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v. 5.) Justinian here says, that when there were descendants by a female who entered on the inheritance, the agnati were not called to the succession. We know, however, from the Code itself, that the agnati had a fourth part of the inheritance, as a sort of Falcidia. (See next paragr.)
16. Sed nos, cum adhuc dubitatio 16. But, as there still remained manebat inter adgnatos et memora matter of dispute between the agnati tos nepotes, partem quartam defun- and the above-mentioned grandchilcti substantiæ adgnatis sibi vindi- dren, the agnati claiming the fourth cantibus ex cujusdam constitutionis part of the estate of the deceased by auctoritate, memoratam quidem con- virtue of a constitution, we have restitutionem a nostro codice segrega- jected this constitution, and have not vimus neque inseri eam ex Theo- permitted it to be inserted into our dosiano codice in eo concessimus. code from that of Theodosius. And Nostra autem constitutione promul- in the constitution we have ourselves gata toti juri ejus derogatum est et promulgated, we have completely desanximus, talibus nepotibus ex filia parted from the provisions of this vel pronepotibus ex nepte'et deinceps former constitution, and have enacted superstitibus, adgnatos nullam par that agnati shall take no part in the tem mortui successionis sibi vindi- succession of the deceased, when there care, ne hi, qui ex transversa linea are grandchildren born of a daughter, veniunt, potiores his habeantur, qui or great-grandchildren born of a grandrecto jure descendunt : quam con- daughter, or any other descendants stitutionem nostram optinere secun from a female in the direct line ; so that dum sui vigorem et tempora et nunc those in a collateral line may not be sancimus. Ita tamen quemadmodum preferred to direct descendants. This inter filios et nepotes ex filio anti- constitution is to prevail from the date quitas statuit non in capita sed in of its promulgation in its full force, stirpes dividi hereditatem, similiter as we here again enact. And as the nos inter filios et nepotes ex filia old law ordered, that between the distributionem fieri jubemus, vel sons of the deceased and his grandsons. inter omnes nepotes et neptes et alias by a son, every inheritance should be deinceps personas, ut utraque pro- divided in stirpes, and not in capita, genies matris suæ vel patris, aviæ $0 we also ordain, that a similar distrivel avi portionem sine ulla deminu- bution shall be made between sons and tione consequantur, et, si forte unus grandsons by a daughter, and between vel duo ex una parte, ex altera tres grandsons and granddaughters, greataut quattuor extent, unus aut duo grandsons and great-granddaughters, dimidiam, alteri tres aut quattuor and all other descendants in a direct alteram dimidiam hereditatis ha line ; so that the children of either beant.
branch may receive the share of their mother or father, their grandmother or grandfather, without any diminution; and, if of the one branch there should be one or two children, and of the other branch three or four, then the one or two shall have one half, and the three or four the other half of
the inheritance. C. vi. 55. 12.
Those who, not being sui heredes, were admitted to rank as such, were not necessarii. They could accept the inheritance or not, which they only acquired when they entered on it, his adeuntibus. (Paragr. 15.) The changes in the succession of the sui heredes were thesa :-
1. Those at the time of his death in the power of the de cujus (i.e. the person of whose inheritance we are speaking), succeeded as sui heredes under the law of the Twelve Tables.
2. The prætor, by giving them the possessio bonorum, placed in the rank of sui heredes the following classes of persons: (1) emancipated children, and (2), if the emancipated father was dead, grandchildren conceived after his emancipation, or (3), if the de cujus was the emancipated son, his unemancipated children conceived before the emancipation, and (4) sui heredes deprived of the power of inheriting by a capitis deminutio, but afterwards restituti in integrum.
3. A constitution of Theodosius permitted the children and descendants of deceased daughters to succeed to the portion their mother would have received as suus heres, giving up one-third of it to other sui heredes, if there were any, and, if not, one-fourth to the agnati.
