BOOK III. a Cf. Black stone, ii. 516 517 (Steph. ii. 211-212), and Paterson, 'Compend.,' c. 741. fuerint in potestate; ceterum si sui iuris fuerint, ad bonorum possessionem non invitantur, quia adoptionis iura dissoluta sunt emancipatione.D. 38, 6, 1, 6.' As in the case of legitima hereditas, they succeed in stirpes; in the same stock, the nearer degree excludes the more remote, but the emancipatus, according to the 'nova clausula (Iuliani) de coniungendis cum emancipato liberis eius' added to the Edict under Hadrian, inherits together with his children left behind in the potestas of the grandfather as one stock. Pomp. Si quis ex his, quibus bonorum possessionem praetor pollicetur, in potestate parentis de cuius bonis agitur, cum is moritur, non fuerit, ei liberisque, quos in eiusdem familia habebit, si ad eos hereditas suo nomine pertinebit, . . bonorum possessio eius partis datur, quae ad eum pertineret, si in potestate permansisset, ita ut ex ea parte dimidiam habeat, reliquum liberi eius.— 1. 5 pr. eod. To re-establish a pecuniary equality between those entitled to inherit, the emancipati have to unite in, or bring into, the inheritance in common with the 'sui' that are their co-heirs the acquisitions they have made since emancipation, and the daughters (suae and emancipatae) the dos they have received :-collatio bonorum," dotis. Ulp. xxviii. 4: Emancipatis liberis ex edicto 1 But we admit adoptive children only so far as they have been under power; if, on the other hand, they have been independent, they are not invited to the bon. poss., because the rights of adoption have been destroyed by emancipation. 2 If any one of those to whom the Praetor promises the bon. poss. was not at the time of his death under the power of the ancestor whose property is in question, the bon. poss. shall be granted to him and the descendants whom he shall have in his family, if the inheritance shall belong to them upon their own behalf, of such part as would appertain to him if he had remained under power, so that of such part he has a moiety, his descendants the residue. datur bonorum possessio, si parati sint cavere BOOK III. Part III. Coll. xvi. 7, 2 (Ulp.): Nam aequissimum putavit, neque eos bonis paternis carere per hoc, a Sc. Praetor. quod non sunt in potestate, neque praecipua bona propria habere, cum partem sint ablaturi suis heredibus.2 Ulp. Emancipatus filius . . . fratribus suis conferet, . . . quia veniendo ad bonorum possessionem illis iniuriam facit.-D. 37, 8, 1, 13.3 (2) Unde legitimi, that is, the heirs according to ius civile, and so 'sui,'' adgnati,' 'gentiles.' Iul. Haec verba edicti: tum quem ei heredem esse oportet, si intestatus mortuus esset' . . . non ad mortis testatoris tempus referuntur, sed ad id quo bonorum possessio peteretur; et ideo legitimum heredem, si capite deminutus esset, ab hac bonorum possessione summoveri palam est.-D. 38, 7, 1.* Ulp. Haec autem bonorum possessio omnem vocat, qui ab intestato potuit esse heres, sive lex XII tabularum eum legitimum heredem faciat, sive alia lex senatusve consultum.—1. 2, § 4 eod.3 1 Bon. poss. is granted to emancipated children by virtue of the Edict, if they are prepared to give security to their brothers who have continued under power, that they will bring into division the property they had at their father's death. 2 For he [i.e., the Praetor] thought it most equitable that they should neither forfeit the patrimony by the fact that they are not underpower, nor should have special control over their own effects, since they are about to carry off a portion for their sui heredes. 3 An emancipated son.. will collate with his brethren . . because by acquiring the bon. poss. he does what is harmful to them. ... The following words of the Edict: then he who would have to be his heir, if he had died intestate' ... are not referable to the time of the testator's death, but to that when the bon. poss. is claimed; and therefore it is clear that the heir-at-law, if he has suffered loss of status, is excluded from this bon. poss. Now this bon. poss. calls every one who could be heir under b Sc. iure civili? BOOK III. a Sc. ut tertio gradu vocetur. It was matter of dispute whether successio graduum obtained in the case of agnates. Gai. iii. § 28: Idem iuris est, ut quidam putant, in eius adgnati persona, qui proximo adgnato omittente hereditatem, nihilo magis iure legitimo admittitur; sed sunt qui putant, hunc eodem gradu a praetore vocari, quo etiam per legem adgnatis hereditas datur.' (3) Unde cognati (bonorum possessio proximitatis nomine), that is, the blood-relations of the testator, inclusive of liberi and adgnati, according to proximity of degree. Ulp. Haec bonorum possessio nudam habet praetoris indulgentiam, neque ex iure civili originem habet: nam eos invitat ad bonorum possessionem, qui iure civili ad successionem admitti non possunt, id est cognatos.