THE DIGEST OR PANDECTS. BOOK XXXVIII.

TITLE I. CONCERNING THE SERVICES OF FREEDMEN.

1. Paulus, On Various Passages.

The services above mentioned signify daily labor.

2. Ulpianus, On the Edict, Book XXXVIII.

The Prætor promulgated this Edict in order to restrict the demands for services imposed in consideration of the grant of freedom; for he perceived that the demands for services imposed in return for freedom increased excessively, for the purpose of oppressing and annoying freedmen.

(1) Therefore, in the first place, the Prætor promises that he will grant actions with a view to requiring services to be rendered by freedmen and freedwomen.

3. Pomponius, On Sabinus, Book IV.

Where a patron has stipulated for services to be performed by his freedmen, he cannot demand them until after the time has passed when they are due.

(1) Nor can a part of the services be performed by the freedmen working a certain number of hours, because the obligation requires the labor of an entire day. Hence a freedman who has only worked six hours in the forenoon will not be released from labor for the entire day.

4. The Same, On Sabinus, Book IV.

A slave who was manumitted by two masters promised his services to both. One of them having died, there is no reason why a demand for the services of the slave should not be made by his son, even though the other master may be living. This has nothing in common with the succession to, or prætorian possession of an estate; as services are demanded from freedmen just as if money had been lent to them. This was the opinion of Aristo, and I think it to be correct; for it is held that an action should be granted to a foreign heir for services which were due but not performed, without the fear of his being barred by an exception; and therefore, it should be granted to the son, even if the other patron is living.

5. Ulpianus, On Sabinus, Book XV.

If anyone should stipulate for services to be rendered for the benefit of himself and his children, the stipulation will also apply to his posthumous heirs.

6. The Same, On Sabinus, Book XXVI.

Services appertaining to a trade, and others which are the same as the payment of money, pass to the heir; but those relating to the duties of the freedmen do not pass to him.

7. The Same, On Sabinus, Booh XXVIH.

In order that, in a case of this kind, the obligation of an oath may be contracted in accordance with law, it is necessary that the person who is sworn be a freedman, and that he does so in consideration of the freedom which he has received.

(1) The question arises, if anyone should bequeath a legacy to his freedman, provided he will swear to pay ten aurei to his son, instead of giving his services, whether he will be bound by the oath. Celsus Juventius says that he will be bound, and that it makes very little difference for what reason the freedman takes an oath with reference to his services. I assent to the opinion of Celsus.

(2) In order that the oath may be binding, the freedman must take it after his manumission, and he will be equally bound whether he takes it immediately, or after a certain time.

(3) Moreover, he should swear that he will give his services, a gift, or a present; and he can promise any services whatsoever, provided that they can be lawfully and properly proposed.

(4) It was stated in a Rescript by the Divine Hadrian, and also subsequently by other Emperors, that a demand for services cannot be made against one who has obtained his freedom in consideration of the execution of a trust.

(5) The action to compel the performance of services will be granted against a minor when he reaches the age of puberty, and sometimes even while he is under that age; for services can be performed by him if he is a copyist, or one familiar with the names of citizens, or an accountant, or an actor, or the minister of any other kind of pleasure.

(6) If the children of a patron have been appointed to unequal shares of the estate, should they be entitled to an action to compel the performance of the services of freedmen, in accordance with their hereditary right to the estate, or to their shares? I think that the better opinion is that they will be entitled to an action in proportion to their hereditary right to the estate.

(7) It, however, makes little difference whether the children were under the control of the patron, or had been emancipated.

(8) If a patron should appoint his son, whom he had given in adoption, his heir, the better opinion is that he is entitled to the services of the freedmen.

(9) The children of a patroness are not excluded from demanding services from the freedmen of their mother.

8. Pomponius, On Sabinus, Book VIII.

Where a freedman has sworn to render his services to two patrons, it is held by Labeo that he owes a portion of them to each, and that this can be demanded of him; for services which have not been and could not be performed at the time are constantly required. This occurs whether the freedman has sworn to, or promised the patrons themselves, or a slave owned by both of them, to render his services, or where there are several heirs of one patron.

(1) It is established that anyone can act as surety for a freedman who takes an oath to render his services.

9. Ulpianus, On Sabinus, Book XXXIV.

Services are not property which, in the nature of things, exists.

(1) Services, however, to be performed from a sense of obligation, and which are to be rendered hereafter, are not due to anyone but the patron; as their ownership attaches to the person of the one who performs them, and to that of him to whom they are rendered. Services relating to a trade, and others of the same description, can be rendered by anyone and to anyone whomsoever; for where they have reference to some trade, they can be rendered to another by order of the patron.

10. Pomponius, On Sabinus, Book XV.

The slave of a patron cannot make the following stipulation with reference to a freedman: "Do you promise to render me your services?" Hence the stipulation should be made for the services to be rendered to his patron.

(1) Where a freedman takes the following oath with reference to his services, "I swear to render my services to my patron, or to Lucius Titius", he cannot be released from those which he owes to his patron by rendering his services to Lucius Titius.

11. Julianus, Digest, Book XXII.

It makes no difference whether Lucius Titius is a stranger, or the son of the patron:

12. Pomponius, On Sabinus, Book XV.

Because the services rendered to Lucius Titius are different from those to which the patron is entitled. Where, however, the freedman promises a certain sum of money to his patron, who is poor, in consideration of receiving his freedom, or promises it to Titius, the addition of the name of Titius will certainly be valid.

13. Ulpianus, On the Edict, Book XXXVIII.

When a slave is purchased under this law, subject to the condition that he shall be manumitted, and he obtains his freedom in accordance with the Constitution of the Divine Marcus, any services which have been imposed upon him will be of no force or effect.

(1) Nor can services be demanded from a freedman to whom property has been assigned under the Constitution of the Divine Marcus promulgated for the purpose of preserving the freedom of slaves, whether they have obtained their freedom directly, or in accordance with the terms of a trust, even if those who have obtained it as the beneficiaries of a trust become the freedmen of the person himself; for they do not become freedmen under the same circumstances as slaves whom we manumit without being compelled to do so.

(2) The action to compel the performance of services will lie when the time for performing them has passed; the time, however, cannot elapse before the services begin to be due, and they begin to be due after the time for their performance has been indicated.

(3) Even if the freedman should have a wife, his patron is not prevented from demanding his services.

(4) If the patron is a minor under the age of puberty, his freedman is not considered to be married with his consent unless the authority of his guardian confirms it.

(5) Where the marriage of a freed woman is ratified by her patron, it will bar him from objecting to it subsequently.

14. Terentius Clemens, On the Lex Julia et Papia, Book VIII.

It is evident, when the freedwoman ceases to be married, that her services can be demanded, as almost all authorities hold.

15. Ulpianus, On the Edict, Book XXXVIII.

A freedman, after his services have been indicated, becomes so ill that he cannot perform them. Will he be liable, because it is clear that it is not his fault that he does not perform the services?

(1) Services cannot be promised, rendered, due, or demanded in part. Therefore Papinianus gave the following opinion, namely: where there are several distinct services and not merely one, and the patron who stipulated for them left several heirs, it is true that the obligation should be divided in proportion to the number of the heirs.

Finally, Celsus, in the Twelfth Book, says that if a freedman, who has two patrons, should swear that he will render a thousand services to a slave held by them in common, five hundred, rather than a thousand halves of the services will be due to each one.

16. Paulus, On the Edict, Book XL.

A freedman must render those services to his patron which belong to a trade that he learned after his manumission, provided they are such as can be performed honorably and without danger to life; but those which he learned at the time of his manumission should not always be rendered. If, however, he adopted some dishonorable occupation after his manumission, he must perform those services which he could have rendered at the time when he obtained his freedom.

(1) Such services should be rendered to a patron as are suitable to the age, rank, health, requirements, and mode of life of both parties.

17. The Same, On the Right of Patronage.

A patron should not be heard if he demands services which the age of the freedman does not permit, or the weakness of his body cannot endure, or by the performance of which his condition, or mode of life will be injuriously affected.

18. The Same, On the Edict, Book XL.

Sabinus, in the Fifth Book of the Edict of the Urban Prætor, says that a freedman must render his services, and provide his own food and clothing. If, however, he cannot support himself, his food must be furnished him by his patron.

19. Gaius, On the Provincial Edict, Book XIV.

It is clear that services should not be required of a freedman without giving him certain days upon which to perform them, and allowing him sufficient time for earning enough to support himself.

20. Paulus, On the Edict, Book XL.

Unless this is done, the Prætor will not permit the services of a freedman to be rendered to his patron. This is entirely proper, because each one of them should furnish what he promised at his own expense, so long as what he owes is in existence.

(1) Proculus says that a freedman should go to Rome from his province in order to render his services; but, where he does so, the patron will lose the time consumed by him while coming to Rome. This is the case, provided the patron, as a good citizen and the careful head of a household, resides at Rome, or travels into the province, but if he wishes to wander about the world, the necessity of following him everywhere should not be imposed upon the freedman.

21. Javolenus, On Cassius, Book VI.

For the services should be rendered in the place where the patron resides, and of course at his expense for food and transportation.

22. Gaius, On the Provincial Edict, Book XIV.

Where a patron stipulates for services, the stipulation becomes operative when the patron makes the demand, and the freedman does not render them. Nor does it make any difference whether the words "when I demand them" are added or not; as one rule applies to the services of the freedman, and another to other matters. For as the performance of services is nothing more than the discharge of a duty, it is absurd to suppose that a duty should be performed on some other day than the one on which the person who is entitled to it wishes it to be done.

(1) When a freedman promises his patron to render him services, and does not include his children, it is settled that the services will only be due to his children if they become the heirs of their father. Julianus holds that, even if they become the heirs of their father, they will only have a right to demand the benefit of the services of the freedman where they did not become heirs through the intervention of another person. Therefore, if anyone, after having disinherited his emancipated son, should appoint his slave his heir, and the former should become his heir through the said slave, he ought to be barred from demanding the services of the freedman; just as a patron would be barred who did not impose any services upon his freedmen, or had sold those which he did impose.

(2) It should, by all means, be noted that in every kind of services such periods of time as are necessary for the proper care of his body should be granted to the freedman.

