On the death of the father the dignity and power of a pater familiar devolved upon each son who had attained his majority—and who had acquired sons, daughters or other descend ants over whom he could exercise his authority. Daughters, however, did not gain independence through the demise of the father; women as long as they lived remained under the tutelage of the family in which they were born. If the father died intestate the family property de scended to the children in equal shares and, at nearly all periods, without any preference for male heirs. But the children of a daughter, de ceased before the death of her father, took noth ing in right of their mother— for inheritance by representation could be claimed only through a male progenitor. Though daughters shared in the paternal estate equally with the sons, the legal disabilities of women involved the neces sity of creating trusteeships and guardianships for them. In default of direct descendants the nearest agnatic kindred became the heirs and, these also failing, the estate was distributed among the gentiles, meaning, the whole body of citizens bearing the intestate's family name. These constituted the gees or "house,'' and were assumed to be kindred in blood, though this kinship was a legal fiction more often than it was a fact. Only those children of an intestate who were under power were capable of inherit ing from an intestate. An emancipated son in herited nothing. The act of emancipation, in tended as a mark of distinction and proof of special fatherly affection, would react disas trously by disinheriting the favorite. This pos sibility was avoidable only by a testamentary disposition. The unfairness of a law, which permitted a family domain to pass to strangers and to be dissipated by a division into a very large number of very small parts, explains the Roman aversion to intestacy— an aversion which continued long after its original cause had been removed. An ancient will should not be con ceived as an instrument, like its modern counter part, made in secret and kept secret until the death of the testator. On the contrary a Roman will could be made only with the fullest public it and with the approval of the community. This approval was attested by a cloud of wit nesses, originally, the comitia calata, which was the whole body of citizens drawn up in battle array. The reason for this elaborate ceremonial was not a fear that a testator might disinherit his natural heirs; but the purpose of a will being to defeat the claim of the gen.s to an escheat, it would have been contrary to then prevalent ideas to permit so important a public act to without the demonstrative co-operation of the entire community. Doubtless, an attempt on the part of a father to deprive his children of their patrimony would have failed to receive the necessary public approval; but no testator would have thought of making such an attempt. Later on, when the formal probate of a will had become less public and less imposing, "the plaint of an undutious testament" would be en tertained by the prrtor and be the means of re instating heirs unjustifiably excluded from their heritage. A will went into effect immediately upon its publication and approval; and, though usually made in expectation of death, the tes tator remained divested of his property even if he recovered. If it created a universal succes sion — a usual method of testamentary disposi tion — the effect was that of a general assign ment. A universal heir, like a general assignee, or an executor or administrator, took not only the assets of an estate, but assumed the debts and other obligations as well. He assumed also the duty of distributing the remainder to those who had equitable interests in the property.
The Teutonic When the Teuton tribes emerged from Cimmerian darkness and came into the light of history the family, with them, as with the Romans, was the social unit. The kindred and their patrimony were under the round (guardianship) of the living, common male ancestor. This guardianship, however,
carried with it the paternal power only in a greatly modified form. The sons were emanci pated from paternal control of their persons when they attained their majority, but women remained under perpetual guardianship, which passed on their father's death to their nearest male relative. It did not pass, as in modern times, to the husband on marriage. The com munity of ownership in family property was pronounced. The allod, or family domain, was held in common by the father and his sons, and the former could not alienate the same without the consent of the latter, though the Anglo Saxon law seems to have been exceptional in giving the father the right of disposition. Wills and testamentary dispositions of property were unknown. The patrimony passed from father to sons in equal shares, but it was not usually divided. While the rule of primogeniture did not prevail, the quasi-corporate character of the family in its relation to property required some sort of managing directorship. It was not unnatural that this should fall to the eldest son on the demise of the father. The rights and persons of women were in the wardship of the family. A distinction was made between in herited and acquired property, the acquisitions of a son who had attained his majority being his own and free of parental control—though the acquired property would be subject to the rights of the sons of him who had acquired the same. Important arrangements respecting prop erty, or marriages were compacts between fam ilies, not between individuals — each party act ing through the family head in a representative capacity. We still speak of a conveyance of land as a covenant, not between the parties alone but also their heirs and successors for ever. Until quite modern times a contract of marriage was referred to as a treaty, and the resulting bond is still called a family alliance. By the time the Goths, Saxons and Franks had become firmly established in their new seats within the territorial limits of the decadent em Aire, the family law of Rome had attained its final development. Property continued to be held by children, during the life of the father, only by a most precarious tenure. The control of the pater laminas over the persons and lib erties of his children, however, was now ended when they had attained their majority; the per petual tutelage of women had been extinct for several centuries. Wills were attested by the seals of seven, instead of by the acclaim of an armed host of witnesses. The great number of laws to prevent the disinheritance of natural heirs, or the unequal distribution of estates, might give the impression that such practices were common. As a matter of fact, attempts to divert the patrimony from the natural line of succession were so infrequent that the preven tive edicts should be regarded as recording prevalent ideas of right, rather than as enjoin ing existing evil practices. The rules of intes tate succession had been made to conform with natural justice, and the Roman tables of con sanguinity have become the basis of our own statutes of distribution. The provisions of the French code civil and other modern codes, which require an equitable partition of estates and for bid the complete disinheritance of any child, have their origin in the Roman law of this pe riod.
The Christian The Christian churches quite naturally succeeded the heathen temples as depositories of wills. The universal succession was adapted, in principle, to cases of intestacy by the settlement of estates through administrators. A good part of the family law of Rome in its ultimate stage of development was absorbed without change into the law of the nations of Western Europe, not with out the exertion of influence by the Church. A little later the Church succeeded in imposing on these customary laws the right of the widow to her thirds. The Church also assumed the pro bation of wills and the administration of intes tate estates.