without any deduction of a fourth, uterine brothers and sisters, and nephews and nieces being the children either of emancipated or uterine brothers and sisters. After that constitution there were not, therefore, any but agnati in the second degree, nor any in the third degree except the uncles and aunts of the de cujus.

Agnatorum hereditates dividuntur in capita. (ULP. Reg. 26. 4.) There was no division per stirpes, which was originally only a consequence of the patria potestas, in the succession of agnati. If one of those in any degree of relationship was dead, his representatives did not take his share. He was entirely passed over, and the others in that degree of relationship were alone called to the succession.

Agnati were spoken of as legitimi heredes, because the inheritance was given to them by the law of the Twelve Tables, whereas the cognati only received it from the prætor.

5. Si plures sint gradus adgnatorum, aperte lex duodecim tabularum proximum vocat : itaque si verbi gratia sit frater defuncti et alterius fratris filius aut patruus, frater potior habetur. Et quamvis singulari numero usa lex proximum vocet, tamen dubium non est, quin et, si plures sint ejusdem gradus, omnes admittantur: nam et proprie proximus ex pluribus gradibus intellegitur et tamen dubium non est, quin, licet unus sit gradus adgnatorum, pertineat ad eos hereditas.

5. When there are many degrees of agnati, the law of the Twelve Tables expressly calls the nearest; if, for example, there is a brother of the deceased, and a son of another brother, or a paternal uncle, the brother is preferred. And, although the law of the Twelve Tables calls the nearest agnatus (in the singular number), yet without doubt, if there are several in the same degree, they ought all to be admitted. And, although properly by the nearest degree must be understood the nearest of several, yet, if all the agnati are in the same degree, the inheritance undoubtedly belongs to them all.

GAI. iii. 15.

6. Proximus autem, si quidem nullo testamento facto quisque decesserit, per hoc tempus requiritur, quo mortuus est is, cujus de hereditate quæritur. Quodsi facto testamento quisquam decesserit, per hoc tempus requiritur, quo certum esse cœperit, nullum ex testamento heredem extaturum: tum enim proprie quisque intellegitur intestatus decessisse. Quod quidem aliquando longo tempore declaratur: in quo spatio temporis sæpe accidit, ut proximiore mortuo proximus esse incipiat, qui moriente testatore non erat proximus.

6. When a man dies without a testament, the nearest agnatus is the agnatus who is nearest at the time of the death of the deceased. But, if he dies after having made a testament, then he is the nearest who is so when it becomes certain that there will be no testamentary heir; for it is only then, that a man who has made a testament can be said to have died intestate, and this sometimes is uncertain for a long time. Meanwhile, the nearest agnatus may die, and some one become the nearest who was not so at the death of the testator.

GAI. iii. 13.

7. Placebat autem, in eo genere percipiendarum hereditatum successionem non esse, id est quamvis proximus, qui secundum ea, quæ diximus, vocatur ad hereditatem,

7. But it was settled that in this order of succession there should be no devolution, that is to say, that if the nearest agnatus, called in the manner we have mentioned to the inheritance,

aut spreverit hereditatem aut, antequam adeat, decesserit, nihilo magis legitimo jure sequentes admittuntur. Quod iterum prætores imperfecto jure corrigentes, non in totum sine adminiculo relinquebant, sed ex cognatorum ordine eos vocabant, utpote adgnationis jure eis recluso. Sed nos nihil deesse perfectissimo juri cupientes, nostra constitutione sanximus, quam de jure patronatus, humanitate suggerente, protulimus, successionem in adgnatorum hereditatibus non esse eis denegandam, cum satis absurdum erat, quod cognatis a prætore apertum est, hoc adgnatis esse reclusum, maxime cum in onere quidem tutelarum et primo gradu deficiente, sequens succedit et, quod in onere optinebat, non erat in lucro permissum.

either refused it, or died before he entered on it, those following him in agnatic succession were not thereby admitted to succeed him. Here, too, the prætors, though not introducing a complete reform, did not leave the agnati wholly without relief, but ordered that they should be called to the inheritance as cognati, since they were debarred from the rights of agnation. But we, desirous that our law should be as complete as possible, by our constitution, which under the suggestion of equity we published concerning the right of patronage, have decided that a devolution in the succession shall not be denied to agnati. It was indeed absurd to refuse them a right which the prætor gave to cognati, especially as the burden of tutelage devolved on the remoter degree of agnati, if there was a failure of the nearer, and thus the principle of devolution was admitted to impose burdens, and was not admitted to confer advantages.

GAI. ii. 12. 22. 25. 28.