23. Julianus, Digest, Book XXII.

Services such as are promised by a freedman differ materially from those attaching to a trade or a profession; hence, if the freedman is an artisan, or a painter, as long as he is employed in this way he will be compelled to render his patron services of this kind. Therefore, just as anyone can stipulate for the performance of services relating to a trade for his own benefit, or for that of Titius, so, also, a patron can lawfully stipulate with his freedman for his services to be rendered either to himself, or to Sempronius; and the freedman will be released from his obligation by rendering his services to a stranger, just as he would be if he had performed them for his patron.

(1) Where there are several patrons who have designedly gone into different provinces, and have, at the same time, demanded the performance of services by a freedman, it may be said that the services are due, but that the freedman will not be bound, because it is not his fault, but that of his patrons, that the services are not performed; just as is the case where services are demanded from a freedman who is ill.

Where the patrons are residents of two different towns, and each one has his domicile there, they should agree with reference to the rendition of services by the freedman; otherwise, it would be a hardship that one who can be released by working for ten days, should, because his patrons do not agree with reference to the rendition of his services, and both demand them at once, be compelled to work for five days for one of them, and to pay the other the value of the five days of labor to which he is entitled.

24. The Same, Digest, Book LII.

Whenever a certain kind of service is specified in the stipulation, as, for instance, those of a painter, or of some artisan, they cannot be demanded unless the time for their performance has elapsed, as in the contract itself, time for performance is understood to be given, although it may not be expressed in words; for example, when we make a stipulation for services to be rendered at Ephesus, sufficient time to do so is implied. Hence the following stipulation is void, "Do you promise to give me to-day a hundred pictures which you have painted?" Services, however, begin to be due from the date of the stipulation. Those which a patron requires from his freedman are not due immediately, because it is understood to be agreed among the parties that they shall not be due before the time for their performance has been indicated; that is to say, that the freedman shall perform his services according to the convenience of his patron; which cannot be said with reference to those of an artisan, or a painter.

25. The Same, Digest, Book LXV.

A patron who hires the services of his freedman is not always understood to receive payment for said services; but this should be ascertained from the nature of the services, and the position of the patron and the freedman.

(1) For, if anyone has a freedman who is a comedian, or the chief actor in a pantomime, and his means are moderate, so that he cannot avail himself of his services unless he leases them, it should be considered that it is the services of the freedman that he requires, rather than the compensation therefor.

(2) Likewise physicians very frequently manumit their slaves who belong to the same profession, as they cannot make use of their services without hiring them.

The same rule can be said to apply to other occupations.

(3) But where anyone can make use of the services of a freedman, and prefers by hiring them to obtain their value, he should be considered to receive compensation for the services of his freedman.

(4) Sometimes, however, patrons hire the services of their freedmen at the request of the latter, and when this is done, they should be considered rather as receiving the price of their services than compensation for them.

26. Alfenus Varus., Digest, Book VII.

Where a physician, who thought that if his freedmen did not practice medicine he would have many more patients, demanded that they should follow him and not practice their profession, the question arose whether he had the right to do this or not. The answer was that he did have that right, provided he required only honorable services of them; that is to say, that he would permit them to rest at noon, and enable them to preserve their honor and their health.

(1) I also ask, if the freedmen should refuse to render such services, how much the latter should be considered to be worth. The answer was that the amount ought to be determined by the value of their services when employed, and not by the advantage which the patron would secure by causing the freedmen inconvenience through forbidding them to practice medicine.

27. Julianus, On Minicius, Book I.

If a freedman exercises the calling of a comic actor, it is evident that he should employ his services not only for the benefit of the patron himself, but also gratuitously at the entertainments of his friends; just as a freedman who practices medicine should, at the desire of his patron, treat the friends of the latter without compensation; for, in order that he may employ the services of his freedman it is not necessary for a patron always to give entertainments, or constantly to be ill.

28. Paulus, On the Right of Patronage.

Where a freedwoman, who has two or more patrons, marries with the consent of one of them, the other will continue to have the right to her services.

29. Ulpianus, On the Edict, Book LXIV.

Where suit is brought against a freedman to compel the performance of services, and his patron dies, it is established that the right of action does not pass to a foreign heir. If, however, there is a son, and he should not be the heir, even though issue may not have been joined in the case, he will, nevertheless, be entitled to the services of the freedman, unless he has been disinherited.

30. Celsus, Digest, Book XII.

If a freedman should swear to render all the services that his patron may desire, the wishes of the patron will not be considered, except so far as is consistent with justice. The intention of freedmen who leave their services to the discretion of their patrons is based upon the fact that the latter will act with justice, and not because they wish to bind themselves heedlessly.

(1) An action is granted to a patron against his freedwoman, who marries without his consent, for services due from her before marriage.

31. Modestinus, Rules, Book I.

A freedman cannot be compelled to render services which he did not promise, where none were imposed, even if he may for some time voluntarily perform them.

32. The Same, Pandects, Book VI.

A freedman who promised money to his patron, which the latter demanded of him for the purpose of rendering his freedom oppressive, will not be liable; and if the patron should exact the money, he cannot obtain possession of his estate contrary to the provisions of the will of the freedman.

33. Javolenus, On Cassius, Book VI.

Services cannot be imposed upon a freedman in such a way that he shall be required to support himself.

34. Pomponius, On Quintus Mucius, Book XXII.

It should be noted that obligations for the performance of services are sometimes subject to diminution, increase, and modification; for when a freedman is enfeebled, the patron loses his services which had already begun to be due. If, however, a freedwoman who had promised her services is raised to such a rank that it will be improper for her to render them to her patron, the obligation will be annulled by operation of law.

35. Paulus, On the Lex Julia et Papia, Book II.

A freedwoman, who is more than fifty years of age, is not compelled to render services to her patron.

36. Ulpianus, On the Lex Julia et Papia, Book XI.

Labeo says that it is clear that a partnership formed between a freedman and a patron, in consideration of freedom being granted to the former, is void in law.

37. Paulus, On the Lex Julia et Papia, Book II.

"A freedman who has two or more male or female children under his control (exclusive of any who may have adopted the profession of buffoon, or have hired themselves to fight with wild beasts), will not be required to render their patron or patroness, or the children of the latter any services, or to make them any donation or present, or to do anything else which they have agreed to furnish, bestow, or perform, in consideration of freedom, with reference to which they have sworn, promised, or bound themselves; and if the said freedman should not, at the same time, have two children under his control, but only one of the age of five years, he shall be released from the obligation of performing services."

(1) Julianus says that the death of children is an advantage to a freedman, as releasing him from services subsequently imposed.

(2) If, after having lost a child, the freedman binds himself to render services to his patron and another child is afterwards born, Pomponius says that there is all the more reason for the child who is. dead to be joined with the living one, in order to release the freedman from liability.

(3) It makes no difference whether the freedman promises his services to the patron himself, or to those who are under his control.

(4) If the patron should assign the services of his freedman to a creditor, the same rule cannot be said to apply; for this assignment is made instead of a payment. It may, however, be said that the freedman can be released by the above-mentioned law, if the patron has assigned the services to another, after the freedman has promised them; for it is true that he promised them to his patron, although he no longer owes them to him. But if in the beginning, the freedman should promise his services on account of the assignment of his patron, he will not be released.

(5) The release from the rendition of services not only has reference to those to be performed in the future, but also to such as are already due.

(6) Julianus says that even if suit has already been brought to compel the performance of services, a release will take place if children should be born. Where, however, a decision has been rendered for services to be performed, the freedman cannot be released, as he has begun to owe a sum of money.

(7) A posthumous child does not discharge the heirs of his father from liability, because the release should be derived from the freedman, and no one can be considered to be discharged after death. But children born before the death of the freedman will cause a release under the above-mentioned law.

(8) According to the spirit of the said law, even if the release has special reference to the person of the freedman, his sureties will also be discharged. If, however, the freedman should furnish a debtor as his substitute, this will be of no advantage to him.

38. Callistratus, On the Monitory Edict, Book III.

Services are only understood to be properly imposed where they can be performed without disgrace, and without danger to life. For if a slave, who is a prostitute, should be manumitted, she ought not to render the same services to her patron, although she may still profit by the sale of her body; and if a gladiator should be manumitted, he does not owe his patron the same services, because these cannot be performed without danger to life.

(1) Where, however, a freedman is employed in some trade, he should give his services relating thereto, even if he has learned the trade after his manumission. If he ceases to exercise that trade, he should contribute such services as are not inconsistent with his rank; as, for example, he can live with his patron, travel with him, or transact his business.

39. Paulus, On Plautius, Book VII.

A stipulation was entered into by a patron as follows, namely, "If you do not give me your services for ten days, do you promise to pay me twenty sesterces?" It must be considered whether an action for the twenty sesterces should not be granted, as having been promised for the purpose of rendering freedom burdensome; or whether services which have not been promised can be given; or whether this ought only to be assumed to have been promised, in order that the patron may not be entirely excluded? The Prætor decides that services have only been promised.

(1) Hence the following point arises, namely, whether the freedman can prevent a judgment for a larger sum than twenty sesterces from being rendered against him, because the patron seems to have valued his services at that amount, and therefore he himself should not desire to increase it. It would, however, be unjust to do this, nor is it necessary to show such indulgence to the freedman, for he should not, on the one hand, agree to the stipulation, and on the other complain of it as being unjust.

40. Papinianus, Questions, Book XX.

If the property of a patron is sold, an action will still be granted him to obtain any services of his freedman which have begun to be due after the sale. If he is able to support himself, an action will not be granted him to compel performance of the services which should have been rendered before the sale, since this relates to what took place before the property was disposed of.

41. The Same, Opinions, Book V.

A freedman who has been released from the obligation to render services, and hence has acquired full testamentary capacity, shall, nevertheless, be compelled to treat his patron with respect.

The case is different with reference to furnishing support, where the necessities of the patron are assumed for the purpose of annoying the freedman.

42. The Same, Opinions, Book IX.

"I wish my slave, So-and-So, who is a mechanic of a low order, to be manumitted, in order that he may perform services for my heir." The manumitted slave was not compelled to promise, but, if he should do so, an action will not be granted against him, for he who gave him his freedom under a trust cannot alter a public law.

