Sir Richard C. Jebb, The Attic Orators from Antiphon to Isaeos, 2.21.8

On the Estate of Hagnias. [Or. XI.]— Theopompos, the speaker and defendant, possesses the estate of Hagnias. Half of this estate is claimed from Theopompos on behalf of his own nephew, the son of Stratokles. The form of the prosecution is an Information for maltreatment ( εἰσαγγελία κακώσεως); the son of Stratokles being considered as an orphan whom his uncle, Theopompos, has wronged².

Buselos Hagnias Eubulides I Stratios I Habron Kleokritos Polemon Phylomache I sister of Stratios II second husband Philagros Phanostratos Charidemos one sister, married with a daughter Hagnias³ Glaukon Glaukos Eubulides II Phylomache II⁴ Eubulides III Stratios II two sons Stratokles Theopompus⁵ prosecutor four sisters Makartatos

Before it came into the possession of Theopompos, the estate of Hagnias had been the object of other claims. It is from the history of these former claims that the complexity of the case arises.

Failing lineal heirs, Attic law called collateral kinsfolk to the succession in this order:—

(1) brothers, being sons of the same father as the deceased:

(2) such brothers' children, males and females having an equal right:

(3) sisters by the same father:

(4) such sisters' children, males and females having an equal right:

(5) first-cousins ( ἀνεψιοί) on the paternal side, males being preferred to females:

(6) children of such first-cousins ( ἀνεψιαδοῖ), with a like preference.

In default of the above, the succession reverted to the maternal side, and the next heirs were

(7) brothers born of the same mother as the deceased: and so on.

Reference to the accompanying table of the Buselidae will show that Philagros married his own paternal first-cousin Phylomache I. Their son, Eubulides II., was thus the paternal first-cousin of Hagnias, being sister's son of the father of Hagnias.

I. Hagnias died, leaving his estate to his sister's daughter. At her death, it was claimed by Glaukon, son of the mother of Hagnias by a second marriage. Glaukon's claim was contested by Eubulides II., and, on the death of Eubulides, by his daughter Phylomache II. The will alleged by Glaukon was declared false, and the estate was adjudged to Phylomache II.

This decision was just. Phylomache, as the daughter of a paternal first-cousin, had a better claim in kinship than any living relative of Hagnias. Glaukon, of course, had no claim until the paternal kinsfolk should be exhausted.

II. Phylomache's possession of the estate was, however, contested (1) by the mother of Hagnias, who, as sister of Stratios II., was second cousin of her own son: (2) jointly by Stratios II. and the brothers Stratokles and Theopompos—all three likewise second cousins of Hagnias. Stratios II. and Stratokles died before the case came on. Theopompos then claimed the whole estate for himself. He succeeded. The estate was taken from Phylomache II. and adjudged to Theopompos—though only by three or four votes⁶ .

This was manifestly unjust. Phylomache II. was the daughter of the first cousin of Hagnias. Theopompos was son of the first cousin of Hagnias's father⁷. The claim even of Glaukon was, therefore, better than the claim of Theopompos. On the other hand, the son of Stratokles, as son of the second cousin of Hagnias, had still less than Theopompos any natural claim on the estate. His case rested solely on the alleged covenant between his father and Theopompos.

Theopompos gained this cause. Long afterwards⁸ , ⁹ his son Makartatos was sued by Eubulides III., son of Phylomache, for the estate of Hagnias. The pseudodemosthenic speech Against Makartatos cites (§ 31) a deposition ( μαρτυρία) stating that Phylomache obtained the estate from Glaukon in the archonship of Nikophemos—i.e. in Ol. 104. 4, 361 B.C. The Depositions and Laws quoted in the Demosthenic speeches are now usually held to be, in a large measure, interpolations¹⁰. But that this particular deposition in the speech Against Makartatos is spurious, or that, if it is so, it is incorrect, is unproved; whereas the authenticity of the law quoted in § 57 of the same speech has recently been confirmed¹¹. If we allow about two years between the first and the second trial, the speech On the Estate of Hagnias will belong to 359 B. C.¹²

Theopompos reads the law for the succession of collateral ¹³ kinsfolk to an estate; and shows that the son of Stratokles is excluded (§§ 1—7).

He then relates the previous history of the estate—the dispossession of Glaukon by Phylomache, and of Phylomache by himself—and comments on the claim made, simultaneously with his own, by the mother of Hagnias (§§ 8—19).

He next refutes three assertions made by the prosecutor:—

1. First—that, in the action against Phylomache, there had been a bargain between Theopompos and his deceased brother Stratokles for the division of the estate. Such a bargain, Theopompos answers, would have been aimless. It would not have given them two chances instead of one; since, being related in the same degree to Hagnias, they were claimants on the same ground, and must win or lose together (§§ 20—23).

2. Secondly—that Theopompos had agreed to give his nephew half the estate (§§ 24—35).

3. Thirdly—that Theopompos is rich and his nephew poor; and that Theopompos, not content with defrauding his nephew, has failed to dower his nieces, the four daughters of Stratokles (§§ 36—39). In reply, Theopompos details the property left by Stratokles (§§ 40—43), and his own (§§ 44—46). He ends by challenging his nephew to halve with him the total of their joint properties (§§ 47—50).— Conclusion wanting.

Sir Richard C. Jebb The Attic Orators from Antiphon to Isaeos 2.21.8

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IV. Indictment of a Guardian for maltreatment of a Ward ( εἰσαγγελία κακώσεως ὀρφανοῦ).

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