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“tres, sive soli, sive etiam cum sororibus, in capita haereditas divida“tur, totgue partes fiant, quot sunt personae succedentium. Cod. 6. “t. 56.1. 7. Haec iterum mutata sunt Novel. 118. qua fratres et soro“res omnes, ex uno tantum latere defuncto conjuncti, tam a matre, “quam a fratribus utrinque conjunctis, excluduntur, mater cum his ex “aequis partibus succedit. Vinn. h. l. But in England the civil law takes place almost in the same manner, as it prevailed before the Novel constitution: for brothers and sisters by the half blood take equally with brothers and sisters by the whole blood: so that, if a man, whose father is dead, dies intestate, and is survived by a mother and by brothers and sisters, or by brothers only, or sisters only, then the mother, and the brothers and sisters, will all be intitled to take an equal share per capita, whether such brothers and sisters were related to the deceased by the whole blood, or by the half blood only. Smith's case 1 Mod. 209. 1 jac. 2. cap. 17. Harris. Tit. IV. De senatus consulto Orphitiano, page 214. This was enacted in 930 ab urb. cond. in the time of the emperor Aurelius; 23 years after the Tertyllian senatus consult. § 1. De nepote et nepto. p. 214. Constitutionibus principalibus.] The Tertyllian decree conferred upon mothers the right of legitimate succession to their children; and the Orfician decree gave children the same right in regard to their mothers: but neither of these decrees went farther out of reverence to the old law ; so that hitherto grand-mothers were called to the succession of their grand-children; and grand-children to the succession of their grand-mothers, by the indulgence of the praetor only ; i. e. per bonorum possessionem unde cognati, and in default of agnates. R. 38. t. 8. But the emperors, Valentinian, Theodosius, and Arcadiits, called grand-sons and grand-daughters to the succession of their grand-mothers; prohibiting them nevertheless to take more than two thirds of that sum, to which their father or mother would have been entitled. 1. 4. Cod. Theod. de legit. haered. But the emperor justinian, by his 118th Novel, cap. 1. makes the condition of all children equal, when they succeed their parents upon an intestacy. And, by the 2d chapter of the same Novel, the emperor calls also the grandmother to the succession of her grand-children. Harris. , § 2. De capitis diminutione. page 215. Otherwise entitled, successiones 7ta ex illis senatus consultis deferuntor, non perimuntur, minima capitis diminutione. -* See Dig. 38.16, 11 and 38, 17. 1. s.
§ 3. De vulgo quasitis, page 215. Otherwise naturales liberi mater succedunt.
&ui vulgo quasiti sunt. The vulgo guarsiti are those, whom the law emphatically calls spurious, their father being incertain and not known; but the mother, who is always certain, is allowed to succeed even her spurious issue ; which is not permitted in England, where a bastard is reckoned as a terminus a quo, and the first of his family; he can therefore have no heir but of his body, and is deemed in law to have no consanguine relations, except his children; yet this must be understood, as to civil purposes; for, as to moral purposes, his natural relation to ascendants and collaterals is regarded by the law, which will not suffer such a person to marry his mother, or his base sister. The Queen v. Chafin, 3 Salk. 66, 67.
