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is (4) no exclusion of any ever so remote degree : and lastly (3) That the estate of the intestate makes so many general shares, as there are distinct heads in his immediate descendants. I. For, as this downward direction was the primary and principal recommendation of natural law, it followed, that inheritances could never revert, or be thrown upwards (inter Ascendentes ), nor be turned aside (inter Collaterales), as long as any were to be found in the line below, or that of descendants, in infinitum. For the principle, upon, which this succession rested, was the jus Repraesentationis, which can not be fairly or reasonably imagined in any other line than in that, to which we give existence. There is something of successive in the idea of representation, something which looks like keeping up an order or a series; and though to brothers it may be applied in some sense, to fathers and grandfathers it can be applied in little or none, II. III. The second and third particulars, viz. the disregard of sex and primogeniture, in which these people differed from most others, as well before, as after them, are of that arbitrary consideration, that Hittle remains to be observed upon that disposition. But natural equity has a great stroke in the two last, and calls for some regard : IV. V. That descendants of the second, third or fourth degree, should be raised to a kind of level with those of the first, and not stand excluded, even while some of the first remain: That children of a remote descent should inherit along with the immediate one (I suppose the way cleared before them) is agreeable to truth and justice. The grandchildren etc. of Sempronius by a son that is gone, stand to Sempronius in the place of that son. They would have had their shares through that father, if he had lived; and represent him therefore, or succeed to his rights, now he is removed. And hence, because many children may succeed into one father's rights, it follows, that the jus Repraesentationis, which transmits the estate of Sempromius to his immediate descendants, shall undergo a considerable alteration in those descents or generations that follow after. Though Sempronius may be represented by any number of children indifferently and cut into so many shares accordingly, yet will each of those children be represented by their whole families; not by so many distinct heads of children, as Sempromius was, but by all their children collectively (let their number be what it will) laying, as it were, their heads together to form one common stock. For all those grandchildren gregatim, have that right in common, not separate to
each, which their father had to himself. And this is called successio in stirpes : the other when all share alike, in Capita. Thus in the scheme,
The cstate of Sempromius A will be divided into two equal parts, and B and C will each be heirs ex semisse. But supposing that Cis gone before his father, then shall B still be heres ex semisse, and D and E ex
quadrante, each. Or put the case A.
F. G. H. that C and D should both be gone, and D be represented by FG and H then will B as before be heres ex semisse, E ex quadrante, and F O and H will succeed each of them ex vncia. Or put the case, that E is dead, without issue also, then will F, G, and H, be each of them heres ex sextante But, taking leave of descendants, supposing that Sempronius dies intestate, without heirs of his body, we are then directed to the consideration of Ascendants, Though this may be against natural order, it is not against matural affection. And I think therefore that doctrine is not to be admitted, which maintains, that parents had no right to the goods of their children, dying childless and intestate, unless they had been relieved by the civil law. We have seen what title the indigent father has to a maintenance, and the same way of reasoning will serve in the one case as well as the other, See Gothofred, ad Nov. 1 Praef. §2. And when St. Paul said, 2 Cor. XII. 14. The children ought not to tay up for the parents, but the parents for the children, it is spoken with a view to the ordinary course of providence. It is the rule, without regard to the exception. But I observed, that this is up the stream, and against the common order of succession. And the ancients always gave it that melancholy consideration. We find it a constant matter of complaint in their fuaeral sorrows, when such calamities befell them. Turbato ordine more
talitatis—parentes filio contra ordinem—et quod miserrimum est mater fecit filiae-ordine retrogado defuncto—parentes male ivdicantibus fatis supertites—memoriam posuerunt contra votum-quod filius patri facere debuerat ipse fecit—aequivs enim fuerat vos hoc mihi fecisse—quae prior debui mori DCLXXXVI. 9-are the common expressions upoa this occasion. To give these considerations some little attention: This is the language of the Poet Ovid. 1. Heroid. 101. Di precor hoc jubeant, ut, euntibus ordine fatis, Ille meos oculos comprimat, ille tuos. And of the lawyer also : D. 5. 2. 15. pr. INam etsi parentibus non debetur filiorum hereditas, propter votum parentium, et naturalem erga filios caritatem, turbato tamen ordine mortalitatis, non minus parentibus, quam liberis pie relinqui debet. Thus the inscriptions : ANTONIUS SEVERUS AQUILA HIC JACET SINE ANIMA MISERABILI FATO QUI VIXIT ANNOS BISSENOS ET SEX MENSES CUI VOTA ERANT UT PARENTIBUS ISTA PARARET SET MORS IMMATURA FECiT UT FACERENT. PARENTES FILIO CONTRA ORDINEM. Gruter. DCLXIX. 