Quo tempore suitas spectatur. § VII. Cum autem quæritur, an quis suus hæres existere possit, eo tempore quærendum est, quo certum est, aliquem sinè testamento decessisse; quod accidit et destituto testamento. Hac ratione, si filius exhæredatus fuerit et, extraneus hæres institutus, et, filio mortuo, postea certum fuerit, hæredem institutum ex testamento non fierihæredem, aut quia noluit esse hæres, aut quia non potuit, nepos avo suus hæres existet quia, quo tempore certum est, intestatum decessisse patrem-familias, solus invenitur nepos et hoc certum est. $ 7. When it is asked, is such a man a proper heir? we must inquire at what time it was certain, that the deceased died without a testament; which happens, if his testament be relinquished. Thus, if a son be disinherited and a stranger instituted heir, and, after the death of the son, it becomes certain, that the instituted heir was not in fact the heir, either because he was unwilling, or unable to accept the inheritance, in this case the grandson of the deceased becomes the proper heir of his grandfather: for at the time, when it was certain that the deceased died intestate, there was no other heir, but the grand-child; and this is evident. De nata post mortem avi, vel adoptato a filio emancipato. VIII. Et, licèt post mortem avi natns sit, tamèn avo vivo conceptus, mortuo patre ejus, posteaque deserto avi testamento, suus hæres efficitur. Planè, si et conceptus et natus fuerit post mortem avi, mortuo patre suo, desertoque postea avi testamento, suus hæres avo non existet; quia nullo jure cognationis patrem sui patris attigit sed nec ille est inter liberos avi, quem filius emancipatus adoptavit. Hi autem, cum non sint, sui (quantum ad hæreditatem,) liberi, neque bonorum possessionem petere $ 8. And although a child be born after the death of his grandfather, yet, if he were conceived in the lifetime of his grandfather, he will, at the death of his father and after his grandfather's testament is deserted by the instituted heir, become the proper heir of his grandfather. But a child both conceived and born after the death of his grandfather, could not become the proper heir, although his father should die and the testament of his grandfather be deserted; because he was never allied to his grandfather by any tie of possunt, quasi proximi cognati. cognation: neither is the adopted Hæc de suis hæredibus. son of an emancipated son, to be reckoned among the children of his adoptive father's father. So that the adopted children of an emancipated son, can neither become the proper heirs of their father's father in regard to the inheritance, nor demand the possession of goods as next of kin. Thus much concerning proper heirs. De liberis emancipatis. IX. Emancipati autèm liberi. jure civili nihil juris habent: nequè enim sui hæredes sunt, qui in potestate morientis esse desierunt, neque ullo alio jure per legem duodecim tabularum vocantur. Sed prætor, naturali æquitate motus, dat eis bonorem possessionem unde liberi, perindè ac si in potestate parentis tempore mortis fuissent; sivè soli sint, sivè cum suis hæredibus concurrant. Itaque, duobus liberis existentibus, emancipato uno, et eo, qui tempore mortis in potestate fuerit, sanè quidem is, qui in potestate fuit, solus jure civili hæres est, et solus suus hæres ; sed, cum emancipatus, beneficio prætoris, in partem admittitur, evenit, ut suus hæres pro parte hæres fiat. $9. Emancipated children by the civil law have no right to the inheritances of their parents: for those are not proper heirs, who have ceased to be under the power of their parent deceased, before his death, neither are they called to inherit by any other right according to the law of the twelve tables. But the prætor, induced by natural equity grants them possession of goods, by the edict beginning, unde liberi, as fully, as if they had been under power at the death of their parent; and this, whether they be sole, or mixed with others, who are proper heirs therefore, when there are two sons, one emancipated, and the other under power at his father's death, the latter, by the civil law, is alone the heir, and alone the proper heir but, when the emancipated son, by the indulgence of the prætor, is admitted to his share, then the proper heir becomes the heir only of his own moiety. Si emancipatus se dederit in adoptionem. SX. At hi, qui emancipati à parente in adoptionem se dederunt, 10. But they, who after emancipation have given themselves in non admittuntur ad bona naturalis patris quasi liberi, si modò, cum is moreretur, in adoptivâ familiâ fuerint: nam vivo eo emancipati ab adoptivo patre perindè admittuntur ad bona naturalis patris, ac si emancipati ab ipso essent, nec unquam in adoptivi familiâ fuissent et convenientèr, quod adoptivum patrem pertinet, extraneorum loco esse incipiunt. Post mortem verò naturalis patris emancipati abadoptivo patre, et, quantùm ad hunc adoptivum patrem pertinet, æque extraneorum loco fiunt, et, quantùm ad naturalis patris bona pertinet, nihilò magis liberorum gradum nanciscuntur. Quod ideò sic placuit, quia iniquum erat, esse in potestate patris adoptivi, ad quos bona naturalis patris pertineant, utrum ad liberos ejus, an ad agnatos. adoption, are not admitted, as children, to the possession of the effects of their natural father, if, at the time of his death, they were in the adoptive family. But, if in the lifetime of their natural father, they were emancipated by their adoptive father, they are then admitted (by the prætor) to take the goods of their natural father, as if they had been emancipated by him, and had never entered into the family of the adoptor: consequently, in regard to their adoptive father they