TITLE I. OF THE DEVOLUTION OF INHERITANCES ON INTESTACY
A man is said to die intestate who either has made no will at all, or
has made one which is invalid, or if one which has been duly executed
has been subsequently revoked, or rescinded, or finally, if no one
accepts as heir under the testament.
1 The inheritances of intestate persons go first, by the statute of the
Twelve Tables, to family heirs;
2 and family heirs, as we said above, are those who were in the power
of the deceased at the time of his death, such as a son or daughter, a
grandchild by a son, or a greatgrandchild by such grandchild if a male,
and this whether the relationship be natural or adoptive. Among them
must also be reckoned children who, though not born in lawful wedlock,
have been inscribed members of the curia according to the tenor of the
imperial constitutions relating to them, and thus acquire the rights of
family heirs, or who come within the terms of our constitutions by which
we have enacted that, if any one shall cohabit with a woman whom he
might have lawfully married, but for whom he did not at first feel
marital affection, and shall after begetting children by her begin to
feel such affection and formally marry her, and then have by her sons or
daughters, not only shall those be lawful children and in their father's
power who were born after the settlement of the dowry, but also
those born before, to whom in reality the later born ones owed their
legitimacy; and we have provided that this rule shall hold even though
no children are born after the execution of the dowry deed, or if,
having been born, they are dead. It is to be observed, however, that a
grandchild or greatgrandchild is not a family heir, unless the person in
the preceding degree has ceased to be in the power of the parent, either
through having died, or by some other means, such as emancipation; for
if at the time of a man's decease a son is in his power, a grandson by
that son cannot be a family heir, and the case is exactly the same with
more remote descendants. Children too who are born after the ancestor's
death, and who would have been in his power had they been born during
his lifetime, are family heirs.
3 Family heirs succeed even though ignorant of their title, and they
can take upon an intestacy even though insane, because whenever the law
vests property in a person, even when he is ignorant of his title, it
equally vests it in him if insane. Thus, immediately on the parent's
death, the ownership is as it were continued without any break, so that
pupils who are family heirs do not require their guardian's sanction in
order to succeed, for inheritances go to such heirs even though ignorant
of their title; and similarly an insane family heir does not require his
curator's consent in order to succeed, but takes by operation of law.
4 Sometimes, however, a family heir succeeds in this way to his parent,
even though not in the latter's power at the time of his decease, as
where a person returns from captivity after his father's death, this
being the effect of the law of postliminium.
5 And sometimes conversely a man is not a family heir although in the
power of the deceased at the time of his death, as where the latter
after his death is adjudged to have been guilty of treason, and his
memory is thereby branded with infamy: such a person is unable to have a
family heir, for his property is confiscated to the treasury, though one
who would otherwise have succeeded him may be said to have in law been a
family heir, and ceased to be such.
6 Where there is a son or daughter, and a grandchild by another son,
these are called together to the inheritance, nor does the nearer in
degree exclude the more remote, for it seems just that grandchildren
should represent their father and take his place in the succession.
Similarly a grandchild by a son, and a greatgrandchild by a grandson
are called to the inheritance together. And as it was thought just that
grandchildren and greatgrandchildren should represent their father, it
seemed consistent that the inheritance should be divided by the number
of stems, and not by the number of individuals, so that a son should
take onehalf, and grandchildren by another son the other: or, if two
sons left children, that a single grandchild, or two grandchildren by
one son, should take onehalf, and three or four grandchildren by the
other son the other.
7 In ascertaining whether, in any particular case, so and so is a family
heir, one ought to regard only that moment of time at which it first was
certain that the deceased died intestate, including hereunder the
case of no one's accepting under the will. For instance, if a son be
disinherited and a stranger instituted heir, and the son die after the
decease of his father, but before it is certain that the heir instituted
in the will either will not or cannot take the inheritance, a grandson
will take as family heir to his grandfather, because he is the only
descendant in existence when first it is certain that the ancestor died
intestate; and of this there can be no doubt.
8 A grandson born after, though conceived before, his grandfather's
death, whose father dies in the interval between the grandfather's
decease and desertion of the latter's will through failure of the
instituted heir to take, is family heir to his grandfather; though it is
obvious that if (other circumstances remaining the same) he is conceived
as well as born after the grandfather's decease, he is no family heir,
because he was never connected with his grandfather by any tie of
relationship; exactly as a person adopted by an emancipated son is
not among the children of, and therefore cannot be family heir to, the
latter's father. And such persons, not being children in relation to
the inheritance, cannot apply either for possession of the goods of the
deceased as next of kin. So much for family heirs.
9 As to emancipated children, they have, by the civil law, no rights to
succeed to an intestate; for having ceased to be in the power of their
parent, they are not family heirs, nor are they called by any other
title in the statute of the Twelve Tables. The praetor, however,
following natural equity, gives them possession of the goods of the
deceased merely as children, exactly as if they had been in his power
at the time of his death, and this whether they stand alone or whether
there are family heirs as well. Consequently, if a man die leaving two
children, one emancipated, and the other in his power at the time of
his decease, the latter is sole heir by the civil law, as being the
only family heir; but through the former's being admitted to part of the
inheritance by the indulgence of the praetor, the family heir becomes
heir to part of the inheritance only.
10 Emancipated children, however, who have given themselves in adoption
are not thus admitted, under the title of children, to share the
property of their natural father, if at the time of his decease they are
in their adoptive family; though it is otherwise if they are emancipated
during his lifetime by their adoptive father, for then they are admitted
as if they had been emancipated by him and had never been in an adoptive
family, while, conversely, as regards their adoptive father, they are
henceforth regarded as strangers. If, however, they are emancipated
by the adoptive after the death of the natural father, as regards the
former they are strangers all the same, and yet do not acquire the rank
of children as regards succession to the property of the latter; the
reason of this rule being the injustice of putting it within the power
of an adoptive father to determine to whom the property of the natural
father shall belong, whether to his children or to his agnates.
11 Adoptive are thus not so well off as natural children in respect of
rights of succession: for by the indulgence of the praetor the latter
retain their rank as children even after emancipation, although they
lose it by the civil law; while the former, if emancipated, are not
assisted even by the praetor. And there is nothing wrong in their
being thus differently treated, because civil changes can affect rights
annexed to a civil title, but not rights annexed to a natural title,
and natural descendants, though on emancipation they cease to be family
heirs, cannot cease to be children or grandchildren; whereas on
the other hand adoptive children are regarded as strangers after
emancipation, because they lose the title and name of son or daughter,
which they have acquired by a civil change, namely adoption, by another
civil change, namely emancipation.
