.
HERES,
Greek
The Athenian laws of inheritance are to be explained under this title. The subject may be divided into five parts, of which we shall speak: 1st, of personal capacity to inherit; 2ndly, of the rules of descent and succession; 3rdly, of the power of devising; 4thly, of the remedies of the heir for recovering his rights; 5thly, of the obligations to which he succeeded.
1. Of personal Capacity to inherit.
To obtain the right of inheritance as well as citizenship (ἀγχιστεία and πολιτεία), legitimacy was a necessary qualification. Those children were legitimate who were born in lawful wedlock or in concubinage with an Athenian woman after legitimation. The validity of a marriage depended partly on the capacity of the contracting parties, partly on the nature of the contract. On the first point little needs to be noticed here, except that brother and sister by the same mother (uterini) were forbidden to marry (not in Egypt: cf. Theocrit. 17.128 ff., ἐκ θυμοῦ στέργοισα κασίγνητόν τε πόσιν τε); but consanguinity in general was so far from being deemed an objection, that marriage between collateral relations was encouraged, in order to keep the property in the family (Andoc. c. Alcib. § 33 ; Lys. c. Alcib. 1.41; Dem. c. Leoch. p. 1083.10; c. Eubul. p. 1305.21; Plut. Cim. 4, Themist. 32). The contract was [p. 1.944]made by the husband with the father, brother, or grandfather πρὸς πατρὸς of the intended wife (Dem. c. Leoch. p. 1095.49; Lex ap. [Dem.] c. Steph. ii. p. 1135.18): then only was she properly betrothed (ἐγγυητή). An heiress, however, was assigned, or adjudged, to the next of kin (ἐπιδικασθεῖσα) by process of law, as explained under EPICLERUS (Isae. Philoct. § 14, ἢ ἐγγυηθεῖσαν κατὰ τὸν νόμον ἢ ἐπιδικασθεῖσαν: the ἐγγύη is γάμου ἀπογραφή, Hesych. sub voce). No ceremony was necessary to ratify the contract; but it was usual to betroth the bride in the presence of witnesses, and to give a marriage feast, and invite the phratores of the husband, for the sake of publicity. [GAMELIA] Children of an Athenian mother, not born in wedlock, possessed civic rights (ἐλεύθεροι), and their father could procure for them heritable rights only by an act of legitimation (ποιεῖσθαι, Andoc. de Myst. § 124; Dem. c. Boeot. i. p. 1003.29). Without this act of legitimation--which was possible only if the mother was an Athenian [CONCUBINA]--such childen possessed no right of succession (νόθῳ μηδὲ νόθῃ εἶναι ἀγχιστείαν, Isae. Philoct. § 47, etc.; Att. Process, ed. Lipsius, p. 501 ff.).
2. Of the Rules of Descent and Succession.1
Here we would premise that, as the Athenian law made no difference in this respect between real and personal estate, the words “heir,” “inherit,” etc., will be applied indiscriminately to both. When an Athenian died leaving sons, they shared the inheritance (ἰσόμοιροι, Isae. Philoct. § 25), like our heirs in gavelkind, and as they now do in France: this was also the case when the sons were by different mothers (Dem. pro Phorm. p. 954.32), or when a person, after having adopted a son, had sons of his own (Isae. Philoct. § 63); for any one adopted into another family lost all rights of succession in the one from which he sprang (Isae. Astyph. § 2; Arist. § 4; Dem. c. Leoch. p. 1089.28). The eldest son had no essential advantage over the others (Philippi, Gesch. d. att. Bürgerr. p. 193; in Dem. pro Rhorm. p. 955.34 f., πρεσβεῖά τε τὴν συνοικίαν ἔλαβε κατὰ τὴν διαθήκην). Sometimes the sons lived on the joint, undivided property, sometimes they divided the money and possessed the other inheritance in common (Aeschin. c. Tim. § 102; Dem. c. Leoch. p. 1086.18; [Dem.] c. Eubul. et Mnes. p. 1149.34; Harpocr. s. v. κοινωνικῶν; Lys. c. Diog. § 4, etc.).
Sisters had no claims to a share, but it was incumbent upon the brothers to give them suitable marriage portions; they were then called ἐπίπροικοι (Harpocr. s. v. ἐπίδικος). There was no positive law making it imperative on a brother to give his sister a portion of a certain amount; but the moral obligation to assign her a fortune corresponding to his own rank was strengthened by custom and public opinion, insomuch that if she was given in marriage portionless, it was deemed a slur upon her character (Schömann ad Isae. p. 233). Mantitheus gave each of his two sisters a portion [p. 1.945]of 20 minas, although the property left him was not large (Lys. pro Mant. § 10; cf. Isae. Pyrrh. §§ 51, 49; Dem. c. Aphob. ii. p. 834.65; c. Boeot. ii. p. 1014.19, ἐκδοθεῖσα ὑπὸ τῶν ἀδελφῶν τῶν αὑτῆς, ὥσπερ οἱ νόμοι κελεύσυσιν).
On failure of sons and their issue, daughters and daughters' children succeeded [EPICLERUS]; daughters and the children of deceased daughters took per stirpes (Grasshoff, Symb. ad doctrin. jur. attic. de heredit. pp. 23-30). There seems to have been no limit to the succession in the descending line (Isae. Ciron. § 34). If the deceased left grandsons by different sons, it is clear that they would take the shares of their respective fathers. So if he had a grand-daughter by one son, and a grandson by another, the latter would not exclude the former, as a brother would a sister, but both would share alike. Of this there is no direct evidence; but it follows from a principle of Attic law, by which, on the birth of a son, his title to his father's inheritance, or to a share thereof, immediately accrued; if then he died before his father, but leaving issue, they claimed their grandfather's inheritance as representing him. It was otherwise with daughters. Their title did not thus accrue; and therefore it was the practice for the son of an heiress to be adopted into his maternal grandfather's house, and to become his son in point of law.
On failure of lineal descendants the collateral branches were resorted to. And first came the issue of the same father with the deceased; viz. brothers and brothers' children, the children of a deceased brother taking the share of their father (Isae. Hagn. § 1 ff.; Apollod. § 5 f. etc.); and after them, sisters and sisters' children, among whom the principle of representation also prevailed (Isae. Apollod. § 19. In Dem. c. Macart. p. 1067.51, Meier, Opusc. i. p. 237 n., inserts ἀδελφὰς καὶ παῖδας between ἢ ἀδελφῶν παῖδες and ἐξ αὐτῶν κατὰ ταὐτὰ λαγχάνειν); sisters' children took per stirpes.
Next come the descendants of the same grandfather with the deceased: uncles (Grasshoff, l.c. p. 67 ff.), cousins and cousins' children, aunts and their issue. Here the law declared that males and the issue of males should be preferred to females and their issue: οἳ ἂν ἐκ τῶν αὐτῶν ὦσι, κἂν γένει ἀπωτέρω τυγχάνωσιν ὄντες, Isae. Apollod. § 20; cf. Dem. c. Macart. p. 1067.51. Thus the grandson of an uncle would exclude the daughter of an uncle, and the grandson of an aunt would exclude the daughter of an aunt. On the same principle Isaeus (Apollod. l.c.) contends that the son of a female first cousin prevented his mother's sister from inheriting, although he was further removed from the deceased by one degree; whilst when a brother dies without issue, his sister and the son of a deceased sister would share the inheritance in equal parts. The various explanations of οἱ ἂν ἐκ τῶν αὐτῶν ὦσι are fully discussed by Grasshoff, l.c. p. 60 ff. (cf. Att. Process, ed. Lipsius, p. 586, n. 275), who adopts that of Schömann: “praeferri viros virisque prognatos (scil. feminis iisque qui a feminis descendant), si ex iisdem sint (scil. e quibus feminae et qui a feminis descendant), etiamsi propinquitate sint remotiores (scil. quam feminae et qui a feminis descendant).” Since the law about the preference of males to females is sometimes quoted without any limitation as to its application (Dem. c. Macart. p. 1077.78; c. Leoch. p. 1084.12, p. 1098.62), Buermann (Rhein. Mus. 1877, p. 365) looks upon this as a mere artifice of the speaker. The law (Isae. Hagn. § 2, etc.) is said to limit the ἀγχιστεία at the παῖδες ἀνεφιῶν (and descendants, Att. Process, ed. Lipsius, p. 586, n. 275): on this Eubulides founds his pretension to the estate of Hagnias; because he claims as representative (son by adoption) of his maternal grandfather, who was first cousin to Hagnias; whereas the father of his opponent, Macartatus, was second cousin to Hagnias, and as the speaker adds, “it is not proper for any person to possess the estate of Hagnias who belongs to a different branch of the family, as long as there remains any person who sprang from the branch of Hagnias” (Dem. c. Macart. p. 1058.27 f.).
