The Institutes of Justinian

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TITTE XXV. IO3 very est e rave in his manner No again an a condition e imposed om an institute heir, or a direct substitution e effected by codiciis man an Mahe any anumber os codiciis, an no solemnities are require so their

execution.

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tamenti

The inheritances os intestate person mirsi, by the statute 2 os the welve abies, o famil heim an famil heirs,

as e sal above, are those ho ere in the power of the deceased a the time of his death, such as a soni clauoter. a grandchil by a Son o a great-grandchil by such grand-chil is a male, and this hether the relationshi he naturalor adoptive. Among them must also e rechone childrenwho though not horn in lawsul wedloch, have been inscribed member of the curia accordin to the tenor of the imperialconstitutions relatin to them, and thus acquire the right os famil heirs, or lio come illiin the term os ur constitutions by whicli, have nacte that, i any one hali co

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parent, either through havin died, o by some ther means, such as emancipationa focis at in time os a man's deceas ason is in his power, a grandson by that son cannoti a lamilyheir, and the case is exacti the fame illi more remote descendanis Children to who are bom aster the ancestor'sdeath, and who ould have been in his powe had the been bom durin his liktime, are samit heim. Famil heim suc 3cee eum thoum ignorant of thei titie, and the can alieum an intestac even though insane hecause wheneve thela vesta properimi a person, even when hecis ignorantis histille, it equali vest it in him is insane Thus, immediatelyon the parent' Math, the wnershi is ascit were continued thout an breah so that pupil in are amit heir dones require thei guardian' sanctio in orde to succeed sorinheritances m to suta heir even though ignorant of theirtille an similari an insane famil heir cloes no requiretis curator' consent in orde to succeed, but takes by operationis law. Sometimes howeve a famil hei succeed in thi Wanto his parent, even though no in the lalter' powerat the time of his decease, as here a Person return Domcaptivit aster his sather' death, this Ming the effect of thela is postliminium And somelimes conversetna mancis notia semit heir although in the power of the deceased a thetime os his death, as here the alter aster his deat is ad-judge to have been uili os reason, an his memor is thereis brande wit insamy suc a person is nable tohave a famil heir, sor his properi is confiscate to thetreasury thoughine who would othemise have succeeded himma be sal to have in law been a famil heir, an ceased tot such. Where there is a sonis claughter, an a grand 6ehild by another son, these are calle together to the inheritanee, nor does themeare in degre eXClude the more remote,

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numheris individuals so that a son Ahould take one-hais, and grandchildren by another so the other: or, is , sons testchildren that a single grandchild, o tWo granochildren by oneson, hould tali one-hais, and three o Mur granochildren by the other so the other. In ascertaining Whethor in any Particular case, o an foras a familWheir, ne uot o regataonly that momentis time at whic it firs was certain stat the decease die intestate, includin hereunde the case osno One' acceptin unde the will. For instance, is a son edisinherite an a strange institute heir, and the so die aster the deceas of his sather, huc sore it is certain that the i institute in the wil eithe wil notis cannot ahe theinheritance, a granoson wil tali a famil heirrio his grand-father, hecause heris the ni descendant in existence whenfimi it is certain that the ancesto die intestate ; an os this there cante no doubi A grandson ornoster, though conceived hesore, his grandiather' death, whose sather dies in the interva between the grandiather' deceas an desertio os

the lalter' wil through fallure os the instituted hei to take, is famil heir o his grandiather though it is obvious statis sollier circumstances remaining the fame hecis conceivedas et achom aster the grandiather's decease, hecis no familyheir, MCause he was neve connecte Wit his grandiatheris an ii os relationship exactinas a person adopte byan emancipate son is no among the Childre os, and there-sore cannot e famil hei to the lalter' father. An such persons, o bein children in relation to the inheritance, cannot appi either sor possession os the good of the deceased a nexi of hin. Eo muchrior samit heim. Afri emancipate children the have by the civi law, nori trio succee to an intestate sor, havin ceased to be in theso er of thei parent, they are o famil heirs, nor arethe calle is an other ille in the statute of the welve Tabies. The praetor, however, solio in natura equity, gives them possessionis the good of the deceased meretnas children, exactinaci the had been in his power at the timeo his death, and this hether they standisione or hether

