Succession on Intestacy
Heirs on Intestacy
By the time of the XII Tables of about 450 BC, Roman law already regulated both testate and intestate succession.
In other words, there were rules on how to make a valid will. There were also rules about devolution of the estate if the deceased person had made no will or the will was invalid, for example because it failed to comply with formal requirements.size=1 color=black face="Book Antiqua">Distribution of the estate on intestacy depended on a classification of types of heir. Children who were released from paternal power (patria potestas) on the death of the deceased had the first claim on his estate, in equal shares. They were known as the sui heredes. It is a difficult term to translate literally — more or less ‘own heirs’. In the mid-second century AD the jurist Gaius explained that they are called this because they are household heirs and even during their father’s lifetime are regarded in a way as owners of the family property (Gaius 2.157). A testator might have no sui heredes; women never did, since they did not enjoy paternal power. In that case the next best claim was that of the nearest agnate or agnates, if there was more than one equally closely related. Agnates were relatives of the deceased who traced their relationship to him through the male line only. Again, a deceased might not have any agnates (freedmen, for instance, by definition did not, and if they left no children then their patron succeeded to their estate). In the absence of a nearest agnate, members of the gens or extended family were entitled to claim the inheritance. This, however, appears to have applied only in early law. Apart from this, there is virtually no trace in Roman law of a notion that the wider community ought to be a (or the) beneficiary in the event of the death of one of its members.
The law of succession is an area of Roman law which demonstrates particularly clearly what may be called the dualism of the Roman legal system.
On the one hand there was the ius civile (civil law), made up of the XII Tables, statutes passed by the legislative assemblies, and their authoritative interpretation. On the other there was ius honorarium (the law of the magistrate, in this context the praetor).4 By imaginative approaches to the situations in which he would grant an established remedy or when he might refuse it, the praetor was able to bring about remarkable changes in the shape of the civil law. The praetor came to admit claims that he regarded as equitable although they were not recognized under ius civile, and to reject claims that he viewed as unjust although they were legitimate at civil law. In doing this he presided over the formation of a new body of law in which some quite radical departures from tradition were made.In the law of succession on intestacy the praetor innovated on the scheme established in ius civile by elaborating the circumstances in which he was willing to grant an order for possession of the estate (bonorum possessio). A rather complicated hierarchy of claimants was introduced. Under this system those with the best claim were the children, including not just sui heredes but also those who had been emancipated by the deceased and so in the strict sense were no longer within the family; next came agnates; then cognates (that is, those related to the deceased but not necessarily through the male line, according to their degree of proximity); finally, the praetor recognized the claim of the surviving spouse on the estate of his or her deceased spouse. It is not so much the details that interest us here as two broader points: first, that the praetorian innovations aligned the law of succession much more closely with family relationships, notably by recognizing that it was not just those who could trace their relationship through the male line who should have a claim; second, the praetor recognized the entitlement of the surviving spouse - but since that ranked below all claims based on relationship it confirmed that the abiding principle was that marriage did not involve community of property.
Justinian’s law swept away the distinctions made in the classical law.
There was now no sign of sui heredes or any distinctions based on agnatic or cognatic relationship (or between male and female in general). Instead, in two laws Justinian set out an order of succession on intestacy by reference to three classes; in each class the person nearer to the deceased would exclude the claim of the more remote. The first claim was that of descendants; next, ascendants and brothers and sisters; and last, other collaterals (Novels 118 (AD 543) and 127 (AD 548)). The result is that the categories of the classical law have no continuing signistyle='font-size:8.0pt;line-height:115%;font-family:"Arial",sans-serif'>ficance for the systems that borrowed from and built upon Roman law.Testation and Intestacy
The question arises whether, at least among the propertied classes of Rome, it was common to make a will. The evidence on this is not unequivocal. Some literary sources at least imply that testation was regarded as a duty or officium: in particular, Cato is said to have regretted having lived a single day intestate.5 Sir Henry Maine regarded testation as being so much the norm that he wrote of the Roman ‘horror of intestacy’.6 Although that appears to be overstated, on balance it does appear that the propertied Roman was very likely to make a will, especially if he was male.7 The evidence of such wills as survive suggests that the Roman testator was most likely to appoint his children - particularly his sons - as the heirs under his will.8 They of course are precisely the people who would have had the first claim if the deceased had died without leaving a valid will. But that perhaps tells us something: by contrast with other societies, it is notable that Roman law neither gave any preference to male children over female children nor precedence to the oldest child over younger ones. It is clear that a system of unregulated partible inheritance such as this has a strong tendency to fragment property. The effects of fragmentation are likely to be all the more significant and marked in a society such as that of classical Rome, in which membership of a particular social class depended on the amount of property that a person owned. Although the evidence does not allow any clear or firm conclusion on the point, it is at least tempting to speculate that the desire to avoid fragmentation of the estate may have encouraged Roman testators to make wills, precisely because by doing so they could leave their property to their children in unequal shares.
3.