On failure of first cousins and their issue, the inheritance went to the half-blood by the mother's side (κατὰ τὰ αὐτά): brothers and sisters, uncles and aunts πρὸς μητρὸς and their children. But if there were no maternal kinsmen within the legal degree, it returned to the agnati, or next of kin on the paternal side (τοὺς πρὸς πατρός), whose proximity was traced by counting the degrees from the common ancestor (Isae. Hagn. § 1 ff.).
The succession of parents to their children is a matter of dispute among the learned, and the reader is referred to Att. Process, ed. Lipsius, p. 579 ff, where the different opinions of the scholars who have treated that question are criticised. From the silence of the orators and the absence of any example, it may be inferred that parents could not inherit at Athens. At Athens the maxim hereditas nunquam ascendit held only of lineal, not of collateral ascent. For example, an uncle might inherit (Isae. Cleon. § 45 f.). So also he might marry the heiress, as next of kin (Isae. Pyrrh. §§ 63, 74).
3. Of the power of Devising.2
That the owner had power to alienate his property during his lifetime, and that such alienation was valid in point of law, both as against the heir and all the rest of the world, is beyond a doubt.
Every man of full age and sound mind, not under durance or improper influence ([Dem.] c. Steph. ii. p. 1133.16; Isae. Philoct. § 9), [p. 1.946]who was not ὑπεύθυνος (Aeschin. c. Ctes. § 21), was competent to make a will; but if he had a son, he could not disinherit him (Dem. c. Lept. p. 488.102; Isae. Pyrrh. § 68--yet see Dion. Halic. A. R. 2.26, ἐξελάσαι τῆς οἰκίας καὶ χρήματα μὴ καταλιπεῖν); although his will might take effect on the contingency of the son not completing his seventeenth year ([Dem.] c. Steph. ii. p. 1136.24). Legacies might be given to friends and relations, especially to those who performed the office of an executor or testamentary guardian (Dem. c. Aphob. i. p. 814, §§ 4, 5; p. 827.43; pro Phorm. p. 955.34 f.; c. Steph. i. p. 1110.28; cf. the will of Conon in Lys. de Bon. Arist. § 39 f.: τῇ μὲν Ἀθηνᾷ καθιέρωσεν εἰς ἀναθήματα καὶ τῷ Ἀπόλλωνι εἰς Δελφοὺς πεντακισχιλίους στατῆρας, τῷ δὲ ἀδελφιδῷ τῷ ἑαυτοῦ, ὃς ἐφύλαττεν αὐτῷ καὶ ἐταμίευε πάντα τὰ ἐν Κύπρῳ, ἔδωκεν ὡς μυρίας δραχμάς, τῷ δὲ ἀδελφῷ τρία τάλαντα, τὰ δὲ λοιπὰ τῷ ϝἱεῖ κατέλιπε, τάλαντα ἑπτακαίδεκα, i. e. not nearly half his estate). And in the division of property among sons, the recommendations of the father would be attended to (Dem. c. Macart. p. 1055.19; pro Phorm. p. 955.34). Also a provision, not exceeding a thousand drachmas, might be assigned to an illegitimate child (Harpocr. s. v. νοθεῖα; five hundred drachmas, Schol. on Aristoph. Birds 1655). Nor could a man separate his estate from his daughter (Isae. Pyrrh. §§ 42, 68 f.), though he might devise the estate to any person on condition of his marrying her.
It was only when a man had no issue that he was at full liberty to appoint an heir. His house and heritage were then considered desolate (ἔρημος καὶ ἀνώνυμος), a great misfortune in the eyes of an Athenian; for every head of a family was anxious to transmit his name and religious usages to posterity. The same feeling prevailed among the Greeks in more ancient times. We learn from Hesychius and the Etymol. Mag. that distant relations were called χηρωσταί, because, when they inherited, the house was χηρεύων καὶ ἔρημος. (See Hom. Il. 5.158; Hes. Th. 607.) To obviate this misfortune an Athenian might adopt a son either during his lifetime (Isae. Menecl. § 10 ff.; Apollod. § 1 ff.; Dem. c. Spud. p. 1028.3; c. Leoch. p. 1086.19) or by will (Isae. Apollod. § 1; Astyph. § 1; Arist. § 9, etc.) from any citizen's family. An adopted son might not bequeath by will τὰ ἐν τῷ οἴκῳ ὅτῳ ἂν ποιηθῇ (Dem. c. Leoch. p. 1100.67 f.); Apollodorus interprets this law to apply also to those who had been made citizens ([Dem.] c. Steph. ii. p. 1133.15, ἐπεποίητο ὑπὸ τοῦ δήμου πολίτης).
Wills were in writing (even the will of Hercules is represented as in writing, παλαιὰν δέλτον ἐγγεγραμμένην ξυνθήματα, Soph. Trach. 157 f.), and usually had one (Dem. c. Aphob. ii. p. 840.15) or more attesting witnesses--friends or relatives of the testator--whose names were inserted in the will (Isae. Astyph. § 12, ἐγγεγράφθαι ἐν τῷ γραμματείῳ: not superscribed, as Heraldus, Animadv. 2.5, 16, 20, thought), but who were not required to sign it nor were even necessarily made aware of its contents (Isae. Nicostr. § 13). These witnesses could therefore only bear witness to the fact that a will had been made (καταλιπεῖν διαθήκας), not to the genuineness of the will produced. It was considered a badge of fraud if wills were made secretly or in the presence of strangers (Isae. Astyph. § 7 ff.). It was not necessary that the testator should write or even sign the will himself; but he sealed it (Isae. Apollod, § 1; Aristoph. Wasps 584. From Dem. c. Aphob. ii. p. 837.5, it does not follow that the witnesses sealed it as well: cf. Philippi, Symb. ad doctr. jur. att. de syngraphis, p. 9) and deposited it (sometimes in several copies, Isae. Apollod. § 1; Lys. c. Diog. § 7) with friends or a magistrate (Isae. Philoct. § 7; Astyph. § 5 f.; Dem. pro Phorm. p. 946.7--Isae. Cleon. § 14 f.). A will was ambulatory until the death of the maker; he might revoke it (ἀνελεῖν, λῦσαι, Isae. Cleon. §§ 14, 18 ff.) either by destroying it or by declaring before witnesses that it was void (ὡς οὐκέτ᾽ αὐτῷ κέοιθ᾽ ἡ διαθήκη, Isae. Philoct. § 32; a new will did not in itself revoke an old one), or he might make additions either to the will itself (προσγράφαι) or by a separate, codicil (Isae. Cleon. § 25). (Att. Process, ed. Lipsius, p. 589 ff.)
