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of the father: adopted children, like proper heirs, are technical descriptions, and the creatures of the civil law. Dig. 38. 10, ult, 4. Dig. 38. 16. 2, 3. They are improperly called consanguine, inasmuch as this is strictly applied to natural relationship. Dig. 38.16. penult. § 3. De masculis et sominis, p. 204. This is otherwise entitled, Agnati, ad legitimam successionem ab intestato admittuntur absque ullo sexus discrimine. By the old law of the twelve tables, the female line was excluded, cognates yielded to agnates. By the middle law, sisters of the same father were admitted ; consanguine sisters: and the practor called women to the succession when they were related by the male line, but only in virtue of the right of proximity; ex tertionimirum ordine, per bonorum possessione unde cognati. Hence they succeeded after agnates. Justinian called all agnates, male and female, indiscriminately to the succession. o Germana : of the whole blood; consanguinea ; by the same father; titerina ; of the same mother. Consanguinei, and consanguinea, are expressions relating to brothers and sisters only; not beyond. Nostra constitutione sancimus : Cod. 6. 58, penult. § 4. De filiis sororum, p. 207. By the old law (i. e. the law of the twelve tables) if there were no agnates, the estate escheated. To avoid this, the praetor called in cognates per bonorum possessionem unde cognati : afterwards the emperor Anastasius, directed that emancipation per rescriptum principis, should not take away the right of agnation between brothers and sisters, if inserted in the rescript. Cod. de legit. haered, l, 11. Then maternal brothers and sisters, and their children, were ranked among the agnates, if the deceased left no brothers and sisters, or if they rejected the succession: and nephews, of different branches, were ordered to succeed per capita, and not per stirpes. hic, et Cod. de legit. haered. l. 14. § 1. Finally, all these differences were abolished by the 118th and 127th Novels. The last direction of the present section of the Institutes is not altered by the Novels. Non in stirpes sed in capita.] It appears from this section, that as yet brothers children were not allowed to represent their parents: for instance; if Sempromius had died intestate, leaving a brother, and children by two other brothers deceased; then, if the surviving brother had accepted the succession, the children of the deceased brothers, (i. e. the nephews of Sempronius ) would have been cntirely ousted; but, if the surviving brother of Sempronius had declined the inheri
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tance, the children of the two deceased brothers would have been entitled to a distributive share of their uncle's estate per capita, that is, by poli ; because they would then take suc quisque jure each in his own right and not by representation. But by Nov. 118. cap. 3. and Nov. 127. cap. 1. brothers and sisters children are allowed to represent their parents; and yet this representation is only permit;ed by the civil law to prevent exclusion, when the party deceased leaves a brother, and nephews by another brother; and then the uncle and nephews take per stirpes ; for, when there are only nephews, there is no representation; and the distribution of the estate is consequently made per cashita, each person taking in his own right. This is also the certain rule of distribution in England in the case of collaterals. vid. 22. 23. Car. 2 Bacon's abr. verb. executors and administrators. Abridgment of cas, in eq. pag, 249. Walch v. Walch. Harris. See the case of Carter v. Crawley, in prohibition. B. R. 1681. Sir Thomas Raym. 496, in which the question was this: A man died, leaving no relations alive, save an aunt, and the children of another aunt deceased in his life time—shall the children succeed jure reprasentationis 2 This was a case on the construction of the Stat. of Distributions, 22 and 23. Ch. 2. ch. 20, and appears to have been decided in favour of the right of representation in the children. The opinion of civilians given at the end of this case is as follows: “In making “ distributions of intestate estates amongst collaterals, our civil law “and the practice of the ecclesiastical