And if suddenly the sons shall have died let the daughter receive those lands as the sons would have done had they been alive. And if he not the vicini. And if suddenly the brother shall die not leaving a brother surviving, then let a sister succeed to the possession of that land.…
The remainder of the clause is very difficult to construe in the imperfect state of the text, and it is not necessary to dwell upon it. It seems to apply to newcomers (‘qui adveniunt’) and their rights inter se.[119]
We have then in these clauses an allusion to ancient tribal custom as well as to the change made necessary by the new circumstances.
Analogy of Cymric custom.
The implication is that under the rule of ancient custom, on a brother’s death without children, his brothers did not succeed to his land, but the vicini. Now the brother is to succeed, not the vicini.
At first sight this seems unnatural and unlikely. But it ceases to be so if we may regard the alod of terra Salica as a family holding under conditions somewhat like those of the gwely. For under Cymric custom the brother did not succeed to the childless brother as his heir. The co-inheritors, as far as second cousins, were his heirs. In other words the lapsed share went to his vicini, but they were the kinsmen of his own gwely.[120]
Nor did a brother succeed to his brother’s da, and the grazing rights and homestead connected with it. He had received this da, as we have seen, from his chief of kindred by ‘kin and descent,’ i.e. by tribal right in his kindred, and therefore if he should die without children his da and everything he had by kin and descent went, not to his brothers, but back to the kindred or the chief of kindred from whom he received it.
If the son die after 14 years of age and leave no heir, his ‘argluyd’ is to possess all his da and to be in place of a son to him and his house becomes a dead-house. (Ven. Code, i. p. 203.)[121]