572

dem agnationis jure hæreditas, etiamsi longissimo gradu sint, uitre citroque capit.r, &c. And again, in paragraph the 1st, tit. 7. of this book, the mperor writes thus Amotis suis hæredibus, agnatus, etiamsi longissimo gradu, plerumque potior habetur, quam proximior cognatus. tit. 7. de servili cognatione. This is also the doctrine of the law of the ttwelve tables, which deciares generally, without specifying any limits that upon a failure of proper heirs, the nearest agnate shall succeed. And, as to the before-mentioned arguments, they may be answered withaut much difficulty'; for we may safely pronounce, that the words decimo gradu are not here used determinately, but merely for the sake of giving an example. Non enim (says Vinny) eodem modo de agnatis et cognatis imperator loquitur; de agnatis non loquitur determinative, sed ait, eos succédere, etsi decimo gradu sint, utens rotundo et certò numero pro incerto. De cognatis contra loquitur déterminative; ait enim, eos succédere tisque ad sextum gradum. And, to the second argument, it may be answered, that a deceased person may leave no agnates by means of emancipation, or that his agnates, as such, may be ousted of their succession, by the death or refusal of the nearest agnate. See sect. t. 7. lib. 3. So that there is no great reason to fear, that the third and fourth order of succession would have been always excluded by allowing agnates to succeed in the most distant degree. It therefore follows upon the whole, that cognates and agnates are now called to succeed equally, according to their proximity, and without any limitation. Harris.

Tit. VI. De gradibus cognationum, p. 218. See on this subject the note to Justin. Inst. Lib. 1. tit. 9. § 1. Definitio nuptiarum, ante. -6.1. De primo secundo et tertio gradu, p. 218. see Blackborough v. Davies, 1 Lord Raym. 684. 12 Mod. 619. but best in 1 P. Wms. 41. wherein it was determined that the grandmother was nearer of kin than the aunt. Woodroff v, Wickworth. Prec. in ch. 527. 1 Eq. ca. ab. 249. In England all relationship respecting personal estate, is settled according to the civil law computation.

Oues. Thii: the greeks called their parents 9, divinities; and ap plied the term divine, even to those who held the place of parents. Hence come the Italian words Zio, Zia, and the Spanish, Tio, Tia. (Ferriere makes three sections, of this first section)

....§2. Quartus gradus, p. 219.

Consobrinus, consobrina.] It will be necessary to explain the following terms of relation before we proceed. Consobrini and Consobrine denote cousins german in general; i. e. brother's and sister's children. Fratres patrueles and sorores patrueles signify cousins german, wher

they are the sons or daughters of brothers.Consobrini and consobrine in a limited and strict sense denote cousins german, who are the children of two sisters, quasi consororini. Amitini and amitina are cousins german, who are the children of a brother on the one side and a sister on the other. Sobrini and sobrina denote the children of cou sins german in general. Propior sobrino and propior sobrina denote the son or daughter of a great-uncle or great-aunt, paternal or mater nal. Harris.

§ 4. Sextus gradus, p. 221. This section seems to distinguish inter filium proprioris sobrini, and nepotem sobrini; which however have the same meaning. Hence Vinnius thinks that the words item proprius sobrino sobrinave filius should be omitted. Il est vrai (says Ferriere) que si mon cousin issu de germain m'est parent au sixieme degre, son fils ne m'est parent qu'au septieme: c'est aussi ce qui est dit dans le. 5. du titre precedent. Mais Justinien ne le compare pas ici avec moi, qui suis le cousin issu de germain son pere, car nous serions au septieme; mais il le compare avec mon pere, qui lui est parent d'un degre plus proche que moi, et qui est par consequent a son egard, parent au sixieme degre.

J

Tit. VII. De servili cognatione, p. 222. Nostra constitutione: this is not extant...

Tit. VIII. § 2. De lege Papia, p. 226. This law was passed A. U. C. 761, in the consulship of M. Papius Mutilus, and Q. Poppæus Secundus. Hence it is sometimes called Lex Papia Poppaa. § 3. De constitutione Justiniani, p. 226. Nostra constitutio. Not extant. Ex constitutione nostra repleatur. 1. omnimodo Cod. 3. 28. de inoff. testam.

