It is lawful to every one after the death of a son to confer upon a grandson, the son of that son, whatever would have been due to the son had he lived.
This seems to be a special permission to the grandfather during his life to mitigate the injustice of the customary rule excluding grandchildren from succession by representation in their deceased parent’s property.
If under Scanian custom the children of a dead filiusfamilias had succeeded by right to their father’s property, this special permission would not have been needed. But it seems to be clear that no such right of succession was recognised by ancient custom.
Chapter XI. opens with the following general statement, there being in this case no question of a marriage or a wife’s property.
Otherwise no succession given by custom.
Patre superstite defunctus filiusfamilias nullum habet, ac si nunquam fuisset genitus, successorem.
The father surviving, the dead filiusfamilias has no successor, as if he had never been born.
This seems to make it clear that, the grandfather being alive, the grandchildren took by right under ancient custom no share in their deceased father’s property. It was simply merged in the family holding, and they must wait for their shares in it along with the other co-sharers after the grandfather’s death.
The growing feeling of the injustice of this from the individual point of view was probably the reason, not only why the permission in Chapter XVI. was given, but also why, following the example of Roman law, the emancipation of sons was admitted.