The Twelve Tables
Table #5Inheritance
This follows smoothly on the last provision of Table 4, which envisioned inheritance rights. Without inordinate effort, the entirety of Table 4 could be construed as having to do with inheritance rights. The subject of family law would then be wholly contained in the more general category of property law. The arrangement of material, attested as it is at a few points, seems to discourage such an analysis as intended by the framers of the Tables, but it may still be worth considering by the modern analyst.
5:01. [Female heirs should remain under guardianship even when they have attained the age of majority, but] exception is made for the Vestal Virgins.
Gaius explains that the exception is due to respect for their sacred office, as exempting them from the lightness of judgement attributed to other women. There may have originally been a preceding clause, setting forth the more general prescription.
5:02. The conveyable property of a woman who had been under the guardianship of her paternal relatives (agnati) may not be acquired by long possession (usucapio), save such as had been delivered by her with the guardian's sanction.
Her right of sale or other alienation is conditional on the agreement of the guardian. The wording here is a paraphrase by Gaius rather than a quote by him from the Tables. It is notable that the provisions on female heirs precede the more normal situation in the code. The more normal situation was probably added later than the abnormal situation, which would have been all that an early magistrate would have needed as a guideline, since custom sufficiently covered the rest.5:03. As one may direct regarding his possessions or the guardianship (tutelave) of his estate (suae rei), so shall right (ius) be.
A will has the force of law in the sense that it establishes what is "right," ius. This general provision for the normal case is unusual in the Tables. It would appear to interrupt a pattern of paired clauses in the original code, and may be a later addition.5:04. If a person dies intestate and has no self-successor, let his nearest agnate male kinsman have possession of his household (familia).
That is, his nearest male kinsman in the male line.
5:05. If there is no agnate male kinsman, let his clansmen (gentiles) have possession of his household.
Property is to remain within the male line, and if there is no male-line heir, then it shall remain within that clan at large, which will later pass it on by the same principle.GUARDIANSHIP OF UNDERAGE HEIRS
5:06a. To those for whom a guardian has not been appointed by testament, agnates are guardians.
This is a paraphrase by Gaius; for a possibly more exact wording, see 5:07b.
5:06b. But if there be no trustee for him . . .
This quote by Festus may be from an otherwise lost balancing provision. On that possibility, we transfer it here from its position as 5:07b in Warmington.GUARDIANSHIP OF INCOMPETENT HEIRS
5:07a. If a man is raving mad, authority over his person and possessions shall belong to his agnates or to his clansmen.
He may need care as well as supervision. Compare next.
5:07c. One who, being . . . a spendthrift, is forbidden to exercise administration over his own goods, shall be under the trusteeship of agnates.
We combine two comments of Ulpian, but separate his grouping of the insane and the prodigal in one of those comments (for Warmington's 5:07b, see 5:06b above).5:08a. The inheritance of a Roman citizen freedman who had died without a self-successor is to be made over to his patron. . .
A freedman may bequeath to a designated heir, and if he dies intestate, his natural heir would inherit. But if neither applies, then the default is different from the case in 5:04-05 (where first the agnate mail kinsmen, and finally the clan, will inherit).
5:08b . . .from said household into said household.
From Ulpian. It is for conjecture how the remainder of this provision might have read.5:09. Debt bequeathed by inheritance is divided proportionally among the heirs, with automatic liability, following investigation.
A paraphrase by Gordian, paraphrased similarly by Diocletian. Money owed the deceased is to be considered as owed to the joint heirs in the same proportion as their share of the estate. There was no need to provide for the passing of debt to a single heir, but the possibility of unequal shares raises the issue. Indian tradition provided decreasing shares for younger sons of an intestate person.
5:10. When joint heirs wish to withdraw from common and equal participation . . .
Gaius does not specify the procedure to be followed.
Form. Formally speaking, we seem again to have a tendency toward pairs of provisions. The atypically positive rule in 5:03 interrupts this tendency. If we prefer not to separate 5:07a/c and 5:08a/b, we might combine the resulting pair of provisions under the more general rubric of GUARDIANSHIP. Property transfer by other means than inheritance is treated in Table 6.
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