With respect to the proceeding by which a father publicly renounced his paternal authority over his son, see APOKERYXIS
4. On the Remedies of the Heir for recovering his Rights.
A son, whether natural or adopted during the owner's lifetime (Dem. c. Leoch. p. 1086.19: the statement in Isae. Pyrrh. § 61, is too wide), or other male descendant, might enter and take possession of the estate immediately after the owner's death (ἐμβατεύειν εἰς τὰ πατρῷα, Isae. Pyrrh. § 62; εἰς τὸ χωρίον, Astyph. § 3; εἰς τὴν οὐσίαν, Dem. c. Leoch. p. 1090.32, etc.). If he was prevented by ἐξαγωγὴ from so doing, he might bring an action of ejectment against the intruder [EXOULES DIKE]. Any one who disturbed a minor or a woman in the enjoyment of their patrimony was liable to a criminal prosecution (κακώσεως εἰσαγγελία, Isae. Pyrrh. § 62). If any one brought forward legal claims to the estate, he tendered an affidavit (διαμαρτυρία) sworn either by himself or by another, e. g. the κύριος (Dem. c. Leoch. p. 1096.54; Isae. Pyrrh. § 2 f.). wherein he declared that the estate was not the subject of litigation (μὴ ἐπίδικον εἶναι τὸν κλῆρον, Isae. Philoct. § 4); he also deposited the tenth part of the value of the property in dispute (παρακαταβολή). If then the suitor was resolved to prosecute his claim, he had no other course but to procure a conviction of the witness (who had sworn the affidavit) in an action for false testimony (δίκη φευδομαρτυριῶν). With respect to the original cause, nothing further was determined than that it could or could not be entertained; if the court decided that the suit could be entertained, the parties proceeded to trial in the manner explained below. When the parties proceeded at once to the trial (without διαμαρτυρία), it was called εὐθυδικίᾳ εἰσιέναι or εἰσέρχεσθαι (Isae. Apollod. § 13; Philoct. § 3).
Other heirs-at-law and claimants by adoption or devise were not at liberty to enter, until the estate was formally adjudged to them. The proper course was to make application to the archon, who attended at his office for that purpose every month in the year except the last (Scirophorion; [Dem.] c. Stephan. ii. p. 1136.22, lex), or, in case of metoecs and foreigners, [p. 1.947]to the polemarch (l.c. § 23). This application was called λῆξις or ἐπιδικασία τοῦ κλήρου: to make an application, λῆξιν λαγχάνειν, or λαγχάνειν, or ἐπιδικάζεσθαι τοῦ κλήρου. The archon caused this application to be inscribed on the σαϝίς and to be read out at the first regular assembly held after he had received notice; probably at the same assembly the herald asked εἴ τις ἀμφισβητεῖν ἢ παρακαταβάλλειν βούλεται τοῦ κλήρου ἢ κατὰ γένος ἢ κατὰ διαθήκας (Dem. c. Macart. p. 1051.5). The different explanations given by the grammarians as to the difference in meaning between ἀμφισβητεῖν and παρακαταβάλλειν can scarcely be correct; παρακαταβάλλειν seems to imply a claim to the estate, whilst ἀμφισβητεῖν, a term of more general import, simply means disputing and objecting to the claim made. The deposit (παρακαταβολή) was the tenth part of the value of the property in dispute: it was returned to the party if successful; if not, it went to the treasury. In Isae. Nicostr. § 11, a severer penalty is suggested for those who claim an estate κατὰ δόσιν, i. e. κατὰ διαθήκας, viz. that they should pay to the treasury a sum equal to the value of the estate, if unsuccessful.
If no other claimant appeared, the archon adjudged the estate to the first suitor before a heliastic court (ἐπεδίκασεν αὐτῷ τὸν κλῆρον: cf. Isae. Pyrrh. § 43). If, however, there were adverse claims, he proceeded to prepare the cause for trial (διαδικασία τοῦ κλήρου). First came the ἀνάκρισις, in the usual way, except that no party was considered as plaintiff or defendant; and the bills in which they set forth their respective titles were called ἀντιγραφαί (Harpocr. s.v. Dem. c. Leoch. p. 1092.39; [Dem.] c. Olymp. p. 1175.31). The dicasts were then to be summoned, and, whatever the number of parties, one court was held for the decision of all their claims. If any one neglected to attend on the appointed day, and had no good excuse to offer, his claim was struck out of the record (διεγράφη ἡ ἀμφισβήτησις), and the contest was carried on between the remaining parties, or, if but one, the estate was awarded to him ([Dem.] c. Olymp. p. 1174.26). The trial was thus managed. The dicasts had to give their verdict either for one person proving a title to the whole, or for several persons coming in under the same title, as (for instance) two brothers entitled each to a moiety. One balloting box therefore was provided for every party who appeared in a distinct interest (Isae. Hagn. § 21) [PSEPHUS]. The speeches were measured by the clepsydra. Each claimant had an ἀμφορεὺς of water for his first speech and three χοεῖς for the second; in Dem. c. Macart. p. 1052.8, the speaker complains that he had only πέμπτον μέρος τοῦ ὕδατος to conduct the case of Phylomache: there were altogether five claimants, but the brothers Glaucus and Glaucon came in under the same title, claiming a moiety each, hence one balloting box was provided for the two together, but they had each as much time allowed as every other claimant Caillemer, l.c. p. 161 f.). That these arrangements gave rise to fraud and collusion, is clearly shown in the cases above cited.
The verdict, if fairly obtained, was final against the parties to the cause, unless the defeated party won a δίκη φευδομαρτυριῶν (Isae. Hagn. § 45; Dicaeog. § 14), or put forth a different claim (Dem. c. Macart. p. 1051.4 ff.). But any other person, who by absence or unavoidable accident was prevented from being a party, might afterwards bring an action against the successful candidate, to recover the estate. If the estate had been claimed κατὰ δόσιν and adjudged, it was necessary first to prove that the will was not genuine, before the estate could be claimed κατὰ γένος (Isae. Nicostr. § 25). The claimant was obliged to pay his deposit (which, if he was unsuccessful, was paid to the party in possession), summon the defendant, and proceed in other respects as in an ordinary suit. This he might do at any time during the life of the person in possession, and within five years after his death (Isae. Pyrrh. § 58; [Dem.] c. Olymp. p. 1175.29 f.; Dem. c. Macart. p. 1054.16). (Att. Process, ed. Lipsius, p. 603 ff.)
5. Of the Obligations to which the Heir succeeded.
The first duty of an heir, as with us of an executor, was to bury the dead and perform the customary funeral rites (τὰ νομιζόμενα ποιεῖν, Aeschin. c. Tim. § 13 f.); the guardian acted as representative for the heir under age (Isae. Cleon. § 10). It is well known what importance was attached to this by the ancients (cf. Gortyn Code, 10.42 ff.). The Athenian law regulated the time of burial, and the order in which the female relations should attend (Dem. c. Macart. p. 1071.62; Antiph. de Choreut. § 34). if no money was left to pay the expenses of burial, still the nearest relatives were bound to defray them; and if they neglected to perform their duty, the chief magistrate (δήμαρχος) of the demus in which the death took place, after warning them by public notice (ἀνελεῖν καὶ καταθάφαι καὶ καθᾶραι τὸυ δῆμον), got the work done by contract, paid for it himself, and was then empowered to sue them for double the amount. When a rich man died, there was no backwardness about his funeral. It is rather amusing to see how eagerly the relations hastened to show respect to his memory, as if to raise a presumption of their being the heirs (Isae. Nicostr. § 19; Astyph. §§ 4, 32; Ciron. §§ 21-24; Dem. c. Leoch. p. 1090.32).
Children who neglected to bury their parents were liable to a criminal prosecution (γραφὴ κακώσεως γονέων), just as they were for refusing to support or assist them in their lifetime. The word γονεῖς in this case includes all ancestors (Att. Process, ed. Lipsius, p. 355).
