§ 3. Division Amongst Heirs.
Equal division amongst heirs of the same grade.
Succession to the inheritance of an estate was ordained by law in strict accordance with the ancient conception of the unity of the family. On the death of the head of a family, unless the paternal οἶκος was [pg 065] voluntarily continued unbroken by his descendants, the natural course was for each son ultimately to live apart and found a separate οἶκος consisting of himself and his offspring. Equal division amongst heirs was therefore the rule in Greece; equal division, that is to say, between all of equal grade.
The share of a dead son taken by his children.
The Gortyn Laws have already been referred to as enforcing the principle.[156] If a man died, his heirs were either his sons, or his grandsons, or his greatgrandsons. If he had no children, his brothers, and their children, or their grandchildren succeeded.
The Athenian law was conceived in the same spirit, but mentions a further point—viz., that in the division amongst sons, the οἶκος of any one of their number who had died before the division, could be represented by his sons or grandsons, who thus received their father's share.
This system of representation probably existed also among the Gortynians, though no mention of it is made in their laws, for it is inconceivable that any of the grandsons could be deprived of all share in their grandfather's estate by the mere death of the intermediate generation.
But the division per stirpes was not maintained throughout. It is probable from the words of the Attic orators that equal division amongst all of the same grade, such as nephews or cousins, took place per capita, any deceased member of that grade being represented by his sons. Representation, of course, could not take place in the case of a division amongst cousins' sons, owing to the strict limitation of the [pg 066] ἀγχιστεία to four generations from the common ancestor; any deceased relation in that degree therefore simply dropped out of the succession.
If sons all dead, grandsons probably divided per capita,
It has generally been assumed that grandsons inheriting directly from their grandfather, all the intermediate generation being already dead, inherited none the less the shares of their respective fathers per stirpes. But if the foregoing account of the unity of the οἶκος and its resemblance in its composition to the household of the Welsh tribal system be correct, it seems more reasonable to suppose that, all the intermediate generation being dead, the grandsons, in virtue of being all equally related to their grandfather, would inherit in equal shares per capita. Any dead grandson would of course be represented, as before, by his son or sons.
as in the case of nephews and cousins.
The evidence is not sufficient to justify more than a suggestion on either side with regard to divisions amongst lineal descendants. With regard to successions by relations outside of the direct line of descent, such as nephews or cousins, it is almost certain that all of the same degree took equal shares per capita.
Following the law for daughters, quoted by Demosthenes[157]—viz., that though all shared the inheritance of the property, only one need be dealt with in view of securing the succession—the assumption can be made that, when there were several heirs related in the same degree to the former owner of the estate, one of their number would be set apart to continue the household of their kinsman as his son, whilst the [pg 067] others merely took their shares of the property divided to continue their own οἶκοι respectively.
The equal division of inheritance amongst kinsmen of equal degree per capita, in combination with the system of representation above described, is entirely consistent with the tribal conception of the household as hanging closely together, its members always looking up to their venerable head, in whom the ownership of the property vested, until by the death of older generations and the consequent subdivision, each in his turn became head of an οἶκος and owner of its share in the ancestral property.