A Lawyer s Studies in Biblical Law.
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A LAWYER'S STUDIES IN BIBLICAL LAW. INHERITANCE. BY DAVID WERNER AMRAM. THE difference between the subject of in heritance in ancient and modern law is a fundamental one. According to modern law, property or rights incident to property are heritable and descend to the heir charged with the debts of the deceased. In the ancient Hebrew family, however, the heir inherited not only property so called, but the entire family. It will be remembered that in former articles of this series the theory of the immortality of the family was premised. The head of the family was merely the temporary representa tive, in whom its powers were lodged. When he died, he was succeeded in office by his heir, who had precisely the same status as the ancestor. The heir succeeded to the author ity of the patriarch over his family, as well as to the duties which the patriarch was re quired to perform. He became the Goel, the redeemer of kinsmen who were in bond age, and the avenger of wrong done to the kinfolk. He inherited the rights and duties incident to his position in like manner as he inherited the property. There is little doubt that in most ancient times the question, Who is the heir? was differently solved than at a later period. Pri mogeniture, or the right of the oldest born to succeed to the family estate, is a compara tively modern institution. In primitive socie ties it was probably the right of the stronger which determined the course of the inherit ance, and as we find in Oriental royal fami lies, that after the death of the reigning prince internecine strife usually ensues among his descendants in their struggle for the crown, so, no doubt, the question was always determined, until a more or less fixed rule of succession took its place. As has been suggested, the conservatism of royal
families has preserved for us many ancient customs which at one time were common to all the people. Another system of inheritance was that of ultimogeniture or the right of the youngest born to inherit, a custom that prevails in some ancient boroughs of England to-day under the name of "Borough English." Its origin may be traced in the migratory hab its of nomadic peoples. When the older sons left the father, the youngest remained to succeed to the father's estate. Attention has been directed to the fact that all of the forefathers of Israel as well as its chief lead ers were younger sons. Abraham was not the elder son of Terah but a younger son. Isaac was younger than Ishmael. Jacob was younger than Esau. Jacob, the ances tor who gave his name to the entire Jewish people, was the classical representative of the junior right, for both his parents and grand parents were younger children. Judah, Jo seph and Moses were likewise younger sons. Practically, however, the right of the young er son was of no importance at Jewish law, as all of its institutions are based on a differ ent theory. The word "heir" was practically synony mous with the "son." All of the sons shared in the inheritance, the daughters being ex cluded. In the absence of a son, other mem bers of the family could inherit, among them any one who had been made one of the family of adoption. The remark of Abra ham that "one born in 'his house" would be his heir, using a phrase similar to that used in speaking of his servants, indicates that certain customary right had already sprung up in the patriarchal family whereby the want of a male child was supplied by a spe cies of adoption. The order of succession