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NTLE . Io7there are samit heir as etl Consequent0, is a man die leavin , children, ne emancipaled, and the other in his power at the time os his decease, the lalter is sole heir is the civi tam a being the ni famil heir; but throuo the formesi in admitte to partis the inheritance by the indulgence of the praetor, in famil hei hecomes hei topartis the inheritanc only. Emancipate childre however 10Who have ove themselves in adoption are notrihus admitted, unde the ille os children, o hare the properi os their natural sather, is a the time os his deceas thenare in their

adoptive family though icis ot miseris therare emancipaleddurin his lilatim by thei adoptive ather, o the theyare admitte ascis the had Men emancipate by him and

ha neve been in an adoptive family, while, converSely, S tam thei adoptive ather, the are hencesori regardecla strangem I ho evor the are emancipaled by the adoptive aster in deat of the natura sather, a regam thes me therare strangers ali the fame, and yet domo acquire the an os childre a regard succession to the properi osthenarier the reasonis this rute heing the injustice of putting it Within theso eris an adoptive sathemto determine to whomthe proper is the natural sathe shaltielong whether totis children or totis agnates Adoptive are thus notiso wel offula natura children in respectis right os succession sor by the indulgence of the praetor the alter retain their an aschildre me aster emancipation, although the lose it by the civi lain; hil in former, is emancipaled are not GSisted even by the praetor An there is nothing ron in their ing thus differently trealed, hecause civit changes can affectrictis annexe to a civit ille, ut o right annexe to a natural titie, an natural descendanis, though on emancipationthe ce e to e samit heim, cannot eas to e childreno granochildren; hereas in the other hans adoptive childre are regame a strangere aster emancipation, beCauSetheniose the ille an nam os sonis claughter, hic theyhave acquired by a civit change, namel adoption by another Vil change, namely emancipation An the rule is the fame 12 in the possession os mod against the wil Whic the praetor promise to children hoore passe ove in thei parent's

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1o BOOx III. testament, that is o say, are either institute no duinclis- inherite& so the praetor calis to this possession childrem howere in thei parent' power at the time os his decease oremancipat , hut excludes thos who at that time ere in an optive iamlly stili es cloes he here admit adoptive children emancipate by thei adoptive sather, sor is emanci-13 patio thenceas entirelyrio e childre os his. e houlo observe howeve that though children, rure in an adoptive familn or lio are emancipate by thei adoptive aster thed eas os thei natural sather, are not admitte omine deathos the alter intestate by that par of the edic hichchildre are calle to the possessionis goods, they are calleo by another pari, amely that hic admit the cognates of the deceased, ho howeve come in ni is there are nosamit heim emancipate children, o agnates to tali hesore them so the praetor preser children, Whether famil heirsor emancipaled, to allisther claimanis, rankin in the seconddegre Statuto successors, an in the thim cognates, o nexta ostin At these ules however, hic to ur recleCESSOmwere sumcient, have received some emendatio by the constitution hicli, have nacte relative to persons ho have

been give in adoption to othera by thei natura sathema sor e Mund cases in hic fons by entering an adoptive familysorseite thei right o succeedin thei natura parenis, and then, therii os adoption bein eastly broken by emancipation,

tost ait ille to succee thei adoptive parent as etl. ehave Correcte this, in ur sua manner, by a constitutionwhicli enacis that when a natura sather oves his son in adoption to another person the son's right shali remain the