are looked upon as mere strangers. But those who are emancipated by their adoptive father, after the death of their natural father, are nevertheless reputed strangers to their adoptive father; and, in regard to the inheritance of their natural father, they are not at all the more intitled to reassume the rank of children. These rules of law have been established, inasmuch as it was unjust, that it should be in the power of an adoptor to determine at his pleasure, to whom the inheritance of a natural father should appertain, whether to his children, or to his agnates. Collatio filiorum naturalium et adoptivorum. § XI. Minùs ergo juris habent adoptivi filii, quam naturales: namque naturales emancipati, beneficio prætoris gradum liberorum retinent, licèt jure civili perdant. Adoptivi verò emancipati et jure civili perdunt gradum liberorum, et à prætore non admittuntur ; et rectè. Naturalia enim jura civilis ratio perimere non potest; nec, quia $ 11. Adopted children have therefore fewer rights and privileges, than natural children; who, even after emancipation, retain the rank of children by the indulgence of the prætor, although they lose it by the civil law: but adopted children, when emancipated, lose the rank of children by the civil law, and are denied admittance into the desinunt sui hæredes esse, possunt desinere filii filiave, nepotes neptesve esse. Adoptivi verò emancipati extraneorum loco incipiunt esse; quia jus nomenque filii filiæve, quod per adoptionem consecuti sunt, aliâ civili ratione, id est, emancipatione, perdunt. rank of children by the prætor; and properly for civil policy cannot destroy natural rights; nor can natural children ever cease to be sons and daughters, grandsons and granddaughters although they may cease to be proper heirs: but adopted children, when emancipated, become instantly strangers; for the right and name of son or daughter,obtained by the civil right of adoption, may be destroyed by the civil right of emancipation. De bonorum possessione contra tabulas. XII. Eadem hæc observantur et in eâ bonorum possessione, quam contra tabulas testamenti parentis liberis præteritis, id est, neque hæredibus institutis, neque, ut oportet, exhæredatis, prætor pollicetur. Nam eos quidem, qui in potestate, mortis tempore fuerint, et emancipatos, vocat prætor ad eandem bonorum possessionem; eos verò, qui in adoptivâ familiâ fuerint per hoc tempus, quo naturalis parens moreretur, repellit. Item adoptivos liberos, emancipatos ab adoptivo patre, sicut nec ab intestato, ita longè minùs contra tabulas testamenti, ad bona ejus admittit; quia desinunt in numero liberorum ejus esse. Unde § XIII. Admonendi tamen sumus, eos, qui in alienâ familia sunt, 12. The same rules are observed as to that possession of goods, which the prætor contrary to the testament of the parent, grants to children, not mentioned therein: that is, who are neither instituted heirs, nor properly disinherited. For the prætor calls those, who were under power at the death of their parents, and those also, who are emancipated, to the same possession of goods; but he repels those, who were in an adoptive family at the decease of their natural parents. And, as the prætor admits not such adopted children, as have been emancipated by their adoptive father to succeed him ab intestato, much less does he admit such children to possess the goods of their adoptive father contrary to his testament; for by emancipation, they cease to be in the number of his children. cognati. 13. We must nevertheless observe, that, although those, who paren quivè post mortem naturalis were in an adoptive family, but have been emancipated by their adoptive father, after the decease of their natural father, dying intestate, are not admitted by that part of the edict, by which children are called to the possession of goods, yet they are admitted by another part, by which the cognates of the deceased are called to the possession of his effects. But, by this last-named part of the edict, the cognates are only called when there is no opposition from proper heirs, emancipated children, or agnates: for the prætor first calls the proper heirs with the emancipated children, then the agnates, and lastly the nearest cognates. Emendatio juris antiqui. De adoptivis. § XIV. Sed ea omnia antiquitati placuerunt: aliquam autèm emendationem à nostrâ constitutione acceperunt, quam super iis personis exposuimus, quæ à patribus suis naturalibus in adoptionem aliis dantur: invenimus etenim nonnullos casus, in quibus filii et naturalium successionem propter adoptionem amittebant, et adoptione facilè per emancipationem solutâ, ad neutrius partis successionem vocabantur. Hoc, solito more, corrigentes, constitutionem scripsimus, per quam definimus, quandò parens naturalis filium suum adpotandum alii dederit, integra omnia jure ita servari, atque si in patris naturalis potestate permansisset, nec penitùs adoptio fuisset subsecuta; nisi in hoc tantummodò casu, ut possit ab in $ 14. Such were the rules that formerly obtained; but they have received some emendation from our constitution, relating to persons given in adoption by their natural parents: for we have remarked instances of sons, who by adoption have lost their succession to their natural parents, and who, by the ease with which adoption is dissolved by emancipation, have also lost the right of succeeding to their adoptive parents. We therefore, as usual correcting what is amiss, have enacted that, when a natural father hath given his son in adoption, the rights of the son shall be preserved intire, as though he had still remained under the power of his natural father, and there had been no adoption; except only, that the |