4. Under Justinian, adoption by a stranger ceased to have any effect upon the position of the person adopted in his natural family; and the persons referred to in the constitution of Theodosius just mentioned succeeded to the whole share of the deceased daughter without any deduction.
Tit. II. DE LEGITIMA ADGNATORUM SUCCESSIONE.
Si nemo suus heres vel eorum, When there is no suus heres, nor quos inter suos heredes prætor vel any of those persons called by the constitutiones vocant, extat aut suc- prætor or the constitutions to inherit cessionem quoquo modo amplecta- with sui heredes, to take the succestur : tunc ex lege duodecim tabula sion in any way, the inheritance, rum ad adgnatum proximum here- according to the law of the Twelve ditas pertinet.
Tables, belongs to the nearest agnatus. GAI. ü. 9.
All persons were agnati who, descended from a common ancestor, would, if that ancestor had been living, have been in his power. The sui heredes were thus agnati; but as they had the title of sui heredes peculiar to themselves, only those agnati received the name of agnati who were connected with the de cujus by a collateral line.
1. Sunt autem adgnati, ut primo 1. Agnati, as we have explained in quoque libro tradidimus, cognati the First Book, are those cognati who per virilis sexus personas cognatione are related through males, that is, are juncti, quasi a patre cognati. Itaque cognati by the father; and therefore eodem patre nati fratres adgnati brothers, who are the sons of the same sibi sunt, qui et consanguinei vocan- father, are agnati to each other (they tur, nec requiritur, an etiam eandem are also called consanguinei), and it matrem habuerint. Item patruus does not make any difference whether fratris filio et invicem is illi adgnatus they have the same mother. An uncle est. Eodem numero sunt fratres is also agnatus to his brother's son,
patrueles, id est qui ex duobus and conversely, the brother's son to his fratribus procreati sunt, qui etiam paternal uncle. So also fratres patrueconsobrini vocantur. Qua ratione les, that is, the children of brothers etiam ad plures gradus adgnationis (also called consobrini), are likewise pervenire poterimus. Hi quoque, agnati. We may thus reckon many qui post mortem patris nascuntur, degrees of agnation ; children, too, nanciscuntur consanguinitatis jura who are born after the decease of their Non tamen omnibus simul adgnatis father, obtain the rights of consanguidat lex hereditatem, sed his, qui nity. The law does not, however, give tunc proximo gradu sunt, cum cer- the inheritance to all the agnati, but tum esse cæperit, aliquem intestatum to those only who are in the nearest decessisse.
degree, at the time that it becomes certain that the deceased has died
intestate. Gai. i. 156 ; iii. 10, 11.
2. Per adoptionem quoque ad 2. The right of agnation arises also gnationis jus consistit, veluti inter through adoption ; thus the natural filios naturales et eos, quos pater eo- and adopted sons of the same father rum adoptavit (nec dubium est, quin are agnati. And such persons are proprie consanguinei appellentur): without doubt properly included in the item si quis ex ceteris adgnatis tuis, term consanguinei. Also, if one of veluti frater aut patruus aut denique your agnati, as, for example, a brother, is, qui longiore gradu est, aliquem a paternal uncle, or any other agnatus, adoptaverit, adgnatio inter vos however remote, adopts any one, then esse non dubitatur.
