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SUCCE´SSIO is a term employed by the Roman jurists when speaking of the modes in which legal rights are acquired and lost. The relation of person and right, or of right and its subject, varies with the nature of the right itself. In respect of many rights, what is essential and permanent is the person in whom they reside: the rights themselves are merely transitory attributes. But in respect of property (using that term in its widest sense) this relation is reversed. Rights of property can as a rule pass from subject to subject: so far as they are concerned it is immaterial in whom they are vested for the time being, or, as Dr. Bruns has remarked, “as the coat changes its wearer, but itself remains the same, so can the right to the coat change its subject without being changed itself.” Successio is the acquisition by one person of a right or rights hitherto vested in another, but not every such acquisition: it is in fact a species of what jurists call “derivative acquisition,” of which there are two kinds. In the one a person tranfers to another a portion of his own rights, as where an owner constitutes a jus in re aliena [SERVITUTES], such as a usufruct or a right of way, over property of his own in favour of another: here the right of the latter is acquired derivatively, but there is no successio, the owner carving as it were a right differing in orbit from his own out of his own dominium. In the other, which is successio, the right of the one party passes in its integrity to the other, of whom it is said, “Succedit in locum ejus.” Here a legal relation is presupposed between the two persons, the one of whom ceases to be invested with the right eo instanti that it becomes vested in the other; and to the latter it cannot be (in the eye of the law) a higher, larger, or more valuable right than it was to the former: “non debeo melioris condicionis esse quam auctor meus, a quo jus in me transit,” Dig. 50, 17, 175; “nemo plus juris ad alium transferre potest, quam ipse haberet,” Dig. ib. 54. Thus in the case of the transfer of ownership by traditio, the new ownership begins when the old ownership ceases, and it only arises in case the former possessor of the thing was also owner; that is, prior ownership is a necessary condition of subsequent ownership. Without a legal [p. 2.722]relation between the two parties, the one of whom intends to transfer his right to the other, there can be no successio. For instance, if A acquires ownership in property hitherto belonging to B by usucapio, B ceases to be its owner, but there is no legal relation between A and B, and therefore no succession: the acquisition by A is original, not derivative. So, too, if B abandons property (derelictio) of which A takes possession with the intention of appropriating it, it becomes A´s without more ado (Inst. 2.1, 47): but here again the acquisition is original, and and there is no succession. The requirement that the right should vest in the successor contemporaneously with its divestment from the other party is sometimes satisfied by a fiction, as in the succession of a heres: for though there might be a considerable interval between the death and the aditio of the inheritance, yet the latter, when once made, had by a legal fiction relation back to the moment of decease: “heres quandoque adeundo hereditatem jam tunc a morte successisse defuncto intelligitur,” Dig. 29, 2, 54; “omnis hereditas, quamvis postea adeatur, tamen cum tempore mortis continuatur,” Dig. 50, 17, 138.

Of successio there are two kinds. A man either succeeds to a single right or a number of single rights by themselves, which is called “singular succession:” or he succeeds to the whole property or proprietary relations of another, whereby the individual rights pass also, which is called “universal succession.” The Roman phrases are somewhat different. It is said in Dig. 43, 3, 1, 13 (cf. Gaius, 2.97), “in locum successisse accipimus sive in universitatem sive in rem sit successum:” so too we have “in eam duntaxat rem succedere” (Dig. 21, 3, 3), “in singularum rerum dominium succedere” (Dig. 29, 2, 37), “in rei tantum dominium succedere” (Dig. 39, 3, 24); “in universum jus, in universa bona” (Dig. 23, 3, 3, 1; 39, 2, 1).