12 And the rule is the same in the possession of goods against the will
which the praetor promises to children who are passed over in their
parent's testament, that is to say, are neither instituted nor duly
disinherited; for the praetor calls to this possession children who were
in their parent's power at the time of his decease, or emancipated, but
excludes those who at that time were in an adoptive family: still less
does he here admit adoptive children emancipated by their adoptive
father, for by emancipation they cease entirely to be children of his.
13 We should observe, however, that though children who are in an
adoptive family, or who are emancipated by their adoptive after the
decease of their natural father, are not admitted on the death of the
latter intestate by that part of the edict by which children are called
to the possession of goods, they are called by another part, namely that
which admits the cognates of the deceased, who, however, come in only
if there are no family heirs, emancipated children, or agnates to take
before them: for the praetor prefers children, whether family heirs
or emancipated, to all other claimants, ranking in the second degree
statutory successors, and in the third cognates, or next of kin.
14 All these rules, however, which to our predecessors were sufficient,
have received some emendation by the constitution which we have enacted
relative to persons who have been given in adoption to others by
their natural fathers; for we found cases in which sons by entering
an adoptive family forfeited their right of succeeding their natural
parents, and then, the tie of adoption being easily broken by
emancipation, lost all title to succeed their adoptive parents as well.
We have corrected this, in our usual manner, by a constitution which
enacts that, when a natural father gives his son in adoption to another
person, the son's rights shall remain the same in every particular as
if he had continued in the power of his natural father, and the adoption
had never taken place, except only that he shall be able to succeed his
adoptive father should he die intestate. If, however, the latter makes
a will, the son cannot obtain any part of the inheritance either by the
civil or by the praetorian law, that is to say, either by impeaching the
will as unduteous or by applying for possession against the will; for,
being related by no tie of blood, the adoptive father is not bound
either to institute him heir or to disinherit him, even though he has
been adopted, in accordance with the SC. Afinianum, from among three
brothers; for, even under these circumstances, he is not entitled to a
fourth of what he might have taken on intestacy, nor has he any action
for its recovery. We have, however, by our constitution excepted persons
adopted by natural ascendants, for between them and their adopters there
is the natural tie of blood as well as the civil tie of adoption, and
therefore in this case we have preserved the older law, as also in that
of an independent person giving himself in adrogation: all of which
enactment can be gathered in its special details from the tenor of the
aforesaid constitution.
15 By the ancient law too, which favoured the descent through males,
those grandchildren only were called as family heirs, and preferred to
agnates, who were related to the grandfather in this way: grandchildren
by daughters, and greatgrandchildren by granddaughters, whom it regarded
only as cognates, being called after the agnates in succession to
their maternal grandfather or greatgrandfather, or their grandmother or
greatgrandmother, whether paternal or maternal. But the Emperors would
not allow so unnatural a wrong to endure without sufficient correction,
and accordingly, as people are, and are called, grandchildren and
greatgrandchildren of a person whether they trace their descent through
males or through females, they placed them altogether in the same rank
and order of succession. In order, however, to bestow some privilege on
those who had in their favour the provisions of the ancient law as
well as natural right, they determined that grandchildren,
greatgrandchildren, and others who traced their descent through a female
should have their portion of the inheritance diminished by receiving
less by onethird than their mother or grandmother would have taken,
or than their father or grandfather, paternal or maternal, when the
deceased, whose inheritance was in question, was a woman; and they
excluded the agnates, if such descendants claimed the inheritance, even
though they stood alone. Thus, exactly as the statute of the Twelve
Tables calls the grandchildren and greatgrandchildren to represent their
deceased father in the succession to their grandfather, so the imperial
legislation substitutes them for their deceased mother or grandmother,
subject to the aforesaid deduction of a third part of the share which
she personally would have taken.
16 As, however, there was still some question as to the relative rights
of such grandchildren and of the agnates, who on the authority of a
certain constitution claimed a fourth part of the deceased's estate, we
have repealed the said enactment, and not permitted its insertion in
our Code from that of Theodosius. By the constitution which we have
published, and by which we have altogether deprived it of validity,
we have provided that in case of the survival of grandchildren by
a daughter, greatgrandchildren by a granddaughter, or more remote
descendants related through a female, the agnates shall have no claim to
any part of the estate of the deceased, that collaterals may no longer
be preferred to lineal descendants; which constitution we hereby reenact
with all its force from the date originally determined: provided always,
as we direct, that the inheritance shall be divided between sons and
grandchildren by a daughter, or between all the grandchildren, and other
more remote descendants, according to stocks, and not by counting heads,
on the principle observed by the ancient law in dividing an inheritance
between sons and grandchildren by a son, the issue obtaining without
any diminution the portion which would have belonged to their mother or
father, grandmother or grandfather: so that if, for instance, there be
one or two children by one stock, and three or four by another, the
one or two, and the three or four, shall together take respectively one
moiety of the inheritance.
TITLE II. OF THE STATUTORY SUCCESSION OF AGNATES
If there is no family heir, nor any of those persons called to the
succession along with family heirs by the praetor or the imperial
legislation, to take the inheritance in any way, it devolves, by the
statute of the Twelve Tables, on the nearest agnate.
1 Agnates, as we have observed in the first book, are those cognates
who trace their relationship through males, or, in other words, who are
cognate through their respective fathers. Thus, brothers by the same
father are agnates, whether by the same mother or not, and are called
'consanguinei'; an uncle is agnate to his brother's son, and vice
versa; and the children of brothers by the same father, who are called
'consobrini, are one another's agnates, so that it is easy to arrive at
various degrees of agnation. Children who are born after their father's
decease acquire the rights of kinship exactly as if they had been born
before that event. But the law does not give the inheritance to all the
agnates, but only to those who were nearest in degree at the moment when
it was first certain that the deceased died intestate.
2 The relation of agnation can also be established by adoption, for
instance, between a man's own sons and those whom he has adopted, all
of whom are properly called consanguinei in relation to one another.
