If women were to be disinherited, it was sufficient to mention them in an aggregate; but males must be mentioned specifically.[171] If, however, they were disinherited in an aggregate (inter ceteros), some legacy had to be left them that they might not seem to have been passed over through forgetfulness.[172] I shall not concern myself particularly with testate succession, because here obviously the will of the testator could dispose as he wished, except in so far as he was limited by the Falcidian Law.  The matter of intestate succession may well claim our attention; for therein we shall see what powers of inheritance were given the female sex.  The general principles are explained by Gaius (iii, 1-38); and these principles followed, in the main, the law as laid down in the Twelve Tables (451 B.C.).  According to these, the estates of those who died intestate belonged first of all to the children who were in the power of the deceased at the time of his death; there was no distinction of sex; the daughters were entitled to precisely the same amount as the sons.[173] If the children of the testator had died, the grandson or granddaughter through the son succeeded; or the great-grandson or great-granddaughter through the grandson.  If a son a daughter were alive, as well as grandsons and granddaughters through the son, they were all equally called to the estate.  The estate was not divided per capita, but among families as a whole; for example, if of two sons one only was alive, but the other had left children, the testator’s surviving son received one half of the patrimony and his grandchildren through his other son the other half, to be divided among them severally.  If, then, there were six grandchildren, each received one twelfth of the estate.

Here the powers of women to inherit stopped.  Beyond the tie of consanguinitas, that is, that of daughter to father, or granddaughter through a son, the female line must at once turn aside, and had no powers; the estate descended to the agnati, that is, male relatives on the father’s side.  Hence a mother was shut out by a brother of the deceased or by that brother’s children.  If there were no agnati, the goods were given to the gentiles, male relatives of the clan bearing the same name.  In fact, under this regime we may say that of the female line the daughter alone was sure of inheriting something.

In the days of the Empire some attempts were made to be more just.  It was enacted[174] that all the children should be called to the estate, whether they had been under the power of the testator at the time of his death or not; and female relatives were now allowed to come in for their share “in the third degree,” that is, if there was neither a child or an agnate surviving.  This was not much of an improvement; and the principle of agnate succession is the only point in which Roman law failed to give to women those equal rights which it allowed them in other cases.