Among heritable obligations may be reckoned that of marrying a poor heiress (θῆσσα), or giving her in marriage with a portion [EPICLERUS]3 [p. 1.948]
A son or a grandson could not renounce the succession, but a brother might, provided he had not yet entered upon the inheritance ([Dem.] c. Lacrit. p. 924.4). The heir succeeded to all the claims and the liabilities of the deceased, even beyond the value of the assets, and entering upon an involved (ὑπόχρεως) property might lead to the loss of the heir's own property ([Dem.] c. Timoth. p. 1196.43 ; Dem. c. Aphob. ii. p. 836.2; c. Everg. p. 1148.32; Lys. de pec. publ. § 3 ff.; Isae. Arist. § 15 f.); fourteen years after Aristaechmus had been sued by his wards, Nausimachus and Xenopithes, and received a release from them, they brought a δίκη βλάβης against his heirs (Dem. c. Nausim. p. 988.13 ff.), and Callippus brought a fresh action (ἀργυρίου) against Apollodorus after his father's death (Dem. c. Callipp. p. 1240.14 ff.). Of course, in case of a mortgage, he was entitled only to the surplus of the mortgaged property, remaining after payment of the debt charged thereon (Dem. c. Spud. p. 1030.7).
State debtors, such as farmers of the public revenue who had made default, or persons condemned to pay a fine, were disfranchised (ἄτιμοι) until they had settled the debt; and the disgrace extended to their posterity. Thus Cimon, son of Miltiades, was compelled to pay a fine of fifty talents which had been imposed on his father; and the story is, that Callias advanced him the money, in return for the hand of his sister Elpinice. (Dem. c. Androt. p. 603.34; c. Timocr. p. 762.201; c. Theocr. p. 1326.17; c. Macart. p. 1069.58; and Andoc. de Myst. § 73.) When the whole of a man's property was confiscated, of course nothing could descend to his heir. It seems to have been a common practice, in such a case, for the relations of the deceased to conceal his effects, or to lay claim to them by pretended mortgages. Against these frauds there were severe penalties, as may be seen from the speeches of Lysias c. Philocr. and de Bon. Arist. (Meier, de Bon. Damn. p. 212).
The posterity of those who were put to death by the people, or were convicted of certain infamous crimes (ὁπόσοι κλοπῆς ἢ δώρων ὄφλοιεν, Andoc. de Myst. § 74: cf. Dem. c. Mid. p. 551.113, lex), inherited the ἀτιμία of their ancestors, a damnosa hereditas, which they could not decline or escape from. (Ps.-Plut. Vit. X. Orat. p. 834 A; Dem. c. Aristocr. p. 640.62, lex; c. Macart. p. 1069.57, lex.) It may be compared to the corruption of blood following upon attainder in the feudal law. Privileges, on the other hand, σίτησις ἐν Πρυτανείῳ, προεδρία, ἀτέλεια were hereditary in the families of Harmodius, Aristogiton, and others (Isae. Dicaeog. § 47: cf. Dem. c. Lept. p. 466.29; Plut. Dem. 31; PRYTANEUM), ἀτέλεια in the families of Conon and Chabrias; in other instances the granting of a privilege was personal (C. I. A. ii. No. 251, etc.), and was only by a special clause extended to the eldest descendant (ἐκγόνεν τῷ πρεσβυτάτῳ ἀεί, C. I. A. ii. No. 331, etc.; Ps.-Plut. Vit. X. Orat. p. 850 F, p. 851 D).
Isaeus tells us that parents who apprehended their own insolvency used to get their children adopted into other families, that they might escape the consequences (Arist. § 17). This however, could not be done, after the infamy had once attached (Meier, de Bon. Damn. pp. 106, 136; Aeschin. c. Ctes. § 21); and from Ps.-Plut. l.c. p. 834 A, we learn that those who received the descendants of Archeptolemus and Antiphon into their family incurred the same penalty.
We find no mention of property escheating to the state for want of heirs. This probably arose from a principle of Athenian law, according to which no civic family was suffered to expire; and therefore the property of an intestate was always assigned to such person as was most fit to be his successor and representative.
If a manumitted slave died without leaving children, his property fell to his patron and his patron's family (Isae. Nicostr. § 9); sometimes the owner specially reserved to himself the right of succession (Inscr. recueillies à Delphes par Wescher et Foucart, p. 226 ff.). The property of metoecs fell to their relations ([Dem.] c. Steph. ii. p. 1135.22); in default of relations, it fell to the state (Meier, l.c. p. 148) or to the προστάτης (Caillemer, l.c. p. 141). (Att. Process, ed. Lipsius, pp. 588, 598 ff.) [C.R.K] [H.H]
(Appendix). The Thirty are said (100.35), to have struck out in Solon's law relative to the right of bequest (περὶ τοῦ δοῦναι τὰ ἑαυτοῦ ᾧ ἂν ἐθέλῃ) the provisions ἐὰν μὴ μανιῶν ἢ γηρῶν ἢ γυναικὶ πιθόμενος, to limit the opportunities of the sycophants (ὅπως μὴ ᾗ τοῖς συκοφάνταις ἔφοδος).
2. Roman
Heres or heredes signifies the person or persons who succeeded to the entire inheritance of a deceased person under the rules of the Jus Civile; this was a species of universal succession, the whole property being considered a universitas [UNIVERSITAS]. Such a succession comprehended all the rights and liabilities of the person deceased, except in so far as they terminated with his life, and was expressed by the term hereditas. The word hereditas is accordingly defined to be a succession to all the rights of property of the deceased (Dig. 50, 16, 24). As universal successor, the heres was subject to the debts of the deceased, as if he himself had contracted them. Several heredes (coheredes) succeeded together to the entire inheritance, though they might take in different proportions. The word hereditas may also mean the property and other rights which are the object of the succession. The terms familia pecuniaque were used to denote the family and proprietary rights of a paterfamilias, and so sometimes express the rights which devolved on the heres (Cic. de Inv. 2.5. 0, 148; de Legg. 3.3, 7; Gaius, 2.104; cf. Cic. Top. 6; FAMILIA); but they do not necessarily refer to inheritance, and therefore the definition of hereditas by those words would be incomplete. The universal succession of the heres who was entitled to the succession by civil law must be distinguished from the universal succession of the bonorum possessor, whose title to the inheritance was a praetorian one [BONORUM POSSESSIO]. The succession of a legatarius differed from that of a heres, in that it was only a singular one, and consequently a legatarius incurred no liability for the debts of the deceased. The etymological relation of the word heres to herus seems probable, both being connected with hir = χείρ (Curtius, Gr. Etym. 199).
A person might become a heres (1) by being named, as, such (institutus, scriptus, factus) in a will, executed by a competent person, according to the fo<*>ms required by law [TESTAMENTUM]; or (2) if a person died intestate (intestatus), or having made a will which was not valid, the [p. 1.949]inheritance came to those to whom the law gave it under the rules of intestacy, and was called hereditas legitima or ab intestato. But a man could not die testate as to part of his property and intestate as to another part, except he were a soldier ( “cujus sola voluntas in testando spectatur” ). Accordingly, if a man gave a part of the hereditas to one heres or more, and did not dispose of the rest, the heres or heredes ex testamento necessarily took the whole. (Inst. 2.14.5; Cic. de Inv. 2.2. 1; Vangerow, Pandekten, § 397).