courts have constantly observed * these two rules : “The first is, Repraesentatio in filius fratrum et sororum tantum lo“cum habet, adulteriores vero collaterales non extenditur. “The second is, that in case there be no brothers nor brother's “children, vocantur ad successionem reliqui collaterales quicumque in “gradu sint proximiores, remotioribus exclusis, Ita quod infallibiter “ semper prior in gradu sit potior in successione, whereby representa“tion must needs be out of doors; the next of kin, whether one or "more being only admitted to the distribution.” ROBERT WISEMAN, THOMAS EXTON, RICHARD LLOYD, EDWARD MASTER, WILLIAM TRUMIBAL. . 10 May, 1681. . . . ; 5. De proximis vel remotis, p. 207. Otherwise entitled de agmatix. diversi gradus,
As the law of the 12 tables called in the nearest agnate only, it left no room for representation. Ulp. in frag. tit. 26. § 3. The 118th Novel, admits nephews to the succession of their uncles, or aunt's estate, conjointly with the brothers and sisters of the deceased. § 6. Quo tempore proximitas spectatur, p. 208. See Dig. 38. 16. 2. 4. 5, and 6. § 7. De successorio edict2, p. 208. Otherwise entitled successio in agnatorum hareditatibus, a justiniano introducta. Successionem non esse.] Veluti; decessit aliquis intestatus, extante fratre, extante et patruo frater vocabatur, nimirum ut proximius; si £gitur contingat, ut frater, aut, antequam adeat, decedat, aut hareditatem repudiet, patrums aut agnatus venire non poterit, propterea quod lex duodecim tabularum successionem nesciat; haereditas igitur ad fiscum deJerebatur. Theoph. h 1. *Nostra constitutione..] This constitution is not to be found; nor would it be of use, if it was still extant, since the 118th Novel. hath destroyed all distinction between agnates and cognates, and put them upon an equality, Harris. The law of the 12 tables (proximus agnatus familiam habeto) called only the nearest agnate. If he died or renounced, the other agnates were excluded, and the estate escheated. Ulp. in frag. Tit. 26. § 4. Dig. 38. 16. 2. Paulus Lib. 4. sentent. Tit. 8: The praetor corrected this in some degree by calling in the second agnate, when the first died without accepting, or renounced; but he called them in the order of cognates. Dig. 38. 9. 1.6. The constitution mentioned in the text, as well as the law of the text, was rendered null by the provisions of the 118th Novel. $ 8. De legitima parentum successione, p. 209. Formerly a father emancipating a child pacto contracta fiducia, became legitimate heir to the child, under a supposed analogy of a master and an emancipated slave. See Inst. Lib. 1. Tit. de legitima parentum tutela. But Justinian by his constitution, Cod. 8.49. 6. de emancipationibus liberorum, reduced aliemancipations to that of contracta fiducia ; and the father succeeded to an emancipated son, as a patron did to his freed man. But all this was again altered by the 118th Novel. But the parents of a child dying without descendants, succeed per stirpes. Tit III. De senatus consulto Tertulliano, p. 210. Justinian says, this law was made by Adrian, but Zonaras, Lib. 2. says it was made in the time of Antoninus Pius, called also Adrian, as being the adopted son of Adrian. Tiberius Claudius Cæsar, began to reign A. C. 36, and Adrian began A. C. 120.
§ 1. De constitutione Divi Claudii, p. 210. It is probable according to Vinnius and Heineccius, that this indulgence extended only to the mothers of children who fell in battle. Sueton. in Vita, ch. 19. Claudius jus 7uatuor liberorum feminis dedit. § 2nd. Senatus consultum Tertullianum, p. 211. This privilege granted to the mother to succeed to her children, was not conceded by positive law to uncles ; but they were called in by Praetorian law per bonorum possessionem unde cognati, so that a consanguine sister being regarded as an agnate was preferred to them. § 3. Siti praferuntur matri vel cum ea admittuntur. p. 211. Mater Iiberis onerata. Cujas in ulp. frag. Tit. ult. for onerata read homerata. The Claudian law gave them as we have just seen the jus quatuor liberorum; hence children were an honour and a credit, not a burthen. By this section, the mother was postponed to a suus hares, (a proper or domestic heir) to the father, and to the consanguine brother. As to the suus hares Domestic heirs in power, or emancipated, or persons considered as sui ha-redes, excluded the mother; but children given in adoption, and in power of their adoptive father, at the decease of their natural father, did not. But by a constitution of Antoninus, they were admitted concurrently with the mother, per bona. poss, unde cognati, which in this case excluded the bonorum posessionem unde legitimi. Dig. 38, 7. and Dig. 38. 