The Institutes of Justinian Part 12

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 inst.i.tuted heir, and the son die after the decease of his father, but before it is certain that the heir inst.i.tuted 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 inst.i.tuted heir to take, is family heir to his grandfather; though it is obvious that if (other circ.u.mstances 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 relations.h.i.+p; exactly as a person adopted by an emanc.i.p.ated 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 emanc.i.p.ated 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 t.i.tle 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 emanc.i.p.ated, 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 Emanc.i.p.ated children, however, who have given themselves in adoption are not thus admitted, under the t.i.tle 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 emanc.i.p.ated during his lifetime by their adoptive father, for then they are admitted as if they had been emanc.i.p.ated 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 emanc.i.p.ated 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 emanc.i.p.ation, although they lose it by the civil law; while the former, if emanc.i.p.ated, are not a.s.sisted 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 t.i.tle, but not rights annexed to a natural t.i.tle, and natural descendants, though on emanc.i.p.ation 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 emanc.i.p.ation, because they lose the t.i.tle and name of son or daughter, which they have acquired by a civil change, namely adoption, by another civil change, namely emanc.i.p.ation.

12 And the rule is the same in the possession of goods against the will which the praetor promises to children who are pa.s.sed over in their parent's testament, that is to say, are neither inst.i.tuted 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 emanc.i.p.ated, but excludes those who at that time were in an adoptive family: still less does he here admit adoptive children emanc.i.p.ated by their adoptive father, for by emanc.i.p.ation 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 emanc.i.p.ated 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, emanc.i.p.ated children, or agnates to take before them: for the praetor prefers children, whether family heirs or emanc.i.p.ated, 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 const.i.tution 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 emanc.i.p.ation, lost all t.i.tle to succeed their adoptive parents as well.

We have corrected this, in our usual manner, by a const.i.tution 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 inst.i.tute 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 circ.u.mstances, he is not ent.i.tled to a fourth of what he might have taken on intestacy, nor has he any action for its recovery. We have, however, by our const.i.tution 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 const.i.tution.

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 subst.i.tutes 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 const.i.tution 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 const.i.tution 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 const.i.tution 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.

t.i.tLE 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 relations.h.i.+p 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 kins.h.i.+p 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 relations.h.i.+p: 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 kins.h.i.+p is recognised as a t.i.tle to succession, under which they take provided there is no agnate, or other cognate of a nearer degree of relations.h.i.+p.

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 a.n.a.logy 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 t.i.tle 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 relations.h.i.+p was the same, and when the civil t.i.tle 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 const.i.tution, 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 t.i.tle of kins.h.i.+p.

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 t.i.tle, 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 relations.h.i.+p through males, and thus all had a statutory t.i.tle. 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 pa.s.s 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 const.i.tution 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 guardians.h.i.+p 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 emanc.i.p.ates a child, grandchild, or remoter descendant under a fiduciary agreement, which by our const.i.tution is now implied in every emanc.i.p.ation. 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 emanc.i.p.ation.

t.i.tLE 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 relations.h.i.+p 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 cla.s.s 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 ent.i.tled 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 const.i.tutions 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 ent.i.tled. 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 ent.i.tled by number of children, the brother excluded the mother, and divided the inheritance in equal moieties with the sister.

4 By a const.i.tution, however, which we have placed in the Code made ill.u.s.trious 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 circ.u.mstance 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 const.i.tutions, 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 t.i.tle, 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 t.i.tle, 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 t.i.tle, so we call to the inheritance, along with her, all brothers and sisters of the deceased, whether statutorily ent.i.tled 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 t.i.tle to succeed such children if they die under the age of p.u.b.erty.

7 A mother can succeed her child under the SC. Tertullianum even though the child be illegitimate.

t.i.tLE IV. OF THE SENATUSCONSULTUM ORFITIANUM

Conversely, children were admitted to succeed their mother on her death intestate by the SC. Orfitianum, pa.s.sed 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 t.i.tle to the succession of their grandmothers,

2 this was subsequently amended by imperial const.i.tutions, 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 t.i.tle, 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.

t.i.tLE 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 ent.i.tled, among whom are the agnates and those whom the aforesaid senatusconsults and our const.i.tution have raised to the rank of agnates, the praetor calls the nearest cognates.

1 In this cla.s.s or order natural or blood relations.h.i.+p alone is considered: for agnates who have undergone loss of status and their children, though not regarded as having a statutory t.i.tle 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 emanc.i.p.ated 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 const.i.tution 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.