(1.) The institution of a heres was that formality which could not be dispensed with in a will. If the testator named no heres or heredes, and complied with all the other legal forms, still his disposition of his property was not a will (Dig. 29, 7, 20). A will might contain other dispositions besides that of naming a heres, as bequests of legacies, appointment of guardian, &c.; but these were not essential to its validity. The testator might either name one person as heres or he might name several persons as coheredes, and he might divide the hereditas among them as he pleased. The shares of the heredes were generally expressed by reference to the divisions of the as: thus, “heres ex asse” is heres to the whole property; “heres ex dodrante,” heres to three-fourths; “heres ex semuncia,” heir to one twenty-fourth (Cic. Att. 13.4. 8, 7.8; Cic. pro Caecina, 6, 17; Inst. 2.14.5). If there were several heredes named, without any definite share being given to them, the property belonged to them in equal shares. A heres might be instituted either unconditionally (pure), or on the fulfilment of a condition (sub conditione), but the institution could not be made defeasible on the occurrence of a future event, nor could it be limited to take effect for a certain period, since a person who once became universal successor always remained so (semel heres, semper heres). As to conditions which the heres was bound to perform, they might be any that were not contrary to positive law or positive morality, such as the setting up of statues (Cic. Ver. 2.8, 9, 14), or changing the name (ad Att. 7.8). Immoral and impossible conditions were treated as if there were no conditions mentioned (pro non scripto, Inst. 2.14, 10). In order that a testamentary succession should take place, the testator must have the right of making a will (testamenti factio activa). In order to have this capacity, he must be civis or at least have the jus commercii, and not be under any special disability (intestabilis). Further the person dying must have such rights as are capable of being transmitted to another; consequently a filiusfamilias could not institute a heres any more than a slave, except in respect of his peculium castrense and quasi-castrense. Also the person who is instituted heres must have a legal capacity to be heres. He must have this capacity at the time of the institution, or the institution is null; and in order to take he must have the capacity to take (Inst. 2.19, 4) at the time of the testator's death, and at the time of his accepting the inheritance. This capacity might be expressed by the phrase “testamenti factio” (passiva), an expression which had reference not only to the legal capacity of the testator, but also to the legal capacity of the person named heres. As a general rule, only Roman citizens could be named as heredes in the will of a Roman citizen; but a slave could also be named heres, though he had no power to make a will, and a filiusfamilias could also be named heres, though he was under the same incapacity; for a slave, if he belonged to the testator, could, by his master's testament, receive his freedom and become heres; and if he belonged to another, he took the inheritance for the benefit of his master; the filiusfamilias in like manner acquired it for his father, though in the time of Justinian the latter had only a usufruct in it. Persons not Roman citizens, who had received the commercium, could be instituted heredes, and could take legata, but Latini Juniani were an exception to this rule, they being incapable of either making or taking under a will.
Heredes were either necessarii, sui et necessarii, or extranei. The heres necessarius was a slave of the testator, who was made a heres and liber at the same time; and he was called necessarius because of the necessity he was under of accepting the hereditas. Thus he became heres by operation of law without any act of his own. A slave was sometimes appointed heres, if the testator thought that he was not solvent, for the purpose of evading the ignominy which was a consequence of a person's property being sold to pay his debts, as explained by Gaius (2.154, &c.). In this case the property of the freedman, acquired after manumission, was relieved from all liability on account of the debts of the deceased. The heredes sui et necessarii were those filii-or filiae-familias in the power of the deceased at the time of his death, who by that event became sui juris: thus a grandson or granddaughter could not be suus heres, unless their father had ceased to be in the power of the deceased in the lifetime of the latter, either by death, adoption, or capitis deminutio. Gaius tells us that these heirs are called self-successors, “because they are members of the family (domestici heredes), and even in the lifetime of the parent are deemed to a certain extent coproprietors” (Poste's Gaius, 2.157). The property of the family was regarded in early times as joint rather than several, and so the children of the family only continued in their enjoyment of it when the paterfamilias died. “Sui heredes are called necessary, because they have no alternative, but, willing or unwilling, both in testacy, they become successors” (Gaius, l.c.). For a comparison of the Greek law of inheritance on this subject, cf. F. Schulin, Das Griechische Testament, &c.; Leist, Graeco-ital. Rechtsgesch. 1.81. &c.; and for ancient German law respecting, Das Kind in der Were: cf. Behrend, Anwang und Erbengewere, cit. by Sohm, Inst. § 97, n. 2-4.) Thus the succession of the suus heres is assumed in the Twelve Tables as a matter of course; and as they were already in possession of the inheritance, no formal act of entry (cretio) could ever have been required of them. Hence, too, the inheritance could not be acquired against them by usucapio pro herede (Gaius, 2.58; 3.201). The involuntary succession of this class of heredes was a great hardship to them in the event of an insolvent inheritance; hence the praetor permitted them to abstain from the succession (abstinere se ab [p. 1.950]hereditate), and to allow the creditors to sell the property (an instance is mentioned by Cic. Phil. 2.16, 42); he also gave the same privilege to a person in the semi-servile state of mancipium, if the latter was manumitted and made heres. [MANCIPIUM] All other heredes, being independent of the deceased, are called extranei. Thus the emancipated children of a person would be extranei heredes to him. So, too, as a mother had no potestas over her children, they were extranei heredes when instituted in her will.
Extranei or voluntarii heredes did not acquire the inheritance until they had accepted it by their own free act. The act of entering on an inheritance by extraneus heres (hereditatem adire） might be effected either by an express declaration of intention or by conduct from which an intention to be heres could be inferred; and if it was once carried out, it could not be revoked. Thus, if extranei heredes meddled with the property of the deceased (pro herede gerere), they could not afterwards disclaim the inheritance, unless they could claim relief from the praetor on some special ground, as if the person who so meddled was under twenty-five years of age and so belonged to a class who were relieved by the praetor in all cases where they were over-reached [CURATOR], and also in cases where they had accepted an insolvent inheritance (damnosa hereditas). The Emperor Hadrian gave this relief to a person above twenty-five years of age who had accepted an inheritance and afterwards discovered that it was encumbered with a heavy debt (Gaius, 2.163). These rules as to the acquisition of an inheritance apply both to testamentary and intestate succession. But a testator might fix in his will a certain time for the cretio hereditatis; that is, for them to determine whether they would take the hereditas or not: hence the phrase cernere hereditatem (Cic. Att. 11.1. 2). The determination was expressed by a formal act of taking possession of the inheritance. Thus, if the testator had written in his will “Heres Titius esto,” he might add, “Cernitoque in centum diebus proxumis quibus scies poterisque; quod ni ita creveris exheres esto.” (Gaius, 2.165; Cic. de Orat. 1.22.) If the extraneus wished to take the hereditas, he was required to make a formal declaration of his intention within the time named (intra diem cretionis). The formal words of cretio, which were declared before witnesses in the house of the deceased (Voigt, Die Zwölf Tafeln, 2.372), were “eam hereditatem adeo cernoque.” Unless he did this, he lost the hereditas, and he could not obtain it merely by acting as heres (pro herede gerendo). If a person was named heres without any time of cretion being fixed, or if he succeeded (legitimo jure) to the property of an intestate, he might become heres without any formal declaration of his intention, and might take possession of the hereditas when he pleased; but the praetor was accustomed, upon the demand of the creditors of the testator or intestate, to name a time within which the heres should take possession, and, in default of his doing so, he gave the creditors permission to sell the property. The common form of cretion in a will (vulgaris cretio) has been already mentioned. Sometimes the words “quibus sciet poteritque” were omitted, and it was then specially called “cretio certorum dierum” or “cretio continua,” which was the more disadvantageous to the heres, as the days began to be reckoned, or, as we say, the time began to run immediately, and it was not reckoned from the time when the heres knew that he was named heres, and had no impediment to his cretion.
Perhaps in ancient Roman law a heres extraneus or voluntarius could only acquire the inheritance by a formal act of cretio, and so in the legal terminology of the classical jurists we find that the term pro herede gerere signified any informal act of entering upon an inheritance as distinguished from the more regular and formal mode (Gaius, 2.167; Ulp. 22.25). The principle of cretio may thus have been applicable at first in the case of intestate as well as testamentary succession, the object of the cretio clause in a will having been to limit the time within which the formal act of entering upon the inheritance must take place (Voigt, Jus Naturale, iii. n. 223; Die Zwölf Tafeln, 2.372). The formalities of cretio had become obsolete before the time of Justinian (Cod. 6, 30, 17; cf. Cod. Theod. 8, 18, 8).