43. The Same, Opinions, Book XIX.

A slave who is obliged to render services to his patron cannot, without injury to the latter, enlist in the army.

44. Scævola, Questions, Book IV.

If a freedman is in default in rendering his services, his surety will be liable, but the surety himself cannot be in default. A surety, however, who has agreed to furnish a substitute for the debtor will be liable for delay.

45. The Same, Opinions, Book II.

Can the freedman of a merchant who deals in clothing conduct the same business in the same town, and in the same place, if his patron is unwilling for him to do so? The answer was that there is no reason, in the case stated, why he cannot do so, if his patron sustains no injury thereby.

46. Valens, Trusts, Book V.

Where a freedwoman is the concubine of her patron, it is settled that he cannot bring an action against her to compel the performance of services, any more than if she was married to him.

47. The Same, Trusts, Book VI.

Campanus says that the Prætor should not allow the promise of any gift, present, or service to be imposed upon a slave who is manumitted under the terms of a trust. If, however, he permitted himself to be bound by an obligation, when he was aware that he could refuse, a suit to compel the performance of services should not be denied, because the slave is held to have donated them.

48. Hermogenianus, Epitomes of Laiv, Book II.

As in the case of a patron, so, also, his son, his grandson, and his great-grandson who consents to the marriage of a freedwoman, loses the right to require her services; for she to whose marriage he consented ought to be entirely at the disposal of her husband.

(1) If, however, the marriage to which the patron consented is void, he will not be prevented from exacting her services.

(2) The exaction of the services of the freed woman is not refused to her patroness, or to the daughter, granddaughter, or great-granddaughter of her patron, where any of them consented to her marriage; because it is not improper that the services of a freedwoman who was married should be rendered to them.

49. Gaius, On Cases.

A freedman who has two patrons can, in some instances, perform different services for both of them, at the same time; as, for example, if he is a copyist, and works for one of his patrons by writing books, and takes charge of the house of the other while the latter is on a journey with his family; for nothing will prevent him from writing books while he is in charge of the house.

Neratius stated the same opinion in his Works of Parchments.

50. Neratius, Opinions, Book I.

The nature of the services to be rendered depends upon the status of the person who renders them, for they must conform to his rank, his means, his mode of life, and his occupation.

(1) Moreover, a freedman, and everyone else who is required to perform services, must be supported, or he must be given sufficient time to provide for his maintenance; and, in every instance, time must be granted him for the proper and necessary care of his person.

51. Paulus, Manuals, Book II.

The right to demand services sometimes remains even after the right of patronage has ceased to exist, which occurs in the case of the brothers of him to whom the freedman has been assigned; or with reference to the grandson of one patron, where there is a son of another patron.

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TITLE II. CONCERNING THE PROPERTY OF FREEDMEN.

1. Ulpianus, On the Edict, Book XLII.

This Edict was promulgated by the Prætor with the intention of modifying the deference which freedmen should show to their patron. if or (as Servius says) in former times they were accustomed to require the most onerous services from their freedmen, by way of remuneration for the extraordinary benefit conferred upon the latter, when, after having been liberated from slavery, they were made Roman citizens.

(1) The Prætor Rutilius was the first who published an Edict providing that an action should not be granted to a patron against his freedman, except with reference to services, or property held in partnership; for instance, where it was agreed that unless the freedman would perform services for his patron, the latter should be permitted to have joint ownership of his property.

(2) Succeeding prætors were accustomed to promise possession of a certain portion of the estate of a freedman; for as the partnership existing between the parties implied the performance of services by the freedman, what he was required to furnish as his share of the partnership during his lifetime, he was also obliged to furnish after his death.

2. Pomponius, On Sabinus, Book IV.

If a patron, who was passed over in the will of his freedman, could demand prætorian possession of his estate contrary to the provisions of the will, and before doing so, died, or the time prescribed for demanding said possession has elapsed, his children, or those of another patron, can demand possession under that Section of the Edict by which when the first parties do not claim possession, or are unwilling to claim it, it is granted to those next in succession, just as if the former were not in existence.

(1) If a patron, who was appointed heir by his freedman, should die during the lifetime of the latter, leaving children, the question arose whether they could demand prætorian possession of the estate of the freedman, contrary to the provisions of the will. It was decided with reference to this point that the time of death, to which prætorian possession is referred, should be considered in order to ascertain whether there is any patron or not; so that, if there is one, his children cannot demand prætorian possession under the First Section of the Edict.

(2) If an emancipated son should leave a grandson under the control of his grandfather, prætorian possession of half of the property of the intestate freedman ought to be given to the son, although the estate may, by operation of law, belong to the grandson; for the reason that possession of the part which was due should be granted to the son contrary to the provisions of the will of the freedman.

3. Ulpianus, On the Edict, Book XLL

Even if the right to wear a gold ring may have been obtained from the Emperor by a freedman, his patron will be admitted to prætorian possession contrary to the provisions of the will, as is stated in several rescripts; for this privilege only confers upon him the rights of a freeborn citizen, but he dies as a freedman.

(1) It is clear that, if he should be restored to his birthright by a judicial decision, prætorian possession of his estate contrary to the provisions of the will cannot be obtained.

(2) The same rule will apply where he has obtained from the Emperor unrestricted power to make a will.

(3) If anyone purchases a slave under the condition that he will manumit him, this will come under the above-mentioned Section of the Edict.

(4) When anyone receives a sum of money on condition that he will manumit his slave, he will not be entitled to prætorian possession of his estate in opposition to the terms of the will.

(5) In order that the patron may be able to obtain prætorian possession contrary to the provisions of the will, the estate must be entered upon, or prætorian possession of it demanded. It is, however, sufficient for one of the heirs to enter upon the estate, or to claim prætorian possession of the same.

(6) A patron has not the same right to the property of his freedman which the latter acquired while in the army, which he has to that otherwise acquired.

(7) Where a patron, after having been banished, is restored to his civil rights, he can obtain prætorian possession of the estate of his freedman contrary to the provisions of the will.

The same rule must be held to apply to a freedman who has been banished and afterwards restored to his rights.

(8) If a son under paternal control manumits a slave who forms part of his castrense peculium, he becomes his patron by a Constitution of the Divine Hadrian, and, in the capacity of patron, he can obtain prætorian possession of the estate of the freedman in opposition to the terms of the will.

(9) If he to whom a freedman has been assigned should accuse the latter of a capital crime, he cannot demand prætorian possession of his estate in opposition to the terms of the will, but this does not prevent his brothers from doing so, for they must demand prætorian possession just as they would do if they were the grandsons of the other son, as the freedman who was assigned to him does not cease to be the freedman of the remaining sons.

It must further be said that even if one brother should refuse to demand prætorian possession, the other to whom the freedman was not assigned can take his place, and claim prætorian possession of the estate contrary to the provisions of the will.

(10) A patron is entitled to prætorian possession of the estate of his freedman, contrary to the provisions of the will, whenever he is not appointed heir to that portion of said estate to which he is entitled.

(11) If a patron is appointed under a condition, and the condition is complied with during the lifetime of the testator, he cannot obtain prætorian possession of the estate in opposition to the terms of the will.

(12) What course should then be pursued if, at the time of death, the condition was in suspense, but was fulfilled before prætorian possession was granted to the patron; that is to say, before the estate of the freedman was entered upon? Would he be called to the prætorian succession under this section of the Edict?

The better opinion is that the time when the estate was entered upon should be considered; and this is our practice.

(13) Still, if the condition has reference to the past or the present time, the patron will not be held to have been appointed heir conditionally; for the condition has either been complied with and he is held to have been appointed absolutely; or it has not been complied with, and he is not appointed heir.

(14) Where a freedman appointed his heir as follows, "If my son should die during my lifetime, let my patron be my heir," the will is not considered to have been improperly drawn; for if the son should die, as the condition has been fulfilled, the patron can obtain prætorian possession of the estate.

(15) If the portion of the estate to which he is entitled is bequeathed to the patron, enough has been done for him, even if he should not have been appointed heir.

(16) Where, however, he was appointed to a smaller share than he was entitled to, and the remainder has been made up to him, either by legacies or trusts, he is held to have been satisfied.

(17) The share to which the patron is entitled by law can also be made up to him by donations mortis causa, for these take the place of legacies.

(18) The same rule will apply where a freedman did not make a donation to his patron mortis causa, but gave him property in consideration of the amount of the estate to which he was entitled; for then it will either be held to have been given mortis causa, or what the patron has received will exclude him from obtaining prætorian possession of the estate contrary to the provisions of the will.

(19) Where anything is given to a patron for the purpose of complying with a condition, it should be included in the legal share of the latter, if it was derived from the estate of the freedman.

(20) We grant the patron his legal share of the property which the freedman had at the time of his death, for we take into consideration the time when he died. If, however, he diminished his property by some fraudulent act, the Prætor will decide that the patron is also entitled to it, just as if it belonged to the estate.

4. Paulus, On the Edict, Book XLII.

Where a slave has detected the murderer of his master, the Prætor should decide that he is free, and it is established that he will be the freedman of no one, having obtained his liberty under a decree of the Senate.

(1) Where a freedman, after having been taken captive, dies in the hands of the enemy, although the name of freedman does not apply to him, still, in accordance with the Cornelian Law which confirms his will just as if he had died at home, possession of his estate should be granted to his patron.

(2) If a patron should be banished, his son will have a right to prætorian possession of the estate of his freedman, and his father, as patron, will be no impediment to this, as he is considered to be dead. The case, however, is different where a patron is in the hands of the enemy, for he is an impediment to his children, on account of the hope of his return, and the law of postliminium.

(3) If a stranger has been appointed heir by a freedman, and is charged to transfer the estate to his son, the patron should be excluded; as the estate is delivered under the Trebellian Decree of the Senate, and the son takes the place of the heir.

5. Gaius, On the Provincial Edict, Book XV.

Where a freedman has a patron, and the latter has children, and he appoints his patron heir to the share of his estate to which the latter is entitled, he should substitute his children for the same share, in order that, although the patron may die during the lifetime of the freedman, he can be considered to have satisfied the claims of his children.

