CASE 159: Rules of the Ius Civile*

Collatio 16.2.1-4 (Gaius, Institutiones 3.1-4)

(1) Intestatorum hereditates ex lege duodecim tabularum primum ad suos heredes pertinent.

(Gaius in the third book of his Institutes')

(1) By the Law of the Twelve Tables, the inheritances of those who die intestate fall first to their sui heredes (privileged heirs).

(2)     By sui heredes are meant descendants who are in the dying man’s potestas, for example, a son or daughter, grandson or granddaughter through a son, (or) a great-grandson or great-granddaughter through a grandson born of a son. Nor does it matter whether the children are natural (i.e., biological) or adopted. All the same, grandchildren or great-grandchildren only count as sui heredes if the person above them in the family line has ceased to be in the power of a parent, whether this occurs through death or for some other reason, like emancipation.

(3)     A wife in manus is also a sua heres to the man in whose manus she is, since she is in the position of a daughter (filiae loco).... (4) Posthumous chil­dren are also sui heredes if they would be in their father’s power had they been born while he was still alive.

1.      Privileged Heirs. Intestate succession occurs when a sui iuris person dies ei­ther with no legally valid will or with a will that does not result in acceptance by an eligible heir. The sui heredes are those persons-in-power who become sui iuris, legally independent, as a result of the testators death. Civil law gave great importance to the sui heredes mainly because its rules were intended to encourage passage of an estate to the immediate members of the household, if any survived. Therefore, for the will to be valid, all such privileged intestate heirs had to be disinherited (by name, if they were sons) in the will; however, they also could not refuse an inheritance (they are necessarii; Gaius, Inst. 2.157). Are “privileged heirs” defined as a matter of biology or law? In an­swering that question, is it relevant that adopted children are treated as equal to natural children? Note, finally, that only males can have sui heredes, for the reason stated at the end of Case 4.

2.      Exclusion of Descendants. Why is it that the existence of a son-in-power ex­cludes the son-in-powers own son or daughter from the circle of sui heredes? For more on section 3, see Case 37, which establishes that when a woman en­ters an archaic manus marriage, she becomes her husband's sua heres if he is sui iuris; but if she is married to a son-in-power, for these purposes she is in the position of the son's daughter, hence not a sua heres to the pater.

3.      Share and Share Alike? Succession among sui heredes operated through a dis­tribution system that was “stirpital” in the sense that primary importance was accorded to “stems” (stirpes) traced back to the dead pater familias. Gaius (Inst. 3.7-8) explains how this works:

•       A pater familias is survived by his son, his daughter, and a grandson by a son who had died previously. Upon intestacy, each takes a third of the es­tate because each represents an independent “stem.”

•       Survivors are a grandson by one son and a great-granddaughter by the son of another son, the intermediate generations having died earlier. Each takes half.

•       Survivors are a son, a daughter, and the son and daughter of a deceased son. The son and daughter each take a third; the two grandchildren each take a sixth.

•       Survivors are two children from one deceased son and three children from another deceased son. The first two each take a quarter; the other three each take a sixth.

In each case, figure out the math and the principle that underlies it. Note that no distinction is made among sui heredes on the basis of their sex or their rel­ative age. From a social perspective, what possible defects can you spot in this system? Is it as fair as it seems?

4.      Next in Line.

5. Intestate Succession and the Familia. To what extent do the original rules for intestate succession reflect what might be thought of as the “ancient” form of the familia?