In singular succession the person from whom the right passes is called the other's auctor (Dig. 50, 17, 175, cited above: “auctorum successio,” Dig. 1, 2, 2, 13). As to the rights of which a singular succession is possible, something is said below; but the succession requires an act between the parties capable of transferring the right, whether it be mancipatio, traditio, or mere grant. The object of universal succession is a man's whole property, so far as it exceeds mere life interests, comprising res in corporales (e. g. what we term “choses in action” ) no less than res corporales, and in most cases his liabilities as well as his rights: the notion upon which it is based being usually a fictitious identity of person between the party hitherto entitled and the successor, so that the former, in relation to the object of succession, is not (as in singular succession) opposed to the latter as a disconnected person, and consequently is not here as a rule termed his auctor, though an instance of this (in inheritance) occurs in constitution of Diocletian in the Codex Hermogenianus. The universal successor may very properly be regarded as and termed successor to a part of the whole, but only because it is such a part: he succeeds to the part because he succeeds to the whole. Of universal succession there is a variety of forms, of which the most important is succession upon death On a man's decease, his heir or heirs, whether they took by civil (heredes) or by praetorian law (bonorum possessores), took his property as an ideal whole: “bona autem hic, at plerumque solemus dicere, ita accipienda sunt: universitatis cujusque successionem, qua succeditur in jus demortui, suscipiturque ejus rei commodum et incommodum. Nam sive solvendo sunt bona sive non sunt, sive damnum habent sive lucrum, sive in corporibus sunt sive in actionibus, in hoc loco proprie bona appellabuntur” (Dig. 37, 1, 3, pr.). After the Senatusconsulta Trebellianum Pegasianum, the same occurred where an heir transferred the whole inheritance to another under a trust [FIDEICOMMISSUM]. In the other cases of universal succession the so-called passiva of the person succeeded (i. e. his liabilities) did not by the civil law pass to the successor: but by the Edict this was generally so far modified that the latter became answerable for the passiva so far as the activa (assets) went. They comprise the following:--(1) The passing of a woman in manum mariti: “Cum mulier viro in manum convenit, omnia quae mulieris fuerunt viri fiunt dotis nomine,” Cic. Top. 4, 23: “cum mulier in manum convenit, omnes ejus res incorporales et corporales quaeque ei debitae sunt coemptionatori adquiruntur, exceptis his quae per capitis deminutionem pereunt . . . ex diverso quod ea debuit quae in manum convenit non transit ad coemptionatorem . . . nisi si hereditarium aes alienum fuerit: tune enim, quia ipse coemptionator heres fit, directo tenetur jure” (Gaius, 3.83-4); and Gaius goes on to explain that though by the civil law no liability attaches after the coemptio for debts contracted by the woman before it either to herself or the husband, yet the praetor granted utiles actiones against her to the creditors, who, unless she were defended, would be put in possession for purposes of liquidation of all property which they might have proceeded against at civil law, but for the coemptio. (2) The giving of an independent person by himself in adrogation: “Si paterfamilias adoptatus sit, omnia quae ejus fuerunt et adquiri possunt, tacito jure ad eum transeunt qui adoptavit” (Dig. 1, 11, 15, pr.). Mutatis mutandis, Gaius says precisely the same of this, in respect of debts owed by the adrogatus, as he does of conventio in manum. (3) Bonorum emptio or bankruptcy, for which see Gaius, 3.77-81; Inst. 3.12, pr. (4) The reduction of a free woman to servitude under the Senatusconsultum, Claudianum, in which case her whole property passed with her to her new master [SERVUS 662 b]. In many other, cases, though the object is to transfer the whole property, it is in fact effected by the transfer of the several things--e. g. in gift, in the constitution of a dos, in the formation of a societas, or the sale of an inheritance by the heres.

There are many rights which cannot be acquired by succession at all, and others which can be acquired by universal but not by singular succession. Speaking, generally, none can thus pass but proprietary rights: for instance, the rights of patronatus over a libertus civis could not be bequeathed away to an extraneus heres, because, properly speaking, they were personal and based on a fictitious kinship: they devolved on the issue who were in the testator's power at his death, and who were potentially possessed of them even during the ancestor's lifetime [p. 2.723](Gaius, 3.58). But the jus patronatus over a Latinus Junianus could be so bequeathed (Gaius, ib.), because it was a mere property right, the freedman becoming a slave again at the moment of his decease (Inst. 3.7, 4). Yet in some rights there may be a successio which cannot be regarded as of a proprietary nature: e. g. the pater can transfer his patria potestas by datio in adoptionem, and in some cases the guardian could assign his rights of tutela (Gaius, 1.168 sq.).

Real rights, such as ownership, possession, and jura in re aliena (with the exception of servitudes), admit of succession of both kinds: they can be transferred by the appropriate mode of conveyance inter vivos, and devolve at death on the heir. No servitudes can be succeeded to “singularly,” and personal servitudes, being as a rule mere life interests, were generally excluded from univeisal succession upon death: up to the time of Justinian usus and ususfructus were destroyed: by capitis deminutio of every kind, so that they could not, before his change in the law, pass upon a conventio in manum or adrogatio. Nor can there be any singular succession to obligations or rights in personam: if the subject of the right were really changed (by Novatio), the right itself was changed also; and if the right were assigned, there was no real change of subject, but the assignee merely exercised a right of action which remained vested in his assigner: upon this subject see OBLIGATIO.

The terms successio, successor, succedere by themselves have a general meaning and comprise both kinds of succession. Sometimes they denote universal succession without any addition, though where this is so the meaning is usually clear from the context (e. g. Gaius, 3.82), but generally when universal succession is intended the word universum or some cognate term is added. Successio signifies the inheritance in many passages (e. g. “ex testamento successionem obtinere,” Cod. 6, 20, 1: cf. Cod. 2,53, 5, 3; 7, 34, 4; 3, 36, 10), and in some even the heirs (e. g. “Nullam ex priore matrimonio habere successionem,” Cod. 5, 9, 3, pr.; ib. 2): “alienas successiones proprias anteponere” (Cod. 6, 42, 30). In Dig. 28, 2, 23, 1; ib. 29, 4, it denotes the substitution of a remoter for a nearer heir (cf. Dig. 38, 9, 1; 50, 17, 194): and in Dig. 20, 3, 3; 20, 4, 3, pr.; ib. 12, 9; ib. 16, the substitution of a subsequent for a prior mortgagee.

(Savigny, System, 3.8 sq.; Puchta, Institutionen, § 198; Hasse, Ueber Universal und Singular-Successio, “Archiv für civ. Praxis,” 5.1; Kuntze, Die Obligationen und die Singular-Succession im röm. Rechte, Leipzig, 1856.)


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