In hereditate legitima successioni locus non est. (PAUL. Sent. 4. 23.) The suus heres or sui heredes in the nearest degree became heirs by force of law. But as to those who were only allowed to rank among the sui heredes without being, strictly speaking, sui heredes, if those in the nearest degree refused to accept the inheritance, or died before entering on it, the succession did not devolve upon any other sui heredes, but went at once to the agnati. (D. xxxviii. 16. 1. 8.) If, in this case or any other, the nearest agnatus refused or died before entering on the inheritance, the succession passed to the cognati without first devolving on any of the more remote agnati. Justinian alters this; and under his system there was a devolution of the succession to the agnati, and therefore probably to those ranked among the sui heredes.

8. Ad legitimam successionem nihilo minus vocatur etiam parens, qui contracta fiducia filium vel filiam, nepotem vel neptem ac deinceps emancipat. Quod ex nostra constitutione omnimodo inducitur, ut emancipationes liberorum semper videantur contracta fiducia fieri, cum apud antiquos non aliter hoc optinebat, nisi specialiter contracta fiducia parens manumisisset.

8. An ascendant also is called to the legal succession who has emancipated a son, a daughter, a grandson, a granddaughter, or other descendant under a fiduciary agreement. And by our constitution, every emancipation of children is now considered to have been made under such an agreement, while among the ancients the ascendant was never called to the succession unless he had expressly made this agreement at the time of the emancipation.

D. xxxviii. 16. 10; C. viii. 48. 6.

Under the old law the ascendant had nothing to do with the succession ab intestato of his descendant; for if the descendant was in the power of the ascendant, the latter took all the property of which the former could dispose, but did not, as belonging to him by right of his patria potestas. If the descendant was emancipated, he was no longer in the family of the ascendant. The emancipated son, in short, had no agnati; and in default of sui heredes the inheritance went to his patron, that is, to the person who had emancipated him. This was the fictitious purchaser (see Introd. sec. 42), unless the ascendant who emancipated him made an agreement (contracta fiducia) with the purchaser by which the purchaser made himself a trustee of the right of patronage for the ascendant. If this was done, the ascendant succeeded in default of sui heredes.

By the later imperial constitutions three changes were made in the position of the ascendant. First, by a constitution of Theodosius and Valentinian (C. vi. 61. 3), and subsequently of Leo and Anthemius (C. vi. 61. 4), and lastly of Justinian (C. vi. 59. 11), in the case of goods coming to a son from his mother, the order of succession was thus fixed: 1st, his children and other descendants were admitted; 2ndly, his brothers and sisters, whether of the whole or the half blood; 3rdly, his nearest ascendant, i.e. his father, was preferred to his grandfather.

Secondly, Justinian, as we have seen in the 12th Title of the Second Book (pr.), arranged the order of succession to the peculium of a son, placing first the children, then the brothers and sisters, and lastly the father. But in this case the father was not preferred to the grandfather; for the ascendant did not really take in this instance ab intestato, but jure communi;' i.e. the claims of the patria potestas had been deferred to let in the children and brothers; but if there were no children or brothers, the ascendant, who is at the time the paterfamilias, took the peculium.

Lastly, the succession of emancipated sons was altered by the constitution of Justinian, which made a fiduciary contract implied in every emancipation. The ancestor thus retained all his rights of succession as patron to the emancipated son, and would properly have succeeded immediately after the sui heredes; but Justinian admitted the brothers and sisters before him, and the ascendant who emancipated the son had thus the third place in the order of succession. (C. vi. 56. 2.)

TIT. III. DE SENATUSCONSULTO TERTULLIANO.

Lex duodecim tabularum ita stricto jure utebatur et præponebat masculorum progeniem et eos, qui per feminini sexus necessitudinem sibi junguntur, adeo expellebat, ut ne quidem inter matrem et filium

Such was the rigour of the law of the Twelve Tables, so decided the preference given by it to the issue of males, and the exclusion of those related by the female line, that the right of reciprocal succession was not per

filiamve ultro citroque hereditatis capiendæ jus daret, nisi quod prætores ex proximitate cognatorum eas personas ad successionem bonorum possessione unde cognati accommodata vocabant.

mitted between a mother and her children. The prætors, however, admitted such persons, but only in their rank as cognati, to the possession of goods called unde cognati.

GAI. iii. 24, 25. 30.

Until the senatusconsultum Tertullianum was made, a mother and her children had no right of succession to each other, except that which the prætor gave them as cognati. The children were not in the power of the mother, and were, therefore, not her sui heredes; they were not in her family, and were, therefore, not her agnati. If, indeed, the mother at her marriage passed in manum viri, she became, in the eye of the law, the daughter of her husband, and as she was thus of the same family with her children, she and they were agnati to each other. But even in the later days of the Republic, a marriage cum conventione in manum had probably become comparatively unusual.

1. Sed hæ juris angustiæ postea emendatæ sunt. Et primus quidem divus Claudius matri ad solatium liberorum amissorum legitimam eorum detulit hereditatem.