So, too, if your brother, or your paternal uncle, or even a more remote
agnate, adopts any one, that person undoubtedly becomes one of your
agnates.
3 Male agnates have reciprocal rights of succession, however remote the
degree of relationship: but the rule as regards females, on the other
hand, was that they could not succeed as agnates to any one more
remotely related to them than a brother, while they themselves could
be succeeded by their male agnates, however distant the connexion: thus
you, if a male, could take the inheritance of a daughter either of your
brother or of your paternal uncle, or of your paternal aunt, but she
could not take yours; the reason of this distinction being the seeming
expediency of successions devolving as much as possible on males. But as
it was most unjust that such females should be as completely excluded
as if they were strangers, the praetor admits them to the possession of
goods promised in that part of the edict in which mere natural kinship
is recognised as a title to succession, under which they take provided
there is no agnate, or other cognate of a nearer degree of relationship.
Now these distinctions were in no way due to the statute of the Twelve
Tables, which, with the simplicity proper to all legislation, conferred
reciprocal rights of succession on all agnates alike, whether males
or females, and excluded no degree by reason merely of its remoteness,
after the analogy of family heirs; but it was introduced by the jurists
who came between the Twelve Tables and the imperial legislation, and who
with their legal subtleties and refinements excluded females other
than sisters altogether from agnatic succession. And no other scheme of
succession was in those times heard of, until the praetors, by gradually
mitigating to the best of their ability the harshness of the civil law,
or by filling up voids in the old system, provided through their edicts
a new one. Mere cognation was thus in its various degrees recognised
as a title to succession, and the praetors gave relief to such females
through the possession of goods, which they promised to them in that
part of the edict by which cognates are called to the succession. We,
however, have followed the Twelve Tables in this department of law,
and adhered to their principles: and, while we commend the praetors for
their sense of equity, we cannot hold that their remedy was adequate;
for when the degree of natural relationship was the same, and when the
civil title of agnation was conferred by the older law on males and
females alike, why should males be allowed to succeed all their agnates,
and women (except sisters) be debarred from succeeding any? Accordingly,
we have restored the old rules in their integrity, and made the law on
this subject an exact copy of the Twelve Tables, by enacting, in our
constitution, that all 'statutory' successors, that is, persons tracing
their descent from the deceased through males, shall be called alike
to the succession as agnates on an intestacy, whether they be males or
females, according to their proximity of degree; and that no females
shall be excluded on the pretence that none but sisters have the right
of succeeding by the title of kinship.
4 By an addition to the same enactment we have deemed it right to
transfer one, though only one, degree of cognates into the ranks of
those who succeed by a statutory title, in order that not only the
children of a brother may be called, as we have just explained, to the
succession of their paternal uncle, but that the children of a sister
too, even though only of the half blood on either side (but not her more
remote descendants), may share with the former the inheritance of their
uncle; so that, on the decease of a man who is paternal uncle to his
brother's children, and maternal uncle to those of his sister, the
nephews and nieces on either side will now succeed him alike, provided,
of course, that the brother and sister do not survive, exactly as if
they all traced their relationship through males, and thus all had a
statutory title. But if the deceased leaves brothers and sisters who
accept the inheritance, the remoter degrees are altogether excluded,
the division in this case being made individually, that is to say, by
counting heads, not stocks.
5 If there are several degrees of agnates, the statute of the Twelve
Tables clearly calls only the nearest, so that if, for instance, the
deceased leaves a brother, and a nephew by another brother deceased, or
a paternal uncle, the brother is preferred. And although that statute,
in speaking of the nearest agnate, uses the singular number, there is
no doubt that if there are several of the same degree they are all
admitted: for though properly one can speak of 'the nearest degree'
only when there are several, yet it is certain that even though all the
agnates are in the same degree the inheritance belongs to them.
6 If a man dies without having made a will at all, the agnate who takes
is the one who was nearest at the time of the death of the deceased. But
when a man dies, having made a will, the agnate who takes (if one is
to take at all) is the one who is nearest when first it becomes certain
that no one will accept the inheritance under the testament; for until
that moment the deceased cannot properly be said to have died intestate
at all, and this period of uncertainty is sometimes a long one, so that
it not unfrequently happens that through the death, during it, of a
nearer agnate, another becomes nearest who was not so at the death of
the testator.
7 In agnatic succession the established rule was that the right of
accepting the inheritance could not pass from a nearer to a more remote
degree; in other words, that if the nearest agnate, who, as we have
described, is called to the inheritance, either refuses it or dies
before acceptance, the agnates of the next grade have no claim to
admittance under the Twelve Tables. This hard rule again the praetors
did not leave entirely without correction, though their remedy, which
consisted in the admission of such persons, since they were excluded
from the rights of agnation, in the rank of cognates, was inadequate.
But we, in our desire to have the law as complete as possible, have
enacted in the constitution which in our clemency we have issued
respecting the rights of patrons, that in agnatic succession the
transference of the rights to accept from a nearer to a remoter degree
shall not be refused: for it was most absurd that agnates should
be denied a privilege which the praetor had conferred on cognates,
especially as the burden of guardianship fell on the second degree of
agnates if there was a failure of the first, the principle which we have
now sanctioned being admitted so far as it imposed burdens, but rejected
so far as it conferred a boon.
8 To statutory succession the ascendant too is none the less called who
emancipates a child, grandchild, or remoter descendant under a
fiduciary agreement, which by our constitution is now implied in every
emancipation. Among the ancients the rule was different, for the parent
acquired no rights of succession unless he had entered into a special
agreement of trust to that effect prior to the emancipation.
TITLE III. OF THE SENATUSCONSULTUM TERTULLIANUM
So strict were the rules of the statute of the Twelve Tables in
preferring the issue of males, and excluding those who traced their
relationship through females, that they did not confer reciprocal rights
of inheritance even on a mother and her children, though the praetors
called them to succeed one another as next of kin by promising them the
possession of goods in the class of cognates.
1 But this narrowness of the law was afterwards amended, the Emperor
Claudius being the first to confer on a mother, as a consolation for the
loss of her children, a statutory right to their inheritance,
2 and afterwards, very full provisions were made by the SC.
