On The Structure of Greek Tribal Society: An Essay

by Hugh E. Seebohm

§ 2. Limitations In Respect Of Succession Outside The Direct Line Of Descent.

The right of succession limited to the great-grandchild of the common ancestor.

The Gortyn law quoted above in the previous section goes on:—

v. “If (a man or woman die and) they have no children, the deceased's brothers and brother's children or grandchildren shall have the property. If there are none of these, the deceased's sisters, their children or grandchildren. If there are none of these, to whom it descends of whatever grade they be, they shall inherit the property.”

This clause takes the evidence one step further, and it is noticeable how the right of inheritance is determined by the great-grandchild of the common ancestor. In the direct line, a man's descendants [pg 057] down to his great-grandchildren inherited his estate. In dealing with inheritance through a brother of the deceased the heirship terminates with the grandchild of the brother, who would be great-grandchild of the nearest common ancestor with the previous owner of the estate. If there is no brother, the child of the cousin limits the next branch, as will be seen.

The law according to Isaeus.

Isaeus[145] describes the working of the then-existing (c. 350 B.C.) law of inheritance at Athens as follows:—

The law gives “brothers' property” (i.e. property without lineal succession) to

1. Brothers by the same father, or brother's children, for these are related to the deceased in the nearest degree;

2. Sisters by the same father, or sister's children;

3. First cousins by the father's side as far as cousin's children (δίδωσι τὴν ἀγχιστείαν ἀνεψιοῖς πρὸς πατρὸς μέχρι ἀνεψιῶν παίδων).

Failing these, recourse is had back again into the family (εἰς τὸ γένος πάλιν ἐπανέρχεται) and the law makes those related through the mother of the deceased, masters (κύριοι) of the family (and inheritance) in the same order as on the father's side from the beginning.

That is to say, failing first cousins once removed, the inheritance goes back and begins again at the mother of the deceased, who however, being a woman, can only inherit on behalf of her issue, present or prospective.[146] If she has married again and has a son (half-brother to her deceased son) he would inherit. Failing her issue, her brother and so on to first cousin's children [pg 058] of the deceased, through his mother, would have the inheritance.

Failing these, the nearest kinsman to be found on the father's side, of whatsoever degree, is to inherit.

The law according to Demosthenes.

The law as stated by Demosthenes[147] coincides with this:—

“If there are no sons, brothers by the same father (shall inherit): and their true born children, if there are any, shall have the share of their father: if there are no brothers or brother's children the issue of the latter in the same way shall partake: males and children of males shall have preference (over females) if they are born of the same (parents), even if they are further off by birth (γένει) [i.e. are a generation lower down]. If there are none on the father's side as far as cousin's children (μέχρι ἀνεψιῶν παίδων), the relations on the mother's side in the same way shall have possession (κυρίους εἶναι). But if there are none on either side within these degrees, the nearest of kin on the father's side shall have possession.”

Whenever this law is quoted the limit of relationship laid down therein for the immediate ἀγχιστεία is always that of ἀνεψιῶν παῖδες, or sons of first cousins, who inherit from their first cousins once removed (oncle à la Brétagne, or Welsh uncle as this relation has been called). Occasionally the patronymic form ἀνεψιαδοῖ is used, apparently with the same signification, though properly ἀνεψιαδοῖ would mean sons of two first cousins, i.e. second cousins.[148]

No ἀγχιστεία beyond great-grandsons.

It appears from the evidence reviewed hitherto, that any great-grandson could inherit from any grandson of a common ancestor, and the conclusion [pg 059] also seems to be justified, that the group of great-grandsons were considered to divide up their right to inherit once for all, and that having done so, with respect to that inheritance they were considered to have begun a new succession. To put it differently, in case of the death of one of these second cousins, after the final division of their inheritance had taken place, the rest of the second cousins would have no right to a share in his portion; an heir would have to be found within his nearer relations. Thus, they share responsibilities towards any of their relations within the group and higher up in their families, and also stand shoulder to shoulder in sharing such burdens as pollution and so on, but are outside the immediate ἀγχιστεία with respect to each other's succession. The reason for this will perhaps be more apparent as the argument proceeds.

That the grandson of a first cousin was outside the ἀγχιστεία is clear from the speech of Demosthenes already mentioned,[149] where the plaintiff, who originally stands in that relationship to the deceased whose inheritance is in dispute, is adopted as son of his grandfather (first cousin of the deceased), in order to come within the legal definition of ἀνεψιοῦ παῖς.

That the son of a second cousin was also without the pale is directly stated in several passages in Isaeus.

The heir always ranked as son.

It must be remembered that by “inheritance” is meant the assumption of all the duties incumbent on the ἀγχιστεύς, and that the man who “inherited” took [pg 060] his place for the future as son of the deceased in the family pedigree, and reckoned his relationship to the rest of the γένος thenceforth from his new position, in the house into which he had come.[150]

Hence the limit of the inheritance at cousin's children.