Same in very particular ascis he had continue in the powero his natural sather, and the adoption ha neve taken Place, excepi ni that he hal be able to succeta his adoptive fallier should he die intestate. Is howeve the lalter mahes a wili, the son anno obtain any par of the inheritance either by the civi or by the praetorian law, that is to say, eithe byimpeachin the willis unduteous o by applyin sor possession against the will sor, hein related by norii ostio , the adoptive sather is notiound eithe to institute him heiri todisinheri him, even though he has been adopted in accord-

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ance With the SC. Afinianum, hom among three brothem; sor, me unde these circumstances, hecis no entille to a Murthos What he might have tinen on intesta , nor has he any actio sor iis recovery We have ho-- , ou constitution excepted person adopte by natural ascendanis, sor het renthem and thei adopter inere is the natura timos blood asWeli a the civit timos adoption, and theresore in this case we have preservesthe olde law, as also in that os an independent person ovin himsel in adrogationa allis hic enacimentem e minere in iis specia delatis Dom in tenoris thesioresaid constitution. By the ancient lawnoo whic favoured the descent through 15 males, thos grandchildren only were calle a semit heim, and preserreo to agnates, who were relate to the grandiather in his grandchildren by aughtem, an great-grand-chilare is grandoauotera, hom it regatae oni a Cognates, heing calle aster the agnates in the succession to their

But the Emperore, id not allo rao vnnatural a rondito endum .ithout sussicient correction, and accordingly, as Peopleare, and are Called grandchildre an greatetrandchildre os person whether My trace thei descent through males orthrouo semales the place them altogether in the sameran an Orderis succession In me ho eve to esto some privilegein those whoia in thei famur the provisionsos the ancient law as et a natura right the determinedstat granochildren, great-grandchildren, and othere Who tracedihel descent throuo a semale hould have thei portio osthe inheritance diminished by receiving less by one-thim hanthei motheris grandmother ould have taken or tha theirsather o grandiather, paternat o maternat when the deCeaSed, Mose inheritance Was in question, was a Woman and theyexclude the agnates, is such descendant claime the inheritance, even though the stoo alone Thus, exacti asste statute os the welve abies calis the grandchildren and great-grandChildren-to represent thei deceased ather in thesuecession to thei grandiather, o the imperia legislationsubstitutes them so thei deceased motheris grandmother,

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subieci to the asoresaid deductionis a thir part of the share 16,hich she personalty ould have alien As howeve there was stili some question a to the relative rights of suc grand-chilore an os the agnates, whoin the authori is a certain constitution claime a Muri par of the deceased' estate, we have repeale in sal enaciment, an no permitte iis insertio iniur Code rom that os Theodosius By the constitution hicli, have published, and by hich, have altogether deprive it os validity, we have provide that in case of the furvivat os grandchildren , aram ter great- grandchildren by a grandoaughter, o more remote descendant relate throuo a semate, the agnates shallinavem claim to any partis the estate of the deceased that collaterais mayno longer e referre to linea descendanis; hic constitution e hereis re-enaci it ali iis ore Domine date originalty determine& provideo always, as e direct that theinheritanc shallie divide belween sons an grandchildrenbna aughter, or belween ali the grandchildren, and thermore remote descendanis, accordin to stoclis, an no bycountin heads,in the principi observe by the ancient law1 dividin an inheritance belween sons an grandchildren bya son, thecissu obtaining Without an diminution the portionwhich would haves longe to thei motheri sather, grand-motheri grandiather: so that is, sor instance, there e neor , children non stoch, and three o sour nanother, the one o tWo, an in three o Mur, hali together in respectively one mole is the inheritance. TITLE II. O TII STATUTOR SUCCESSION O AGNATES. Is there is no amit heir, nor annos hos person calledio the succession long With amit heir by the praetor orthe imperia legislation to tali in inheritanc in any Way, it devolves, by the statute os the welve abies, o the ne est

agnate. Agnates, a We have observe in the firs book arethos cognates Who trace thei relationshi throuo males, or, in ther orcis, ho are cognate inmug thei respectivesainers. hus, rothem by the fame ather re agnates, whether by the fame mother o not, an are calle con-