Tertullianum, enacted in the time of the Emperor Hadrian, and relating
to the melancholy succession of children by their mothers, though not
by their grandmothers, whereby it was provided that a freeborn woman who
had three or a freedwoman who had four children should be entitled to
succeed to the goods of her children who died intestate, even though
herself under paternal power; though, in this latter case, she cannot
accept the inheritance except by the direction of the person in whose
power she is.
3 Children of the deceased who are or who rank as family heirs, whether
in the first or any other degree, are preferred to the mother, and even
where the deceased is a woman her children by imperial constitutions
have a prior claim to the mother, that is, to their own grandmother.
Again, the father of the deceased is preferred to the mother, but not
so the paternal grandfather or greatgrandfather, at least when it is
between them only that the question arises who is entitled. A brother by
the same father excluded the mother from the succession to both sons
and daughters, but a sister by the same father came in equally with the
mother; and where there were both a brother and a sister by the same
father, as well as a mother who was entitled by number of children,
the brother excluded the mother, and divided the inheritance in equal
moieties with the sister.
4 By a constitution, however, which we have placed in the Code made
illustrious by our name, we have deemed it right to afford relief to the
mother, in consideration of natural justice, of the pains of childbirth,
and of the danger and even death which mothers often incur in this
manner; for which reason we have judged it a sin that they should be
prejudiced by a circumstance which is entirely fortuitous. For if a
freeborn woman had not borne three, or a freedwoman four children, she
was undeservedly defrauded of the succession to her own offspring;
and yet what fault had she committed in bearing few rather than many
children? Accordingly, we have conferred on mothers a full statutory
right of succession to their children, and even if they have had no
other child than the one in question deceased.
5 The earlier constitutions, in their review of statutory rights of
succession, were in some points favourable, in others unfavourable,
to mothers; thus in some cases they did not call them to the whole
inheritance of their children, but deducted a third in favour of certain
other persons with a statutory title, while in others they did exactly
the opposite. We, however, have determined to follow a straightforward
and simple path, and, preferring the mother to all other persons with a
statutory title, to give her the entire succession of her sons, without
deduction in favour of any other persons except a brother or sister,
whether by the same father as the deceased, or possessing rights of
cognation only; so that, as we have preferred the mother to all with
a statutory title, so we call to the inheritance, along with her, all
brothers and sisters of the deceased, whether statutorily entitled or
not: provided that, if the only surviving relatives of the deceased
are sisters, agnatic or cognatic, and a mother, the latter shall have
onehalf, and all the sisters together the other half of the inheritance;
if a mother and a brother or brothers, with or without sisters agnatic
or cognatic, the inheritance shall be divided among mother, brothers,
and sisters in equal portions.
6 But, while we are legislating for mothers, we ought also to bestow
some thought on their offspring; and accordingly mothers should
observe that if they do not apply within a year for guardians for their
children, either originally or in lieu of those who have been removed or
excused, they will forfeit their title to succeed such children if they
die under the age of puberty.
7 A mother can succeed her child under the SC. Tertullianum even though
the child be illegitimate.
TITLE IV. OF THE SENATUSCONSULTUM ORFITIANUM
Conversely, children were admitted to succeed their mother on her death
intestate by the SC. Orfitianum, passed in the time of the Emperor
Marcus, when Orfitus and Rufus were consuls: by which a statutory right
of succession was conferred on both sons and daughters, even though in
the power of another, in preference to their deceased mother's brothers
and sisters and other agnates.
1 As, however, grandsons were not called by this senatusconsult with a
statutory title to the succession of their grandmothers,
2 this was subsequently amended by imperial constitutions, providing
that grandchildren should be called to inherit exactly like children. It
is to be observed that rights of succession such as those conferred
by the SC. Tertullianum and Orfitianum are not extinguished by loss of
status, owing to the rule that rights of succession conferred by later
statutes are not destroyed in this way, but only such as are conferred
by the statute of the Twelve Tables;
3 and finally that under the latter of these two enactments even
illegitimate children are admitted to their mother's inheritance.
4 If there are several heirs with a statutory title, some of whom do
not accept, or are prevented from doing so by death or some other cause,
their shares accrue in equal proportions to those who do accept the
inheritance, or to their heirs, supposing they die before the failure of
the others to take.
TITLE V. OF THE SUCCESSION OF COGNATES
After family heirs, and persons who by the praetor and the imperial
legislation are ranked as such, and after persons statutorily entitled,
among whom are the agnates and those whom the aforesaid senatusconsults
and our constitution have raised to the rank of agnates, the praetor
calls the nearest cognates.
1 In this class or order natural or blood relationship alone is
considered: for agnates who have undergone loss of status and their
children, though not regarded as having a statutory title under the
statute of the Twelve Tables, are called by the praetor in the
third order of the succession. The sole exceptions to this rule are
emancipated brothers and sisters, though not in equal shares with them,
but with some deduction, the amount of which can easily be ascertained
from the terms of the constitution itself. But to other agnates of
remoter degrees, even though they have not undergone loss of status, and
still more to cognates, they are preferred by the aforesaid statute.
2 Again, collateral relations connected with the deceased only by the
female line are called to the succession by the praetor in the third
order as cognates;
3 and children who are in an adoptive family are admitted in this order
to the inheritance of their natural parent.
4 It is clear that illegitimate children can have no agnates, for in
law they have no father, and it is through the father that agnatic
relationship is traced, while cognatic relationship is traced through
the mother as well. On the same principle they cannot be held to be
consanguinei of one another, for consanguinei are in a way agnatically
related: consequently, they are connected with one another only as
cognates, and in the same way too with the cognates of their mother.
Accordingly, they can succeed to the possession of goods under that part
of the Edict in which cognates are called by the title of mere kinship.
5 In this place too we should observe that a person who claims as an
agnate can be admitted to the inheritance, even though ten degrees
removed from the deceased, both by the statute of the Twelve Tables, and
by the Edict in which the praetor promises the possession of goods to
heirs statutorily entitled: but on the ground of mere natural kinship
the praetor promises possession of goods to those cognates only who are
within the sixth degree; the only persons in the seventh degree whom
he admits as cognates being the children of a second cousin of the
deceased.
TITLE VI. OF THE DEGREES OF COGNATION
It is here necessary to explain the way in which the degrees of natural
relationship are reckoned. In the first place it is to be observed that
they can be counted either upwards, or downwards, or crosswise, that is
to say, collaterally. Relations in the ascending line are parents, in
the descending line, children, and similarly uncles and aunts paternal
and maternal. In the ascending and descending lines a man's nearest
cognate may be related to him in the first degree; in the collateral
line he cannot be nearer to him than the second.