It was not unusual to make several degrees of heredes in a will, which was called substitutio (Inst. 2.15). Thus in the formula beginning “Titius heres esto,” after the words “exheres esto,” the testator might add, “tum Maevius heres esto cernitoque in diebus centum,” &c., and he might go on substituting as far as he pleased. The person first named as heres (primo gradu) became heres by the act of cretion; and the substitutus (secundus heres, cic. Top. 10; Hor. Sat. 2.5, 48; Tac. Ann. 1.8) was then entirely excluded. If the words “si non creveris” were not followed by words of exheredation, this gave some advantage to the first heres; for instance, if he neglected the formality of cretion and only acted as heres, he did not lose all, but shared the hereditas equally with the substituted person. This was the old rule; but a constitution of M. Aurelius made the acting as heres equivalent to cretion, provided that such acting took place within the time of cretion. (Compare Gaius, 2.177, &c. with Ulpian, Frag. 22.34.) It was common for a testator to substitute one of his own slaves in the last place, so as to avoid dying intestate, since his slave could not refuse the inheritance.
In the case of liberi impuberes, who were in the power of a testator, there might be not only the kind of substitution just mentioned (vulgaris substitutio), but the testator might declare that if such children should die under the age of puberty, some person whom he named should be heir to the impubes. This was expressed thus, “Si prius moriatur quam in suam tutelam venerit” (Cic. de Inv. 2.4. 2, Top. 10; Gaius, ii 179), for the termination of impuberty and of the tutela were coincident. [CURATOR] Thus, as Gaius remarks, one testamentary disposition comprised two hereditates, the testator being obliged to make a will for himself at the same time that he made a will for his son. This was called pupillaris substitutio (Inst. 2.16). This kind of substitution was contained in a clause by itself, and in a separate part of the will, which was secured by the testator's own thread and seal, with a provision in the first part of the [p. 1.951]will that this second part should not be opened so long as the son lived and was impubes. A paterfamilias could substitute heredes for those in his power, who were impuberes, whether he instituted or disinherited such children in his own will. The object of this substitution was to avoid intestacy. The substitution ceased to have any effect when the child became pubes, and so capable of making a will for himself.
Gaius observes (2.183) that all his remarks with reference to substitution for children impuberes at the time of the parent's death, apply to posthumous children, of which there is an example cited by Cicero (Top. 10, “Si filius natus esset in decem mensibus,” &c.). According to the analogy of substitutio pupillaris, ascendants were in the time of Justinian allowed to institute heredes for their descendants, who were insane, in case they should die without recovering their senses: this was called substitutio quasi pupillaris or exemplaris (Inst. 2.16, 1; Cod. 6, 26, 9). It was not required in this latter substitution that the ascendant should have the descendant in his power.
If an extraneus was made heres, there could be no substitution to the effect that, if he died within a certain time, another person should be heres; for, as we have observed, a person when he had once become heres continued such. The heres might, however, be charged with a fidei-commissum to transfer the inheritance, in which case he was heres fiduciarius [FIDEICOMMISSUM].
If a man's own slave was made heres by his will, it was necessary that he should be made free also by the will; the words were, “Stichus servus meus liber heresque esto.” But by the law of Justinian the manumission of a slave who had been instituted heres by his master was implied. If a slave who had been instituted was manumitted by his master in his lifetime, he did not become heres necessarius, but might accept the inheritance or refuse it. If he was sold by his master in his lifetime, he could take possession of the inheritance with the permission of his new master, who thus became heres through the medium of his slave. If the slave who was made heres was at that time the property of another person, and not of the testator, he could not take the inheritance without the consent of his master, for if he lost it his master became heres; if such slave was manumitted before “taking possession of the inheritance,” he might accept it or refuse it as he pleased.
If a man had a son in his power, he was bound either to make him heres, or to exheredate him (exheredem facere） expressly (nominatim). If he passed him over in silence (silentio praeterierit), the will was altogether void (inutile, non jure factum).
Daughters and grandchildren, who were sui heredes, could be exheredated by a general clause “ceteri exheredes sunto.” If they were passed over in silence, the will would still be a valid will ; but they took a certain portion of the inheritance by accretion, as it was termed (scriptis heredibus adcrescunt). Thus, if the heredes instituti were sui, the person or persons passed over took an equal share with them. If the heredes instituti were extranei, the person or persons passed over took a half of the whole inheritance; but according to praetorian law the person so passed over might claim what he would have been entitled to if the deceased had died intestate (bonorum possessio contra tabulas). A rescript of the Emperor M. Aurelius limited the amount which women could take by the bonorum possessio to that which they could take under the Jus Civile by accretion; and the same was the law in the case of emancipated females. The rules relating to exheredation were altered by the 115th Novella of Justinian.
It was necessary either to institute as heredes, or to exheredate posthumous children nominatim, otherwise the will which was originally valid became invalid (ruptum); and the will became invalid by the birth either of a posthumous son or daughter, or, as the phrase was, “adgnascendo rumpitur testamentum” (Cic. de Or. 1.5. 7). Postumi were not only those who were born after the testator's will was made, and came into his power or would have come into his power if he had lived, but also those who might become the sui heredes of the testator by the death of some other person in the testator's lifetime. Thus, if a testator's son, who was in his power, had children, and the son died in the testator's lifetime, the grandchildren became sui heredes, and the testament became ruptum by this quasi agnatio; it was therefore a necessary precaution to institute as heredes or to exheredate such grandchildren. The adoption of a son by the testator, on his taking a wife in manum after the making of the will, had likewise the effect of invalidating it, unless provision was made for the case. Forms were gradually established by which different classes of postumi sui could be either instituted or disinherited.
Postumi alieni,--i.e. postumi who would not have been in the power of the testator--could not be instituted in a will till the time of Justinian, who allowed such an institution. The word postumus has clearly the same signification as postremus, and literally means a child born last. The passage of Gaius is defective when he treats of postumi; but the definition of postumi, as preserved in the epitome of Gaius, appears to be exact: “Postumorum duo genera sunt; quia postumi adpellantur hi, qui post mortem patris de uxore nati fuerint, et illi qui post testamentum factum nascuntur.” Sometimes the word postumus is defined only as a child born after a father's death, as we see in some of the Glossae and in Plutarch (Plut. Sull. 37); but there is no proof that the meaning was limited to such children, and the passages sometimes cited as being to that effect (Dig. 50, 16, 164; 28, 3, 3) have been misunderstood. Other cases in which a valid will became invalidated are more properly considered under TESTAMENTUM
If an ingenuus died intestate, either from not having made a will, or having made a will but not in due form, or having made a will in due form which afterwards became invalid (ruptum, initium, inofficiorum, or if there was no heres under the will (destitutum), the hereditas, according to the law of the Twelve Tables, came to the sui heredes, and was then called legitima hereditas (Gaius, 2.3, 2). The sui heredes were, as we have seen, descendants in the power of the deceased at the time of his death, who by that event became sui juris. Adopted children were considered the same as other children; Justinian, however, made considerable modifications [p. 1.952]however, made considerable modifications in this rule. A wife married in manum viri under the early law being considered as a daughter, and a daughter-in-law (nurus) married in the same way being considered a granddaughter, were sui heredes. Posthumous children, who would have been in the power of the intestate if he were living, were treated as if they had been born in his lifetime, and so were sui heredes.