(1) If a freedman has the emancipated son of his patron, and grandsons descended from another son, who is under the control of the grandfather, the freedman must only leave what he owes to the son, and not to the grandsons; for, in this instance, it makes no difference whether they are equally called to the succession of their grandfather, or not.

6. Ulpianus, On the Edict, Book XLIII.

If the children of a freedman should be appointed heirs to only a small portion of his estate, the patron cannot demand prætorian possession contrary to the provisions of the will; for Marcellus, in the Ninth Book of the Digest, says that no matter to how small a share of the estate of a freedman his son may be appointed heir, the patron will be excluded.

(1) Where the daughter of a patron was appointed heir by the freedman of her father, and the will by which she was appointed was alleged to be forged, and an appeal was taken, and before it was heard the daughter died, the Divine Marcus came to the relief of the heirs, and decided that they should have whatever the daughter would have been entitled to if she had lived.

(2) If the son of the freedman, who had been appointed his heir, should reject the estate, although he will retain the name of heir, the patron can acquire prætorian possession.

(3) If the son should meddle with the estate of his father, or the heir who had entered upon it should obtain complete restitution of his rights, after having rejected the estate, the patron can be admitted to the succession.

(4) If the patron and his children should enter upon the estate of the freedman in accordance with the will of the deceased, or should prefer to claim a legacy or a trust bequeathed to them, they shall not be permitted to obtain prætorian possession in opposition to the provisions of the will.

7. Gaius, On the Provincial Edict, Book XV.

For it would be absurd to allow the same person to partly approve the will of the deceased, and partly reject it.

8. Ulpianus, On the Edict, Book XLIII.

If, however, the demand of the patron has had no effect, I think that there is no reason why relief should not be granted him. And, indeed, if he has entered upon the estate, under the impression that he had been appointed heir to the share to which he was legally entitled, and it should afterwards appear that he has obtained a smaller share than he had a right to expect, it is perfectly just that relief should be granted him. If, however, he notified the heir in the presence of witnesses to pay him his legacy, and should afterwards change his mind, I think that he is entitled to relief.

(1) Where a patron has received the legacy bequeathed to him, and afterwards has been evicted, he will have a right to demand his lawful share of the estate, because he did not receive what he expected to have. If, however, he is not deprived of the entire legacy by eviction, but obtains less than he had a right to expect, he will be entitled to relief.

(2) If a patron has received a legacy bequeathed to his slave, or to his son, he will be excluded from prætorian possession of the estate contrary to the provisions of the will, just as if he had accepted a legacy bequeathed to himself.

(3) And if he has received a donation mortis causa, it must be held that he is excluded from prætorian possession in opposition to the provisions of the will, just as if he had received it after the death of the freedman.

Moreover, if the freedman, during his lifetime, had given it to him, and he had accepted it, he will not, for this reason, be excluded from prætorian possession in opposition to the provisions of the will, because it may be said that he expected that some additional favor would be shown to him by the will of the freedman, and he should be permitted to reject what he has received, or the share to which he was entitled should be given to him pro rata.

(4) Therefore, it is said that if, for the purpose of complying with a condition, something has been given to the patron after the death of the freedman, the former will be excluded from prætorian possession of the estate in opposition to the terms of the will, as having, so to speak, accepted it.

9. Paulus, On the Edict, Book XLH.

Where anyone has wrongfully attempted to again reduce to slavery a freedman belonging to his father, he cannot either himself, or in the name of his children, obtain prætorian possession of his estate.

10. Ulpianus, On the Edict, Book XLIV.

If satisfaction has not been given to one of two patrons, and more than his share of the estate of a freedman has been left to the other, an action will be granted to the one who did not receive that to which he was entitled, in such a way that his portion will be made up out of what was bequeathed to a foreign heir, and left to the other patron in excess of his own share.

The same rule shall also be observed where there are several patrons.

(1) Julianus says that he who has been disinherited by his grandfather is also barred from acquiring the estates of his freedmen, but will not be excluded from acquiring those of the freedmen belonging to his father. If, however, he has been disinherited by his father, but not by his grandfather, he should be excluded not only from the estates of the freedmen of his father, but also from those of his grandfather as well; because it is through his father that he acquires rights over the freedmen of his grandfather. If, however, his father has been disinherited by his grandfather, and he himself has not, a grandson can demand prætorian possession of the estates of the freedmen of his grandfather, in opposition to the provisions of the will.

He also says that if my father should disinherit me, and my grandfather should disinherit my father, and my grandfather should die first, I will be excluded from prætorian possession of the estates of the freedmen of both. But if my father should die first, and my grandfather afterwards, it must be said that the disinheritance of my father will not prejudice me, so far as the estates of the freedmen of my grandfather are concerned.

11. Julianus, Digest, Book XXVI.

If, however, my father was disinherited by his father, and I have been disinherited neither by my father nor my grandfather, and my grandfather should die, I will be entitled to the rights over the freedmen of both my grandfather and my father. But I cannot, during the lifetime of my father and as long as I remain under his control, demand prætorian possession of the estates of the freedmen of my grandfather; but if I have been emancipated, I will not be prevented from doing so.

12. Ulpianus, On the Edict, Book XLIV.

If a patron, having made his will in accordance with military law, should disinherit his son by passing him over in silence in his will, the disinheritance will prejudice him, for he will be actually disinherited.

(1) If anyone should assign a freedman to his son whom he has disinherited, the son can obtain prætorian possession of the estate of the freedman.

(2) If a son should be disinherited by his father without any evil intention, but for some other reason, the disinheritance will not prejudice him; as, for instance, suppose that he has been disinherited on account of insanity, or because he was under the age of puberty, and the appointed heir was charged to transfer the estate to him.

(3) When anyone is disinherited, and it is judicially decided that this was not the case, even should the judgment be wrongful, he will not be excluded; for matters which are decided by a court must stand.

(4) If the son of a patron is disinherited, and succeeds in obtaining a judicial decision that the will is inofficious, but is defeated with reference to a part of his claim, let us see whether the disinheritance will prejudice his rights. I think that it will prejudice them, because the instrument by which he was disinherited is valid.

(5) Disinheritance causes no injury to children if the will is such that the estate cannot be entered upon, or prætorian possession obtained by it; for it is absurd that a will should be valid only so far as the disinheritance is concerned, while it is void in other respects.

(6) Where the son of a patron is appointed heir in the first degree, and is disinherited in the second, the disinheritance does not prejudice him, as he has been, or can be the heir under the will of his father; for his father could not be believed to have thought that his son was unworthy to obtain the property of his freedmen, when he himself had called him to his own succession in the first degree. And it is not credible that a son who has been disinherited in the first degree, and appointed as a substitute for the heir, would be excluded from the estate of a freedman. Therefore, a son appointed heir in the first or second degrees, or, indeed, in any other degree, even though he may have been disinherited by the same will, is not excluded from obtaining the estate of his freedman.

(7) If an emancipated son refuses to accept the estate, or a son who is under paternal control refuses to keep it, neither of them will be entitled to possession of the estate of the freedman.

13. Julianus, Digest, Book XXVI.

The disinherited son of a patron, even though his own son has been appointed heir by the latter, cannot obtain prætorian possession of the estates of his father's freedmen in opposition to the terms of the will; for although he may be the necessary heir of his father, he is not admitted to the succession by himself, but through another. And it has been positively decided that if an emancipated son is disinherited and his slave is appointed the heir, and he orders his slave to enter upon the estate, and in this way he becomes the heir of his father, he will not be entitled to prætorian possession of the estates of the freedmen of his father, contrary to the provisions of the will.

14. Ulpianus, On the Edict, Book XLV.

A patron who is over the age of twenty-five years, and accuses a freedman of a capital crime, or makes application to have him reduced to slavery, shall be excluded from possession contrary to the provisions of the will.

(1) It must be said, however, if he was a minor when he made the accusation, that he is not excluded, whether he himself, or his guardian or curator brought the accusation.

(2) If, however, he should bring the accusation while he was a minor, and after he became of age should obtain judgment, he must be said to be entitled to indulgence, and should be pardoned, because he instituted proceedings while he was a minor. Nor ought we to blame him for not having abandoned the accusation, or for not demanding that it be dismissed, for if he had done one of these things, he would be liable to the penalty of the Turpillian Decree of the Senate, and he could not have easily obtained the other. If, however, the case had been publicly dismissed, and the patron, having attained his majority, should repeat his demand, it must be said that he will be excluded from the succession, for, having become of age, he can without any risk abandon an accusation which has been dismissed.

(3) He only is considered to have brought an accusation of a capital crime who, by means of such a proceeding, seeks to have the accused party suffer the punishment of death or exile, instead of banishment, which causes the forfeiture of civil rights.

(4) If, however, anyone accuses his freedman of an offence, the penalty of which is not a capital one, and, nevertheless, the judge decides to increase the penalty, this will be of no disadvantage to the son of the patron; for neither the ignorance nor the severity of the judge should prejudice the son of the patron, who has brought a less serious accusation against the freedman.

(5) Where, however, he does not accuse him, but gives his testimony against his freedman in a capital case, or provides the accuser, I think that he should be excluded from obtaining possession of his estate contrary to the provisions of the will.

(6) If a freedman accuses the son of his patron of the crime of lese majeste, and the son demands that the freedman be punished for slander, I think that he should not be excluded from the succession under the terms of this Edict; and if he has been accused by him and brings a counter accusation, the same rule will apply, for the patron should be excused, if after having been attacked, he desires to revenge himself.

(7) If a son is compelled to avenge his father's death and accuses his father's freedman, who was his physician, of the crime, or accuses his slave who slept in the same room with him, or any other who was attached to the person of his father, can it be said that relief should be granted him? I think that it should be, if it was necessary for him to bring an accusation against the freedman of his father, and he was influenced by motives of affection, and the risk he ran of losing his father's estate if he did not do so, even though the accusation should prove to be false.

(8) Moreover, we say that he has brought an accusation who alleges that another is guilty of crime, and causes the case to be tried until sentence is imposed. If, however, he does not proceed so far, he is not considered to have brought the accusation, and this is our present practice. But if he should desist after an appeal is taken, it has been very equitably decided that he has not prosecuted the case to a conclusion. Hence, if the freedman dies while the appeal is pending, the son of the patron shall be permitted to obtain possession of his estate, because the freedman has been removed by death from the consequences of the sentence.