1 Relations in the first degree, reckoning upwards, are the father and
mother; reckoning downwards, the son and daughter.
2 Those in the second degree, upwards, are grandfather and grandmother;
downwards, grandson and granddaughter;
3 and in the collateral line brother and sister. In the third degree,
upwards, are the greatgrandfather and greatgrandmother; downwards, the
greatgrandson and greatgranddaughter; in the collateral line, the sons
and daughters of a brother or sister, and also uncles and aunts paternal
and maternal. The father's brother is called 'patruus,' in Greek
'patros', the mother's brother avunculus, in Greek specifically
'matros,' though the term theios is used indifferently to indicate
either. The father's sister is called 'amita,' the mother's 'matertera';
both go in Greek by the name 'theia,' or, with some, 'tithis.'
4 In the fourth degree, upwards, are the greatgreatgrandfather and
the greatgreatgrandmother; downwards, the greatgreatgrandson and the
great-great-granddaughter; in the collateral line, the paternal greatuncle
and greataunt, that is to say, the grandfather's brother and sister: the
same relations on the grandmother's side, that is to say, her brother
and sister: and first cousins male and female, that is, children of
brothers and sisters in relation to one another. The children of two
sisters, in relation to one another, are properly called 'consobrini,'
a corruption of 'consororini'; those of two brothers, in relation to one
another, 'fratres patrueles,' if males, 'sorores patrueles,' if females;
and those of a brother and a sister, in relation to one another,
'amitini'; thus the sons of your father's sister call you 'consobrinus,'
and you call them 'amitini.'
5 In the fifth degree, upwards, are the grandfather's great-grandfather
and great-grandmother, downwards, the great-grandchildren of one's own
grandchildren, and in the collateral line the grandchildren of a brother
or sister, a great-grandfather's or great-grandmother's brother or sister,
the children of one's first cousins, that is, of a 'frater-' or 'soror
patruelis,' of a 'consobrinus' or 'consobrina,' of an 'amitinus' or
'amitina,' and first cousins once removed, that is to say, the children
of a great-uncle or great-aunt paternal or maternal.
6 In the sixth degree, upwards, are the great-grandfather's
great-grandfather and great-grandmother; downwards, the great-grandchildren
of a great-grandchild, and in the collateral line the great-grandchildren
of a brother or sister, as also the brother and sister of a
great-great-grandfather or great-great-grandmother, and second cousins,
that is to say, the children of 'fratres-' or 'sorores patrueles,' of
'consobrini,' or of 'amitini.'
7 This will be enough to show how the degrees of relationship are
reckoned; for from what has been said it is easy to understand how we
ought to calculate the remoter degrees also, each generation always
adding one degree: so that it is far easier to say in what degree any
one is related to some one else than to indicate his relationship by the
proper specific term.
8 The degrees of agnation are also reckoned in the same manner;
9 but as truth is fixed in the mind of man much better by the eye than
by the ear, we have deemed it necessary, after giving an account of the
degree of relationship, to have a table of them inserted in the present
book, that so the youth may be able by both ears and eyes to gain a most
perfect knowledge of them. [Note:--the pedagogical table is omitted in
the present edition.]
10 It is certain that the part of the Edict in which the possession
of goods is promised to the next of kin has nothing to do with the
relationships of slaves with one another, nor is there any old
statute by which such relationships were recognised. However, in
the constitution which we have issued with regard to the rights of
patrons--a subject which up to our times had been most obscure, and
full of difficulties and confusion--we have been prompted by humanity
to grant that if a slave shall beget children by either a free woman
or another slave, or conversely if a slave woman shall bear children of
either sex by either a freeman or a slave, and both the parents and the
children (if born of a slave woman) shall become free, or if the mother
being free, the father be a slave, and subsequently acquire his freedom,
the children shall in all these cases succeed their father and mother,
and the patron's rights lie dormant. And such children we have called
to the succession not only of their parents, but also of one another
reciprocally, by this enactment, whether those born in slavery and
subsequently manumitted are the only children, or whether there be
others conceived after their parents had obtained their freedom, and
whether they all have the same father and mother, or the same father and
different mothers, or vice versa; the rules applying to children born in
lawful wedlock being applied here also.
11 To sum up all that we have said, it appears that persons related
in the same degree of cognation to the deceased are not always called
together, and that even a remoter is sometimes preferred to a nearer
cognate. For as family heirs and those whom we have enumerated as
equivalent to family heirs have a priority over all other claimants, it
is clear that a great-grandson or great-great-grandson is preferred to a
brother, or the father or mother of the deceased; and yet the father and
mother, as we have remarked above, are in the first degree of
cognation, and the brother is in the second, while the great-grandson and
great-great-grandson are only in the third and fourth respectively. And it
is immaterial whether the descendant who ranks among family heirs was in
the power of the deceased at the time of his death, or out of it through
having been emancipated or through being the child of an emancipated
child or a child of the female sex.
12 When there are no family heirs, and none of those persons who we have
said rank as such, an agnate who has lost none of his agnatic rights,
even though very many degrees removed from the deceased, is usually
preferred to a nearer cognate; for instance, the grandson or
great-grandson of a paternal uncle has a better title than a maternal
uncle or aunt. Accordingly, in saying that the nearest cognate is
preferred in the succession, or that, if there are several cognates in
the nearest degree, they are called equally, we mean that this is the
case if no one is entitled to priority, according to what we have said,
as either being or ranking as a family heir, or as being an agnate; the
only exceptions to this being emancipated brothers and sisters of the
deceased who are called to succeed him, and who, in spite of their loss
of status, are preferred to other agnates in a remoter degree than
themselves.
TITLE VII. OF THE SUCCESSION TO FREEDMEN
Let us now turn to the property of freedmen. These were originally
allowed to pass over their patrons in their wills with impunity: for by
the statute of the Twelve Tables the inheritance of a freedman devolved
on his patron only when he died intestate without leaving a family
heir. If he died intestate, but left a family heir, the patron was not
entitled to any portion of this property, and this, if the family
heir was a natural child, seemed to be no grievance; but if he was an
adoptive child, it was clearly unfair that the patron should be debarred
from all right to the succession.