there is undoubtedly agnation between
you. 3. Ceterum inter masculos qui- 3. Agnation gives males, however dem adgnationis jure hereditas distant in degree, reciprocal rights to etiam longissimo gradu ultro citrothe succession to inheritances. But it que capitur. Quod ad feminas vero has been thought right that females ita placebat, ut ipsæ consanguinitatis should only inherit by title of consanjure tantum capiant hereditatem, si guinity if they were sisters, and not, sorores sint, ulterius non capiant: if in a more remote degree ; while masculi vero ad earum hereditates, their male agnati, in however remote etiam si longissimo gradu sint, ad- a degree, were admitted to succeed to mittantur. Qua de causa fratris tui them. Thus the inheritance of your aut patrui tui filiæ vel amitæ tuæ brother's daughter, or of the daughter hereditas ad te pertinebat, tua vero of your paternal uncle or aunt, would ad illas non pertinebat. Quod ideo belong to you ; but not your inheritita constitutum erat, quia com- ance to them. This distinction was modius videbatur, ita jura constitui, made, because it seemed expedient ut plerumque hereditates ad mascu- that the law should be so ordered, los confluerent. Sed quia sane that inheritances should for the most iniquum erat, in universum eas part fall into the possession of males. quasi extraneas repelli, prætor eas But as it was contrary to equity that ad bonorum possessionem admittebat females should be thus almost wholly ea parte, qua proximitatis nomine excluded as strangers, the prætor adbonorum possessionem pollicetur: mits them to the possession of goods ex qua parte ita scilicet admittuntur, under the section of his edict giving si neque adgnatus ullus nec proxi- possession of goods on account of mior cognatus interveniat. Et hæc proximity; but they are only admitted quidem lex duodecim tabularum under this section if there is no agnullo modo introduxit, sed simpli- natus, nor any nearer cognatus coming citatem legibus amicam amplexa, before them. The law of the Twelve simili modo omnes adgnatos sive Tables did not introduce any of these masculos sive feminas cujuscumque distinctions ; but, with the simplicity gradus ad similitudinem suorum in- proper to all legislation, called the vicem ad successionem vocabat : agnati of either sex, or any degree, to media autem jurisprudentia, quæ a reciprocal succession, in the same erat lege quidem duodecim tabula- manner as sui heredes. It was an inrum junior, imperiali autem dispo- termediate jurisprudence, posterior to sitione anterior, subtilitate quadam the law of the Twelve Tables, but excogitata, præfatam differentiam prior to the imperial constitutions, inducebat et penitus eas a succes- that in a spirit of subtle ingenuity sione adgnatorum repellebat, omni introduced this distinction, and enalia successione incognita, donec tirely excluded females from the sucprætores, paulatim asperitatem juris cession of agnati, no other method of civilis corrigentes sive, quod deest, succession being then known, until the adimplentes, humano proposito prætors, correcting by degrees the asalium ordinem suis edictis addide- perity of the civil law, or supplying runt et, cognationis linea proximi- what was deficient, were led by their tatis nomine introducta, per bonorum feeling of equity to add in their edicts possessionem eas adjuvabant et pol- a new order of succession. The line licebantur his bonorum posses- of cognati was admitted according to sionem, quæ unde cognati appel- the degrees of proximity, and relief latur. Nos vero legem duodecim was thus afforded to females by the tabularum sequentes et ejus vestigia prætor giving them the possession of in hac parte conservantes, laudamus goods called unde cognati, But we, quidem prætores suæ humanitatis, turning to the law of the Twelve non tamen eos in plenum causæ Tables, and following in its steps, in mederi invenimus : quare etenim, our legislation on this point, praise uno eodemque gradu naturali con- the kind feeling of the prætors, but currente et adgnationis titulis tam cannot think they have provided a in masculis quam in feminis æqua complete remedy for the evil. Why, lance constitutis, masculis quidem indeed, when males and females are dabatur ad successionem venire placed in the same degree of natural omnium adgnatorum, ex adgnatis relationship, and have equally the title autem mulieribus nullis penitus nisi of agnation, should males be permitted soli sorori ad adgnatorum succes- to succeed to all their agnati, while sionem patebat aditus ? Ideo in females, with the single exception of plenum omnia reducentes et ad jus sisters, are entirely excluded ? We duodecim tabularum eandem dispo- therefore, bringing back everything to sitionem exæquantes, nostra con- what it was, and conforming our scheme stitutione sanximus, omnes legitimas to that of the Twelve Tables, have depersonas, id est per virilem sexum clared by our constitution, that all ledescendentes, sive masculini sive gitimæ personæ, that is, descendants feminini generis sunt, simili modo from males, whether themselves male ad jura successionis legitimæ ab in- or female, shall be equally called to testato vocari secundum gradus sui the rights of legal succession ab intesprærogativam nec ideo excludendas, tato, according to the proximity of quia consanguinitatis jura sicuti their degree, and shall not be excluded germanæ non habent.