The sui heredes took the hereditas in equal shares, if they were children of the deceased. If there was a son or daughter, and children of a son deceased, the children of the deceased son took the portion which their parent would have taken. Thus the distribution among grandchildren was always in stirpes--that is, among the stocks or stems sprung from the ancestor--and not in capita, or among the individuals in equal proportions: thus, if there were a son, and the sons of a deceased son, the son would take half the hereditas, and the sons of the deceased son would divide the other half. If an intestate had no sui heredes, the Twelve Tables gave the hereditas to the agnati (Gaius, 3.9). The agnati were all those who would be under the power of a common ancestor if he were alive. [See COGNATI] The hereditas did not belong to all the agnati, but only to those who were nearest at the time when it was ascertained that a person had died intestate. If the nearest agnatus either refused to take the inheritance or died before he had taken possession of it, in neither case did the next in succession, as agnatus, take the inheritance, for the Jus Civile recognised no successio graduum. He was the nearest agnatus who was nearest at the time when it was ascertained that a person had died intestate, and not he who was nearest at the time of the death, since the intestate heir could not be in question until it was certain that the deceased had left no will. If there were several agnati in the same degree, and any one refused to take his share or died before he had assented to take it, such share accrued (adcrevit) to those who consented to take the hereditas.
In the case of women there were some peculiarities. The hereditates of women intestate came to their agnati just as the inheritances of males; but women who were beyond the degree of consanguinei (a term which legally means brothers and sisters) could not take hereditates ab intestato according to the interpretation of the Twelve Tables, though the law itself contained no such restriction. Thus a sister might take from a brother or sister as legitima heres; but an aunt or a brother's daughter could not be legitima heres. Justinian put women on the same footing as men in this respect. The principle of Roman law which gave to those who came into the potestas or manus the quality of children of the family, was followed in this case also: a mother or a stepmother who had come in manum viri thereby obtained the status of a daughter; and consequently, as to legitimate succession, there were the same relations between such mother or stepmother and the husband's children as there were among the husband's children themselves. But from the latter period of the republic the wife did not, as a rule, come in manum viri; and so as the mother and her children belonged to different familiae, they had no reciprocal rights of succession to one another.
If a person died leaving no sui heredes, but only a brother and another brother's children, the brother took all as the nearest agnatus. If there was no brother surviving, and only children of brethren, the hereditas was divided among all the children in capita; that is, the whole was equally divided among all the children. If there were no agnati, the Twelve Tables gave the hereditas to the gentiles [GENS].
Gaius (3.18 f.) briefly recapitulates the strict law of the Twelve Tables as to the hereditates of intestates:--Emancipated children could claim nothing, as they had ceased to be sui heredes; so, too, persons who had ceased to be agnati by reason of capitis deminutio were excluded from the second order [CAPUT]; if the next agnatus did not take possession, he who was next in order could not for that reason make any claim; feminae agnatae who were beyond the degree of consanguineae were shut out; cognati, whose kinship depended on a female, had nomutual rights of succession, and consequently there were no such mutual rights between a mother and her children, unless the mother had come in manum viri, and so the rights of consanguinity had been established between them. In short, only those who belonged to the same familia could succeed to one another, according to Jus Civile; the nearest relations had no rights, if they did not belong to this group. Gaius proceeds to show (3.25 f.) how these inequitable rules of the civil law were modified by the praetor's edict, which recognised to some extent the principle of cognation, as giving a right to the succession [BONORUM POSSESSIO]. The principle of cognation was gradually recognised by the statute law under the Imperial legislation. Thus the S. C. Tertullianum, enacted under Hadrian, gave a mother the right of succeeding to her children, subject to certain conditions; and in the S. C. Orfitianum, passed under Marcus Aurelius 178 A.D., children were given the right of succeeding to their mother.
Justinian in his 118th Novella remodelled the law of intestate succession, making the principle of cognation the basis of it and disregarding that of agnation.
The heres represented the testator or intestate (Cic. de Leg. 2.1. 9), and had not only a claim to all his property, and all that was due to him, but was bound by all his obligations, except those which were put an end to by death. He succeeded to the sacra familiaria, and was bound to maintain them, but only in respect of the property, for the obligation of the sacra privata was attached to property and to the heres only as the owner of it. Hence the expression “sine sacris hereditas” meant an hereditas unencumbered with sacra (Plaut. Capt. 4.1, 8; Trin. 2.4, 83; Festus, s. v. sine sacris hereditas). The sacra familiaria or privata were, in the case of small estates, a great burden to the heres. It was also a religious duty of the heres to bury the deceased (cf. Plaut. Men. 3.2, 27; Paul. Diac. 77, 18).
The heres on acquiring an hereditas was, as we have seen, personally liable on account of the obligations of the deceased, but the legislation of Justinian released him from all the debts and obligations of the testator or intestate, beyond [p. 1.953]what the property would satisfy, provided he made out an inventory (inventarium) of the property in a certain form and within a certain time (Cod. 6, 30, 22). The heres, after satisfying the debts of the deceased, was bound to pay the legacies out of the surplus; but before doing so he was entitled to deduct a fourth for himself, if the bequests exhausted the estate, so as not to leave him this amount. [LEGATUM; FIDEICOMMISSUM.]
The heres could claim any property which belonged to the testator or intestate by hereditatis petitio (Dig. 5, 3, 20), which was an action brought against anyone who retained the property of the deceased either on the claim of being heres (pro herede possidet) or simply as possessor (pro possessore possidet). The action properly belonged to the heres only, though it was in later Roman law extended to the bonorum possessor or praetorian heir as an equitable action. Each heir only claimed his own share (Cic. pro Rosc. Com. ch. 18). The coheredes shared among themselves the property and bore their share of the debts in the same proportion. For the purpose of partition and settling the affairs of the testator, a sale was often necessary (Cic. Att. 11.1. 5). If the parties could not agree about the partition, any of them might institute a partition suit, called actio familiae erciscundae [FAM. ERC. ACT.].
The hereditas might be alienated by the form of in jure cessio, according to the law as explained by Gaius (2.35-37; 3.85, 87). The nearest agnate, having a right to succeed in case of intestacy, was the only kind of heir who could alienate his right to take the inheritance; the alienee in this case could acquire the inheritance, just as if he had been legitimus heres.
The scriptus heres or heir instituted in a will could only alienate when he had already acquired the inheritance; and after such alienation by anyone who had actually become heres, he still remained heres (semel heres, semper heres), and consequently answerable to creditors, but all debts due to them as heredes were extinguished.
The effect of a transfer of an hereditas by heres fiduciarius is explained under the head of FIDEICOMMISSUM
In early Roman law a mala-fide possessor could acquire property belonging to the inheritance against the heres by usucapion in one year, the object of this rule being to compel the heres to enter on the inheritance without loss of time, so that the sacra might be performed and the creditors satisfied (Gaius, 2.54, 55; Cic. Att. 1.5, 6; Sen. de Ben. 6.5, 3; Cic. pro Flacc. 34, 85: cf. Voigt, Zwölf Tafeln, 2.106). The effect of this usucapion was put an end to by the S. C. Juventianum.
