E

ΚΕΦ. Α.

NOV. CXVIII.

Περί διαδοχής των κατιοντων.

τούτων

τις τοινυν των κατιονίων ὑπει» τα άδιαθετω τελευτήσαντι, οιασδηποτε φύσεως ή βαθμε, εἴτε ἐξ ἀρρενογονίας, εἴτε ἐκ θηλυγονίας καταγόμενος, και είτε αὐτεξέσιος είτε ὑπεξασιος είη πάντων των ἀνιοντων και των ἐκ πλαγια συγγενων προτιμάσθω. Και γας ὁ τελευτητας ἑτερα ὑπεξόσιος ήν. όμως τις αὐτε παι δας, οιασδήποτε ἂν ὦσι φύσεως ἡ βαθμο, και αὐτων των γονέων προτιμασθαι κελευομεν, ὧν ὑπεξέσιος ἦν ὁ τελευτήσας, ἐπ' ἐκείνοις δηλαδη τοις πραγμασιν, άτινα, κατα τες άλλες ήμων νόμες, τοις πατρασιν Ἡ προσπορίζεται ἐπι γαρ τῇ χρήσει των πραγματων τετων, ὀφείλεση προσπορίζεσθαι ή φυλατίεσθαι, τις περι τότων ήμων νόμες τοις γονευσι φυλαττομεν έτω μείζοιγε ώςε, εἰ τινα To παλιοίων παίδας καταλιπονία τελεύτησαι συμβαιη, της έκεινα υἱες ή θυγατέρας ή τις άλλες κάλιονίας εἰς τον τα ίδια γονέως τοπον ὑπεισιέναι, είτε ὑπεξέσιοι τω τελευτησαντι, είτε αυτεξέσιοι εὑρεθειον· τοσετον ἐκ της κληβονομίας τα τελευτησαντος λαμβανονίας μερος, όσοι δήποτε ἀν ὡσιν. ὅσιν ὁ αὐτων γο νευς, ει περίην, ἐκομίζεῖο· ήν τινα διαδοχην in stirpes ή άρχαιοτης έκαλεσεν· ἐπι ταυ Της γαρ της τάξεως τον βαθμον ζητείσθαι & βελόμεθα· άλλα μετα των ύμων και των θυγατέρων τας ἐκ το προτελευτήσαντος iry ή θυγατρος εγγονός καλείσθαι θεσπιζόμεν• ἔδεμιας εἰσαγόμενης διαφοράς, είτε άρρενες εἶτε θηλείαι ὦσι, και είτε ἐξ ἀρρενογονίας είτε ἐκ θηλυγονίας καταγωνίαι, είτε ὑπεξὅσιοι, είτε

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CAP. I.

De descendentium successione.

Si quis igitur descendentium fuerit ei, qui intestatus moritur, cujuslibet naturæ aut gradus, sive ex masculorum genere sive ex feminarum descendens, et sive suæ potestatis, sive sub potestate sit, omnibus ascendentibus et ex latere cognatis præponatur. Licet enim defunctus sub alterius potestate fuerit, tamen ejus liberos, cujuslibet sexus sint aut gradus, etiam ipsis parentibus præponi præcipimus, quorum sub potestate fuerit, qui defunctus est, in illis videlicet rebus, quæ, secundum nostras alias leges, patribus non acquiruntur; nam in usu harum rerum, qui debet acquiri aut servari, nostras de his omnibus leges parentibus custodimus: sic tamen, ut, si quem horum descendentium filios relinquentem mori contigerit, illius filios aut filias, aut alios descendentes, in proprii parentis locum succedere, sive sub po testate defuncti, sive suæ potestatis inveniantur; tantam de hæreditate morientis accipientes partem, quanticunque sint, quantam eorum parens, si viveret, habuisset; quam successionem in stirfes vocavit antiquitas: in hoc enim ordine gradum quæri nolumus; sed, cum fliis et filiabus, ex præmortuo flio aut

filia

nepotes vocari sancimus; nulla introducenda differentia, sive masculi si

394

και αυτεξέσιοι εἴησαν. Και ταύτα μεν περι της των κατιοντων διαδοχης ἐτυπωσαμεν.

ve fœminæ sint, et seu ex masculorum seu fœminarum prole descendant, sive suæ potestatis, sive sub potestate sint constituti. Et hæc quidem de successionibus descendentium disposuimus.

CHAPTER I.

Of the succession of descendants.

If a man dies intestate, leaving a descendant of either sex or any degree, such des endant, whether he derives his descent from the male or female line, or whether he is under power or not, is to be preferred to all ascendants and collaterals. And, although the deceased was himself under paternal power, yet we ordain, that his children of either sex or any degree shall be preferred in succession to the parents, under whose power the intestate died, in regard to those things, which children do not acquire for their parents, according to our other laws; for we would maintain the laws in respect to the usufruct, which is allowed to parents: so that, if any of the descendants of the deceased should die, leaving sons or daughters or other descendants, they shall succeed in the place of their own father, whether they are under his power or sui juris, and shall be entitled to the same share of the intestate's estate, which their father would have had, if he had lived; and this kind of succession has been termed by the ancient lawyers a succession in stirpes: for in the succession of descendants we allow no priority of degree, but admit the grandchildren of any person by a deceased son or daughter to be called to inherit that person together with his sons or daughters, without making any distinction between males and females, or the descendants of males and females, or between those, who are under power, and those, who are not. These are the rules, which we have established, concerning the succession of descendants.

