1911 Encyclopædia Britannica/Succession
SUCCESSION (Lat. successio, from succedere, to follow after) the act of succeeding or following, as of events, objects, places in a series, &c., but particularly, in law, the transmission or passing of rights from one to another.
In every system of law provision has to be made for a readjustment of things or goods on the death of the human beings who owned and enjoyed them, Succession to rights may be considered from two points of view: in some ways they depend on the personality of those who are concerned with them: if you hire a servant, you acquire a claim against a certain person and your claim will disappear on his death. But personal relations are commonly implicated in the arrangement of property: if a person borrows money, the creditor expects to be paid even should the debtor die, and the actual payment will depend to a great extent on the rules as to inheritance. Succession, in the sense of the partition or redistribution of the property of a former owner is, in modern systems of law, the subject of many rules. Such rules may be based on the will of a deceased person. They will be found in such articles as Administration; Assets; Executors and Administrators; Inheritence; Intestacy; Legacy; Will; &c. There are cases, however, in which a will cannot be expressed; this eventuality is discussed in the present article, and therecan be no doubt that it is the most characteristic one from the point of view of social conditions. It represents the view of society at large as to what ought to be the normal course of succession in the readjustment of property after the death of a citizen. We shall dwell chiefly on the customs of succession among the nations of Aryan stock. Other customs are noticed in the articles on Village Communities; Mahommedan Law; &c.
We have to start from a distinction between personal goods and the property forming the economic basis of existence for the family which is strongly expressed in early law. War booty, proceeds of hunting, clothes and ornaments, implements fashioned by personal skill, are taken to belong to a man in a more personal way than the land on which he dwells or the cattle of a herd. It is characteristic that even in the strict law of paternal power formulated by the Romans an unemancipated son was protected in his rights in regard to things acquired in the camp (peculium castrense) and later on this protection spread to other chattels (peculium quasi-castrense). The personal character of this kind of property has a decisive influence on the modes of succession to it. This part of the inheritance is widely considered in early law as still in the power of the dead even after demise. We find that many savage tribes simply destroy the personal belongings of the dead: this is done by several Australian and Negro tribes (Post, Grundriss der ethnologischen Jurisprudenz, pp. 174–5), Sometimes this rule is modified in the sense that the goods remaining after deceased persons have to be taken away by strangers, which leads to curious customs of looting the house of the deceased. Such customs were prevalent, for example, among the North American Indians of the Delaware and Iroquois tribes. Evidently the nearer relations dare not take over such things on account of a tabu rule, while strangers may appropriate them, as it were, by right of conquest.
The continuance of the relation of the deceased to his own things gives rise in most cases to provisions made for the dead out of his personal succession. The habit of putting arms, victuals, clothes and ornaments in the grave seems almost universal, and there can be no doubt that the idea underlying such usages consists in the wish to provide the deceased with all matters necessary to his existence after death. A very characteristic illustration of this conception may be given from the customs of the ancient Russians, as described about 921 by the Arabian traveller Ibn Fadhlan. The whole of the personal property was divided into three parts: one-third went to the family, the second third was used for making clothes and other ornaments for the dead, while the third was spent in carousing on the day when the corpse was cremated. The ceremony itself consisted in the following: the corpse was put into a boat and was dressed up in the most gorgeous attire. Intoxicating drinks, fruit, bread and meat were put by its side; a dog was cut into two parts, which were thrown into the boat. Then, all the weapons of the dead man were brought in, as well as the flesh of two horses, a cock and a chicken. The concubine of the deceased was also sacrificed, and ultimately all these objects were burned in a huge pile, and a mound thrown up over the ashes. This description is the more interesting because it starts from a division of the goods of the deceased, one part of them being affected, as it were, to his personal usage. This rule continues to be observed in Germanic law in later times and became the starting point of the doctrine of succession to personal property in English law. According to Glanville (vii. 5, 4) the chattels of the deceased have to be divided into three equal parts, of which one goes to his heir, one to his wife and one is reserved to the deceased himself. The same reservation of the third to the deceased himself is observed in Magna Charta (c. 26) and in Bracton's statement of Common Law (fol. 60), but in Christian surroundings the reservation of “the dead man's part” was taken to apply to the property which had to be spent for his soul and of which, accordingly, the Church had to take care. This lies at the root of the common law doctrine observed until the passing of the Court of Probate Act 1857. On the strength of this doctrine the bishop was the natural administrator of this part of the personalty of the deceased.