(9) If the son of a patron gives his assistance, as an advocate, to the accuser of a freedman of his father, he should not be excluded from the succession on this account, for the advocate does not make the accusation.

(10) Where a father provides by his will that his freedman shall be accused of having prepared poison for him, or to have committed some other act of this kind to his injury, the better opinion is that his children who did not voluntarily bring the accusation ought to be excused.

(11) If the son of a patron should accuse the freedman of his father, and should convict him of a crime, and the said freedman should afterwards be restored to his rights, he shall not be excluded, for he prosecuted the accusation which was brought to the end.

15. Tryphoninus, Disputations, Book XVII.

The same rule applies where the crime which was proved against the freedman carries with it capital punishment, but the freedman was subjected to a lower penalty; as, for instance, he was only banished, for the Prætor only takes cognizance of a patron who brings a false accusation.

16. Ulpianus, On the Edict, Book XLV.

He is not considered to have demanded that a freedman be reduced to slavery, who opposes one who is already a slave, and denies that he be given his freedom; but he who demands that one who is in the enjoyment of freedom shall be reduced to slavery.

(1) Where anyone alleges that a slave is not entirely his, but that he has a share in him, or the usufruct of him, or some other right to which he would not be entitled unless the man was a slave, shall he be excluded from the succession of the freedman, as demanding that he be returned to slavery? This is the better opinion.

(2) If a patron should demand that his freedman should be reduced to slavery, and should succeed, and the truth having been afterwards ascertained, he suffers him to remain at liberty, this should not prejudice him, especially if he had good cause for his mistake.

(3) He is not considered to have made a demand to reduce the freedman to slavery who abandons the case before issue has been joined. If, however, he does so after issue has been joined, it must be said that this will not prejudice him, because he did not continue until a decision had been rendered.

(4) If the son of a patron, who has either been disinherited, or has demanded that a freedman of his father should be returned to slavery, or has accused the freedman of a capital crime, it will not prejudice his children, if they are not under his control. This the Divine Brothers stated in a Rescript to the Quintilians.

(5) If anyone should obtain prætorian possession of the estate of his freedman contrary to the provisions of his will, not only if he was appointed heir by the said freedman, but also if he had been substituted for his minor son, he will be excluded from all the benefits under the will of the said freedman. For Julianus says that if a patron, after making a demand for the prætorian possession of the estate of his freedman, should enter upon the estate of the minor son of said freedman, actions must be denied him.

(6) If, however, anything should be left to the patron by a codicil or a donation mortis causa, in like manner participation in these benefits shall be refused him.

(7) Sometimes it is evident that the right to claim a legacy should be granted to the patron, after he has demanded possession of the estate of his freedman, if he will receive no benefit therefrom; for the reason that he has been asked to transfer the legacy to another.

(8) Again, the Prætor says that he will not only refuse an action to the patron to recover what is specifically given to him, but also to recover anything which you may suggest might come into his hands through others; as, for instance, through those who are subjected to his authority, because he can retain such property, and will not be obliged to surrender it.

(9) We should grant the right to demand a bequest to a patron if the freedman had bequeathed a preferred legacy of the price of a slave to his patron, on condition that the latter should liberate the said slave.

(10) If the substitute for a patron should be asked by him to deliver possession of the estate of a freedman contrary to the provisions of the will, an action to recover the share of him to whose patron possession was given shall not be granted.

(11) Where a patron has been substituted for the heir, and dies during the lifetime of the testator, it is settled that if the son of the patron demands prætorian possession of the estate of the freedman contrary to the provisions of the will he can not only acquire the share of the substitute, but can deprive all the heirs of a certain portion of their inheritance, in order to make up the amount to which he is legally entitled.

17. The Same, On the Edict, Book XLVII.

When a freedman dies without leaving any children, his patron and his patroness can, at once, demand prætorian possession of his estate, and they can even do so together. Any persons who are next of kin to the patron and patroness can also be admitted to the succession together.

18. Paulus, On the Edict, Book XLIII.

The illegitimate children of a patroness can also obtain prætorian possession of the estate of a freedman of their mother, but children cannot be admitted to the succession of the estate of a freedman of their father unless they are legitimate.

19. Ulpianus, Disputations, Book IV.

Where a patron is appointed heir to a smaller share of an estate than he is legally entitled to, and alleges that the will is forged, and loses his case, there is no doubt that prætorian possession of the estate contrary to the provisions of the will should not be granted him, for the reason that he lost the estate by his own act when he rashly declared that the will was forged.

(1) If he has been appointed heir to the share of the estate to which he was entitled, whether he accepts it or not, he will be excluded from prætorian possession of the same contrary to the provisions of the will; for, as he received the share to which he was entitled, he cannot demand prætorian possession contrary to the provisions of the will.

20. Julianus, Digest, Book XXV.

A freedman appointed his patron his heir, under the condition of his being sworn (which condition the Prætor is accustomed to remit), and I do not think that there is any doubt that the patron will be excluded from prætorian possession of the estate, as it is true that he has been appointed heir.

(1) Where a legacy was left to Titius, and he was charged to transfer it to his patron, an action to recover the legacy should be denied to Titius, if the amount to which the patron is legally entitled has been paid to him by the appointed heir.

(2) A freedman appointed his patron and a stranger joint heirs to half of his estate. The fourth to which the patron was appointed heir should, all of it, be credited to him on his legal share, and the remainder which is due on said share should be deducted pro rata from the shares of all the other heirs.

(3) The same rule should be observed with reference to a legacy bequeathed to the patron and Titius conjointly; so that a part of the legacy may be credited upon the share due to the patron, and as much should be deducted from the share of Titius, proportionally, as that which ought to be deducted from the portion of the heir.

(4) Where a freedman appoints his emancipated son his heir under a certain condition, and the condition having failed, his substitute enters upon the estate, I ask whether the Prætor should give the patron possession of the share to which he was entitled against the substitute, or whether he should come to the relief of the emancipated son with reference to the entire estate. The answer was that, as the father had appointed his son his heir in the first degree conditionally, and the condition under which he was appointed had failed to be fulfilled, the estate will belong to the second degree; or if the son should die while the condition is still pending, the patron will acquire possession of the estate to the amount to which he was entitled by law, as against the substitute.

The same rule will apply where the son does not obtain possession of the estate through having been excluded by lapse of time, or because of his rejecting it. Therefore, if the condition should fail to be fulfilled, the estate will belong to the son, and the Prætor will, in preference, protect the emancipated son against the substitute. Moreover, I think whenever a son is appointed an heir conditionally, that, in some instances, disinheritance is necessary with reference to the substitution, and in others it is superfluous. For if the condition should be of such a nature that it is in the power of the son to comply with it; for instance, if it was that he should make a will, I hold that if the condition was not fulfilled, the son must give way to the substitute. If, however, the condition was such that it was not in the power of the son to comply with it, for instance, if it was that Titius should become Consul, then the substitute ought not to be admitted to the succession, unless the son had been specifically disinherited.

(5) If a freedman should appoint his emancipated son his heir, and charge him to deliver the entire estate to Sempronius, and the son should allege that he suspected the estate of being insolvent, but should enter upon 'the same by order of the Prætor and transfer it to Sempronius, possession of the share of the estate to which he was entitled will, very properly, be granted to the patron, just as if not the son, but he to whom the estate was transferred, had been the heir of the freedman.

Moreover, if the son should reject the inheritance of his father's freedman, and his co-heir should assume all the burdens of the estate, prætorian possession must be granted to the patron; for, in either event, the share of the latter is not taken from that of the son, but from that of the stranger.

21. The Same, Digest, Book XXVI.

Where one of three patrons fails to demand prætorian possession of the estate, the other two will be entitled to equal shares of the same.

22. Marcianus, Institutes, Book I.

If a son under paternal control, who is a soldier, manumits his slave, he makes him the freedman of his father, according to the opinion of Julianus, which he adopts in the Twenty-seventh Book of the Digest; but he says that as long as his son is living, he will have the preference over his father with reference to the estate of the freedman. The Divine Hadrian stated in a Rescript addressed to Flavius Aper, that, in this instance, he made him his own freedman and not that of his father.

23. Julianus, Digest, Book XXVII.

If a freedman should pass over his patron in his will and appoint a foreign heir, and his patron should give himself in adoption before demanding prætorian possession in opposition to the terms of the will, and the appointed heir should reject the estate, the patron can, then, as heir at law, demand possession of the entire estate of the freedman.

(1) If a freedman should die intestate, and his patron should have a son and two grandsons by another son, the grandsons shall not be admitted to the succession of the freedman, as long as there is a son, because it is evident that the person who is in the nearest degree is the one who is called to the succession of the freedman.

(2) Moreover, if the freedman had two patrons, one of whom left a son and the other left two, I stated that the estate should be equally divided between them.

24. The Same, Digest, Book LXV.

Where two patrons had a freedman in common, and one of them required him to swear that he would not marry, and the other to whom this fault could not be imputed either died during the lifetime of the freedman, or survived him, he alone can acquire the shares of the estate to which both were legally entitled.

25. The Same, On Urseius Ferox, Book I.

Whenever prætorian possession of the share of the estate due to him can be granted to a patron, an exception may be granted to the debtors against the heir who demands payment, if the patron should not, in opposition to the terms of the will, demand prætorian possession of the share to which he is legally entitled.

26. Africanus, Questions, Book II.

A freedman devised land worth forty sesterces out of his estate which was valued at eighty, and after having appointed a stranger his heir, died on the day when the devise became due. I gave it as my opinion that the patron could demand the share of the estate to which he was entitled by law; for the deceased, at the time of his death, appeared to have had an estate of more than a hundred sesterces, as it could have been sold for more than that, including the amount of the legacy.

It would make no difference whether the appointed heir rejected the legacy left by the freedman, or not; for if a question should arise under the Falcidian Law, a bequest of this kind, even though it were rejected, would be charged by the legatees to the quarter of the estate due to the heir.

27. The Same, Questions, Book IV.

If a grandson should be disinherited by his grandfather, the patron, during the lifetime of his son, the disinheritance will prejudice him, so far as the estate of the freedman of his grandfather is concerned.

