five parts, each taking in capita. sisters. (3.) Ascendants together with brothers and Ascendants sisters, and brothers' and sisters' children. with brothers and their chil Let C' be the deceased, leaving A and B, father sisters, and and mother, and F a brother or sister surviving. D and E, two brothers, have died before him; the one leaving two children, x and y, and the other one child, z. The estate, as before, will be divided into five parts. A, B and F will each take a fifth in capita; x and y, the children of D deceased, will take their parents' fifth divided by 2, and z, the only child of E, his parents' whole share per stirpes1. 1 Nov. 118, c. 2. BOOK thers' and (4.) Ascendants together with brothers' and III. sisters' children alone. If on the death of Call his Ascendants brothers and sisters be dead, A and B, his father with bro- and mother, surviving, together with x and y the two children of D, and z the child of E, then the estate will be divided into four parts: A and B will take each a fourth in capita; x and y will share another fourth part, representing their deceased father D; and z will take the remaining fourth part, representing his parent E in stirpes. sisters' children alone. Brothers with bro sisters' children. 3. Collaterals. (5.) Brothers and sisters, with and sisters brothers' and sisters' children. Here on the death thers' and of Chis estate will be divided into three parts: F, his surviving brother, will take one third in capita; x and y, the children of D deceased, will share another third, and z, the child of E, will take the remaining third in stirpes, representing their deceased parents. Brothers' and sisters' children alone. Brothers (6.) Brothers' and sisters' children alone. Suppose at the death of C he leaves no brothers or sisters surviving, but only his nephews x, y and z, they will then succeed in capita, each taking a third of the inheritance. The rule is, that fratrum et sororum liberi quando soli sunt, i.e. have no uncles or aunts to concur with them, succedunt in capita. The reason of this is, that they do not in that case take by representation, but in their own right, being all ejusdem gradus1. Thus far brothers and sisters of the half blood are entirely excluded by the whole blood, and consequently their children can have no right of representation. (7.) Brothers and sisters of the half-blood, and and sisters their children. of the half blood, and dren. If A be the father, B and C their chil- his two wives, then D and E are half brothers, consanguinei. Consangui- If A be the mother, B and C nei and uterini. B A C her two husbands, then D and E are half brothers 1 D. XXXVIII. 16. 2. 2. uterini. On the death of D leaving his half bro- CHAP. thers, E and F, surviving, they each take half of his estate in capita. If E be dead, F takes half as before, and x, y and z, the children of E, will take the other half divided by three'. If the deceased leave no brothers, or brother's children, then all other collaterals succeed according to their respective degrees, preferring the nearer to the more remote". 1 Nov. 118. c. 3. 2 Colq. 1427. et seq. The reader will find a translation of Nov. 118, with notes, in the edition of the Institutes by Dr Harris. |