§4. Quibus libertinis succeditur, p. 228. Nostra constitutione. Cod. 7. 6. de latina libertate tollenda.

Tit. IX. De assignatione libertorum, p. 230.

Gensuisse senatum. Under Claudian, A. U. C. 798.

Tit. X. De bonorum possessionibus. p. 231.

This is a branch of the prætorian law, by which a right of succes sion was granted, to all the property, estate, goods, chattles, rights and credits of the deceased. Qua propter plurimum differt bonorum possessio a possessione seu corporali detentione rerum, que facti est. 1. 2. §1. Dig. hoc. tit. 1. 208. Dig. de verb. signif. Sed bonorum posses. sio tota juris est.

The bonorum possessio, was of various kinds, according to the con dition and exigency of the claimants. Bonorum possessio, UNDE LIBEJI: UNDE LEGITIMI : UNDE COGNATI : SECUNDUM TABULAS: CONTRA

TABULAS UNDE DECEM PERSONÆ :TANQUAM EX FAMILIA: unde vir ET XOR: Confirming, supplying, correcting, or controverting the civil law. -The bonorum possessio, did not constitute an heir Inst. 3. 10. 2. The heir, is a creature of the civil, not of the prætorian law; though the person so called to the succession by the prætor, had many of the rights of an heir. But the heir under the civil law, held in absolute proprietorship, Inst. 2. 19.7: the prætorian successor had the pos session, and the dominium utile, but not the dominium directum. l. 1. cum. seq. Dig. hoc titulo. l. 117. Dig. de reg. juris. . 138. Dig. de verb. signif. It was the right of claiming and recovering, and of retaining the effects of the deceased Dig. h. tit. 1. 3. § 2. It might be demanded by Proctor, which a heirship could not. Dig. 29. 2, 90. where for curatorem, read procuratorem. Dù VRTI KAUDNom je am Succession per bonorum possessionem, must have been demanded of the prætor: this was not necessary in case of heirship, wherein it was only necessary to act. A heirship might be entered upon within 30 years. A prætorian succession must be claimed within one year by descendants and ascendants, and a hundred days by other persons: Inst. 3. 10. 5. Succession per bonorum possessionem, was part of the equitable jurisdiction of the prætor. Thus by possession unde liberi, he aided the rights of emancipated children; calling them to the succession. (cum onere collationis) together with proper heirs, by unde cognati, he assisted, the natural pretensions of cognates who were be fore excluded: by secundum tabulas, he supported a testament other. wise void by the civil law, by calling in a posthumous stranger: contra tabulas, when a child was called to the succession, whose natural claims had been neglected and passed over by his father the testator: inde vir et uxar, by which the surviving husband or, wife succeeds in defect of kindred: unde legitimi when parents or children (agnates) were called in, who would otherwise have been excluded.. Tanquam ex familia; to the patron, or his agnates. Unde decem persona, the enumeration of ten persons preferred by the prætor to a stranger who had manumitted a filius familias under the ancient forms of contract and sale. Unde patroni patronæque, when patrons were specifically cal led in to the succession of freed men : unde cognati manumissoris when gognates of a patron manumittor were admitted. Hence there are twe prætorian successions in case of a testacy, and eight in case of an intes tacy. Concerning all of which see post Inst. lib. III. tit. 10. § 2 and 3. Justinian abolished, unde decem persona, tanquam ex familia, unde patroni, and unde cog. manumittoris..

In the case of possession granted contra tabulas, the claimant, to whom the succession was granted, was called upon to bring into hotch

pot or common stock, all the property he had at any time received of the testator by way of advancement; Cod: 6. 21. 12. 16. This was the COLLATIO: bonorum possessio contra tabulas cum onere collationis. Dig. 37.6.1.This Collatio, might have been exacted also in cases of intestacy from descendants, whether of the male or female side, (Nov. 18. 6.) but not from ascendants, collaterals, or mere legatees. Cod. 6. 21. 16. This was an exception to the general rule, inter diver so jure succedentes, non est locus collationi.

