§ 107. accepting his resignation. The functions of the state as guardianin-chief were considerably enlarged by the Common German Law, and the judicial department which, in these matters, represented the state (the 'Obervormundschaftsbehörde ') became the supreme authority for superintending and controlling the entire management of all guardianships. The German Civil Code has not altered the functions of the state in this respect.

CHAPTER II.

THE LAW OF INHERITANCE.

§ 108. Hereditary Succession; its Foundation and Conception.

THE fundamental idea which lies at the root both of proprietary § 108. rights and of proprietary liabilities, or obligations, is the idea of immortality. An owner may die, but his ownership survives him. A debtor may pass away, but his debt remains. In this respect the rights and duties of private law, on the one hand, differ from those of public and family law, on the other hand; for it is a principle of the rights and duties incident to public and family law that they perish with the person to whom they are annexed. There are, it is true, certain relationships of private law-such as a usufruct or a penal liability for a delict-which are inseparable, by their very nature, from a particular person, and which consequently perish with the death of that person. But the fundamental characteristic of a private right and a private liability, as such, is that they can survive their subject and can pass to a new subject. Property is not destroyed by the death of the proprietor.

And the reason is this: though the individual may die, the family survives. In the oldest times the family is the sole owner; individual ownership is unknown and common ownership is the only recognized form of ownership. The common ownership of the family developed, in the course of time, into the common ownership of the community, on the one hand, and the private ownership of the individual, on the other. The after effects which the original conception of family ownership produced on private ownership are

§ 108. clearly visible in the rights assigned to the family in the law of inheritance. The death of the individual does not remove the true owner of the property, because the family continues to exist. The individual holder of the property dies, but his family and, through it, his property survive him.

The title of the relatives of the deceased, and more especially of his own children, to succeed to his property on his death, is based on a rule of law, on a legal necessity, on the fact that, prior to his death, the relatives were co-owners of the property. In the course of time, however, the idea of private ownership was destined to prevail over the traditional conception of family ownership, and the individual was allowed, through the medium of a will, to assert his absolute right of disposition (i. e. his sole ownership) as against the family even after his death. In the earliest times there was only intestate succession. At a later period we find intestate opposed to testamentary succession. Nevertheless the associations of the old family ownership were still clearly traceable. The rights of certain very near relations were so strong that they survived the recognition of individual ownership. It came to be admitted, moreover, that the claims of a man's nearest relations were in a sense also the claims of the community, and that it was a matter of public concern that the nearest relations, who depended for their existence on the deceased, should not be deprived of his property without sufficient cause. The result of the working of these ideas was that, concurrently with the development of testamentary succession, another form of succession came into use, viz. a succession contrary to the will, a 'succession by necessity.' In the old law the rules concerning succession by necessity marked the limits within which the interests of the family continued to prevail over the interests of the individual. In the later law, as shaped by legislation, the rules concerning succession by necessity governed the entire field within which the interests of the family were regarded as identical with the interests of the state. Testators were compelled, to some extent, to satisfy the just demands of their nearest relatives. Just as the rules of intestacy bear witness to the primeval rights of the family, and the rules of testamentary succession to those of the individual,

so the rules as to succession by necessity give expression to the § 108. partial coincidence of the interests of the family with those of the

state.

According to the original idea, which rejects all claims to succession except those of the family, the heir appointed in the will is, so to speak, received into the family by means of a juristic act. For the family represents the force by which, on the death of the individual, the property is saved from perishing, and is thus the source and foundation of the rights of succession and the rules of hereditary devolution.

In Roman jurisprudence hereditary succession takes the form of universal succession. That is to say, the estate of the deceased is preserved in its entirety, with all its rights and liabilities, and passes in its entirety to the heir or heirs. It was this conception of universal succession which enabled the Roman law of inheritance to vindicate its inherent superiority as a logical system over the German law of inheritance, and which-after the 'reception' of Roman law-caused the German ideas of hereditary succession to be displaced in favour of those which Roman law had introduced. German law never advanced beyond the somewhat primitive notion of the earliest times, the notion namely of a 'singular succession,' according to which, on the death of a person, his property is broken up and distributed piecemeal among his heirs. The bolder genius of Roman law, starting, like German law, from singular succession, successfully worked its way to the maturer conception of universal succession. In Roman law the property of a deceased person is not physically divided and scattered among his heirs. It remains absolutely one. Each heir takes, on principle, the whole estate. If several heirs enter on the inheritance, and consequently 'concursu partes fiunt,' the inheritance is proportionately divided into ideal parts. No heir can succeed to a separate thing belonging to the estate of the deceased. Hereditary succession must necessarily be a succession to an estate, i. e. to the whole mass of rights and obligations which are left by a person on his death.

The doctrine of universal succession acquires practical importance in its application to the question of the transmission of liabilities.

§ 108. And it is certain that Roman law, in evolving the conception of universal succession, which was destined to dominate the whole field of the law of inheritance, started from this very question concerning the debts of the deceased. For if, on a man's death, his property is distributed piecemeal, a grave question arises as to what is to happen to his debts. The doctrine of singular succession must endanger the rights of those who have claims against an inheritance. But where the whole mass of rights and obligations passes in its entirety to the heir or heirs, the matter stands very differently. If there is but one heir, he will take the whole estate subject to all its liabilities, and if there are several heirs, each heir will take his aliquot share subject to an aliquot share of the debts-provided of course the debts are divisible; otherwise all the heirs will be liable in solidum, each of them being answerable for the whole amount.

Another question, however, remains to be settled. Shall the heir's liability for the debts of the deceased be limited to the amount of the inheritance, or shall it also extend to his own property? The principle of singular succession necessarily implies the former alternative. On the other hand, the principle of universal succession, though not necessarily involving the second alternative, nevertheless points to it as a possibility. It is most characteristic of the Roman law of inheritance, that, in elaborating the conception of universal succession, it decided in favour of the second alternative, and adopted the view that the heir must be made answerable for the debts of the deceased, if necessary, with his own property. In other words, the heir was made answerable in the same manner as though he had contracted the debts himself, or, to put it still more plainly, he was made answerable in the same way as though he were the deceased himself.

This rule contains the pith of the Roman conception of universal succession. Hereditary succession, in Roman law, does not mean a succession to separate rights or liabilities-which would be a singular succession-nor does it mean a mere succession to an estate as a whole-which would be a universal succession in the wider sense of the term. It means primarily a succession to a personality, i. e. to an individual subject of proprietary rights