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NTTES AUT III sanguinei an uncte is agnate to his rother' son, an viceveria; and the childrenis brother by the fame ather, hoare calle consobrini are ne another' agnates, O thaticis erant arrive at various degrem os agnation Childrenino are bor aster thei sather' deceas acquire the rightsos insti exacti as is the had been or besore that

event. ut thecia cloes notinive the inheritance toruli theagnates, but onlyrio thos Who were eares in degre at themoment he it rs was certain that the deceased ted intestate. The relationis agnation an also e stablis drab adoption sor instance, etween a man's Wn sons and thos Whom he has adopted ali of Whom re properly called sanoine in relation to ne another. So oo, is murbrother, or our Paterna uncte, o me a more remote

agnate, adopta any one that person undoubtedi hecomesone os our agnates. ale agnates have reciproca rictis os succession howeve remote the degre os relationship: t the ruleos regata semales, o the ther and was that in could o succee as agnates to any one more remotet relate to them than a rother, While the them-selum could e succrede by thei male agnates, howeverdistant the connection: thus ou is a male, could ake theinheritanc os a clauote eitherisbour brother, oris,our paterna unci or unt, ut he could o take ours there o of this distinctio Ming the eemin expedienc os Succession devolvinyas much a possibi on males. ut asit Was mos uviust that such semales shouldie a completelyexclude ascis then ere strangers, the praetor admire themis the possessioni good promise in that partis the edicti Whic mere natural inshimis recognised as a litterio succession, under hic thentake provide there is no agnate, M other cognate os a neare degre os relationship. owstis distinctio belween emale agnates Was in no a clue toste statute of the welve Tabies Which, wit the simplici

prope to ali legislation, conferre reciproca right os successionis ali agnates aliis, hether males o semales, and exclude no degre hyaeason merely of ita remoteness, aster

the analognos famil heirs; ut it was introduce by the jurisis,ho came tween the welve Tabies and the imperial

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IIa BOOK Ira legislation, and who with thei legat subselles and refinementieκclude semales ther inan sister altogether stom amaticsuccession Andis other scheme os successio Was in those

times hear of untii the praetors by graduali mitigatin is the best of thei abiisty the harshnes os the civi tam o by fillingis void in the old system, provide throuo their

edicis a ne ine. ere cognation a thus in iis various degrees recognised as a litterio succession, and the praetoramve relies o such semales throuo the possession of goods,

whic the promise to them in that par of the edici bywhic cognates are calle to the succession. Q weverhave ollowe the welve siles in his depariment os lamand adhered to thei principies and while, Commen the Praetore so thei sense os equi , we anno hol that their remedyMas adequale sor,hen the degre os natural relation-ship was the fame, and when si civit ille os amation asconsene by the olde lawin males an semales alike, hyshould males e allowe to succee est thes agnates, and women excepi sistere he debarre sto succeedin any λAccordingly, we have restore the old rules in thei integrity, and made the law on this subjeci an exactiore os the welve Tabies by enacting, in ur constitution that ait 'statutory'SucCeSSors that is, person tracin thei descent rom thedec sed throuo males, shalli calle alike to the successionas agnates o an intesta , whether the be males o semeses, according to thei proximit os degrem; and that no semales shalli exclude o the retenc inatione but sister have

tion to the fame enaciment e have deeme it right totranSser ne though nly one degre os cognates into theranks os thos Who succeed by a statuto 'ille in orde thalno only the childrenis a brother may be called, a We have jus explained, to the succession os thei paterna uncte, butthat in childrenis a sister too even though onino the halfbloo on either side butio her more remore descentianu), manshare illi the forme the inheritance of their uncte sothat, o the deceas os a man who is paterna uncte to his brother' children, an materna uncte to thos of his sister, the nephews an nieces o etther fide illisow sucine his