Ad matris hareditatem.] The vulgo quasiti or spurious children, are allowed to succeed their mother, unless she is a person of illustrious birth, having lawful children; for, if she has no lawful children, her illegitimate issue will succeed her. Cod. 6. t. 57.1.5. And in general spurious children will succeed their mother equally with those, who are legitimate : and, even if spurious children are praetermitted in the testament of their mother, they may by the civil law complain of that testament as inofficious and undutiful. De inofficioso testamento matris spurii quoque filii dicere possunt. ff. 5. t. 2. 1.29. Yet spurious children are not in like manner entitled to succeed to the possessions of their father, whom the law does not regard, but supposes to be unknown. Children nevertheless, who are born of a concubine, when their father is certain, and dies without a wife or lawful issue, are entitled, together with their mother, to the sixth part of their father's inheritance, which is to be divided among them per capita, or by poll. Nov. 18. t. 5. cap. 5. But bastards, begotten in adultery or incest, are wholly incapable of succeeding to their father’s or mother's estate. Nov. 89. cap. 15. But in England bastards are not distinguished into species, being all regarded in the same light, and esteemed equally incapable of succeeding to the personal estate of their intestate parents, being feigned to be nullius filii; so that no illegitimate child can take any part either of his father's or mother's estate upon an intestacy; neither can an ordinary or ecclesiastical judge grant the administration of an intestate's estate to the base born issue of that intestate. Swinb. 373. Yet any person, although he hath legitimate children, may by the law of England, bequeath any part, or the whole of his estate without controul, and may consequently benefit his illegitimate children, or their mother, in what manner he pleases; for such persons are not incapable of tak
ing by purchase, gift, or testament: and in this respect the law of England is more favourable to natural children, than the civil law ; for, by that law, a man, who had lawful children, could not bequeath more than a 12th part of his possessions to his illegitimate issue. Nov. 89, cap. 12. It is also observable, that, though the law of England pays no regard immediately to bastards, yet it favours their issue under particular circumstances, in respect to real estates; insomuch that the issue of a bastard eigne, who died seized, shall bar the right of a mulier puisne. For example ; if a man dies seized of certain lands in fee, leaving two sons, by the same woman, and his eldest son is a bastard, being born before his father's marriage, and the younger is a mulier, (that is, legitimate,) in this case, if the bastard enters upon the land, claiming as heir to his father, and occupieth it all his life without any interruption or entry made upon him by the mulier, and the bastard hath issue and dies saized of such estate in fee, and the land descends to that issue, then the mulier will be without remedy. For he may not enter, nor have any action to recover the land, because there is an ancient law in this case used; namely, justum non est aliquem post mortem facere bastardum, qui toto tempore vitae sua pro legitimo habebatur. See Coke's first inst. sect. 399, &c. Bridal's lex spurierum, pag. 100. Here note, that the term mulier is used, by the writers. upon the common law, to denote either a son or a daughter lawfully begotten; but, how they came to apply the word mulier so very fancifully or rather perversely, it is hard to say, and immaterial to inquire; the most probable conjecture seems to be, that mulier is a corruption. of melior or the French word melieur. Wide Terms de la ley, and Godoly phin's repertorium. Harris.
$ 4. De jure accrescendi inter legitimos haredes, p. 215.
Survivorship under the Roman law takes place among legitimate, and among testamentary heirs; and the share of those who renounce, will even fall to the heirs of those who accept. Survivorship, is real, attached to the estate, not to the person like substitution. Dig. de usufructu. l. 36. Dig. 38. 16.9. It was allowed, lest the testator should die partly testate and partly intestate, partly represented and partly unrepresented.
Under the English law survivorship takes place only when a legacy is given in joint tenantcy; and is allowed by the courts of equity, but not by the ecclesiastical courts. See on this subject Humphrey v. Tayieur, Ambl. 137. Mosley v. Bird, 3 Vez. jun. 628. Russel v. Long, 4 Vez. 551, Bolger v. Mackell, 5 Vez. 509. In which it is laid down * * 4 D