8. f Further by the Tertyllian senatus consultum, children were not admitted to the succession of their mother, in preference to their grandmother: the senatus consultum Orphitianum, made about 20 years afterward, called them in. Hence a conflict arose between claimants under these decrees, the mother of the deceased, claiming under the Tertyllian, and the children of the deceased under the Orphitian decrees. This was at length decided in favour of the children Dig. 38. 16. 11. Secondly, the father was preferred to the mother, in military property, in adventitious property, and in respect of emancipated children however emancipated. Thirdly, the consanguine brother was preferred to the mother. Cod. Theod. de inofficioso, testamento, l. 2. The consanguine sister was called in concurrently with the mother. But Justinian introduced many alterations. At first, when the deceased left a mother, with consanguine or uterine brothers, or with sisters, the mother was admitted in equal proportion. Cod. h. Tit. l. ult, when the mother was found with sisters only, she succeeded to half the property. Ib. Afterward by Nov. 22.47. 2. when the mother was left with sisters of the deceasod, they inherited in equal portions : finally by Novel, 118, ch. 2. fathers and mothers, were preferred to all collaterals, save brothers and sisters of the whole blood. Suorum loco sunt.] Emancipated children by the prætorian law, and by the constitutions grand-children and great-grand-children by ' a daughter, are mumbered in loco suorum, i. e. in the place of proper ueirs. vide t. 1. sect. 15. of this book. Harris. IE:e constitutionibus.] Si, matre superstite, filius vel filia, qui quæve wnoritur, filios dereliquerit, omnimodo patri suo, matrive suæ, ipso jure succedant ; quod sine dubio et de pronepotibus observandum esse censeinus. Cod. 5. t. 54. l. 11. Cod. 6. t. 57. 1. 4. ad senatus-consultum Orficianum. Harris. Prater autein consanguineus.] ** Porro, cum fratres duntaxat et so** rores hoc loco r.atri objiciantur, existimandum est, caeteris a latere ** venicntibus, sive agnatis sive cognatis, matrem præferri. Sed et, .** quia consanguineorum tantum mentio fit, credibile est, fratres et so** rores uterimos senatus-consulto fuisse exclusos : cæterum justinia** anus hos etiam cum matre admisit, vid. sect. 5. Novellâ autem, * 1 1 8 totum hoc jus mutatum est.” Finn. Harris. § 4. }tts : ovum de jure libcrorum sublato. p. 212. Constitutione. Cod. 8. 59. 1. 1. and 1. 2. and Cod. de infirm. pen. celib. et orbit. 1 1. by vhich it will appear, that Constantine first abrogated the law inflicting penalty on celibacy : Honorius extended to every one, the privileges of those who had children ; and Justinian accorded to all mothers, the jurc trium attt quattuor liberorum. § 5. §;tibus matcr proponitur et quibus admittitur, p. 212. This section is also entitled, Abrogatio eorum in quibus constitutio7ies partim matrem adjwvebant, partim prægravebant. Cum antea constitutiones.] vid. ll. 1, 2, et penult. Cod. Theod. de legit. hered. Partim matrem.] Exempli gratia ; ** si contigisset, ut quis decede** ret relinquens matrem, jure liberorum cohonestatam, superesset au** tem et patruus, qui est legitimus, aut patrui filius, mater octo capi** ebat uncias, sive bessem hæreditatis ; patruus autem aut ejus filius “ trientem ; hoc est, quatuor uncias. Quod si ex contrario jus libe“ rorum mater non habuisset, tunc patruus aut filius ejus bessem hære“ ditatis capiebat, at mater trientem solum.” Theoph. h. t. Ita tamen, &c.], “ Quæ sequuntur pertinent ad modum succedendi, “ sive rationem distribuendæ hæreditatatis inter matrem defuncti, ejus“ que fratres et sorores. Constituit autem imperator, ut, si cum ma“ tre concurrant sorores solæ, sive consanguineae sive uterinæ, duo se“ misses fiant, quorum unum mater, aiterum sorores capiant; sin fra