The succession to real property, if we may use the English legal expression, is not governed by such considerations or the needs of the dead. Roughly speaking, three different views may be taken as to the proper readjustment in such cases. Taking the principal types in a logical sequence, which differs from the historical one, we may say that the aggregate of things and claims relinquished by a deceased person may: (1) pass to relatives or other persons who stood near him in a way determined by law. Should several persons of the kind stand equally near in the eye of the law the consequence would be a division of the inheritance. The personal aspect of succession rules in such systems of inheritance. (2) The deceased may be considered as a subordinate member of a higher organism—a kindred, a village, a state, &c. In such a case there can be no succession proper as there has been no individual property to begin with. The cases of succession will be a relapse of certain goods used by the member of a community to that community and a consequent rearrangement of rights of usage. The law of succession will again be constructed on a personal basis, but this basis will be supplied not by the single individual whose death has had to be recorded but by some community or union to which this individual belonged. (3) The aggregate of goods and claims constituting what is commonly called an inheritance may be considered as a unit having an existence and an object of its own. The circumstance of the death of an individual owner will, as in case 2, be treated as an accidental fact. The unity of the inheritance and the social part played by it will constitute the ruling considerations in the arrangement of succession. The personal factor will be subordinated to the real one.
In practice pure forms corresponding to these main conceptions occur seldom, and the actual systems of succession mostly appear as combinations of these various views. We shall try to give briefly an account of the following arrangements: (1) the joint family in so far as it bears on succession; (2) voluntary associations among co-heirs; (3) division of inheritance; (4) united succession in the shape of primogeniture and of junior right.
The large mass of Hindu juridical texts representing customs and doctrines ranging over nearly 5000 years contains many indications as to the existence of a joint family which was considered as the corporate owner of property and therefore did not admit in principle of the opening of succession through the death of any of its members. The father or head of such a joint family was in truth only the manager of its property during lifetime, and though on his demise this power and right of management had to be regulated anew, the property itself could not be said to pass by succession: it remained as formerly in the joint family itself. In stating this abstract doctrine we have to add that our evidence shows us in practice only characteristic consequences and fragments of it, but that we have not the means of observing it directly in a consistent and complete shape during the comparatively recent epochs which are reflected in the evidence. It is even a question whether such a doctrine was ever absolutely enforced in regard to chattels: even in the earliest period of Hindu law articles of personal apparel and objects acquired by personal will and strength fell to a great extent under the conception of separate property. Gains of science, art and craft are mentioned in early instances as subject to special ownership and corresponding rules of personal succession are framed in regard to them (Jolly, Tagore lectures on Partition, Inheritance and Adoption, 94). But on the other hand there are certain categories of movable goods which even in later law are considered as belonging to the family community and incapable of partition, e.g. water, prepared food, roads, vehicles, female slaves, property destined for pious uses and sacrifices, books. When law became rationalized these things had to be sold in order that the proceeds of the sale should be divided, but originally they seem to have been regarded as owned by the joint family though used by its single members. And as to immovables—land and houses—they were demonstrably excluded in ancient customary law from partition among co-heirs.