28. Florentines, Institutes, Book X.

If a freedman has incurred the penalty of death, the claim of his patron to that share of his estate to which he is entitled will not be extinguished, if he who had been sentenced to be executed should die a natural death; but it has been decided that the remainder of the estate which, under the Civil Law, would not belong to the person who emancipated him, may be demanded by the Treasury.

(1) The same rule should be observed with reference to the estates of those who have killed themselves, or have taken to flight, through fear of being accused, as has been established with respect to the property of those who have been condemned to death.

29. Marcianus, Institutes, Book IX.

Where a slave is manumitted under the terms of a trust, he becomes the freedman of the person who manumits him, and the latter can, as his patron, claim his estate, and can obtain prætorian possession of it contrary to the provisions of the will, as well as acquire it ab intestato; but no services can be imposed upon him, nor, if they have been imposed, can they be exacted.

(1) If, however, a father, at his death, should bequeath a slave to his son, and request the latter to manumit him, with the understanding that he shall have the full right of patronage over him, it may be maintained that he can afterwards legally impose services upon the said slave.

30. Gaius, On the Edict of the Prætor; Title, Concerning the Cause of Freedom, Book II.

If a son demands that a freedman of his father shall be reduced to slavery, in order to preserve for himself a case of eviction against a third party, he will not lose the benefit of prætorian possession of the estate.

31. Marcellus, Digest, Book IX.

Where a freedman devised to his patron a tract of land which he himself had purchased from him but which belonged to another, and the patron asserted that the legacy belonged to him, he cannot obtain prætorian possession of the estate contrary to the provisions of the will, even though the devise was of no benefit to him; because the freedman bequeathed to him property belonging to someone else, as well as for the reason that the patron himself had sold the land to his freedman.

32. The Same, Digest, Book X.

If my freedman, after having been returned to slavery, is afterwards liberated by another, he will become the freedman of the latter, and the person who manumitted him will have preference over me in obtaining prætorian possession of the estate of the freedman in opposition to the terms of the will.

33. Modestinus, On Manumissions.

If a patron does not support the freedman, the Lex Ælia Sentia deprives him of all the services to which he was entitled in consideration of the grant of freedom; and this includes not only himself but also those who may have any interest in the property, and it also deprives him and his children of the estate, unless the patron was appointed the heir, and it also deprives him of prætorian possession of the estate, except where this is acquired in accordance with the provisions of the will.

34. Javolenus, On Cassius, Book III.

When a freedman, who has two patrons, passes one of them over in his will, and appoints a stranger heir to half of his estate, the patron who is appointed heir can claim the share to which he is entitled without deduction; and out of the other share which was left over and above what was due to him, and out of the remaining half bequeathed to the stranger, an amount shall be taken pro rata to make up the share to which the other patron is entitled by law.

35. The Same, Epistles, Book HI.

Seius, having appointed his freedman his heir, charged him with a legacy to Maevius of the usufruct of a tract of land. The freedman died, leaving Msevius his heir. I ask if the son of Seius should demand prætorian possession of the estate of the freedman against Maevius, whether the share of the land which was due to him, after deducting the usufruct, shall be transferred to him; or whether all of it ought to be transferred, because he had obtained possession of the property which belonged to the freedman at the time of his death. The answer was, I think that the usufruct should be restored to its original condition; therefore it would be best to demand an arbiter, in order that, by his decision, the usufruct may be transferred in its entirety.

36. The Same, Epistles, Book VIII.

A freedman who died insolvent, having passed oyer his patron, left his estate to foreign heirs. I ask whether the patron can demand prætorian possession contrary to the provisions of the will. The answer was that, as the estate had been entered upon by the appointed heirs, the patron can demand prætorian possession, because an estate is considered to be solvent whenever an heir is found to accept it: And, indeed, it is absurd that the right of the patron to demand prætorian possession of an estate should be based on the estimate of others, and not on the wishes of the patron himself; and that the little that the latter can claim in a case of this kind should be taken from him. For many reasons may arise for which it might be expedient for the patron to demand prætorian possession, even if the amount of the indebtedness which the freedman left behind him exceeds the assets of the estate; for instance, if certain lands are included in the estate of the freedman in which are situated the burial places of the ancestors of the patron, and the latter takes advantage of his rights to obtain prætorian possession, in order that the said burial places may be obtained by him as his share, he considering this right to be of great importance to him; or, for example, where a slave whom the patron values, not from the price which he might bring but for the affection which he entertains for him, forms part of the estate.

Therefore, the patron should be none the less entitled to claim possession of the estate, who forms an estimate of the value of the property of the freedman, rather by his own opinion, than by the computation of others; for an estate should be considered to be solvent both because an heir is found for it, and for the reason that prætorian possession of the same is demanded.

37. Ulpianus, On the Lex Julia et Papia, Book XI.

Julianus says that if a patron should sell to his freedman the obligations which had been imposed upon him in consideration of liberating him from slavery, his son can be barred from obtaining prætorian possession of the estate of the freedman, for the reason that he does not obtain possession of the said estate in opposition to the terms of the will, as his father sold to him the gift, present, or services for which he obtained his freedom.

He says that it is evident if the son of the patron should sell to him the services which were imposed upon the latter in consideration of giving him his liberty, that the brother of the patron can, nevertheless, obtain possession of the freedman's estate contrary to the provisions of the will, because the son, by selling to the latter the services which were the consideration of his freedom, did not bar his uncle from asserting the claim.

(1) If the freedman should appoint an heir, and the latter should enter upon the estate before having put the slaves of the deceased to torture, Julianus says that the patron will not be permitted to obtain possession of the estate in opposition to the terms of the will, for he also should avenge the death of the freedman.

This rule, likewise, is applicable to the patroness.

38. Terentius Clemens, On the Lex Julia et Papia, Book IX.

When a son has been disinherited by his father, the question arises whether the grandsons by said son are excluded from prætorian possession of the estate of a freedman of their grandfather. This point must be disposed of by deciding that as long as the son is living, and his children remain under his control, they cannot be admitted to prætorian possession of the freedman's estate to prevent those who are excluded from obtaining possession in their own names, or from acquiring it through the intervention of others. If, however, they have been emancipated by their father, or have become their own masters in any other way, they can obtain prætorian possession of the estate of the freedman without encountering any obstacle.

(1) If the son of the freedman rejects the estate of his father, it will be to the advantage of the patron.

39. The Same, On the Lex Julia et Papia, Book X.

If the daughter of the patron belongs to an adoptive family, she can obtain prætorian possession of the estate of a freedman of her father.

40. The Same, On the Lex Julia et Papia, Book XII.

If a father makes such a provision for his disinherited son that his right over his freedman remains unimpaired, the disinheritance will not prejudice his rights in this respect.

41. Papinianus, Questions, Book XII.

Where a freedman has satisfied the claim of his patron so far as the share of his estate to which he is legally entitled is concerned, but at the same time, being unwilling to concede it to him, attempts to deprive him of certain property, the question arises, how should the matter be decided? For what if, having appointed the patron his heir to the share to which he is legally entitled, he should bequeath him ten aurei, in addition, and charge him to manumit his own slave who is worth ten aurei, or less? It would be unjust for the patron to decide to accept the legacy, and not free his slave, but, having accepted his legal share, he cannot be compelled to accept the legacy and liberate the slave. This rule is adopted to prevent him from being forced to manumit a slave who is unworthy of it.

But what course must be pursued, if, having appointed his patron his sole heir, the freedman should make the same request of him? If the patron has a substitute, a decision may be rendered in such a way that the patron, having received the share to which he was entitled, the remainder will pass to the substitute; so that if the slave can be purchased, he may obtain his freedom.

Where, however, no substitution has been made, the Prætor, who has jurisdiction of the trust, may compel the patron who accepts the estate of the freedman to grant freedom to his slave.

42. The Same, Questions, Book XIII.

A son, who was his father's heir, arrogated his disinherited brother and died, leaving the latter his heir. In this case the disinherited son will not have the right to demand possession of the estate of the freedman of his natural father. For although an adoption of this kind does not affect the rights of a son who is not disinherited, it will prejudice those of one that is; as the penalty imposed both by the Civil Law and the Prætorian Edict is not rendered inoperative by the act of adoption.

Paulus says that anyone who obtains an estate by a different title than the one which he lost is not prejudiced by the latter, but is benefited by the one which he has acquired. Hence it has been settled by the Edict, that a patron, who is at the same time the son of a patroness, will not be excluded from, obtaining prætorian possession of the estate of a freedman, where he has committed some offence as patron. (1) Papinianus: A freedman appointed Titius heir to his cas-trensian property, and another heir to his other property. Titius entered upon the estate. The better opinion seemed to us to be that the patron could not yet demand prætorian possession of the estate contrary to the provisions of the will. However, the following question arose, namely, if the person to whom the remainder of the estate had been left should refuse to accept it, would it accrue to Titius, just as if they had accepted two different shares of the same estate? It seems to me more equitable that the remainder of the estate should be considered to be without legal heirs. Therefore, Titius could not require the patron to contribute, as the former had lost nothing, nor had anything been taken from the remaining assets which had not yet been disposed of by the will.

(2) Where the minor son of a freedman, who is under the age of puberty and is alleged to be supposititious, obtains prætorian possession of the estate of his father, under the First Section of the Edict, the question arises whether the patron also can obtain prætorian possession. There is no doubt that those who are in the second degree cannot, under the Edict, be admitted to the succession, so long as there are others entitled to it under the First Section; for, as long as another possession has precedence, those that follow cannot be permitted to take place.

There is no doubt that if a decision should be rendered against the child who is alleged to be supposititious, it is understood that possession will not be granted him; and the same rule will apply with reference to the patron, while the controversy is pending. It is clear that examination of the controversy should be deferred until the age of puberty, so far as the patron also is concerned.

(3) Where the will of a freedman is alleged to be forged by persons living in a province, and an appeal has been taken from the judgment, and, in the meantime, the daughter of the patron, whom the freedman appointed his heir, dies, the Divine Marcus decided that the share of the estate to which the daughter of the patron would have been entitled if she had lived should be preserved for her son.