2. Postea autem senatusconsulto Tertulliano, quod divi Hadriani temporibus factum est, plenissime de tristi successione matri, non etiam aviæ deferenda cautum est: ut mater ingenua trium liberorum jus habens, libertina quattuor ad bona filiorum filiarumve admittatur intestatorum mortuorum, licet in potestate parentis est, ut scilicet, cum alieno juri subjecta est, jussu ejus adeat, cujus juri subjecta est.

1. But this strictness of the law was afterwards mitigated. The Emperor Claudius was the first who gave the legal inheritance of deceased children to a mother, to console her grief for their loss.

2. Afterwards, the senatusconsultum Tertullianum, in the reign of the Emperor Hadrian, established the general rule that mothers, but not grandmothers, should have the melancholy privilege of succeeding to their children; so that a mother, born of free parents, having three children, or a freedwoman having four, should be admitted, although in the power of an ascendant, to the goods of her intestate children. Except that a mother in the power of another can only enter upon the inheritance of her children at the command of him to whom she is subject.

This senatusconsultum was passed 158 A.D., in the time of Antoninus Pius, who is here called by his name of adoption. It was only an extension of the lex Papia Poppaa, which had conferred on free persons having three children, and freed persons having four, many exceptional advantages. Husbands and wives, for example, could, under these circumstances, leave to each other a larger share of their property than was otherwise permitted. (ULP. Fr. 15, 16.) This jus trium liberorum, as it was termed, was frequently conferred by special favour of the emperors on persons who had not the requisite number of children.

3. Præferuntur autem matri liberi defuncti, qui sui sunt quive

3. The children, however, of the deceased son being sui heredes, or

suorum loco, sive primi gradus sive ulterioris. Sed et filiæ suæ mortuæ filius vel filia opponitur ex constitutionibus matri defunctæ, id est aviæ suæ. Pater quoque utriusque, non etiam avus vel proavus matri anteponitur, scilicet cum inter eos solos de hereditate agitur. Frater autem consanguineus tam filii quam filiæ excludebat matrem: soror autem consanguinea pariter cum matre admittebatur: sed si fuerat frater et soror consanguinei et mater liberis honorata, frater quidem matrem excludebat, communis autem erat hereditas ex æquis partibus fratri et sorori.

ranked as such, either in the first or a more remote degree, are preferred to the mother. And if it is a daughter who is dead, her son, or daughter, is preferred by the constitutions to her mother, i.e. to their grandmother. The father of the deceased is preferred to the mother; not so the grandfather or great-grandfather, at least when they and the mother are the only claimants of the inheritance. The brother by the same father, either of a son or a daughter, formerly excluded the mother; but the sister by the same father was admitted equally with the mother. If the deceased left a brother and a sister by the same father as himself, the brother excluded the mother, although rendered capable by the number of her children, and the inheritance was equally divided between the brother and sister.

D. xxxviii. 17. 2. 15. 18, 19; C. vi. 57. 1..

The mother was allowed to rank among the agnati by the senatusconsultum Tertullianum, but she had a relative rather than a definitive position, as being in a certain degree of agnation. What her exact position was at different periods of the law will be stated at the end of the Fourth Title.

4. Sed nos constitutione, quam in codice nostro nomine decorato posuimus, matri subveniendum esse existimavimus, respicientes ad naturam et puerperium et periculum et sæpe mortem ex hoc casu matribus illatam. Ideoque impium esse credidimus, casum fortuitum in ejus admitti detrimentum: si enim ingenua ter vel libertina quater non pepererit, immerito defraudabatur successione suorum liberorum ; quid enim peccavit, si non plures, sed paucos pepererit? et dedimus jus legitimum plenum matribus sive ingenuis sive libertinis, etsi non ter enixæ fuerint vel quater, sed eum tantum vel eam, qui quæve morte intercepti sunt, ut et sic vocentur in liberorum suorum legitimam successionem.

4. But by a constitution, inserted in the code which bears our name, we have thought fit to come to the aid of the mother, from considering natural reason, as well as the pains of childbirth, the danger, and death itself, which they often suffer. We, therefore, have esteemed it highly unjust that the law should turn to their detriment what is in its nature purely fortuitous; for, if a married woman freeborn does not give birth to three children, or a freedwoman to four, they do not therefore deserve to be deprived of the succession to their children. For how can it be imputed to them as a crime to have had few children? We, therefore, have given a full right to every mother, whether freeborn or freed, to be called to the legal succession of her children, although she may not have given birth to three or four children, or may not have had any other than the child whose inheritance is in question.

C. viii. 59. 2.

5. Sed cum antea constitutiones jura legitima perscrutantes partim matrem adjuvabant, partim eam

5. The constitutions of former emperors, relative to the right of succession, were partly favourable to mothers,