"Regularly those goods are brought into Collation or common fund, (Cod 6. 21. 12 and 16.) which came from the ascendant, while alive, for the maintenance or provision of the descendant. But not gifts or rewards for services, Cod. 6. 21. 10. and 20. 1. Nor the price of ransom from captivity in war, Cod. 8. 51. 17. Though money paid for a fine, or to save one from punishment, ought to be brought into contribution, for the fault of one, ought not to be prejudicial to another. So the portion, the jewels, the precious garments, the gold chains given to a daughter at marriage, Cod. 6. 21, 5. but not the expences of the marriage feast, for that seems to be given for the credit of the father and not as a portion; nor the charge of necessary education, for every child hath already had such a share, nor the charge which a father hath been at in books for his són, Dig. 10. 2. 50. Nor the charge that a father laid out for the son that he might take a degree, or acquire any other honourable title, Dig. 37. 6. 16. for if the son dies, his successor can derive no advantage by it. On this account, therefore, the cost expended in equipage for a son to go to the wars, shall come to the common contribution, because he receives pay from the publick. Cod. 6. 21. 20." Wood's Inst. civ. law. fol. 200. 201.

As to ADVANCEMENT, I have already referred to all the principal English cases on the subject. As to HOTCH POT, Collatio bonorum, In partem positio, see Co. Litt. 177. Phiney v. Phiney, 2 Vern. 638. Edwards v. Freeman, 1 Eq. Ca. ab. 249–254. and 2 P. Williams 445. Hedges v. Hedges, Finch. Pre. ch. 269. Hume et ux. v. Edwards ex. &c. 3 Atk. 450. Finner v. Longland, 2 Eq. Ca. Ab. 253. Northey v. Strange, 1 P. Williams 340. and the Stat. of Distributions, 22 and 23. Ch. 2. ch. 10.

Jus bonorum possessionis.] The bonorum possessio is not now in use even in those countries, where the civil law prevails: for succession by testament, or by law, comprehends every case. "Jus civile et prætorium hodie in unam consonantiam redactum est; ideoque hujus "tituli nullus amplius est usus: etenim, qui aliis ex testamento et ab * intestato succedunt, in universum hæredes appellari solent," Groè

newegen, de legibus abrogatis. h. t. In England, estates in general, may be divided into two sorts, real and personal; and successions to these two different kinds of estates are governed by different rules of law. But it is necessary to premise, that by real estate is most commonly meant an estate in land in fee, i. c. descendible from a man to his heirs for ever, and that by personal estate are meant estates in land, determinable upon years, money in the funds or upon mortgages, plate, jew els, &c. and that such personal estate is generally comprehended, in technical and artificial language, under the terms goods and chattles. Now in real estates there is no room for the bonarum possessio of the Roman law to take place in England; for all such estates vest in and descend instantly to the heir, at the death of his ancestor; but in regard to goods and chattles the office of the ordinary or ecclesiastical judge seems to be similar to that of the Raman prætor in granting the possession of goods. For, when a man dies, who has disposed of his personal estate by testament, the heirs or executors, appointed by that testament, must prove it before an ecclesiastical judge, who by granting probate gives the possession of goods to the executors secundum tabulas, according to the will, or at least confirms them in the possession already taken. Cowell, h. l. And, when any person dies intestate, the ordinary (by virtue of 31 Edw. 3. chap. 11, and 21 Henry 8. chap. 5) grants the possession and administration of the intestate's goods to the widow or next of kin to such intestate, or to both, at his discretion. And by the 22d and 23d of Charles the second, cap. 10. it is enacted, "that all ordinaries and ecclesiastical judges may call "administrators to an account and order DISTRIBUTION, after debts and # funeral expences are paid; to wit, one third to the widow of the in"testate, and the residue among his children and those who legally represent them, if any of them are dead: that, if there are no children, ແ or legal representatives of them,one half of the intestate's estate shall "be allotted to the widow, and the residue to the next of kindred to

the intestate in equal degree, and those, who represent them: that no "representation shall be admitted among collaterals after brothers and "sisters children; and that, if there is no wife, all shall be distributed among the children; and if no child, to the next of kin to the intestate in equal degree and their representatives." And by 1 Fac. 2. cap. 17. it is enacted, "that, if a brother or sister dies, each brother "and sister, and their representatives, shall have an equal share with "the mother." From all which the analogy, between the civil law and the law of England, is very observable. Harris.