(4) Tum quem ex familia patroni, that is, the agnates of the latter.

(5) Patronus patrona, item liberi et parentes patroni patronaeve, if the patron of the libertus in respect of whom the inheritance arises is himself a freedman.

(6) Unde vir et uxor se libertae libertive.

(7) Unde cognati manumissoris with limitation as in § 163.

§ 165. SENATUSCONSULTUM TERTULLIANUM AND

ORPHITIANUM.

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According to ius civile, the mother had hitherto not. been heir at all to her children-in case she had not been in the manus of the husband, so as to be 'consanguineae loco'a towards the children-whilst accord- a Cf. § 48. ing to Praetorian Law she had been so first in the class unde cognati. The SC. Tertullianum (under Hadrian) eventually, in case she had the 'ius liberorum,' gave to her a purely cognatic right of intestate inheritance in the class of the legitimi, which had to precede that of all agnates, with the exception of the father (parens manumissor) and of the 'frater consanguineus' of the testator.

Ulp. xxvi. 8: Intestati filii hereditas ad matrem ex lege XII tabularum non pertinet; sed si ius liberorum habeat, ingenua trium libertina quattuor, legitima heres fit ex SC. Tertulliano, si tamen ei filio neque suus heres sit quive inter suos heredes ad bonorum possessionem a praetore vocatur, neque pater, ad quem lege hereditas bonorumve possessio cum re pertinet, neque frater consanguineus: quodsi soror consanguinea sit, ad utrasque pertinere iubetur hereditas.'

1 The inheritance of an intestate son does not belong to his mother by the Law of the Twelve Tables; but if she has the prerogative of children, three in the case of a free-born woman, four in that of a freedwoman, she becomes statutory heir by the SCtum Tertullianum, provided that her son has neither a suus heres nor any one who is called by the Praetor to the bon. poss.

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Inst. iii. 3, § 4: Dedimus ius legitimum plenum matribus sive ingenuis sive libertinis, etsi non ter enixae fuerint vel quater.-§ 7: Licet autem vulgo quaesitus sit filius filiave, potest ad bona eius mater ex Tertulliano senatusconsulto admitti.'

Conversely, her children could not be heirs to the mother at all by Civil Law, and by Praetorian Law were so first in the class of cognati: the SC. Orphitianum under Marcus Aurelius (178 A.D.) eventually gave to them, in relation to the mother, a (cognatic) right of intestate inheritance before all agnates.

Ulp. xxvi. 7: Ad liberos matris intestatae hereditas sine in manum conventione ex lege XII tabularum non pertinebat, quia feminae suos heredes non habent; sed postea imperatorum Antonini et Commodi oratione in senatu recitata id actum est, ut matrum legitimae hereditates ad filios pertineant, exclusis consanguineis et reliquis adgnatis.2

Sciendum est etiam illos liberos, qui vulgo quaesiti sunt, ad matris hereditatem ex hoc senatusconsulto admitti.—§ 3, I. de SC. Orph. 3, 4.3

amongst the sui heredes, nor a father to whom by law the inheritance or the effectual possession of the goods belongs, nor a brother on the father's side; but if he has a sister on the father's side, the inheritance is to belong to both.

1 We have granted to mothers full statutory right, whether they are freeborn or freed, although they may not have given birth to children three or four times.-But although a son or daughter is born out of wedlock, the mother, by the SCtum Tertullianum, can be admitted to the property of such.

2 The inheritance of an intestate mother, according to the Law of the Twelve Tables, did not belong to her children when there had been no conventio in manum, because women have no sui heredes; but later on, in pursuance of an oration by the Emperors Antonine and Commodus delivered in the senate, it was enacted that the statutory inheritances of mothers should belong to their sons, to the exclusion of the consanguinei and the other next of kin.

3 It is to be noted that even those children who are born out

Imp. Alex. Si intestatae mulieris consanguinei existant et mater et filia, ad solam filiam ex SC. Orphitiano hereditas pertinet.-1. 1, C. eod. 6, 57.'

166. THE LATEST LAW OF INTESTATE INHERITANCE, UNDER JUSTINIAN."

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a Cf. the English Statute of Distributions,

Blackstone,

ii. pp. 211, 87.

The tendency of the later, very fruitful, imperial and remarks in legislation always went in the direction of obtaining vol. ii. pp. 516, increased recognition of the cognatic right of inheritance. sq.; Stephen, But since it nevertheless left the existing principle of succession intact, and did not disturb the old framework of the Civil and Praetorian classes for inheritance, because it was restricted to the mechanical insertion in it of all innovations, as far as was practicable, a condition of Law was developed out of this which was characterised by medley and confusion, as well as by great profusion of controversies and intrinsic contradictions that scarcely admitted of solution. Justinian was the first comprehensively to reshape the Law of intestate inheritance, after he himself by many semilegislative measures had in vain endeavoured to reform it. This he did by Nov. 118 (543 A.D.)-the rules See Inst. iii. of which were supplemented by Nov. 127-and, by basing it solely on COGNATION (including adoption), he restored to such Law long-lost inner unity and perspicuity.

In the latest Law of intestate inheritance, there are four classes of persons entitled to inherit, with successio ordinum, partly also of graduum, running through them.

The first class: DESCENDANTS of the testator, without reference to the proximity of the degree, but with exclusion of the more remote degree by the nearer in

of wedlock are admitted to the inheritance of the mother by this SCtum.

1 If a woman has died intestate, leaving brothers of the whole blood, a mother and a daughter, according to the SCtum Orphitianum the inheritance belongs to the daughter alone.

I, 3-9.

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the same stock, e.g., of the grandchild by its father. In their case the division in stirpes obtains.

A receives

ि

The second class

B

C

ASCENDANTS (according to proxi

mity of degree); brothers and sisters fully related and children of deceased brothers and sisters fully related. Equally near ascendants divide in lineas.

When ascendants are concurrent with brothers and sisters, division in capita comes in.

A-E each receive

When brothers and sisters are concurrent with children of brothers and sisters, division is made in stirpes.

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The third class: Brothers and sisters of the halfblood, and children of deceased brothers and sisters of the half-blood.

The fourth class: The remaining collateral relations of the testator, according to proximity of degree, and without restriction to any remote degree; those equally near inherit according to heads. (The uncle always precedes the grand-nephew and cousin, the nephew the uncle.)

A-D each receive
E is dropped.

B C D

The Praetorian Law of inheritance of spouses" was « § 163, ad fin. retained as subsidiary.

Intestate succession to the heritage of a freedman was settled by a constitution of Justinian (A.D. 531): that descendants from freedmen, sprung from their own body, should first be their heirs; in default of such, the patron and his descendants; and finally, the patron's collateral relations to the fifth degree inclusively. The right of inheritance of the pa- cf. § 163.