1 Accordingly this injustice of the law was at a later period corrected
by the praetor's Edict, by which, if a freedman made a will, he was
commanded to leave his patron half his property; and, if he left him
nothing at all, or less than a half, possession of such half was given
to him against the testament. If, on the other hand, he died intestate,
leaving as family heir an adoptive son, the patron could obtain even
against the latter possession of the goods of the deceased to the extent
of onehalf. But the freedman was enabled to exclude the patron if he
left natural children, whether in his power at the time of his death, or
emancipated or given in adoption, provided that he made a will in which
he instituted them heirs to any part of the succession, or that, being
passed over, they demanded possession against the will under the Edict:
2 if disinherited, they did not avail to bar the patron. At a still
later period the lex Papia Poppaea augmented the rights of patrons
who had more wealthy freedmen. By this it was enacted that, whenever
a freedman left property amounting in value to a hundred thousand
sesterces and upwards, and not so many as three children, the patron,
whether he died testate or intestate, should be entitled to a portion
equal to that of a single child. Accordingly, if the freedman left
a single son or daughter as heir, the patron could claim half the
property, exactly as if he had died without leaving any children: if he
left two children as heirs, the patron could claim a third: if he left
three, the patron was excluded altogether.
3 In our constitution, however, which we have drawn up in a convenient
form and in the Greek language, so as to be known by all, we have
established the following rules for application to such cases. If the
freedman or freedwoman is less than a 'centenarius', that is, has
a fortune of less than a hundred aurei (which we have reckoned as
equivalent to the sum of a hundred thousand sesterces fixed by the lex
Papia), the patron shall have no right to any share in the succession
if they make a will; while, if they die intestate without leaving any
children, we have retained unimpaired the rights conferred on the patron
by the Twelve Tables. If they are possessed of more than a hundred
aurei, and leave a descendant or descendants of either sex and any
degree to take the inheritance civil or praetorian, we have given to
such child or children the succession to their parents, to the exclusion
of every patron and his issue. If, however, they leave no children, and
die intestate, we have called the patron or patroness to their whole
inheritance: while if they make a will, passing over their patron or
patroness, and leaving no children, or having disinherited such as they
have, or (supposing them to be mothers or maternal grandfathers) having
passed them over without leaving them the right to impeach the testament
as unduteous, then, under our constitution, the patron shall succeed,
by possession against the will, not, as before, to onehalf of the
freedman's estate, but to onethird, or, if the freedman or freedwoman
has left him less than this third in his or her will, to so much as will
make up the difference. But this third shall be free from all charges,
even from legacies or trust bequests in favour of the children of
the freedman or freedwoman, all of which are to fall on the patron's
coheirs. In the same constitution we have gathered together the rules
applying to many other cases, which we deemed necessary for the
complete settlement of this branch of law: for instance, a title to the
succession of freedmen is conferred not only on patrons and patronesses,
but on their children and collateral relatives to the fifth degree: all
of which may be ascertained by reference to the constitution itself. If,
however, there are several descendants of a patron or patroness, or of
two or several, the nearest in degree is to take the succession of the
freedman or freedwoman, which is to be divided, not among the stocks,
but by counting the heads of those nearest in degree. And the same
rule is to be observed with collaterals: for we have made the law of
succession to freedmen almost identical with that relating to freeborn
persons.
4 All that has been said relates nowadays to freedmen who are Roman
citizens, for dediticii and Latini Iuniani having been together
abolished there are now no others. As to a statutory right of succession
to a Latin, there never was any such thing; for men of this class,
though during life they lived as free, yet as they drew their last
breath they lost their liberty along with their life, and under the lex
Iunia their manumitters kept their property, like that of slaves, as a
kind of peculium. It was subsequently provided by the SC. Largianum
that the manumitter's children, unless expressly disinherited, should be
preferred to his external heirs in succession to the goods of a Latin;
and this was followed by the edict of the Emperor Trajan, providing that
a Latin who contrived, without the knowledge or consent of his patron,
to obtain by imperial favour a grant of citizenship should live
a citizen, but die a Latin. Owing, however, to the difficulties
accompanying these changes of condition, and others as well, we have
determined by our constitution to repeal for ever the lex Iunia, the SC.
Largianum, and the edict of Trajan, and to abolish them along with the
Latins themselves, so as to enable all freedmen to enjoy the citizenship
of Rome: and we have converted in a wonderful manner the modes in which
persons became Latins, with some additions, into modes of attaining
Roman citizenship.
TITLE VIII. OF THE ASSIGNMENT OF FREEDMEN
Before we leave the subject of succession to freedmen, we should observe
a resolution of the Senate, to the effect that, though the property of
freedmen belongs in equal portions to all the patron's children who
are in the same degree, it shall yet be lawful for a parent to assign
a freedman to one of his children, so that after his own death the
assignee shall be considered his sole patron, and the other children
who, had it not been for such assignment, would be admitted equally with
him, shall have no claim to the succession whatever: though they recover
their original rights if the assignee dies without issue.
1 It is lawful to assign freedwomen as well as freedmen, and to
daughters and granddaughters no less than to sons and grandsons;
2 and the power of assignment is conferred on all who have two or
more children in their power, and enables them to assign a freedman or
freedwoman to such children while so subject to them. Accordingly the
question arose, whether the assignment becomes void, if the parent
subsequently emancipates the assignee? and the affirmative opinion,
which was held by Julian and many others, has now become settled law.
3 It is immaterial whether the assignment is made in a testament or
not, and indeed patrons are enabled to exercise this power in any terms
whatsoever, as is provided by the senatusconsult passed in the time of
Claudius, when Suillus Rufus and Ostorius Scapula were consuls.
TITLE IX. OF POSSESSION OF GOODS
The law as to possession of goods was introduced by the praetor by way
of amending the older system, and this not only in intestate succession,
as has been described, but also in cases where deceased persons have
made a will. For instance, although the posthumous child of a
stranger, if instituted heir, could not by the civil law enter upon the
inheritance, because his institution would be invalid, he could with
the assistance of the praetor be made possessor of the goods by the
praetorian law. Such a one can now, however, by our constitution be
lawfully instituted, as being no longer unrecognised by the civil law.
