This clause, in both the Latin and the Danish version, confirms the inference from the previous one, that there was a difference of destination as to the property of husband and wife according to whether it had or had not been ‘defined’ and so put in partnership as joint property of the husband and wife separately from the property of the family group represented by the grandfather.
If not so defined, it became apparently under ancient custom part of the common family property and so divisible after the grandfather’s death among all the consortes instead of going solely to the children of the marriage.
The clause pictures for us the family group as bound together by paternal rites (sacris paternis). The grandfather is alive and is the paterfamilias. A son who is a filiusfamilias (i.e., as we shall see presently, not an emancipated son) has married and brought into the mansio, or family homestead of the grandfather, property which he had with his wife. This, not having been ‘defined’ on marriage, so as to keep it separate, has become, in the phrase of the Latin text, ‘added to the property of the grandfather.’ The husband has died leaving several sons, it matters not how many. The question is, what share these grandsons are to take in the property which their father had with their mother, which, for want of ‘definition,’ has become added to the grandfather’s property, or, in other words, become part of the ‘substantia communis.’
There was no succession by representation to a deceased parent during the grandfather’s lifetime.
The answer is that the parents’ property does not go exclusively to their children as it would have done if it had been defined and separate property. It has become merged in the family property, and there is no sharing of this till the grandfather’s death. But apparently by a compromise, due probably to recent legislation, they are allowed on their father’s death, according to the Latin text, to take equal shares in his property per capita ‘with the grandfather and other consortes,’ or, according to the Danish text, a ‘full lot’ in it. We are not told who were the ‘consortes’ with whom and the grandfather it was to be shared. The consortes, whether uncles or cousins or both, were the co-sharers in the ‘communis substantia’ of the family holding.
In the final paragraph of the clause both texts give the alternative rule applying to cases, probably the most frequent, in which proper ‘definition’ of the wife’s property had been made on the marriage. And the rule is stated to be that the property so defined and made joint or partnership property on the marriage, and that alone (illa sola), would go to the children of the marriage at their father’s death during the life of the grandfather. According to the Latin text, they were excluded from the other family property ‘by the prior grade.’ As the Danish version puts it: ‘not a whit of the other property would they get except what the grandfather chose to give them.’
That this is the true meaning of these clauses is confirmed by other chapters.
Permission to the grandfather to give succession to a deceased son’s children.
Chapter XVI. is headed: ‘How much may be conferred by a father upon the sons of a deceased son during the lives of the other sons, their uncles.’ The text is as follows:—
Licet cuique post mortem filii quantum ipsi deberetur si viveret, ejus filio nepoti conferre.