43. The Same, Questions, Book XIV.

Where a patron, having been appointed a substitute for Titius (who himself had been appointed heir to half of the estate), while the latter was deliberating whether he would accept, or not, obtained prætorian possession of the estate of a freedman contrary to the testamentary provisions, and Titius should afterwards accept the estate, Julianus thinks that he has not been deprived of anything, any more than if he had been appointed under a condition. Therefore, as long as Titius deliberates, it will be uncertain whether half the estate will come into possession of the patron under the substitution, or, whether, if Titius should accept, the heirs will be compelled to contribute from their shares the amount legally due to the patron.

44. Paulus, Questions, Book V.

If you appoint a patron heir to the share to which he is entitled by law, and charge him to transfer absolutely a tract of land to someone, and bequeath him a legacy of the same value as said land, under a condition, the trust becomes conditional.

There is something here, however, which may cause annoyance, for the patron will be burdened with the execution of the trust. It must be said in this instance that security should be given by the trustee who is charged with the legacy to the patron, so that the latter may not, under any circumstances, suffer a diminution of his rights.

(1) A patron having been appointed an heir, and a slave having been bequeathed to him in order to make up the share to which he was entitled by law, cannot demand prætorian possession contrary to the terms of the will, even though the slave should die before the will is opened.

(2) If a freedman, either by appointing him his heir, or by a legacy, leaves his patron the share of his estate to which he is legally entitled at the time of his death, and, after the decease of the freedman, another slave having returned from captivity increases the value of the estate; the patron cannot, on this account, complain that he had a smaller interest in the slave than he would have had if he had been appointed heir to the share in him to which he was entitled by law.

The same rule applies with reference to alluvium, provided the patron is satisfied out of the estate which the freedman left at the time of his death. This is also the case when a portion of a legacy or of an estate is left to a freedman at the same time with others, and the latter refuse to accept, and their share accrues to the estate of the freedman.

45. The Same, Questions, Book IX.

Where a patron is appointed heir to the sixth of the estate of his freedman, and the slave of the latter is appointed heir to the remainder, the trust with which heirs are charged in favor of the patron will not apply to the share of the slave. If, however, the slave should be appointed sole heir, I do not think that the share due to the patron should contribute to the legacies bequeathed under the trust.

46. The Same, Opinions, Book HI.

Paulus gave it as his opinion that a patron who was deceived, and who accepted the forged will of his freedman as genuine, is not prevented from obtaining prætorian possession of his estate in opposition to the terms of the will.

47. The Same, Opinions, Book XI.

Paulus also held that the disinheritance of a grandson, which was not made by way of reproach, but for some other reason, did not injure him to the extent of preventing him from demanding prætorian possession of the estate of the freedman of his grandfather in opposition to the terms of the will.

(1) I ask if Titia, the daughter of a patron, should allege that her father Titius had written a letter to her before his death, in which he said that he had been badly treated by his freedman, and if relying upon this letter, she accused the freedman after the death of her father, whether this excuse would be of any advantage to her.

Paulus answered that she who accused the freedman in accordance with the wishes of the father should not be excluded from prætorian possession of his estate contrary to the provisions of the will, since she relied, not only on her own judgment, but also on that of another.

. (2) The son of a patron sent the following letter to his freedman: "Sempronius to his freedman Zoilus, Greeting. I grant you full power to make a will because you deserve it on account of the fidelity which you have always displayed towards me." I ask whether the freedman should not leave something to the son of his patron. Paulus answered that the freedman in question does not appear to have obtained the full right to make a will by the above-mentioned letter.

(3) Paulus gave it as his opinion that a grandson had a right to demand prætorian possession of the estate of a freedman of his grandfather, contrary to the provisions of the will, even if he had been conceived after the death of his grandfather, who survived the freedman; and that he could be admitted to the succession as the heir at law. For the opinion of Julianus only has reference to a succession on the ground of intestacy, and the demand for prætorian possession of the estate of the grandfather.

(4) Paulus also gave it as his opinion that although sons who have been passed over by the will of a father who was serving in the army are considered as disinherited, still, the silence of their father should not prejudice their rights in such a way that they can be excluded from the estates of the freedman of their grandfather.

The same opinion was given with reference to the estates of the freedmen of the father.

48. Scasvola, Opinions, Book II.

I ask what should be decided in the case of one who accused his freedman of the crime of burglary. The answer was that if the offence of which he was accused was such that, if it were proved, the freedman would be sentenced to the mines, the patron should be denied prætorian possession of the estate.

49. Paulus, Opinions, Book HI.

Where a freedman is fraudulently arrogated, his patron does not lose his right to his estate.

50. Tryphoninus, Disputations, Book XVII.

It makes no difference whether the patron, having been appointed heir, accepts a smaller share of the estate of his freedman than the one he is entitled to by law, or whether he orders his own slave, who was appointed heir, to enter upon the estate, and he retains the same, as he will, in either instance, be excluded from prætorian possession of the estate of his freedman in opposition to the terms of the will.

(1) If, however, he should sell the slave before ordering him to enter upon the estate of the freedman, or manumit him, so that the new freedman himself or the purchaser will become the heir, the patron is not prohibited by the terms of the Edict from accepting prætorian possession of the estate of the freedman contrary to the provisions of the will.

(2) But ought the Prætor to refuse him the action to obtain possession, because he attempted to evade the Edict for the purpose of acquiring prætorian possession contrary to the provisions of the will either by receiving a larger price from the purchaser, or by making a tacit agreement with the slave to gain an undue advantage from his appointment as heir to the estate?

The suspicion is still greater where the patron himself acquires the estate of the freedman through the acceptance of his son, who was appointed heir, even though he was emancipated, as everything which we have we wish to go to our children.

(3) If, however, while the will remains unopened, and the patron is still ignorant of the intentions of his freedman, he commits any of the above-mentioned acts, having reference to the heir who was appointed while under his control, and there is no suspicion of fraud, he can avail himself of his right to obtain prætorian possession of the estate in opposition to the terms of the will.

(4) Where a patron, who is appointed by his freedman heir to the share of his estate to which he is legally entitled, and is charged to transfer the estate to another, alleges that he considers it to be insolvent, and, having been compelled to accept it, although he could retain the share to which he was entitled, transfers the same, he cannot obtain prætorian possession contrary to the testamentary provisions, both because he accepted the will of the freedman, and despised, and, as it were, rejected his right to the possession of his legal share of the estate.

(5) The case of the son of a patron, whom a freedman has arrogated and appointed heir to a smaller share of his estate than that to which he was entitled, is very different from this, where there is no one else belonging to the family of the patron. For, although he is, by operation of law, the proper heir of the freedman, if he did not interfere with the estate of the latter as belonging to his father, but abstained from doing so in order to retain his right as patron, the son will, nevertheless, be permitted to obtain prætorian possession of the estate contrary to the testamentary provisions.

(6) If a freedman should leave to his patron, who owed him a certain sum of money, a release from liability, and he should avail himself of an exception on the ground of bad faith against an heir demanding payment of the debt, or he is released on account of the legacy, it must be said that he cannot obtain prætorian possession of the estate in opposition to the provisions of the will.

51. Labeo, Epitomes of Probabilities, By Paulus.

If you have accused the freedman of your father of a capital crime, and your father has manumitted him, prætorian possession of the estate of the freedman cannot be granted to you under the Edict of the Prætor.

Paulus: The contrary rule will apply if you should bring such an accusation against a slave who afterwards becomes the property of your father, and the latter subsequently manumits him.

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TITLE III. CONCERNING THE FREEDMEN OF MUNICIPALITIES.

1. Ulpianus, On the Edict, Book XLIX.

Full rights over the estate of their freedmen and freedwomen is granted to municipalities, that is to say, they have the same rights over them as other patrons have.

(1) Is there, however, any doubt whether they can demand praa-torian possession of the estates of their freedman? There is some difficulty on this point, because they cannot give their consent, still, they can obtain prætorian possession through the agency of another. But, as the Senate decided that estates should be transferred to them under the Trebellian Decree, so, by virtue of another decree, when a municipality has been appointed heir by a freedman, it is permitted to acquire his estate; hence it must be said that it can obtain prætorian possession of the estates of its freedmen.

(2) The time fixed for claiming prætorian possession of the estate of a freedman begins to run against a municipality from the date when it passes an ordinance authorizing the demand. This was also the opinion of Papinianus.

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TITLE IV. CONCERNING THE ASSIGNMENT OF FREEDMEN.

1. Ulpianus, On Sabinus, Book XIV.

By a decree of the Senate enacted in the time of the Emperor Claudius, during the Consulate of Velleius Rufus and Osterius Scapula, with reference to the assignment of freedmen, it was provided as follows: "Where anyone has two or more children born in lawful marriage, and has indicated to one of them that he wishes to assign to him or her a certain freedman or freedwoman, whom he designates, the said male or female child, after the death of the person who manumitted the said slave during his lifetime, or by his will, shall become the sole patron or patroness of the said freedman or freedwoman, just as if he or she had been liberated directly by said child. And if either of said children should die without issue, all the rights of the person who manumitted the slave shall pass to the other children, just as if he who manumitted him or her had made no special provision with reference to them."

(1) Although the Decree of the Senate is expressed in language indicating the singular number, it is, nevertheless, certain that several freedmen can be assigned to several children as well as to one.

(2) A freedman who is in the hands of the enemy can also be assigned.

(3) Moreover, a patron can assign his freedman by any words whatsoever, or by a gesture, or by his will or codicil, or during his lifetime.

(4) He can also annul the assignment by the mere expression of his will.

(5) If, however, anyone should assign the freedman to his son, whom he had disinherited, the assignment will be valid, nor will the reproach of disinheritance prejudice the son, so far as the right of patronage is concerned.

(6) If the son should be disinherited after the assignment, the act of disinheritance does not always annul it, unless it was done with this intention.

(7) Where the child to whom the assignment was made declines to accept it, I think that the better opinion is the one stated by Marcellus, that is, that his brother shall be admitted to the right of patronage.

(8) Where one patron left one son, and another two, and the freedman is assigned to one of the two last, it should be considered into how many shares the estate of the freedman must be divided, whether into three, of which the one to whom the assignment is made will be entitled to two shares, that is to say, his own and that of his brother, or whether there ought to be two equal shares, as the other brother is excluded by the assignment. Julianus, in the Seventy-fifth Book, says that the better opinion is that the one who excludes his brother should have two-thirds of the estate.