-1. I pr., D. unde cogn. 38, 8.2 Id. xxviii. 9: Proximi cognati bonorum possessionem accipiunt non solum per feminini sexus personas cognati, sed etiam adgnati capite dininuti nam licet legitimum ius adgnationis capitis minutione amiserint, natura tamen cognati manent.3 an intestacy, whether the statute of the Twelve Tables, or another statute, or a decree of the Senate, makes him heir-atlaw. 1 The rule is the same (that is, as to be called in the third degree) according to some, in the case of such agnate as, though the nearest agnate declines the inheritance, is not any the more admitted by statute-law; but some are of opinion that such a man is called by the Praetor in the same degree as that in which the inheritance is given by statute to the agnates. 2 This bon. poss. has the mere indulgence of the Praetor, and has no source in the Civil Law; for it invites those persons to the bon. poss. who by the Civil Law cannot be admitted to the inheritance-i.e., the cognates. Not only do the nearest kinsmen receive the bon. poss. who are cognates through a female, but also those next of kin who have experienced a cap. dim.; for although by the cap. dim. they have lost the statutory right of agnation, they nevertheless remain kinsmen by nature. Gai. iii. 29: Feminae certae adgnatae, quae consanguineorum gradum excedunt, tertio gradu vocantur. § 31: Liberi quoque qui in adoptiva familia sunt, ad naturalium parentum hereditatem hoc eodem gradu vocantur.' But this was with successio graduum, and with restriction to the sixth (or to the seventh) degree. Haec autem bonorum possessio . . cognato- (4) Unde vir et uxor, that is, the survivor of spouses." Ulp.: Ut bonorum possessio peti possit 'unde vir et uxor,' iustum esse matrimonium oportet. -1. un. pr., D. unde vir. 38, 11.3 § 164. IN RESPECT OF FREEDMEN. The bonorum possessio intestati in the case of inheritance of a freedman is given to the seven following classes. (1) Unde liberi, that is, 'sui'-but here only of the testator's own body-and those who have been 'sui,' as in § 163 (ad init.). Gai. iii. § 41: Si vero intestatus moriatur suo herede relicto adoptivo filio vel uxore, quae in manu ipsius esset, vel nuru, quae in manu filii eius fuerit, datur patrono adversus hos suos heredes partis dimidiae bonorum possessio: pro 1 Female agnates who are beyond the degree of consanguinity are undoubtedly called in the third degree. Children also who are in an adoptive family are called in the same degree to the inheritance of their natural parents. 2 Now the bon. poss. embraces six degrees of relationship, and two persons from the seventh, of either sex, born to a cousin of either sex. 3 In order that bon. poss. may be claimed 'unde vir et uxor,' the marriage must be a legal one. BOOK III. a D. 38, II, 1. un., b § I. § 168. c Ibid. BOOK III. a See § 162. sunt autem liberto ad excludendum patronum naturales liberi, non solum quos in potestate mortis tempore habet, sed etiam emancipati et in adoptionem dati.' (2) Unde legitimi." The place of patronus in the case of the emancipated child is here also taken by the parens or extraneus manumissor, but precedence is taken over the latter by ten near blood-relations, which in the Praetorian Edict form the special class 'unde decem personae.' Coll. xvi. 9, 2 (Ulp.): Quodsi is qui decessit, liber fuit ex mancipatione citra remancipationem manumissus, lex quidem XII tabularum manumissori legitimam hereditatem detulit; sed praetor aequitate motus decem personas cognatorum ei praetulit has patrem matrem, filium filiam, avum aviam, nepotem neptem, fratrem sororem, ne quis occasione iuris sanguinis necessitudinem vinceret.2 (3) Unde cognati, that is, the next blood-relations of the freedman, according to proximity of degree. Ulp. Pertinet autem haec (bonorum possessio) ad cognationes non serviles; nec enim facile ulla servilis videtur esse cognatio.-D. 38, 8, 1, § 2.3 1 But if he die intestate, leaving as his suus heres an adoptive son, or a wife under his own manus, or a daughter-in-law who has been under the manus of his son, the bon. poss. is granted to the patron, as against these sui heredes, of one half share. But his actual children avail the freedman for the exclusion of the patron; not only those under his power at the time of his death, but also those who have been emancipated or given in adoption. 2 But if he that died was free by mancipation, being emancipated without remancipation, the Law of the Twelve Tables offered the legal inheritance to the manumittor; but the Praetor, from considerations of equity, gave precedence over him to ten agnatic relations, as follows-the father, mother, son, daughter, grandfather, grandmother, nephew, niece, brother, sister, that no one should by an accident of law defeat blood-relationship. 3 But this (bon. poss.) does not affect relationships of slaves; for the existence of any relationship amongst slaves seems inconceivable. |