Law of Succession

LAW OF SUCCESSION. Succession, in law, is the trans mission or passing of rights from one to another.

Succession, or the partition or redistribution of the property of a former owner is the subject of many rules, which may be based on the will of a deceased person and are detailed in such articles as ADMINISTRATION ; ASSETS ; EXECUTORS AND ADMINISTRATORS; IN HERITANCE; INTESTACY; LEGACY; WILL; etc. There are cases, however, in which a will cannot be expressed ; this eventuality is discussed in the present article, and there can be no doubt that it is the most characteristic one from the point of view of social con ditions. 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; INDIAN LAW ; etc.

In Primitive Conditions.

We have to start from a dis tinction 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 his herds. It is characteristic that even in the strict law of paternal power formulated by the Romans an unemanci pated 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 per sonal belongings of the dead (Post, Grundriss der ethnologischen Jurisprudcnz, pp. and sometimes the goods of deceased persons have to be taken away by strangers which leads to curious customs of looting the house of the dead. Such customs were prevalent, e.g., among the Indians of the Delaware and Iroquois tribes ; the nearer relations dared not take over such things on account of tabu, while strangers might appropriate them, as it were, by right of conquest.

The continuance of the relation of the deceased to his former belongings 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 con sists 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 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 corpse was gorgeously dressed and put into a boat in which were placed intoxicants, fruit, bread, meat and a dog cut into two parts. 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 con cubine of the deceased was also sacrificed, and ultimately all 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; the 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 de ceased himself. The last named reservation is observed in Magna Charta (c. 26) and in Bracton's statement of Common Law (fol. 6o), 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 ob served 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.