Page:The New International Encyclopædia 1st ed. v. 18.djvu/755

* SUCCESSION AB INTESTATO. 655 SUCCESSION WARS. German law of inheritance, with the Roman, was based on the family, but it gave uo such preference to kinship in the male line, except as regarded succession to real property. As re- garded such property, however, a [)reference not only of the male line over the female, but of male heirs over female, is visible in the earliest written laws; and this preference was empha- sized and made general in mcdiivval Europe by the development of the feudal system, in Ger- man law there appeared also a distinction be- tween sword-goods and spindle-goods, i.e. between things used by men and things used by women, and a tendency to prefer male heirs as regarded sword-goods and female as regarded spindle- goods. Another German idea was that, when the nearest heirs were of the half blood, property that had come to the decedent from the father's side should go to the paternal relatives, while property that had come from the mother's side should go to the maternal relatives Cpaterna paternis. materna maternis;' in Spanish law, 'troncalidad'). Sporadically manifested, more- over, was a disinclination to allow property to ascend, with resultant rules preferring brothers and sisters and their descendants to parents. As between collaterals rights of succession at German law did not depend wholly on nearness of kinship. Descendants of a nearer common ancestor were regularl.v preferred to descendants of a more remote common ancestor. Inheritance vested ( 1 ) in descendants of the decedent : ( 2 ) in descendants of his parents; (3) in descendants of his grandparents; (4) in descendants of his great-grandparents, and so on. Within each such group the nearest of kin took the inheri- tance. This is described by modern writers as the 'lineal-gradual' or "parentela' system. Coupled with a preference of the male line and of males within that line it became the (original) feudal law of succession, and (with preference of the eldest male added) it determined the English law of inheritance of real property. III. Modern Civil Codes. In modern Eu- ropean legislation the Roman principle of uni- versal succession has generally reasserted itself: the same rules generally govern inheritance of realty and of personalty. In all the codes the inheritance vests primarily in descendants. Fail- ing these different rules prevail. At French law the inheritance passes, in second instances, to parents, brothers, and sisters and the children of brothers and sisters, all of whom take precedence of grandparents. The Spanish code prefers all ascendants, and the German code prefers parents, to brothers and sisters. In the absence of de- scendants, ascendants, and of lirothers and sisters and their descendants, the French, Italian, and Spanish codes confer the inheritance upon the nearest collateral : but the French code provides that if there be collaterals both on the paternal and the maternal side the inheritance shall be divided. The Austrian and the German codes follow the parentela system. The surviving spouse is better treated than at Roman law. Under the Code Napoleon, in- deed, the surviving spouse had no right except by antenuptial contract or. in the absence of such contract, by operation of the general law of matrimonial propert.v; but by the law of ]Iarch n, 1801, he or she has a life interest in a portion of the property, which is at most one- fourth if there are children, but rises to one- half if there are no children. There are similar provisions in the Italian and Spanish coiles; but at Spanish law if the decedent has neither de- scendants, ascendants, nor brothers or sisters or nephews, the surviving spouse lakes the whole estate absolutel.v; and at Italian law, if there are no legitimate children, the surviving spouse takes from one-fourtli to one-third absolutely as against ]iarcnts and illegitimate children, two-thirds as against collaterals, and the whole estate if there is no collateral within the sixth degree (e.g. a second cousin ). The German law is even more liberal: the surviving spouse takes one-fourth absolutely as against children ; one-half to three- fourths as against parents, brothers and sisters, and grandparents; and the whole as against the decedent's other relatives. As to illegitimate children different rules pre- vail. The French, Italian, and Spanish codes give no rights of inheritance to such children unless they have been 'recognized.' Such a recog- nized child inherits in concurrence with legiti- mate children, taking, however, onl.v half the share of a legitimate child. When there are no legitimate children the rights of recognized ille- gitimate children are greater. By the French law of March 2.5, 1S16, they take the whole estate as against all collaterals, except brothers and sisters and their children. In the German code the illegitimate child, although 'recognized,' has no right of succession in the estate of his father or in those of his father's relatives; but in the mother's estate and in those of her rela- tives such a child has the same rights as if born in wedlock. For a treatment of subjects in Eng- lish and American law, see Descent; Distribu- tion; Heir; and Inheritance. SUCCESSION 'WARS. The name given to wars arising out of conllicting claims of suc- cession to the throne. Among such wars that have been waged in Europe the following deserve special notice: (I) The War of the Spanish Suc- cession, 1701-14; (2) that of the Polish Sue- cession, 1733-35; (3) that of the Austrian Suc- cession, 1740-48; and (4) that of the Bavarian Succession, 1778-79. The War of the Spanish Succession arose on the death withoiit male heirs of Charles II. (c|.v. ). King of Spain, of the House of Hapsburg, November 1, 1700. The nearest natural heir to the throne was of the ro.val Bourbon line of France, Charles's elder sister having married Louis XIV. : but, to prevent anv possible union of the two crowns, a solemn renunciation had been exacted both from Louis and his Queen, fm- them- selves and their heirs. Failing the Bourbons, the next heirs were the descendants of the young- er sister of Charles, who had married the Ger- man Emperor Leopold I., ruler of the Austrian realm, and from whom no renunciation had been exacted ; and the only issue being a daughter, who had married the Elector of Bavaria, and borne a son. .Toseph Ferdinand, this prince was during his lifetime regarded bath by Charles II. and the Spanish people as the rightful heir. As he died in IfiOO, the question of succession was reopened. Louis XIV. claimed the throne for himself, as the son of Philip IV.'s eldest sister, being, however, again legally barred here by an- other solemn renunciation. The F.nipcror Leo- pold maintained that the Bourbons had by these two renunciations lost all rights of succession,