Rules of family divisions.
Attempts to settle such questions as these, whether and how far property acquired by one brother is to form part of the common family property or be retained by the brother acquiring it, and again how the fact that the payment for a wife’s ‘meta’ had been taken from the common family property was to affect the rights of the brothers when they came to a division, are in themselves good proof, so far as they go, of the continuance of family holdings. But the changes made by these clauses show the same tendency which we have seen in the Scanian laws towards individual ownership and the breaking up of the family holdings.
Finally, the point which in the Scanian laws was most suggestive of the original completeness of the family community of property, viz. that originally there was no succession of sons to their father’s share, but division per capita between the uncles on the grandfather’s death, appears again in the Lombardic laws and is dealt with in the seventh century practically in the same way as in Scania it was dealt with centuries later.
From the tribal point of view the solidarity of the family group was the chief interest regarded. But the point of view was changed. Under the new influences the interests of the individual came more and more into prominence.
No succession of sons by representation at first, but afterwards allowed.
It now seemed unjust to the sons that their father’s property should be allowed simply to lapse into the common stock of the family till the grandfather’s death and then left to be divided among the uncles. And to mitigate the injustice the right to succeed was given, in the Lombardic as in the Scanian laws, to the limited extent that upon the grandfather’s death the sons took the share of their father with the uncles in the division, as if he had been living at the time.
S. 5 of the ‘Leges a Grimowaldo additæ’ is headed ‘De successione nepotum qui post mortem patris in sinu avi remanserint,’ and is as follows:—
Si quis habuerit filios legitimos unum aut plures, et contigerit unum ex filiis vivente patre mori, et reliquerit filios legitimos, unum aut plures, et contigerit avo mori, talem partem percipiat de substantia avi sui, una cum patruis suis, qualem pater eorum inter fratribus suis percepturus erat si vivus fuisset.
If any one shall have legitimate sons, one or more, and it happens that one of the sons dies, the father being living, and he leaves legitimate sons, one or more, and it happens that the grandfather dies, let him [the son] take such part of the substance of his grandfather together with his uncles as their father if he had been alive would have taken among his brothers.