[53] Polack, op. cit. ii. 69.
[54] Maine, Ancient Law, p. 196. See also Fustel de Coulanges, La cité antique, p. 95.
[55] Fustel de Coulanges, op. cit. p. 96. Hunter, Roman Law, p. 780 sqq. Girard, op. cit. p. 854 sqq.
Closely connected with the restrictions imposed on a proprietor’s power of testation is the rule of inheritance, one of the most common methods of acquiring property. At the earlier stages of civilisation the property of a deceased person is not in every case subject to this rule. Apart from the practice of testation, which, though hardly primitive, is not infrequently found among savages,[56] there are other ways of dealing with it besides inheritance. The private belongings of the dead, or part of them, are destroyed or buried with him, or his dwelling is burned or abandoned;[57] but Dr. Dargun goes too far when saying that among rude savages this custom is generally practised to such an extent as to exclude heirship in property altogether.[58] Nor must we infer the general prevalence of a stage where there were no definite rules of inheritance[59] from the fact that among some North American tribes, when a man dies leaving young children who are unable to defend themselves, grown-up relatives or other persons come in and seize whatever they please.[60] The ordinary custom of savages is that the dead man’s property is inherited either by his own children, if kinship is reckoned through the father, or by his sister’s children or other relatives on the mother’s side, if kinship is reckoned through females only.[61] Sometimes the rules of inheritance make little or no distinction between men and women;[62] sometimes a decided preference is given to the men;[63] sometimes the women inherit nothing;[64] whereas in a few exceptional cases the women are the only inheritors.[65] Among various savages the widow also has a share in the inheritance, or at any rate has the usufruct of property left by her deceased husband.[66] Very frequently the eldest son,[67] or, where the maternal system of descent prevails in full, the eldest uterine brother[68] or the eldest son of the eldest uterine sister,[69] is the chief or even the only heir. But there are also several instances in which this privilege is granted to the youngest son.[70] Thus, among the Hos of India he apparently inherits all the property of his father;[71] among the Limbus of Nepal, though an extra share is set apart for the eldest son, the youngest one is allowed to choose his share first;[72] among the Eskimo of Behring Strait, “if there are several sons the eldest gets the least, the most valuable things being given to the youngest.”[73] In Greenland a foster-son inherits all the property of his foster-father, if the latter dies without offspring or if his sons are still young children;[74] and of the West African Fulah we are told that, though they have sons and daughters, the adopted child becomes heir to all that they leave behind.[75] Among the Kukis, in default of legitimate issue, a natural son succeeds to his father’s property before all other male relations;[76] among the Bódo and Dhimáls sons by concubinage or adoption get equal shares with sons born in wedlock;[77] the Wanyamwezi of Eastern Africa have the habit of leaving property to their illegitimate children by slave girls or concubines even to the exclusion of their issue by wives.[78] Among other uncivilised peoples, again, slaves cannot inherit at all,[79] and where they are allowed to possess property the master is sometimes the legitimate heir of his slave.[80]
[56] Ellis, Polynesian Researches, iii. 115 sq. (Tahitians). Wilkin, in Reports of the Cambridge Expedition to Torres Straits, v. 286 (natives of Mabuiag). Kingsley, West African Studies, p. 373. Lang, in Steinmetz, Rechtsverhältnisse, p. 238 (Washambala). Desoignies, ibid. p. 277 (Msalala). Rautanen, ibid. p. 336 (Ondonga). Dale, in Jour. Anthr. Inst. xxv. 224. Post, Grundriss der ethnol. Jurisprudenz, ii. 199.
[57] See infra, on [Regard for the Dead].
[58] Dargun, in Zeitschr. f. vergl. Rechtswiss. v. 99 sqq.
[59] Ibid. p. 102 sq.
[60] Prescott, in Schoolcraft, Indian Tribes of the United States, ii. 194 sq. (Dacotahs). Hale, U.S. Exploring Expedition. Vol. VI. Ethnography and Philology, p. 208 (Salish). Dalager, op. cit. p. 30 sq.; Cranz, op. cit. i. 176 (Greenlanders).
[61] See Westermarck, op. cit. p. 97 sqq.