In Greek law the most drastic expression of the joint family system is to be found in the arrangements of Spartan households, where brothers clustered round the eldest or “keeper of the hearth” (ὲστιαπάµιον), and not only the management of family property but even marriages were dependent on the unity of the shares and on the necessity of keeping down the offspring of the younger brothers. With the Romans there are hardly any traces of a primitive family community excluding succession, but the Celtic tribal system was to a great extent based on this fundamental conception (Seebohm, Tribal System in Wales). During three generations the offspring of father, grandfather and great-grandfather held together in regard to land. The consequence was that, although separate plots and houses were commonly reserved for the uses of the smaller families included within the larger unit, the death of the principal brought about an equalization of shares first per slirpes and ultimately per capita until the final break-up of the community when it reached the stage of the great-grandsons of the original founder. But the most elaborate system of family ownership is to be observed in the history of the latest comers among the Aryan races the Slavs. In the backward mountain regions which they occupied in the Balkan Peninsula and in the wilderness of the forests and moors of Eastern Europe they developed many characteristic tribal institutions and, among these, the joint family, the Zadruga, inokoshtina. The huge family communities of the southern Slavs have been described at length by recent observers, and there can be no doubt that their roots go back to a distant past (see Village Communities). There is no room in them for succession proper: what has to be provided for is the continuity of business management by elders and the repartition of rights of usage and maintenance, a repartition largely dependent on varying customs and on the policy of the above-mentioned elders. In Russia the so-called large family appears as a much less extensive application of the same idea. It extends rarely over more than three generations, but even as a cluster of members gathering around a grandfather or a great-uncle it presents an arrangement which hampers greatly private enterprise and staves off succession until the moment when the great household breaks up between the descendants of a great-grandfather.
In Germanic law we catch a glimpse of a state of things in which side relations were not admitted to succession at all. The Frankish Edict of Chilperic (A.D. 571) tells us that if somebody died without leaving sons or daughters, his brother was to succeed him and not his neighbours (non vicini). This has to be construed as a modification of the older rule according to which the neighbours succeeded and not the brother. Under " neighbours " we cannot understand merely people connected with a person by proximity of settlement, but rather his kinsmen in their usual capacity of neighbours. The fact that kinsmen forming a settlement have precedence of such near relations as the brothers is characteristic enough, especially, as even the succession of sons and daughters is mentioned in a way which shows that there was still some doubt whether neighbouring kinsmen should not take inheritance instead of the latter. These are systems of a very archaic arrangement based on a close tribal community between the members of a kindred. Such a community is not apparent in later legal custom, but there are many signs of a close union between members of the same family. The law of Scania, a province of southern Sweden, shows us a group settled around a grandfather. His sons even when married hold part of the property under him and it is with some difficulty that they and their wives succeed in separating some of the goods acquired by personal work or brought in by marriage from the rest of the household property (Scanian Law, Danish Text i. 5). The same arrangement appears in Lombard law as regards brothers who remain settled in a common house (Edict of Rothari c. 167). Of course, in all such cases, there could be no real inheritance and succession, but merely the stepping in of the next generation into the rights and duties of the representative of an older generation on the latter's demise. In legal terminology it is a case of accretion and not of succession.
The next stage in the development of succession is presented by an arrangement which was common in Germany, viz. by the management of property under the rule of so-called Ganerb- schaft. Ganerben is the same as the Latin coheredes, comparticipes, consortes. A capitulary of 818 mentions such communities of heirs holding in common (cf. Boretius Capitularia, i. 282). While the community lasted none of the shareholders could dispose of any part of the property by his single will. Legally and economically all transactions had to proceed from common consent and common resolve. This did not preclude the possibility of any one among the shareholders claiming his own portion, in which case part of the property had to be meted out to him according to fair computation (swascara). There was no legal constraint over the shareholders to remain in common: division could be brought about either by common consent or by claims of individuals, and yet the constant occurrence of these settlements of co-heirs shows that as a matter of fact it was more profitable to keep together and not to break up the unit of property by division. The customary union of co-heirs appears in this way as a corrective of the strict legal principle of equal rights between heirs of the same degree. In English practice the joint management of co-heirs is not so fully described, but there can be no doubt that under the older Saxon rule admitting heirs of the same degree to equal rights in succession the interests of economic efficiency were commonly preerved by the carrying on of common husbandry without any realization of the concurrent claims which would have broken up the object of succession. This accounts for the fact that notwithstanding the prevalence among the early English of the rule admitting all the sons or heirs in the same position to equal shares in the inheritance, the organic units of hides, yardlands, &c. are kept up in the course of centuries. In the management of so-called gavelkind succession in Kent partition was legally possible and came sometimes to be effected, but there was the customary reaction against it in the shape of keeping up the " yokes " and "sulungs." A trace of the same kind of union between co-heirs appears in the so-called parage communities so often mentioned in Domesday Book.
