Heres
An heir.
1. Greek
At Athens, if a person died intestate, leaving sons, all of equal birthright, and none of
them disinherited, the sons inherited the property in equal parts (
ἰσόμοιροι), the eldest probably receiving the same share as the rest. If there
were daughters, they were provided for by dowries given by the brothers, which, in case they
were divorced or childless after marriage, went back to the remaining heirs. Girls so dowered
were called
ἐπίπροικοι. This was a matter of usage and not
of formal law. If a man had no sons of his own, he usually adopted a son to continue the
family and the religious worship connected with it. (See
Adoptio.) If he had daughters, he would marry one of them to the adopted
son; in this case the chief share of the inheritance would fall to this married daughter and
her husband, the rest receiving dowries. If there were only daughters surviving, the
succession passed to them. In such a case the next of kin had a legal right to one of the
heiresses (
ἐπίκληρος), and could demand to marry her, even
if she had married some one else before receiving the inheritance; and poor heiresses
(
θῆσσαι), on the other hand, had a legal claim on their
nearest of kin, either for marriage or for a provision suitable to their circumstances. (See
Epiclerus.) If a man had married an heiress, he
was bound by custom and tradition, if he had sons, to name one as heir to the property which
had come with his wife, and thus to restore the house of the maternal grandfather. Children
born out of wedlock were illegitimate, and had no claim on the father's estate. If a man died
intestate, leaving no heirs either of his body or adopted, his nearest relations in the male
line inherited, and in default of these, those in the female line as far as the children of
first cousins. Any one thinking he had a legal claim to the inheritance made an application
to the archon to hand it over to him. The application was posted up in public, and read out
in the following Ecclesia (Assembly). The question was then asked whether any one disputed
the claim, or raised a counter-claim. If not, the archon assigned the inheritance to the
claimant; otherwise the matter was decided by a lawsuit. Even after the assignment of an
inheritance, it might be disputed in the lifetime of the holder, and for five years after his
death. The claim of the nearest relation to an heiress was in the same way lodged with the
archon and ratified before the Assembly.
2. Roman
If a Roman died intestate, leaving a wife and children of his body or adopted, they were
his heirs (
sui heredes). But this did not apply to married daughters who
had passed into the
manus of their husbands, or the children who had
been freed by emancipation from the
potestas of their father. If the man
left no wife or children, the
agnati, or relations in the male line,
inherited, according to the degree of their kinship. If there were no
agnati, and the man was a patrician, the property went to his gens. The
cognati, or relations in the female line, were originally not entitled to inherit by
the civil law. But, as time went on, their claim was gradually recognized more and more to
the exclusion of the
agnati, until at last Justinian entirely abolished
the privilege of the latter, and substituted the principle of blood-relationships for that of
the civil law. Vestal Virgins were regarded as entirely cut off from the family union, and
therefore could not inherit from an intestate, nor, in case of their dying intestate, did the
property go to their family, but to the State. On the other hand, unlike other women, they
had unlimited right of testamentary disposition. If a freedman died intestate and childless,
the
patronus and his wife had the first claim to inherit, then their
children, then their
agnati, and (if the
patronus
was a patrician) then his gens. In later times, even if a freedman, dying childless, left a
will, the
patronus and his sons had claim to half the property. Augustus
made a number of provisions in the matter of freedmen's inheritance. The civil law made it
compulsory on a man's
sui heredes to accept an inheritance (
hereditatem adire) whether left by will or not. But as
the debts were taken over with the property, the
edictum of the praetor
allowed the heirs to decline it.
A fortiori, no other persons named in the
will could be compelled to accept the legacy. See
Testamentum.
Heres necessarius was a slave of the testator, who made him heir and
liber at the same time. He was thus heir by necessity, becoming so without
any action of his own, by the mere operation of the law. If a testator knew himself to be
insolvent, he sometimes made a slave his heir to avoid the ignominy attached to a person
whose property was sold to pay his debts (
Gaius, ii. 154, etc.).
The property of such an heir, acquired after his manumission, was not liable for the debts of
the deceased. An insolvent inheritance was called
damnosa hereditas.
Heres ex asse was the phrase used to describe one who was sole heir. So
heres ex dodrante, an heir to three-quarters of an estate
(
Iul. 83);
heres ex parte sexta, to the sixth;
ex parte dimidia, to the half, etc.
See Hunger,
Das Erbrecht; and Gans,
Das Erbrecht in
weltgeschichtlicher Entwickelung, 4 vols.
(Berlin, 1823-35).