1 Sometimes, however, the praetor promises the possession of goods
rather in confirmation of the old law than for the purpose of correcting
or impugning it; as, for instance, when he gives possession in
accordance with a duly executed will to those who have been instituted
heirs therein. Again, he calls family heirs and agnates to the
possession of goods on an intestacy; and yet, even putting aside the
possession of goods, the inheritance belongs to them already by the
civil law.
2 Those whom the praetor calls to a succession do not become heirs in
the eye of the law, for the praetor cannot make an heir, because persons
become heirs by a statute only, or some similar ordinance such as a
senatusconsult or an imperial constitution: but as the praetor gives
them the possession of goods they become quasiheirs, and are called
'possessors of goods.' And several additional grades of grantees of
possession were recognised by the praetor in his anxiety that no
one might die without a successor; the right of entering upon an
inheritance, which had been confined by the statute of the Twelve Tables
within very narrow limits, having been conferred more extensively by him
in the spirit of justice and equity.
3 The following are the kinds of testamentary possession of goods.
First, the socalled 'contratabular' possession, given to children who
are merely passed over in the will. Second, that which the praetor
promises to all duly instituted heirs, and which is for that reason
called secundum tabulas. Then, having spoken of wills, the praetor
passes on to cases of intestacy, in which, firstly, he gives the
possession of goods which is called unde liberi to family heirs and
those who in his Edict are ranked as such. Failing these, he gives it,
secondly, to successors having a statutory title: thirdly, to the ten
persons whom he preferred to the manumitter of a free person, if a
stranger in relation to the latter, namely the latter's father and
mother, grandparents paternal and maternal, children, grandchildren by
daughters as well as by sons, and brothers and sisters whether of the
whole or of the half blood only. The fourth degree of possession is
that given to the nearest cognates: the fifth is that called tum quam
ex familia: the sixth, that given to the patron and patroness, their
children and parents: the seventh, that given to the husband or wife of
the deceased: the eighth, that given to cognates of the manumitter.
4 Such was the system established by the praetorian jurisdiction. We,
however, who have been careful to pass over nothing, but correct
all defects by our constitutions, have retained, as necessary, the
possession of goods called contra tabulas and secundum tabulas, and also
the kinds of possession upon intestacy known as unde liberis and unde
legitimi.
5 The possession, however, which in the praetor's Edict occupied the
fifth place, and was called unde decem personae, we have with benevolent
intentions and with a short treatment shown to be superfluous. Its
effect was to prefer to the extraneous manumitter the ten persons
specified above; but our constitution, which we have made concerning the
emancipation of children, has in all cases made the parent implicitly
the manumitter, as previously under a fiduciary contract, and has
attached this privilege to every such manumission, so as to render
superfluous the aforesaid kind of possession of goods. We have therefore
removed it, and put in its place the possession which the praetor
promises to the nearest cognates, and which we have thus made the fifth
kind instead of the sixth.
6 The possession of goods which formerly stood seventh in the list,
which was called tum quam ex familia, and that which stood eighth,
namely, the possession entitled unde liberi patroni patronaeque et
parentes eorum, we have altogether suppressed by our constitution
respecting the rights of patrons. For, having assimilated the succession
to freedmen to the succession to freeborn persons, with this sole
exception--in order to preserve some difference between the two
classes--that no one has any title to the former who is related more
distantly than the fifth degree, we have left them sufficient remedies
in the 'contratabular' possession, and in those called unde legitimi and
unde cognati, wherewith to vindicate their rights, so that thus all the
subtleties and inextricable confusion of these two kinds of possession
of goods have been abolished.
7 We have preserved in full force another possession of goods, which is
called unde vir et uxor, and which occupied the ninth place in the old
classification, and have given it a higher place, namely, the sixth.
The tenth kind, which was called unde cognati manumissoris, we have
very properly abolished for reasons which have been already stated:
thus leaving in full operation only six ordinary kinds of possession of
goods.
8 The seventh, which follows them, was introduced with most excellent
reason by the praetors, whose Edict finally promised the possession
of goods to those persons expressly entitled to it by any statute,
senatusconsult, or imperial constitution; but this was not permanently
incorporated by the praetor with either the intestate or the
testamentary kinds of possession, but was accorded by him, as
circumstances demanded, as an extreme and extraordinary remedy to
those persons who claim, either under a will or on an intestacy,
under statutes, senatusconsults, or the more recent legislation of the
emperors.
9 The praetor, having thus introduced many kinds of successions, and
arranged them in a system, fixed a definite time within which the
possession of goods must be applied for, as there are often several
persons entitled in the same kind of succession, though related in
different degrees to the deceased, in order to save the creditors of
the estate from delay in their suits, and to provide them with a proper
defendant to sue; and with the object also of making it less easy
for them to obtain possession of the property of the deceased, as in
bankruptcy, wherein they consulted their own advantage only. He allowed
to children and parents, adoptive no less than natural, an interval of
a year, and to all other persons one hundred days, within which to make
the application.
10 If a person entitled does not apply for the possession of goods
within the time specified, his portion goes by accrual to those in the
same degree or class with himself: or, if there be none, the praetor
promises by his successory edict the possession to those in the next
degree, exactly as if the person in the preceding one were nonexistent.
If any one refuses the possession of goods which he has the opportunity
of accepting, it is not unusual to wait until the aforesaid interval,
within which possession must be applied for, has elapsed, but the next
degree is admitted immediately under the same edict.
11 In reckoning the interval, only those days are considered upon which
the persons entitled could have made application.
12 Earlier emperors, however, have judiciously provided that no one
need trouble himself expressly to apply for the possession of goods,
but that, if he shall within the prescribed time in any manner have
signified his intention to accept, he shall have the full benefit of
such tacit acceptance.
TITLE X. OF ACQUISITION BY ADROGATION
There is another kind of universal succession which owes its
introduction neither to the statute of the Twelve Tables nor to the
praetor's Edict, but to the law which is based upon custom and consent.
1 When an independent person gives himself in adrogation, all his
property, corporeal and incorporeal, and all debts due to him formerly
passed in full ownership to the adrogator, except such rights as are
extinguished by loss of status, for instance, bounden services of
freedmen and rights of agnation. Use and usufruct, though formerly
enumerated among such rights, have now been saved by our constitution
from extinction by the least loss of status.