In all these cases the principle of union and joint management is kept up by purely economic means and considerations. The legal possibility of partition is admitted by the side of it. It is interesting to watch two divergent lines of further development springing from this common source; on the one side we see the full realization of individual right resulting in frequent divisions; on the other side we watch the rise of legal restraints on subdivision resulting in the establishment, in respect of certain categories of property, of rules excluding the plurality of heirs for the sake of preserving the unity of the household. The first system is, of course, most easily carried out in countries where individualistic types of husbandry prevail. In Europe it is especially prevalent in the south with its intense cultivation of the arable and its habits of wine and olive growing. We shall not wonder, therefore, that the unrestricted subdivision among heirs is represented most completely by Roman law. Not to speak of the fact that already in the XII. Tables the principal mode of inheritance was considered to be inheritance by will while intestate succession came in as a subsidiary expedient, we have to notice that there is no check on the dispersion of property among heirs of the same degree. The only survival of a regime of family community may be found in the distinction between heredes sui (heirs of their own) and heredes exlranei (outside heirs of the deceased). The first entered by their own right and took possession of property which had belonged to them potentially even during their ancestor's life. The latter drew their claims from their relationship to the deceased and this did not give them a direct hold on the property in question. Apart from that the civil law of ancient Rome favoured complete division and the same principle is represented in all European legislation derived from Roman law or strongly influenced by it. Sometimes, as in the French Code Civil, even the wish of the owner cannot alter the course of such succession as no person can make a will depriving any of his children of their legal share.
In full contrast with this mode of succession prevailing in romanized countries we find the nations proceeding from Germanic stock and strongly influenced by feudalism developing two different kinds of restraints on subdivision. In Scandinavian law this point of view is expressed by the Norwegian customs as to Odal. The principal estates of the country, which, according to the law of the Gulathing have descended through five generations in the same family, cannot be dispersed alienated at pleasure. They are considered as rightly belonging to the kindred with which a historical connexion has been established. In order to keep these estates within the kindred they are to descend chiefly to men: women are admitted to property in them only in exceptional cases. Originally it is only the daughter of a man who has left no sons and the sister of one who has left no children and no brothers that are admitted to take Odal as if they were men. Nieces and first-cousins are admitted in the sense that they have to pass the property to their nearest male heir. They may, in certain ventualities, be bought out by the nearest male relative. A second peculiarity of Odal consists in the right of relations descending from one of the common ancestors to prevent strangers from acquiring Odal estate. Any holder of such an estate who wants to sell it in its entirety or in portion has first to apply te his relatives and they may acquire the estate at the price proposed by a stranger less one-fifth. Even if no relative has taken advantage of this privilege an Odal estate sold to a stranger may be bought back into the family by compulsory redemption if the relatives subsequently find the means and have the wish to resort to such redemption. Odal right does not curtail the claims of the younger sons or of any heirs in a similar position. As a matter of fact, however, customary succession in Norwegian peasant families sets great price on holding the property of the household well together. It is keenly felt that a gaard (farm) ought not to be parcelled up into smaller holdings, and in the common case of several heirs succeeding to the farm, they generally make up among themselves who is to remain in charge of the ancestral household: the rest are compensated in money or helped to start on some other estate or perhaps in a cottage by the side of the principal house. In medieval England, France and Germany the same considerations of economic efficiency are felt as regards the keeping up of united holdings, and it may be said that the lower we get in the scale of property the stronger these considerations become. If it is possible, though not perhaps profitable, to divide the property of a large farm, it becomes almost impossible to break-up the smaller units so-called yardlands and oxgangs. Through being parcelled up into small plots, land loses in value, and, as to cattle, it is impossible to divide one ox or one horse in specie without selling them. No wonder that we find practices and customs of united succession arising in direct contradiction with the ancient rule that all heirs of the same degree should be admitted to equal shares. Glanville mentions expressly that the socagers of his time held partly by undivided succession and partly by divided inheritance. The relations of feudalism and serfdom contributed strongly towards creating such individual tenancies. It was certainly in the interest of the lord that his men, whether holding a military fief or an agricultural farm, should not weaken the value of their tenancies by dispersing the one or the other among heirs. But apart from these interests of over-lords there was the evident self-interest of the tenants themselves and therefore the point of view of unification of holdings is by no means confined to servile tenements or to military fiefs. The question whether the successor should be the eldest son or the youngest son is a secondary one. The latter practice was very prevalent all through Europe and produced in England what is termed the Borough English rule. The quaint name has been derived from the contrast in point of succession between the two parts of the borough of Nottingham. The French burgesses transmitted their tenements by primogeniture, while in the case of the English tenants the youngest sons succeeded. A usual explanation of this passage of the holdings to the youngest is found in the fact that the youngest son remains longest in his father's house, while the elder brothers have opportunities of going out into the world at a time when the father is still alive and able to take care of his land. This is well in keeping with the view that customs of united succession arise in connexion with compensation provided for co-heirs waiving their claims in regard to settlement in the original household. The succession of the youngest appears also very characteristic in so far as it illustrates the break up into small tenancies, as the youngest in the family is certainly not a fit representative of hierarchy and authority and could not have been meant to rule anything but his own restricted household.