Now if it is true that to the great-grandson was the lowest in degree to which property could directly descend without entering a new οἶκος, and if that great-grandson was also looked upon as beginning with his acquired property a new portion of the continuous line of descent; any one, who “inherited” from him and ranked in the scale of relationship as HIS SON, would necessarily fall outside the former group and would be considered as forming the nearest relative in the next succeeding group. This, it seems, is the meaning of the language of the law which limits the ἀγχιστεία to the children of first cousins who could inherit from their parent's first cousins, and still retain their relationship as great-grandsons of the same ancestor. Whereas any one taking the place of son to his second cousin would be one degree lower down in descent, and pass outside the limit of the four generations. The law makes the kinsmen therefore exhaust all possible relationships within the group by reverting to the mother's kindred with the same limitation before allowing the inheritance to pass outside or lower down.

Disinheritance must be sanctioned by kinsmen.

In confirmation of this view the following passage may be quoted from Plato's Laws:—

“He who in the sad disorder of his soul has a mind, justly or unjustly, to expel from his family a son whom he has begotten and brought up, shall not lightly or at once execute his purpose; but [pg 061] first of all he shall collect together his own kinsmen, extending to (first) cousins (μέχρι ἀνεψιῶν), and in like manner his son's kinsmen by the mother's side,[151] and in their presence he shall accuse his son, setting forth that he deserves at the hands of them all to be dismissed from the family (γένος).”[152]

Before dishonouring one of the family and so bereaving it of a member owing duties which, by his disinheritance, may fall into abeyance or be neglected, the parent calls together all to whom his son might perhaps ultimately become the only living representative and heir, and who might at some future time be dependent on him for the performance of ancestral rites. That this was in Plato's mind when he wrote is shown by the next sentence, in which he provides for the possibility of some relation already having need of the young man and being desirous to adopt him as his son, in which case he shall by no means be prevented. The concurrence of all relations in such a position was therefore necessary.

In other cases where Plato mentions similar gatherings of the kin but for different purposes, he extends the summons to cousin's children. But here it can be seen they would have no place. They would be second cousins to the disgraced youth; they might have to share privilege or pollution with him, but had no claim on him for duties towards themselves. He would be “cousin's son” to his father's first cousins—the limit of such a claim in the ἀγχιστεία.

The case of the estate of Hagnias in Isaeus and Demosthenes.

In the speech of Isaeus concerning the estate of Hagnias, a real second cousin is in possession of the estate. He won the case at the time and died in [pg 062] possession, and an action against his son Makartatos for the same property is the occasion of one of the speeches of Demosthenes. To fully understand the relationships referred to in these cases, the accompanying genealogical tree of the descendants of Bouselos may be of assistance. It will also serve as an example of how a kindred hung together, and how by intermarriage and adoption the name of the head of an οἶκος was carried on down a long line of male descendants.

Theopompos, in the speech of Isaeus, had taken possession of the estate of his second cousin Hagnias, as his next of kin and heir. Throughout the speech he is styled ἀνεψιοῦ παῖς so as to bring him within the phraseology of the law, and he successfully defends himself from the claims of the next generation below—viz., his brother's son. But in the speech of Demosthenes against his son Makartatos, who had taken possession at his father's death of the disputed property, it is represented that his father had got possession only by defeating another claimant, Phylomache II., by “surprise,” as it was called, by stating that her grandmother through whom she traced her claim was only half-sister to Hagnias' father. But Phylomache's husband, having caused their son Euboulides III. to be adopted as the son of Euboulides II.—his wife's father and Hagnias' first cousin, a quite regular course for the grandson inheriting through his heiress mother—proved that his wife's grandmother was whole sister to Hagnias father, and brought the action under the guidance of Demosthenes against Makartatos. This Euboulides III. sued as true ἀνεψιοῦ παῖς and οἰκεῖος ἐκ τοῦ οἴκου [pg 064] of Hagnias.[153] He is described as having “one of the titles mentioned in the law as far as which the law bids the ἀγχιστεία go, for he is cousin's son to Hagnias.”

On the other hand, Theopompos, father of Makartatos and second cousin of Hagnias, is mentioned[154] as “being of a different οἶκος altogether,” and not at all related in such a way as to be heir of Hagnias (μηδὲν προσηκόντων ὤστε κληρονομεῖν τῶν Ἁγνίου, ἀλλὰ γένει ἀπωτέρω ὄντων), being too far off in the family (or by birth).

That the title of Theopompos (viz., second cousinship) was not valid, may be inferred partly by the ruses he adopted to get possession, but more especially by the fact[155] that none of the other second cousins on a par with him, and with whom he ought to have shared, seem to have believed in the validity of their titles, or at any rate taken the trouble to sue for part of the estate.

However this may be, there does not seem anything in these speeches other than confirmatory of the view stated above of the composition and limitation of the ἀγχιστεία.