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Updated: May 23, 2025
2 It was said that the statute confers the guardianship, in case of intestacy, on the nearest agnates; but by intestacy here must be understood not only complete intestacy of a person having power to appoint a testamentary guardian, but also the mere omission to make such appointment, and also the case of a person appointed testamentary guardian dying in the testator's lifetime.
Moreover, in 1765, as in 1730, "economic causes and conditions," writes Professor Andrews in his discussion of the Connecticut Intestacy Law, "drove the colonists into opposition to England quite as much as did theories of political independence, or of so-called self-evident rights of man."
But must not, now, the working in our minds of considerations like these, to which culture, that is, the disinterested and active use of reading, reflection, and observation, carries us, be really much more effectual to the dissolution of feudal habits and rules of succession in land than an operation like the Real Estate Intestacy Bill, and a stock notion like that of the natural right of all a man's children to an equal share in the enjoyment of his property; since we have seen that this mechanical maxim is unsound, and that, if it is unsound, the operation relying upon it cannot possibly be effective?
On the contrary, I find that the descent of most of the land of England is under the law of contract by deed or bequest and that it is only in case of intestacy that the courts intervene to give it to the next heir. This arises more from the construction the judges put upon the wishes of the deceased, than upon positive enactment.
He stepped at once into all the rights and all the duties of the dead man. He was instantly clothed with his entire legal person, and I need scarcely add that the special character of the Hæres remained the same, whether he was named by a Will or whether he took on an Intestacy.
The term Hæres is no more emphatically used of the Intestate than of the Testamentary Heir, for the manner in which a man became Hæres had nothing to do with the legal character he sustained. The dead man's universal successor, however he became so, whether by Will or by Intestacy, was his Heir. But the Heir was not necessarily a single person.
Again, he calls family heirs and agnates to the possession of goods on an intestacy; and yet, even putting aside the possession of goods, the inheritance belongs to them already by the civil law. 3 The following are the kinds of testamentary possession of goods. First, the socalled 'contratabular' possession, given to children who are merely passed over in the will.
In short, suppose we Hellenise a little with free-trade, as we Hellenised with the Real Estate Intestacy Bill, and with the disestablishment of the Irish Church by the power of the Nonconformists' antipathy to religious establishments and endowments, and see whether what our reprovers beautifully call ministering to the diseased spirit of our time is best done by the Hellenising method of proceeding, or by the other.
8 The seventh, which follows them, was introduced with most excellent reason by the praetors, whose Edict finally promised the possession of goods to those persons expressly entitled to it by any statute, senatusconsult, or imperial constitution; but this was not permanently incorporated by the praetor with either the intestate or the testamentary kinds of possession, but was accorded by him, as circumstances demanded, as an extreme and extraordinary remedy to those persons who claim, either under a will or on an intestacy, under statutes, senatusconsults, or the more recent legislation of the emperors.
The point for recollection is that there must anciently have been a time at which the rules of the Civil Law determined the scheme of Intestate Succession exclusively, and at which the arrangements of the Edict were non-existent, or not consistently carried out. We cannot doubt that, in its infancy, the Prætorian jurisprudence had to contend with formidable obstructions, and it is more than probable that, long after popular sentiment and legal opinion had acquiesced in it, the modifications which it periodically introduced were governed by no certain principles, and fluctuated with the varying bias of successive magistrates. The rules of Intestate Succession, which the Romans must at this period have practised, account, I think and more than account for that vehement distaste for an Intestacy to which Roman society during so many ages remained constant. The order of succession was this: on the death of a citizen, having no will or no valid will, his Unemancipated children became his Heirs. His emancipated sons had no share in the inheritance. If he left no direct descendants living at his death, the nearest grade of the Agnatic kindred succeeded, but no part of the inheritance was given to any relative united (however closely) with the dead man through female descents. All the other branches of the family were excluded, and the inheritance escheated to the Gentiles, or entire body of Roman citizens bearing the same name with the deceased. So that on failing to execute an operative Testament, a Roman of the era under examination left his emancipated children absolutely without provision, while, on the assumption that he died childless, there was imminent risk that his possessions would escape from the family altogether, and devolve on a number of persons with whom he was merely connected by the sacerdotal fiction that assumed all members of the same gens to be descended from a common ancestor. The prospect of such an issue is in itself a nearly sufficient explanation of the popular sentiment; but, in point of fact, we shall only half understand it, if we forget that the state of things I have been describing is likely to have existed at the very moment when Roman society was in the first stage of its transition from its primitive organisation in detached families. The empire of the father had indeed received one of the earliest blows directed at it through the recognition of Emancipation as a legitimate usage, but the law, still considering the Patria Potestas to be the root of family connection, persevered in looking on the emancipated children as strangers to the rights of Kinship and aliens from the blood. We cannot, however, for a moment suppose that the limitations of the family imposed by legal pedantry had their counterpart in the natural affection of parents. Family attachments must still have retained that nearly inconceivable sanctity and intensity which belonged to them under the Patriarchal system; and, so little are they likely to have been extinguished by the act of emancipation, that the probabilities are altogether the other way. It may be unhesitatingly taken for granted that enfranchisement from the father's power was a demonstration, rather than a severance, of affection a mark of grace and favour accorded to the best-beloved and most esteemed of the children. If sons thus honoured above the rest were absolutely deprived of their heritage by an Intestacy, the reluctance to incur it requires no farther explanation. We might have assumed
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