One more feature of the ancient law of succession has to be noticed in conclusion, viz. the exclusion of women from inheritance in land. There can be no doubt that as regards movable goods women held property and transmitted it on a par with males right from the earliest time. According to Germanic conception personal ornaments and articles of household furniture are specially effected to their use and follow a distinct line of succession from woman to woman (Gerade). Norse law puts women and men on the same footing as to all forms of property equated to "movable money" (Losore); but as to land there is a prevalent idea that men should be privileged. Women are admitted to a certain extent, but always placed behind men of equal degree. Frankish and Lombard law originally excluded women from inheritance in land, and this exclusion seems as ancient as the patriarchial system itself, whatever we may think about the position of affairs in prehistoric times when rules of matriarchy were prevalent. A common-sense explanation of one side of this doctrine is tendered by the law of the Thuringians (Lex Anglorum et Werinorum,c. 6). It is stated there that inheritance in land goes with the duty of taking revenge for the homicide of relatives and with the power of bearing arms. One of the most potent adversaries of this system of exclusion proved to be the Church. It favoured all through the view that land should be transmitted in the same way as money or chattels. A Frankish formula (Marculf) shows us a father who takes care to endow his daughter with a piece of land according to natural affection in spite of the strict law of his tribe. Such instruments were strongly backed by the Church, and the view that women should be admitted to hold land on certain occasions had made its way in England as early as Anglo-Saxon times.
Authorities. Mayne, Hindu Law and Usage (1878); Julius Jolly, Outlines of a History of the Hindu Law of Partition, Inheritance and Adoption (Tagpre law lectures) (Calcutta, 1883); B. W. Leist, Altarisches jus Civile (1892); F. Seebohm, Tribal System in Wales (2nd ed., 1904); the same, Tribal Custom in Anglo-Saxon Law (1902) ; Arbois de Jubainville, La Famille cellique (1906); A. Heusler, Institutionen des deutschen Privatrechts, i. (1885); H. Brunner, Deutsche Rechtsgeschichte (vol. i., and. ed., 1907) ; Jul. Picker, Untersuchungen zur Erbepfolge (Innsbruck, 1891 ft.); Kraus, Sitte und Brauch der Sud-Slaven; Pollock and Maitland, History of English Law, ii. (1895); Kenny, Law of Primogeniture (1878) ; P. Vinogradoff, The Growth of the Manor (1905); Brandt, Forelaesninger om norsk Retshistorie Kristiania (1880); Boden, "Das Odalsrecht " in the Zeitschrift der Savignystiftung fur Rechtsgeschichte (Ger. Abth. xxiii.); H. Brunner, "Der Totentheil" in the same Zeitschrift (Ger. Abth. xix.); L. Mitteis, Romisches Privatrecht (1908), vol. i.; Fustel de Coulanges, La CM antique (4th ed., 1872).
- The term illustrates the intimate connexion between inheritance and household religion in ancient Aryan custom.