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.]
Chapter XVI. is headed: ‘How much may be conferred by a father upon the sons of a deceased son during the lives of the other sons, their uncles.’ The text is as follows:--
Licet cuique post mortem filii quantum ipsi deberetur si viveret, ejus filio nepoti conferre.
It is lawful to every one after the death of a son to confer upon a grandson, the son of that son, whatever would have been due to the son had he lived.
This seems to be a special permission to the grandfather during his life to mitigate the injustice of the customary rule excluding grandchildren from succession by representation in their deceased parent’s property.
If under Scanian custom the children of a dead _filiusfamilias_ had succeeded by right to their father’s property, this special permission would not have been needed. But it seems to be clear that no such right of succession was recognised by ancient custom.
Chapter XI. opens with the following general statement, there being in this case no question of a marriage or a wife’s property.
[Sidenote: Otherwise no succession given by custom.]
Patre superstite defunctus filiusfamilias nullum habet, ac si nunquam fuisset genitus, successorem.
The father surviving, the dead _filiusfamilias_ has no successor, as if he had never been born.
This seems to make it clear that, the grandfather being alive, the grandchildren took by right under ancient custom no share in their deceased father’s property. It was simply merged in the family holding, and they must wait for their shares in it along with the other co-sharers after the grandfather’s death.