Law of Succession

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 his torical one, we may say that the aggregate of things and claims relinquished by a deceased person may—(I) 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. (2) The deceased may be considered as a subordinate member of a higher organism—a kindred, village, state, etc. In such a case there can be no succession proper as there has been no individual property to begin with ; there will be only a relapse of certain goods used by the member of a community to that community, and a conse quent rearrangement of rights of usage. The law of succession will again be constructed on a personal basis, but this basis will be supplied not only by the single individual whose death has had to be recorded but by some community or union to which this indi vidual belonged. (3) The aggregate of goods and claims consti tuting what is commonly called an inheritance may be considered as a unit having an existence and an object of its own. The cir cumstance 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 subor dinated 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: (I) the joint family in so far as it bears on succession ; voluntary associa tions among co-heirs; (3) division of inheritance; (4) united suc cession in the shape of primogeniture and of junior right.

In the East, Greece and Rome.

The large mass of Hindu juridical texts representing customs and doctrines ranging over nearly 5,00o 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. In practice it was otherwise. For conflicting theories, see the article INDIAN LAW. 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" a term illustrating the intimate con nection between inheritance and household religion in ancient Aryan custom), 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. 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 stirpes 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 corners among the Aryan races—the Slays. In the mountain regions of the Balkan Penin sula and the forests and moors of Eastern Europe they developed many characteristic tribal institutions and, among these, the joint family, the Zadruga, inokoshtina, a huge community of which there can be no doubt that their roots go back to a distant past (see VILLAGE COMMUNITIES). There was no room in them for succession proper: what had to be provided for was 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 appeared as a much less ex tensive application of the same idea.

Early European Systems.

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), which must be construed as a modification of an older rule of succession by neighbours. Under "neighbours" we cannot understand merely people connected with a person by proximity of settlement, but rather his kinsmen, and the fact that kinsmen forming a settlement have precedence of brothers is characteristic enough, especially as even sons and daughters are mentioned in a way which shows that there was still some doubt whether neighbouring kinsmen should not take inheritance instead of them. 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 from the rest of the household property goods acquired by personal work or by marriage (Scanian Law, Dan. text i. 5) ; the same arrange ment 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 this is accretion, not succession.