4. Another remarkable expression is contra votum, as we have just seen from Papinian D. 5. 2. 15. pr. Add. 29. 4. 26. 1.-38. 6. 7. 1.— 38. 2. 50. 2. And so the inscriptions run. MOTARIAE P. F. PIISS. MASCELLIO F. FELIX ET TUTATIA CRISPINA FILIO DULCISSIMO MEMORIAM POSUERUNT CONTRA VOTUM. Gruter. DCXCVI. 10. Thus we read in Plutarch in Vita Catonis Maj. H rer& pa*rwp KATAPAN, &x E?^XHN xyevrwv τά, τωτον vrap An* arexurum Hujus Mater, exsecrationem, non votum, duxit, ipsum superstitem frelinquere. And it is not to be doubted, but that, from this strain of affection, and this parental supeRsTrTioN, that very word has gained its signification : §μi totos dies precabantur, et immolabant, ut sui sibi liberi superstites essent, superstitiosi sunt appellati, quod nomen postea latius patttit Cic. II. de N. D. 28*
I. SPERATI DESIDERATI ADULESCEN “TIS SPEI ET PIETATIS IN COMPARABI ILIS SPERATI HERMODORUS ET IVLIA NA PATRES MAI.E IN DIC ANTIBUS F ATIS SUPERSTITES POSUERUNT. Gruter. DCCVII. 5. A'on est ignotum, qualem te in personam patris tui gesseris : quem non n:inus quam liberos dilexisti : excepto eo, quod non optabas superstitem Senec. de Consolat. ad Marciam. init. Rautus begins his Asinaria with a memorable passage : Sicut tuum vis unicum gnatum tuae Superesse vitae, sospitem et superstitem ! Ita te obtestor, per senectutem tuam. Pcrque illam, quam tu metttis, uxorem tuam. Siquid med erga tu hodie falsum dixeris, Ut tibi superstes uxor aetatem siet, Atque illa viva vivus ut pestem oppetas. The Superstition in this passage, between the case of the son, ahd of the wife, is considerably different. And lastly, this leads me to recommend a new word to the Lexicons, (I do mot recommend the age of it): M. L. FLORUS M. FL. F. M. L. FL. PRONEPOS INFELI CISS. PARENS AFFLIGTUS PRAEPOSTERITAE NAT. HV. FILIUM VN. H. COND. QUEM IMPORTUNA MORS ADEMIT PRAEREPSITQUE SENII BACULUM CUI JAM DEFESSA AETAS ADNITENS PERBREVES ANNOS SS. ALLEVABAT. HUNC. ANTE MORS ADSEQUITUR QUAM TRISTES LACHRIMAE DESERVERINT NOTA POST. Gruter DCLXXXIV, 6. Praeposteritas is a very uncommon expression, and I believe a barbarous one. But the idea it represents, is very suitable to our subject. It is upon all these accounts, that the succession of the parent into the estate of the child is always attended with these unfavorable expressions, Luctuosa Hereditas, C. 6. 25. 9. Luctuosa Portio, C. 3. 28. 28. Triste Lucrum, C. 6. 59. 11. Durae Fortunae solatium, C. 6. 56. 4. Tristis Successio, Inst. 3. 3. 2. And it was imagined by lawyers to pass in Orbitatis solatium. There is a law often quoted upon this occasion: Non sic Parentibus Liberorum, ut Liberis Parentium debetur Hereditas : Parentes ad bona liberorum Ratio miserationis admittit, liberos naturae simul et parentium commune votum. D. 38. 6. 7. 1. To settie therefore the rule of successions in Linea Ascendente, there are two cases to be supposed possible,
I. Either there are no collaterals besides, II. or there arc. I. If there are no collaterals, then the succession of the intestate’s estate, dying, as we suppose, childless, reverts in that melancholy order, we have been just observing, and falls to his father and mother, or to either of them surviving, to the exclusion of every body above. For it must be observed, that here is no jus Repraesentationis; which I observed followed the order of nature and of blood, and is eonstantly imagined downwards. Therefore, contrary to what was found to be the rule in descendants, here every nearer degree excludes the remoter, and even the mother shall exclude the grandfather. II. But if we suppose collaterals to be left along with ascendants, the succession shall be divided. And put the case, that there is left a father and mother, a brother and sister, all the four shall succeed in equal portions. However, some caution is necessary to be observed, and these rules are not to be forgotten: (1). Collaterals never can exclude ascendants, even in the remotest degree. For the preference is with the ascendants; and collaterals can only share, not exclude. (2). The collaterals that share with ascendants must be brothers, or brothers children at farthest. No one can be admitted to a dividend beyond that degree. For, as before, the preference is properly with the ascendants; brothers were not called in till late in law, viz. by the CXVIIIth Novel, and brothers children still later, viz. by the CXXVIIth. (3). The succession of ascendants alone, of ascendants joined with brothers and sisters of the whole blood (for the half blood is excluded) is, as was observed, in Capita; but the succession of brothers and sisters children, in concurrence, is in Stirpes, because they represent their parent, and many may represent one. The last consideration regards Collaterals. And here we suppose, that no one is left either in the ascending or descending line whatever. I can imagine 1. Brothers and sisters alone. 2. Brothers and sisters together with brothers and sisters children. 3. Brothers and sisters children alone. 1. Brothers and sisters alone of, the whole blood, succeed in Capita, to the exclusion of the half blood. 2. Brothers and sisters children, concurring with brothers and sisters, succeed in Stirpes. 3. Nephews alone succeed in Capita, non in Stirpes: for they sucseed (now) in their own right, and not by representation.