El TIS TOUY. Si quis igitur.] The three first chapters of this novel constitution deserve the attentive consideration of the reader, not only because they contain the latest policy of the civil law in regard to the disposition of the estates of intestates; but because they are the foundation of our statute law in this respect. Vid. Holt's cases, p. 259. Peere Williams's rep. p. 27. Prec. in chan. p. 593. Sir Thom. Raymond's rep. p. 496. And they are still almost of continual use, by being the general guide of the courts in England, which hold cognizance of distributions, in all those cases, concerning which our own laws have either been silent, or not sufficiently express.

Els TOV TY if yovɛws. In proprii parentis locum succedant. Nothing is more clear in the civil law, than that grandchildren, even when alone, (although they descend from various stocks and are unequal in their numbers,) would t. ke the estate of their deceased grand-father per stirpes, and not per capita. Suppose therefore, that Titius should dic,

leaving grandchildren by three different sons, already dead; to wit, three by one son, six by another, and twelve by another; each of these classes of grandchildren would take a third of the estate without any regard to the inequality of the numbers in each class. But, as to this point in England, the law reports mention no judicial determination; yet it seems probable, that the courts, in which distributions are cognizable, would order the division of an estate in such a case to be made per capita; and this, partly from a motive of equity, and partly from a consideration of the intent of the statute, relating to the estates of intestates; for the statute directs an equal and just distribution: and, when the act mentions representation, it must be understood to refer to it, in those cases only, where representation is necessary to prevent exclusion, but not to refer to it, in those cases, where all the claimants are in equal degree, and therefore can take suo quisque jure, each in his own right. Vid. 23, 24, Car. 2. cap. 10. Lib. 3. Inst. p. 4.

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CHAPTER II.

Of the succession of ascendants.

But, when the deceased leaves no descendants, if a father, or mother, or any other parents, grand-fathers, great-grand-fathers, &c. survive him, we decree, that they shall be preferred to all collateral relations, except brothers of the whole blood to the deceased, as shall hereafter be more particularly declared. But, if many ascendants are living, we prefer those, who are in the nearest degree, whether they are male or female, paternal or maternal; and, when several ascendants concur in the same degree, the inheritance of the deceased must be so divided, that the ascendants on the part of the father may receive one-half, and the ascendants on the part of the mother the other half, without regard to the number of persons on either side. But, if the deceased leaves brothers and sisters of the whole blood together with ascendants, these collaterals of the deceased shall be called with the nearest ascendants, although such ascendants are a father or mother; and the inheritance must be so divided according to the number of persons, that each of the ascendants, and each of the brothers, may have an equal portion; nor shall the father in this case take to himself any usufruct of the portions belonging to his sons and daughters, because by this law we have given him the absolute property of one portion: and we suffer no distinction to be made between those persons, who are called to an inheritance, whether they are males or females, or related by males or females, or whether he, to whom they succeed, was, or was not, under power, at the time of his decease.

Εἰ και πάλης ή μελης είησαν. Si et pater aut mater fuerint By the law of England, when a person dies intestate, leaving a father, the father is solely entitled to the whole personal estate of the intestate, exclusive of all others; and anciently, [ie. in the reign of Henry the first, vid. I. Hen. primi, Wilkins editore, p. 266.] a surviving father, or mother, could have taken even the real estate of their de. ceased child. But this law of succession was altered soon afterwards; for we find by Glanville, that, in the time of Henry the second, a father or mother could not have taken the real estates of their deceased children, the inheritance being then carried over to the collateral line. Vid. Glanville, lib. 7. cap. 1, 2, &c. 1 Peere Williams 50. And it has ever since been held as an inviolable maxim, that an inheritance cannot ascend. Co. Litt. 11. a. But this alteration in the law, made since the reign of Henry the first, did not extend to personal estate, so that, before the statute of the first of James the second, if a child had died intestate without a wife, child, or father, the mother would have been entitled to the whole personal estate, exclusive of the brothers and sisters of the intestate; but it is enacted by that statute, "that, if, after the "death of a father, any of his children shall "die intestate, without wife or children, in

"the lifetime of the mother, every brother "and sister, and their representatives, shall "have an equal share with her." 1 Jac. 2. cap. 17. § 6.

But, should it here be asked, whether the brother of an intestate would exclude the grand-father by the civil law? the novel appears at first sight to answer it very fully in the negative by enacting," that, if the deceas"ed leaves brothers and sisters together with "ascendants in the right line, these collaterals "shall be called with the nearest ascendants," &c. And indeed the generality of writers, namely, Gudelin, Forster, Ferriere, Domut, and others, all understand this passage, as admitting ascendants and brothers to take jointly; yet a contrary interpretation hath been given by some civilians, of whom Voet is the principal, whose arguments in support of it are therefore here copied at large.

"Illud non satis expeditum est, an etiam "cum avo aut proavo, ubi alius proximior "ascendens non est, fratres germani ejus, "qui defunctus est, concurrere debeant, an "magis avo proavove præferendi sunt, eos"que excludant? Concursum enim ascenden"tium naturaliter gradu remotiorum, quos "nullus intermedius existens excludit, cum "fratribus germanis defuncti turentur pleri"que, moti eo, quod cum proxime ascenden