The Institutes of Justinian Part 13

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 t.i.tle 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 ent.i.tled: 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.

t.i.tLE 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, 't.i.this.'

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 const.i.tution 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 s.e.x 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 emanc.i.p.ated or through being the child of an emanc.i.p.ated child or a child of the female s.e.x.

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 t.i.tle 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 ent.i.tled 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 emanc.i.p.ated 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.

t.i.tLE VII. OF THE SUCCESSION TO FREEDMEN

Let us now turn to the property of freedmen. These were originally allowed to pa.s.s 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 ent.i.tled 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 emanc.i.p.ated or given in adoption, provided that he made a will in which he inst.i.tuted them heirs to any part of the succession, or that, being pa.s.sed 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 ent.i.tled 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 const.i.tution, 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 s.e.x 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, pa.s.sing 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 pa.s.sed them over without leaving them the right to impeach the testament as unduteous, then, under our const.i.tution, 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 const.i.tution 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 t.i.tle 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 const.i.tution 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 cla.s.s, 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 const.i.tution 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.

t.i.tLE VIII. OF THE a.s.sIGNMENT 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 a.s.sign a freedman to one of his children, so that after his own death the a.s.signee shall be considered his sole patron, and the other children who, had it not been for such a.s.signment, would be admitted equally with him, shall have no claim to the succession whatever: though they recover their original rights if the a.s.signee dies without issue.

1 It is lawful to a.s.sign freedwomen as well as freedmen, and to daughters and granddaughters no less than to sons and grandsons;

2 and the power of a.s.signment is conferred on all who have two or more children in their power, and enables them to a.s.sign a freedman or freedwoman to such children while so subject to them. Accordingly the question arose, whether the a.s.signment becomes void, if the parent subsequently emanc.i.p.ates the a.s.signee? and the affirmative opinion, which was held by Julian and many others, has now become settled law.

3 It is immaterial whether the a.s.signment 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 pa.s.sed in the time of Claudius, when Suillus Rufus and Ostorius Scapula were consuls.

t.i.tLE 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 inst.i.tuted heir, could not by the civil law enter upon the inheritance, because his inst.i.tution would be invalid, he could with the a.s.sistance of the praetor be made possessor of the goods by the praetorian law. Such a one can now, however, by our const.i.tution be lawfully inst.i.tuted, 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 inst.i.tuted 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 const.i.tution: 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 pa.s.sed over in the will. Second, that which the praetor promises to all duly inst.i.tuted heirs, and which is for that reason called secundum tabulas. Then, having spoken of wills, the praetor pa.s.ses 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 t.i.tle: 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 pa.s.s over nothing, but correct all defects by our const.i.tutions, 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 const.i.tution, which we have made concerning the emanc.i.p.ation 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 ent.i.tled unde liberi patroni patronaeque et parentes eorum, we have altogether suppressed by our const.i.tution respecting the rights of patrons. For, having a.s.similated the succession to freedmen to the succession to freeborn persons, with this sole exception--in order to preserve some difference between the two cla.s.ses--that no one has any t.i.tle 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 cla.s.sification, 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 ent.i.tled to it by any statute, senatusconsult, or imperial const.i.tution; 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 circ.u.mstances 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 ent.i.tled 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 ent.i.tled does not apply for the possession of goods within the time specified, his portion goes by accrual to those in the same degree or cla.s.s 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.