Intestate Succession

In the law of succession, we must distinguish two broad situations. Either the deceased has left a valid will or has not. If there is a valid will, we are concerned with testate succession.

Intestacy arose when the deceased had left no valid will, either because there was no will at all or because a will the deceased had made had failed. In that case, the law distributed the deceased’s assets according to rules laid down by the law rather than according to the deceased’s intentions, even if they were known. Because of the principle of universal succession, and unlike modern law, there could be no partial intestacy. Either an heir had been validly appointed, in which case that person would take over the deceased’s assets and liabilities except insofar as assets had been distributed by a will; or else no heir had been validly appointed, in which case the estate was intestate. The law of intestate succession is complex because of the way it developed over time. During both Republic and Empire, until replaced by Justinian, the basic civil law rules were those laid down by the Twelve Tables. However, these rules were qualified in their effect by subsequent developments, especially of the praetorian law.

(1) Succession under the Twelve Tables

The Twelve Tables laid down who should succeed on intestacy, prioritising poten­tial heirs according to three classes. In the absence of an heir in one class, the next would be considered. First priority went to the class of people known as sui heredes. If there were no sui heredes, the nearest agnate had priority, followed by the deceased’s gens. An heir could bring a hereditatis petitio (petition for an inheritance) to recover heirship property from anyone wrongly in possession.

(a) Sui Heredes

First in line were the sui heredes of the deceased, that is those becoming sui iuris on the death of the deceased.

Where the sui heredes were all of the same degree (e.g. all children or all grand­children of the deceased, a wife in a marriage cum manu counting the same as her husband's children for these purposes), they took jointly, in equal shares. Where they were of different degrees, the sui heredes took per stirpes.⁴ This term means ‘by branch', in other words meaning that a man who would have been one of the sui heredes but who predeceased or had been emancipated was represented by his own children. For example, suppose that a paterfamilias died with one living son and one predeceasing son, who had himself two surviving sons. The living son would get half of the inheritance and the two grandsons would share the half their father would have got had he lived. Among the sui heredes, no distinction was made on the grounds of sex. Accordingly, a man's son and daughter would succeed equally on his intestacy.

(b) Nearest Agnate

In the absence of any sui heredes, the nearest agnate would inherit. If there was more than one agnate of the same degree, they would share equally. Originally, no distinction was made between male and female agnates. However, in the late Republic or early Empire, it came to be the case that women were excluded from this category, except for sisters of the deceased. Unlike sui heredes, the nearest agnate could refuse the inheritance.

(c) The Gens

If the nearest agnate refused the inheritance, it did not go to the next nearest agnate. Instead, the inheritance passed to the deceased's gens (clan). How this worked in practice is unclear.^{[1728] [1729] At any rate, the rights of the gens became much less important in the classical period, by which time the gens barely existed beyond a shared name of its members.[1730] These rights of the gens were largely superseded by the development by the praetor of rules greatly expanding the categories of people entitled to succeed on intestacy.}

(2) Reforms

The stress that the civil law rules placed on the agnatic relationship, to the exclu­sion of other blood relationships, is clearly a relic of earlier times. This is particu­larly so for the succession of the gens. By the period for which we have evidence, other relationships were seen as more important than they had evidently been considered at an earlier time.

It is true that there were some changes over time. In particular, two senatus­consulta altered the order of succession in particular circumstances to recognise the relationship between mother and child. Under the emperor Hadrian, the senatusconsultum Tertullianum gave a mother with the ius liberorum¹⁵ the right to suc­ceed on her deceased child's intestacy, along with her daughters, as long as the deceased had no surviving father or brothers and no sui heredes.⁴ In AD 178, the senatusconsultum Orphitianum gave children the right to succeed on their mother's intestacy.^{[1731] [1732] [1733] These were limited reforms, however, and the primacy of the agnatic relationship was otherwise retained. This was the case all through the classical period, and the post-classical period. It appears in the Digest and Institutes, only being finally abolished ten years later byJustinian.[1734] In the classical period, there­fore, the agnatic principle dominated intestate succession, at least in principle. In practice, though, the position was moderated by praetorian intervention. The praetor modified the operation of the civil law rules by granting bonorum possessio, the award of possession of property, to persons in a different order of priority from that of the Twelve Tables.[1735] Such persons may be referred to as praetorian heirs, as they are made heirs by the intervention of the praetor rather than by the civil law. We can distinguish them from civil law heirs, who are heirs under the Twelve Tables rules. Sometimes, but not always, a person would be both civil law and praetorian heir.}

(a) The Praetorian Order of Succession Under the praetorian order of succession, first priority was given to liberi. This term literally means ‘children', but is in fact broader than that. It covered the sui heredes of the deceased (i.e. those becoming sui iuris, or legally independent, on the death of the deceased). It also included children who had been emancipated. This com­plicated things significantly. Unlike the sui heredes, an emancipated child might have acquired money or property from the former paterfamilias. As we have seen,^[1736] it was common for the emancipation to be accompanied by a gift to set the emancipated child up in life. By contrast, the other children could normally^[1737] own nothing. It would have been unfair not to take such gifts into account when dividing the estate of the paterfamilias. Accordingly, lifetime advances to the emancipated child were subject to collatio bonorum, which means that they had to be counted as part of the deceased’s estate for the purposes of calculating the shares to be given.^[1738] The same was true of any other property that the emancipated child had acquired up to the death of the former paterfamilias. Few things demonstrate more clearly the persis­tence of the influence of Roman law into the modern world, where circumstances are quite different and there is no such thing as emancipation of a child, than that the rules on collation of lifetime advances have been received into modern law.^[1739]

If there were no liberi, or no liber^[1740] validly claimed, the inheritance would fall next to the category known as legitimi. The legitimi were those persons, other than the gens, entitled to succeed under the Twelve Tables rules: i.e., primarily, the nearest agnate.

