Chapter III. refers again to a wife’s property and adds important

information. It brings before us a family group with something like a family holding. And it becomes intelligible only, I think, when approached from this point of view.

Into this family group a wife has been brought apparently without the special ‘definition’ or arrangement. There are also children of the marriage. And the question asked in the heading of the Latin text is, what shares the grandchildren take on their father’s death, not in their parent’s property, but in the property of the grandfather.

The grandfather is the head of the family group. In the Latin version he is elsewhere styled the _paterfamilias_ and in this clause his sons are _filiifamilias_.

In the Danish version the family group is simply that of an ordinary _bonde_ and the family character of the holding is taken for granted as not needing special mention or explanation.

The chapter is as follows (divided into sections for convenience in comparison of the Latin and Danish texts):--

De bonis avitis que portio contingat nepotes post obitum filiifamilias.

Of the grandfather’s property what portion goes to the grandchildren on the death of a _filiusfamilias_.

(1) Filiifamilias[188] in sacris paternis cum uxore constituti, si sine diffinicione certe quantitatis bonis patris addiderit bona, que ipse habuit, cum uxore, quotcumque fuerint filii de communi substantia, etiam prediorum post contractas nuptias comparatorum, cum avo et aliis consortibus post obitum patris viriles et equales accipient porciones, (2) per priorem gradum ab aliis prediis excludendi. (3) Si vero, in mansione patris, bona, que habuit cum uxore, fuerunt diffinita, illa sola, si vivente avo pater obierit, filii, quotcumque fuerint, obtinebunt.

(1) If a _filiusfamilias_ established with his wife in the paternal rites shall, without definition of the exact quantity, have added to property of his father property which he himself had with his wife; then, however many sons there may be, they shall, after the death of their father, receive _equal shares per capita with the grandfather and other co-sharers_ in the common substance even of lands acquired after the marriage was contracted, (2) they having to be excluded from other lands by the prior grade. (3) But if in the _mansio_ of his father the property which he had with his wife, had been defined, _that alone_, if the grandfather was alive when the father died, shall go to the sons, however many they may be.

The Danish text (I. 5) is as follows:--

Vm bondæ sun förœr kono sina j bo mœth faþœr sinum.

If a bonde’s son brings his wife into the house with his father.

(1) Far bondæ sön konu oc förær hanæ j bo mæth faþur sinum, oc aflær barn wiþær hana oc læghs æy fælegh theræ i mællin, um tha dör bondans sön, tha taki all hans börn fullan lot æftir theræ faþær æm wæl j köpæ iorth sum j bolfæ. (2) Æn af hans fæthrinis iortho fa the æy wattæ mer æn han will giuæ them. (3) læghs fælagh, tha fa the æy mer æn han atte j bo.

(1) If a bonde’s son gets a wife and brings her into the house with his father and begets a child with her and no partnership is made between them,[189] if the bonde’s son dies, then let all his children take a full lot after their father as well in land purchased as in moveables. (2) But of his [the bonde’s] father’s lands they get not a whit more than he will give them. (3) If partnership is made, then take they no more than he [their father] owned in the house.

[Sidenote: If no arrangement on marriage wife’s property merged into the family stock.]

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_.’

[Sidenote: 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.

[Sidenote: Permission to the grandfather to give succession to a deceased son’s children.]