on the ground that they have not the
The media jurisprudentia here spoken of consisted of the opinions of the jurisprudentes, who extended the principle of the lex Voconia, which limited the succession of females under a testament (see Bk. ii. Tit. 14. pr.), to their succession ab intestato. Fæminæ ad hereditateslegitimas ultra consanguineas successiones non admittuntur. Idque jure civili Voconia ratione videtur effectum. (Paul. Sent. 4. 8. 22.) Thus a distinction was made among the agnati themselves and the consanguinei, that is, agnati in the second degree; or, in other words, brothers and sisters, natural or adoptive, of the de cujus, were made into a class apart and distinguished from the agnati properly so called. Consanguineus, when used to mark off a particular class of the agnati, merely means children of the same father, without any reference to the mother.
4. Hoc etiam addendum nostræ 4. We have also thought fit to add constitutioniexistimavimus,ut trans- to our constitution, that one whole feratur unus tantummodo gradus a degree, but only one, shall be transjure cognationis in legitimam succes- ferred from the line of cognati to the sionem, ut non solum fratris filius et legal succession. Not only the son and filia secundum quod jam definivimus, daughter of a brother, as we have just ad successionem patrui sui vocentur, explained, shall be called to the sucsed etiam germanæ consanguineæ cession of their paternal uncle, but tovel sororis uterinæ filius et filia soli gether with them the son or daughter et non deinceps personæ una cum of a sister, though she is only by the his ad jura avunculi sui perveniant same father or only by the same moet mortuo eo, qui patruus quidem ther (but no one in a more distant deest fratris sui filiis, avunculus autem gree than a son and daughter of such sororis suæ suboli, simili modo ab a sister) shall also be admitted to the utroque latere succedant, tamquam succession of their maternal uncle. si omnes ex masculis descendentes Thus, when a person dies who is a legitimo jure veniant, scilicet ubi paternal uncle to the children of his frater et soror superstites non sunt brother, and maternal uncle to the (his etenim personis præcedentibus children of his sister, then the children et successionem admittentibus ceteri of either branch succeed exactly as if gradus remanent penitus semoti): they were all descendants from males, videlicet hereditate non in stirpes, and had a right by law to the successed in capita dividenda.
sion. But this is only if the deceased leaves no brother or sister, for if he leaves any, and they accept the inheritance, the more remote degrees are entirely excluded from the inheritance, as it is to be divided in capita and not
in stirpes. C. vi. 58. 14. 1.
The children of a sister, although only consanguinea, that is, having the same father, or uterina, having the same mother, were thus admitted to the succession as agnati. We might gather from this that uterine brothers and sisters themselves were admitted, although it is not expressed in the text. The Code contains a constitution of Justinian (C. vi. 56. 7) expressly admitting them. The changes in the law with respect to the admission of brothers and sisters and their children as agnati were as follows: In A.D. 498 Anastasius gave the rights of agnation to emancipated brothers and sisters, except that they only received three-fourths of what they would have had if they had remained in the family. (See Tit. 5. 1.) The children of emancipated brothers and sisters still remained cognati only. Justinian gave the rights of agnation, in A.D. 528, to uterine brothers and sisters (C. vi. 56. 7); and in A.D. 532, to the children of uterine sisters (C. vi. 58. 14. 1); and though the children of uterine brothers are not mentioned in the constitution, they must undoubtedly have been placed in the same position. Finally, in a constitution dated October, A.D. 534 (C. vi. 58. 15), and therefore subsequent to the promulgation of the Institutes, Justinian admitted as agnati emancipated brothers and sisters