Next came the cognatic relations of the deceased. This was limited to the sixth degree of relationship, or seventh in the case of a child of a second cousin.^[1741] Cognates in the same degree of relationship shared equally.

If no valid claim was made by anyone in any of the preceding classes, the spouse of the deceased would take.^[1742]

(b) Bonorum Possessio

The first step in enforcing an entitlement to an inheritance under the praetorian rules was to apply to the praetor for an award of bonorum possessio. The term bonorum possessio can be translated as ‘possession of property’, which is somewhat misleading as it did not actually give the claimant possession. Instead, it entitled the claimant to proceed to the next step in acquiring possession of the property.

There was a time limit for applying for bonorum possessio. This was 100 days, or a year for ascendants and descendants, following which the inheritance would pass to the person or persons next entitled. Any period during which a person entitled was unable to apply for bonorum possessio or was unaware of the entitle­ment did not count towards the time limit, and nor did any period of uncertainty about entitlement that subsequently arose.^[1743] Once the time limit had expired, the chance to claim as a member of that class was lost. Those next entitled would then have the same period to make a claim. Some people, however, would be members of both a higher and a lower class, and so could claim as part of the latter if the chance to claim as part of the former was missed. For example, every agnate was also a cognate,^[1744] and so could claim as such. Suppose, for instance, that a man died with only two living relations, the son of his brother and the son of his sister. The brother's son is the nearest agnate, and would be entitled to inherit on that basis. If he failed to do so, he could claim as a cognate, but his cousin would be entitled to share the inheritance as a cognate of the same degree of relationship. Although those related to the same degree in each class were entitled to inherit equally, the claim for bonorumpossessio had to be made by each, with the result that anyone failing to claim would lose the share that he or she would otherwise have been entitled to.^[1745] An application by one did not count as an application by all.

It will be obvious that, if the members of each class had to be given, in turn, the opportunity to refuse the inheritance, it might take a considerable time to work through them all. On the other hand, a person entitled could decline the inheritance, which would cut short their period for claiming, and it would often be obvious that there was nobody in a particular class. In addition:

It must... be remembered that any bonorum possessio could in fact be given at any time. The praetor gave it on application, without serious enquiry, to anyone who set up a primafacie claim, on ex parte evidence. The praetor knew nothing about the facts. But such a grant would be a mere nullity, for all purposes, unless the person to whom it was made was the person or one of the persons entitled to it at that time.^[1746]

Still, even a bonorum possessio granted to someone not entitled to it would be of benefit to that person, as the true facts might well not come to light.

Bonorumpossessio could be granted either cum re or sine re. These terms do not read­ily translate into English.^[1747] Essentially, though, bonorum possessio cum re gave a right that was enforceable against a person entitled to succeed under the Twelve Tables rules. By contrast, bonorum possessio sine re allowed the person granted it to seek pos­session of the property contained in the inheritance, but did not allow that person to prevail against the ‘true heir', the civil law heir. Even then, though, ownership could be acquired by usucapio if nobody with a better right came forward in time.

It is not always clear when bonorum possessio was given cum re and when sine re. Indeed, it would not always be clear to the claimant whether the grant was cum re or sine re, as this would not always be stated. Moreover, whether a grant of bonorum possessio in particular circumstances was considered to be cum re or sine re changed over time. It would be reasonable to suppose that, originally, it was always sine re. This would be consistent with the way that the praetorian jurisdiction was con­ceived.^[1748] The category of bonorum possessio cum re would then be developed by the praetor allowing in particular cases a defence^[1749] against an attempt by the civil law heir to recover the property from the praetorian heir. By Justinian’s time, bonorum possessio was normally granted cum re. In the classical period, we can certainly say that the emancipated child was entitled to bonorum possessio cum re. Otherwise, the rules on collatio bonorum would not make sense, as they assumed an emancipated child claiming alongside children who had not been emancipated. Other than this, there is most likely a general distinction to be made between those who were also civil law heirs, and those who were only praetorian heirs, with the latter get­ting bonorum possessio sine re only.

Once bonorum possessio had been granted, there were two main ways of actu­ally recovering the property from whoever had it. One of these was the interdict quorum bonorum. This was a possessory interdict,^[1750] and so was concerned only with the question of interim possession. Because it did not settle the question of who actually had the final entitlement to the inheritance, it could be brought by the praetorian heir regardless of whether bonorum possessio had been given cum re or sine re. It also had the great advantage that, once the praetorian heir had acquired possession, anyone attempting to show a better right to the property would have the burden of bringing an action and proving that right. The interdict would likely therefore be particularly attractive when there was doubt about the parties’ respective rights or whether there was uncertainty as to whether the bonorum pos­sessio was cum re or sine re. Quorum bonorum was, however, subject to two important limitations. The first was that it could only be brought against a person possessing as heir (or who refused to state a basis for possession).^[1751] It could not, therefore, be successfully brought against someone claiming to possess as, for example, a purchaser. The second limitation was that it could not be used to recover debts owed to the inheritance.^[1752]

The alternative way to recover the inheritance was the hereditatis petitio possesso­ria, a variant of the standard hereditatis petitio. For this, it was necessary to show a valid grant of bonorum possessio. If this was cum re, it could be brought even against a civil law heir. If sine re, it would be effective against anyone other than the civil law heir. Either way, the hereditatispetitiopossessoria was conclusive of the parties’ rights.

C.