2 But we have now confined acquisition by adrogation within the same
limits as acquisition through their children by natural parents; that is
to say, adoptive as well as natural parents acquire no greater right
in property which comes to children in their power from any extraneous
source than a mere usufruct; the ownership is vested in the children
themselves. But if a son who has been adrogated dies in his adoptive
family, the whole of his property vests in the adrogator, failing those
persons who, under our constitution, are preferred to the father in
succession to property which is not acquired immediately from him.
3 Conversely, the adrogator is not, by strict law, suable for the debts
of his adoptive son, but an action may be brought against him as his
representative; and if he declines to defend the latter, the creditors
are allowed, by an order of the magistrates having jurisdiction in such
cases, to take possession of the property of which the usufruct as well
as the ownership would have belonged to the son, had he not subjected
himself to the power of another, and to dispose of it in the mode
prescribed by law.
TITLE XI. OF THE ADJUDICATION OF A DECEASED PERSON'S ESTATE TO PRESERVE
THE GIFTS OF LIBERTY
A new form of succession was added by a constitution of the Emperor
Marcus, which provided that if slaves, who have received a bequest of
liberty from their master in a will under which no heir takes, wish
to have his property adjudged to them, their application shall be
entertained.
1 Such is the substance of a rescript addressed by the Emperor Marcus to
Popilius Rufus, which runs as follows: 'If there is no successor to
take on the intestacy of Virginius Valens, who by his will has conferred
freedom on certain of his slaves, and if, consequently, his property
is in danger of being sold, the magistrate who has cognizance of such
matters shall on application entertain your desire to have the property
adjudged to you, in order to give effect to the bequests of liberty,
direct and fiduciary, provided you give proper security to the creditors
for payment of their claims in full. Slaves to whom liberty has been
directly bequeathed shall become free exactly as if the inheritance had
been actually accepted, and those whom the heir was requested to manumit
shall obtain their liberty from you; provided that if you will have the
property adjudged to you only upon the condition, that even the
slaves who have received a direct bequest of liberty shall become your
freedmen, and if they, whose status is now in question, agree to this,
we are ready to authorize compliance with your wishes. And lest the
benefit afforded by this our rescript be rendered ineffectual in another
way, by the Treasury laying claim to the property, be it hereby known
to those engaged in our service that the cause of liberty is to be
preferred to pecuniary advantage, and that they must so effect such
seizures as to preserve the freedom of those who could have obtained it
had the inheritance been accepted under the will.'
2 This rescript was a benefit not only to slaves thus liberated, but
also to the deceased testators themselves, by saving their property from
being seized and sold by their creditors; for it is certain that such
seizure and sale cannot take place if the property has been adjudged on
this account, because some one has come forward to defend the deceased,
and a satisfactory defender too, who gives the creditors full security
for payment.
3 Primarily, the rescript is applicable only where freedom is conferred
by a will. How then will the case stand, if a man who dies intestate
makes gifts of freedom by codicils, and on the intestacy no one accepts
the inheritance? We answer, that the boon conferred by the constitution
ought not here to be refused. No one can doubt that liberty given, in
codicils, by a man who dies having made a will, is effectual.
4 The terms of the constitution show that it comes into application when
there is no successor on an intestacy; accordingly, it is of no use so
long as it is uncertain whether there will be one or not; but, when this
has been determined in the negative, it at once becomes applicable.
5 Again, it may be asked whether, if a person who abstains from
accepting an inheritance can claim a judicial restoration of rights, the
constitution can still be applied, and the goods adjudged under it? And
what, if such person obtains a restoration after they have been actually
adjudged in order to give effect to the bequest of freedom? We reply
that gifts of liberty to which effect has once been given cannot
possibly be recalled.
6 The object with which this constitution was enacted was to give effect
to bequests of liberty, and accordingly it is quite inapplicable where
no such bequests are made. Supposing, however, that a man manumits
certain slaves in his lifetime, or in contemplation of death, and
in order to prevent any questions arising whether the creditors have
thereby been defrauded, the slaves are desirous of having the property
adjudged to them, should this be permitted? and we are inclined to say
that it should, though the point is not covered by the terms of the
constitution.
7 Perceiving, however, that the enactment was wanting in many minute
points of this kind, we have ourselves issued a very full constitution,
in which have been collected many conceivable cases by which the law
relating to this kind of succession has been completed, and with which
any one can become acquainted by reading the constitution itself.
TITLE XII. OF UNIVERSAL SUCCESSIONS, NOW OBSOLETE, IN SALE OF GOODS UPON
BANKRUPTCY, AND UNDER THE SC. CLAUDIANUM
There were other kinds of universal succession in existence prior to
that last before mentioned; for instance, the 'purchase of goods' which
was introduced with many prolixities of form for the sale of insolvent
debtors' estates, and which remained in use under the socalled
'ordinary' system of procedure. Later generations adopted the
'extraordinary' procedure, and accordingly sales of goods became
obsolete along with the ordinary procedure of which they were a part.
Creditors are now allowed to take possession of their debtor's property
only by the order of a judge, and to dispose of it as to them seems most
advantageous; all of which will appear more perfectly from the larger
books of the Digest.
1 There was too a miserable form of universal acquisition under the SC.
Claudianum, when a free woman, through indulgence of her passion for a
slave, lost her freedom by the senatusconsult, and with her freedom her
property. But this enactment we deemed unworthy of our times, and have
ordered its abolition in our Empire, nor allowed it to be inserted in
our Digest.
TITLE XIII. OF OBLIGATIONS
Let us now pass on to obligations. An obligation is a legal bond, with
which we are bound by a necessity of performing some act according to
the laws of our State.
1 The leading division of obligations is into two kinds, civil and
praetorian. Those obligations are civil which are established by
statute, or at least are sanctioned by the civil law; those are
praetorian which the praetor has established by his own jurisdiction,
and which are also called honorary.
2 By another division they are arranged in four classes, contractual,
quasicontractual, delictal, and quasidelictal. And first, we must
examine those which are contractual, and which again fall into four
species, for contract is concluded either by delivery, by a form of
words, by writing, or by consent: each of which we will treat in detail.
TITLE XIV. OF REAL CONTRACTS, OR THE MODES IN WHICH OBLIGATIONS ARE
CONTRACTED BY DELIVERY