that a legacy to two or móre share and sharc alike, is a legaty ia cqmmon, with no survivorship. The jus accrescendi has already been touched upon. in another connection ante ad Instit. Lib. 2. Tit. 7. § 4. * * • • Tit. V. De successione cognatorum, p. 216. * • . • Post suos hæredes.] ** I.ex antiqua duodecim tabularum duos tantum ** hæredum ab intestato ordines fecit, suorum ct agnatorum. , Novæ ** leges et senatus-consulta nomaddiderunt quidem ordinem novum, sed .** personas quasdam, quæ nec sui hæredes, nec agnati, reverâ sunt,suo* rum hæredum et agnatorum numero esse voluerunt, atque in ordine ** suorum vel agnatorum, una cum verè suis hæredibus aut agnatis, ad 4* haereditatem intestati admitti. Inter suos hæredes novæ leges nume** rant, suisque per omnia exæquant, liberos legitimatos ; inter eosdem quoque, et simul cum iis, vocant nepotes et pronepotes ex sexu femi** neo : in agnatorum ordinem senatus-consulta transtulerunt matrem ** et liberos : Justinianus fratres et sorores uterinos, eorumque et so°* rorum consanguinearum filios et filias : Anastasius fratres et sorores ** emancipatos. Prætor, vero tres succedentium ab intestato ordines ** fecit; primum liberorum ; (non dixit suorum, quia ex liberis vocat etiam non suos;) alterum legitimorum, in quo vocantur agmati ct jura agnationis habentes, ex posterioribus legibus aut ex senatus-cowsultis ; tertium cognatorum, in quo admisit omnes, quos sola sanguinis ratio vocat ad hæreditatem, licet jure civili deficiant ; item eos, qui, quod prioribus ordinibus exclusi essent, ex nullo alio , capite ** venire poterant. Tandem Justinianus cognatos omnes etiam haere* des legitimos fecit, adempta agnatis omni prærogativa. Nov. 118. ** Vinn. Harris. - See as to the prætorian law calling in cognates in default of proper „and legitimate heirs, Cod. de legit. hæred. l. 5. and Dig. 38. 8. * 1 and „seq. . Cognates are maternal relations. Legitimate heirs are agnates, and others considered as. agnates, and called to the succession by the .Tertyllian and Orphitiam senatus-consults, andthe imperialconstituticns, .as a mother in respect ofher children, children in respect of a mother consanguine brothers and sisters emancipated by rescript, uterime sisters, and the children of emancipated brothers and sisters. Cod. • de legit. hered. l, penult. § 1 and 1. ult. § 2. - * § 1. &i vocantur in hoc ordine, &c. p. 216. - §uos lex Anastasiana.] This constitutionis not now extant; it was , nevertheless without doubt, inserted in the first edition of the Code, .because itis here referred to ; but it was probably omitted in the Code: -repetitæ prælectionis, on accouat ofthe last law in Cod. 6. t. 58. 8c Je*
git. haered. Soua pleniits fratribus et sororibus emancipatis consulitur, et eorum quoquefliis acfiliabus jus legitima successionis datur. Harris. : ... Non equistamen partibus. Theophilus says that emancipated bro. thers and sisters received one half less than those under power: that a brother capite diminutus should receive but four ounces while a brother integri juris should have eight: but by Cod. de leg. hered. l. ult. § 1. emancipated brothers, and those under power were placed on a footing.” * , or * - o' - Aliis vero agnatis. If the deceased left an emancipated brother, and an uncle, the former would, succeed in exclusion of the latter. * $2. De conjunctis perfeminas, p. 217. The 118th Novel. has superoceded this section. . . . . . . . . . . . - - * $4. De vulgo quasitis, p. 217. The mother only is considered as related to a spurious child; hence they were permitted to succeed to the mother, if they were not the issue of adultery or incest, Justinian however admitted them to a share in the succession ab intestato to their father, if there were no lawful progeny, and the bastards were the offspring of a concubine. Dig. 38. 8.4, compared with Dig. 1.5.19 and 23. Dig. 1.5.19 and 24. Cod. de natural. lib. By the 118th Novel, they were admitted to share in their mother's estate with legitimate children. ” § 5. Ex quoto graduvel agnativel cognati succedunt, p. 217. . * Usque ad sextum gradum cognationis.] It is not easy to determine what should induce the praetor to fix upon the sixth rather than the fifth or any other degree and, concerning this, the writers have differed much in their opinions. But all, except Hoffman, agree, that the difference in the limits of succession between agnates and cognates hath ceased, since the distinction between agnation and cognation was abolished by Novel. 1 18. Taking it then for granted, that cognates can be called in as distant a degree as agnates, the next question will be whether agnates, can succeed in a more distant degree, than the tenth; which some dehy; and urge, that justinian would not have named the 10th degree, ifagnates could have been admitted in a degree beyond it —and that, unless some period had been put to the succession of agnates, the third and the fourth order of succession, in which are, husband and wife, could never or very rarely be admitted; and from hence they conclude, that, though in consequence of the 118th Novel. both agnates and cognates must now be admitted without distinction, according to their proximity, yet this must be in the tenth degree, and not beyond it ; and of this opinion are Mynsinger, Faber, Wesembecius, and others. But the words of justinian, in the 3d sect of the 2d title &this book, very strongly evince the contrary. v. g. Inter masculos gui.
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