By the XII Tables, if a man dies intestate the first people entitled to succeed to his estate are his sui heredes, i.e. all those in his patria potestas or manus who become sui iuris at his death. Thus if he leaves a widow in manu, a son who has himself a son, a grandson by a predeceased son, a married daughter and an unmarried daughter, his estate will be divided into four parts of which the widow, the son, the grandson by the predeceased son and the unmarried daughter, will each get one. The grandson by the living son gets nothing; he is not a suus heres because he does not become sui iuris by the death of his grandfather but comes under the potestas of his own father. The married daughter also gets nothing, because, provided she was married with manus, she has passed out of her father's power.
The form in which the rights of the sui heredes are mentioned in the XII Tables is worthy of notice. They are not so much given the inheritance as assumed to take it, for the statute simply says "if a man dies intestate without having a suus heres, the nearest agnate is to take". The reason for this is to be found in the original co-ownership of all the members of the family in the family property, of which the father in primitive times appears to have been regarded rather as the administrator than the owner. The original vague administrative supremacy of the head of the family had crystallised into ownership over the property as it had crystallised into potestas, manus and mancipium over the persons, but a trace of the older conception remained throughout in the manner in which sui heredes succeeded on the death of a paterfamilias. Whereas any other successor only assumed the rights and duties of an heir after signifying his acceptance of the succession (aditio hereditatis), the suus heres assumed them at once on the death of the paterfamilias without any act on his part and even without his knowledge or desire. His succession was in fact not so much a succession as a coming into the enjoyment of what, in a sense, had already partly belonged to him. Failing sui heredes the succession goes to the nearest agnate or agnates, if there are several in the same degree. In the case of women and children this is necessarily the first class because, since a woman cannot have patria potestas, she cannot have any sui heredes, and a child cannot have any children. No distinction is made in agnatic succession any more than in that of sui heredes between male and female agnates. Thus a sister of the deceased (by the same father) will share equally with a brother and will exclude an uncle; an aunt similarly (if the father's sister) will share with a father's brother and exclude a first cousin (the son of a brother of the deceased's father).
It is to be noted that the XII Tables do not say of the agnates that they are to be heredes, but that they are "to take the familia". From this it has been conjectured that they did not originally count fully as heredes, as did the sui and perhaps also the heirs appointed in a will, but in historical times the agnate certainly does count as an heir in the full sense.
In default of agnates the succession went to the gentiles. It has been suggested, on the analogy of Germanic law, that the rights of the gens were anterior to those of the agnates, i.e. that originally, if there were no sui, the property reverted to the clan, perhaps the original owner of the land. On this view the preferential right of the agnates, members of the gens who can actually show their relationship to the deceased and do not merely bear the same name, is a later development. We do not know whether the gens took as a corporation or whether, as the use of the word gentiles suggests, they took as individuals. It seems that, at any rate in the latest period in which gentile rights survived, the succession was taken by individuals, for we read that Caesar was "deprived of his gentilician successions", but this may well have been different at the time of the XII Tables.
In the case of free persons, who could have no agnates, the succession went, in default of sui heredes, to the patron, or, if he were no longer living, to his children. These rules applied, not only to those manumitted from servitude, but also to those manumitted from mancipium; thus when a child was emancipated, if the father had taken care to have the child re-mancipated to him after the third sale, so that he undertook the last manumission himself, he, as quasi-patron, was successor on intestacy to his child; if the last manumission was carried out by the extraneus such rights went to him.
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- The law of the family and of succession at the time of the XII Tables
+ Marriage
+ Patria potestas
+ Guardianship
+ The agnatic family
+ Testamentary succession
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Source:
Historical introduction to the study of Roman law, H. F. Jolowicz, pages 123 - 125.