From the time of a man's death until it was determined who was his heres, the hereditas was without an owner, and was said jacere. When a heres was ascertained, such person was considered to possess all the rights incident to the hereditas from the time of the death of the testator or intestate. But this does not explain how we are to view the hereditas in the interval between the death of the former owner and the time when the heres is ascertained. During such interval, according to one form of expression used by the Roman jurists, the hereditas is a juristical person (vice personae fungitur), and is the domina, that is the domina of itself; according to another form of expression, it represents the defunct, and not the person of the future heres. The relation to the legal capacity of the defunct is this: slaves generally belonged to an hereditas. A slave, as is well known, could acquire property for his living master, even without his knowledge; but the validity of the act of acquisition, in some cases, depended on the legal capacity of his master to acquire. Now, while the hereditas was without an ascertained owner, many acts of a slave by which the hereditas might receive additions were strictly void, and such acts could only have their legal effect on the supposition that the slave had an owner of a sufficient legal capacity; and accordingly the law gave validity to the acts of the slave by relation to the known legal capacity of the late owner, and not by reference to the yet unascertained owner who might not have such legal capacity. The hereditas jacens, then, has no owner except an artificial one, but the property continues during this interval in the same legal condition as if the deceased were still living; from the moment that the heres is ascertained, he is considered to have been heres from the time of the death of the deceased. (Savigny, System, 2.102; Windscheid, Pandekten, 3.531; Sohm, Institutionen, § 96, iii.). The hereditates of freedmen are more properly considered under LIBERTI and PATRONI. (Gaius, 2.99-190, 3.1-24; Ulpian, Fragm. xxii.; Dig. 28, 29; Vangerow, Pandekten, vol. ii.; Windscheid, Pandekten, vol. iii.; Hunger, Das Erbrecht ; Gans, Das Erbrecht in weltge-schichtlicher Entwickelung; V. Dalwick, Versuch einer philosophischen--juristischen Darstellung des Erbrechts; Lassalle, Das Wesen des römischen und germanischen Erbrechts, &c.; Mayer, Die Lehre von dem Erbrecht, &c.; Köppen, System des heutigen römischen Erbrechts; Schirmer, Handbuch des römischen Erbrechts.）
[G.L] [E.A.W]
1 According to the Gortyn Code, on the death of the father the property passed to the children or grand-children or great-grandchildren; in default of descendants, brothers, their children and grandchildren, succeeded; in default of these came sisters of the deceased, their children and grandchildren; then οὶ ἐπιβάλλοντες, i. e. more distant relations, and last of all ἁ κλᾶρος τᾶς ϝοικίας, i. e. “the whole number of householders belonging to the family, the κλαρῶται” [COSMI]. Merriam (Law Code of Gortyna, p. 27) explains κλᾶρος to be “the descendants, however remote, but still traced, of the original Dorian settler on the original allotment of land ;” whilst in Schaube's opinion (Herm. 1886, p. 222) ὁ κλᾶρος is the estate itself, the κρέματα went with the κλᾶρος of which the state had to dispose (5.10-28). The wife could not inherit from her husband (as she did in Erythrae, Dittenberger, Syll. I. Gr. 370, 1. 150). On the death of the mother leaving children, the father had control (καρτερὸς το̂ν ματροίον, i.e. τῶν ματρῴων) of her property until his death or second marriage, but could not sell or mortgage without the assent of the children being of age (6.31-46); afterwards it also passed to the children (4.43-48). If the mother died childless, her property went back to her heirs (3.31-37). In the division of property we meet with a principle, almost unknown elsewhere amongst the Greeks (C. I. G. No. 2338, 1. 93, Tenos), viz. that the daughters shared with the sons. The houses in the city with their contents, as well as the cattle of the deceased, fell to the sons, whilst the rest of the property was divided among all the children, the daughters receiving each a single share, whilst the sons had each a double share (4.29-41: those excepted who had received a dowry on marriage, 5.1-10). There seems to have been a different regulation for the division of the mother's property, telling in favour of the daughters, viz. if the mother left no other property but a house, it fell to the daughters (4.46-48; Kirchner, Rhein. Mus. 1888, p. 147 f.). An adopted son did not receive an equal share with the natural sons (as at Athens, Isae. Philoct. § 63), but only a daughter's share; if there were no sons, but only daughters, he shared equally with them (10.43--11.1). Heirs were not compelled to succeed to an estate encumbered by debts; such an estate was handed over to the creditors (11.31 ff.). The division of the κρέματα could be enforced, if any desired it, by the regulation that temporary possession was given to those who wished to divide ; the division of certain articles--as crops, clothing--was made by the judge; in case of dispute, the property was sold to the highest bidder and the proceeds divided in the prescribed shares (5.29 ff.).--F. B. Jevons (Journ. of Philol. 1887, p. 98 n.) concludes from Isae. Philoct. § 46, that at Athens too property was divided in the same proportion, viz. 2:1, between the male issue of females and the female issue of females: “Euctemon's property was divided between his two grandsons” (by the one daughter) “and the one grand-daughter” (by the other daughter) “in such a way that the grand-daughter received one-fifth of the property.” But it was not the daughter of Euctemon's daughter, but her mother, Euctemon's daughter (the widow of Chaereas), whom Androcles claimed in marriage with one-fifth of Euctemon's estate. The reading πέμπτου μέρους is rejected by Caillemer (l.c. p. 55), Grasshoff (l.c. p. 25), and Lipsius (Att. Process, p. 576, n. 261).
In Sparta it was a common practice for brothers to live on the joint estate, and Polybius (12.6 b, 8) even, states that they had a wife in common (τρεῖς ἄνδρας ἔχειν τὴν γυναῖκα καὶ τέτταρας, ποτὲ δὲ καὶ πλείους, ἀδελφοὺς ὄντας, καὶ τέκνα τούτων εἰναι κοινά), “to prevent the division of property and to check the population” (Jannet, Les Instit. Sociales à Sparta, p. 39). F. B. Jevons (l.c. p. 103 f.) tries to show, by referring to Dem. c. Leoch., that at Athens too, when brothers continued to live on the joint undivided property, the daughter of one brother was considered the daughter of the joint family: “the daughter was considered to be and is called by Demosthenes the joint daughter of both brothers . . . and dowered by the brothers jointly.” But it is their sister, not a so-called joint daughter, that the two brothers dowered (p. 1085.17).
2 The right of disposal of property by will is not recognised in the Gortyn Code; adoption is freely allowed, and repudiation (ἀπείπασθαι, as in Hdt. 1.59) of an adopted son is permitted only on payment of a sum of money as a guest-present to him (11.10 f.).
For Sparta, see EPICLERUS
Isocrates' speech Aegineticus gives some information about wills and adoption in Aegina: Thrasylochus, who had no issue and whose brother had died before him (§ 11), adopted before witnesses as his son the husband of his sister and left him his property (§ 12). The will is disputed by a half-sister of Thrasylochus (οὐ καλῶς οὐδ᾽ ὀρθῶς τὰς διαθήκας εἶναι, § 34).
It was customary in Boeotia at one time (πρότερον) that those who had no children left their property by will to the next of kin (Plb. 20.6, 5).
Wills made by women without co-operation of a κύριος, Cauer, D. I. G.2 No. 274 = C. I. G. No. 4 (Petilia); Cauer,1 No. 19 (Calauria); Dittenberger, S. I. G. No. 437 (Amorgos);--with the co-operation of the κύριος, Cauer,2 No. 148 = C. I. G. No. 2448 (Thera). (Schulin, d. Griech. Testament.）
3 Plutarch (Plut. Arist. 27） says of the granddaughter of Aristogeiton: ἐν Λήμνῳ πυθόμενοι ταπεινὰ πράττειν ἀνδρὸς ἀποροῦσαν διὰ πενίαν κατήγαγον Ἀθήναζε καὶ συνοικίσαντες ἀνδρὶ τῶν εὖ γεγονότων τὸ Ποταμοῖ χωρίον εἰς φερνὴν ἐπέδωκαν, and of the daughters of Aristeides, (ἱστοροῦσιν) ἐκ τοῦ πρυτανείου τοῖς νυμφίοις ἐκδοθῆναι, δημοσίᾳ τῆς πόλεως τὸν γάμον ἐγγυώσης καὶ προῖκα τριοχιλίας δραχμὰς ἑκατέρᾳ ψηφισαμένης. Schöll publishes in Herm. vol. xxii. (1887), p. 561, an inscription (about 270 B.C.), from which it is evident that the daughters of those who had been honoured with σίτησις in the Prytaneion were dowered by the state: (τὴμ βουλὴν καὶ τὸν δῆμον） διδόναι καὶ θυγ[ατ]έρων εἰς ἔγ[δοσ]ιν τὸυ δῆμον π[ροῖ]κα [ὅ]σην ἂν βούλ[η]τ[αι], etc.
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