This opinion is correct so long as his brother is living, or can become the heir at law of the freedman; but if he should forfeit his civil rights the estate must be divided into two parts.

2. Pomponius, Decrees of the Senate, Book IV.

If, however, the child to whom I have made the assignment should die, leaving a son, and his brother, and there should also be a son of another patron, the grandson will be entitled to half of the estate, which my son, who is living, would have if I had not assigned the said freedman.

3. Ulpianus, On Sabinus, Book XV.

The same rule will apply where a person who had a son and a grandson assigns the freedman to the grandson, for the latter will be admitted to the succession of the freedman, even if there is a son of another patron. This will occur during the lifetime of his uncle. But if his uncle should no longer be living, the assignment made to the grandson will be of no advantage to him, by diminishing the right of the son of the other patron.

(1) Moreover, it is certain that a freedman can be assigned to a grandson by his grandfather, and it is established that, in this instance, the grandson will take precedence over the son.

(2) Wherefore, it may be asked if the patron should have a son and a grandson, whether he can cause the Decree of the Senate to apply just as if he had both of them under his control. In this case, as it is settled that the assignment can be made to him who will again come under the control of his father, why should we not admit that they are both subject to the authority of the patron?

(3) Again, can a question arise as to whether the grandson, who is under the control of the father, can be admitted as heir at law of the freedman? And as there are many cases under which a child who is under paternal control can have a freedman, why should it not be conceded in this instance that a father can obtain the benefit of the lawful inheritance of the estate of the freedman through his son?

This opinion is very properly adopted by Pomponius. Sons under paternal control also have freedmen; as, for example, where someone manumits a slave who forms part of his peculium castrense.

(4) I also think that the emancipated sons of a person to whom a freedman has been assigned are entitled to the benefit of the Decree of the Senate; not that they may be admitted as the heirs at law of the freedman, but that they may acquire what property they can.

(5) According to this, where a freedman dies after having been appointed heir, since emancipated sons cannot be admitted to the succession as heirs at law, let us see whether the son of the assignor, who remains under his control, can be admitted or not. I think that the emancipated children should be preferred by the Prætor under such circumstances.

(6) By the children of the person to whom the assignment is made we must understand not only his sons, but also his grandsons, and his granddaughters, and his other descendants.

(7) Where anyone assigns a freedman to two children, and one of them dies without issue, and the other does not:

4. Pomponius, Decrees of the Senate, Book IV.

Or the one who survives declines to accept the estate of the freedman:

5. Ulpianus, On Sabinus, Book XIV.

Shall the share of him who has lost his civil rights, or rejected the estate, revert to the family, or will it rather accrue to him in whose person the assignment continues to exist? Julianus, in the Seventy-fifth Book, says that the assignment will only become operative with respect to the person of the latter, and that he alone should be admitted to the succession; which is correct.

(1) But what if one of the children should die, leaving issue, can the latter be admitted to the succession, if the other child is living? Julianus thinks that he alone should be admitted, but after his death the children of the other will succeed to the estate; and that the right over the freedman will not revert to the family.

(2) But if one of these two children leaves sons, and the other grandsons; shall they be admitted together to the succession of the freedman as heirs at law? I think that the regular order of descent should be preserved between them.

6. Marcianus, Institutes, Book VII.

If a slave should be ordered to be free, and afterwards is bequeathed to the son of the testator, and the latter afterwards manumits him, the freedman will belong to the son, just as if he had been assigned to him. This will be the case whether it is either expressly stated, or clearly understood that the slave was not bequeathed as a slave, but assigned as a freedman.

7. Scævola, Rules, Book II.

We can make an assignment absolutely and conditionally, by a letter, in the presence of witnesses, or by means of a written instrument, because the assignment of a freedman is not acquired either as a legacy or under the terms of a trust, nor can it be charged with the execution of a trust.

8. Modestinus, Differences, Book VII.

Although the children of a patron are, in many instances, considered to enjoy the same rights as the person who manumitted the slave, still, they cannot assign a freedman of their father to their own children, even if he has been assigned to them by their parents.

This opinion is adopted by both Julianus and Marcellus.

9. The Same, Pandects, Book IX.

Some doubt exists on the point as to whether a patron can only assign a freedman to his son, who is under his control, or to his emancipated son, provided he has at least two others under his control. The better opinion is that he can do so.

10. Terentius Clemens, On the Lex Julia, et Papia, Book XII.

Where a freedman is assigned under a condition, or after a certain period, everything will remain unchanged while the condition is pending, or the day has not arrived, just as if the freedman had not been assigned. Therefore, if, in the .meantime, he should die, his estate, both under the Civil Law and the Prætorian Edict, will belong to all the children.

(1) Where a freedman has been assigned to one child absolutely, • and to another conditionally, the one to whom he was assigned absolutely must be said to alone have the right of a patron over him, while the condition is pending.

11. Papinianus, Opinions, Book XIV.

I gave it as my opinion that where freedmen have been allotted to children for the purpose of providing them with support, they are not to be considered as assigned to them, as the patron intended to benefit his freedmen in order that they can, the more readily, enjoy the advantages of his will, without violating the requirements of the Common Law.

12. Pomponius, Epistles, Book II.

Where one of two patrons assigns the freedman to his son, there is no reason why the other should not retain his rights over him unimpaired.

13. The Same, Decrees of the Senate, Book IV.

Anyone can, by his will, manumit a slave, and assign him to one of his children as his freedman.

(1) The Senate refers to children who are under the control of their father. Must it therefore be understood that no provision is made for posthumous children by this decree? I think that the better opinion is that posthumous children are also included.

(2) Where the Decree of the Senate says, "If anyone should lose his civil rights," it refers to a person who has lost them forever, and not to one who has been captured by the enemy, and may return.

(3) An assignment can also be made to begin at a certain date, but it can hardly be made for a certain term, as the Senate itself fixed the limit of the transaction.

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TITLE V. WHERE ANYTHING IS DONE TO DEFRAUD THE PATRON.

1. Ulpianus, On the Edict, Book XLIV.

Where a fraudulent act is said to have been committed by a freedman in order to prevent a part of his estate from coming into the hands of those who have the right to obtain possession contrary to the testamentary provisions, the Prætor takes cognizance of the case, and sees whether he made a will or died intestate, and that the patron is not defrauded.

(1) Where an alienation is fraudulently made, we do not inquire whether it was made mortis causa, or not, for it is revoked, no matter how it was done. If, however, it was not made with fraudulent intent, but for some other reason, the plaintiff must then prove that the alienation was made mortis causa. For if you suppose an alienation to have been made mortis causa, we do not inquire whether or not this was done with fraudulent intent; for it is sufficient to show that it was made mortis causa.

This rule is not unreasonable, for donations mortis causa are compared to legacies, and, as in the case of legacies, we do not ask whether they were made with fraudulent intent or not, so we should not institute such an inquiry with reference to donations mortis causa.

(2) Again, whatever has been given to a son mortis causa is not revoked, for, as anyone is at liberty to bequeath to his son as much as he chooses, he is not considered to have defrauded his patron by making the donation.

(3) Everything, however, no matter what it is, that is done in order to defraud a patron, is revoked.

(4) We must understand the term "fraud" to apply to the person who alienates the property, and not to him to whom it is transferred; hence, it happens that where the recipient is not conscious of the fraud or bad faith which has been committed, he must still be deprived of the property which has been alienated, for the purpose of defrauding the patron, even if he thought the freedman was freeborn, and not one who had been manumitted.

(5) The Favian Action will not lie against a fellow-patron who was refused prætorian possession of the estate in opposition to the terms of the will, on account of the donation, where the latter is not more valuable than the share to which the patron was legally entitled. Therefore, if the donation was made mortis causa, his fellow-patron will be entitled to his share of the same, just as if one of the patrons had been a legatee.

(6) Moreover, let us consider whether the Favian Action only has reference to the revocation of such alienations as those by which the freedman diminishes his estate, or does it also have reference to other property which he did not obtain? Julianus, in the Twenty-sixth Book of the Digest, says that the Favian Action will not apply where a freedman, with the intention of defrauding his patron, does not accept an estate, or rejects a legacy which has been bequeathed to him. This appears to me to be true. For, although a legacy is said to belong to us from the time of the death of the testator, unless it should be rer jected, still, when it is rejected, it is clear that it never did belong to us; and the same rule should be adopted with reference to other acts of generosity, where anyone wishes to make a donation to a freedman, and he declines to accept it; as it is sufficient for the patron if his freedman did not alienate any property to his prejudice, and not if he did not acquire the same. Hence, if the legacy was bequeathed to him under a condition, and the freedman should prevent the condition from being fulfilled; or if he should make a stipulation under a condition, and preferred to permit the condition to fail, it must be said that the Favian Law does not apply.

(7) But what if the freedman should voluntarily lose a lawsuit? If he lost it intentionally, or confessed judgment, it must be said that the Favian Law will be applicable; but if he refused to present his claim in such a way as to collect it, in this instance, the matter deserves consideration. I think that, under such circumstances, the freedman has diminished his estate, for he has taken away a right of action from his property, just as if he had permitted the time for bringing the action to elapse.

(8) The patron, however, cannot make use of the Favian Action, where, for instance, the freedman refuses to bring suit to declare the will inofficious, or to bring another action, for example, one for injury, or to institute any legal proceeding of this kind.

(9) But if the freedman has committed some act in order to defraud his patron, the latter can avail himself of the Favian Action.

(10) If, however, the freedman endowed his daughter, he is not considered to have defrauded his patron of the amount which he gave to her by way of dowry, because paternal affection should not be blamed.

. (11) If a freedman should make donations to several persons for the purpose of defrauding his patron, either during his lifetime, or mortis causa, the patron can bring either the Favian or Calvisian Action against all the parties equally, to recover the share to which he is entitled.

(12) If anyone should either sell, hire, or exchange property, for the purpose of defrauding his patrons, let us see what the decision of the judge should be. Where the property has been sold, the choice should be given to the buyer either to retain the article which has been purchased, at its proper value, or to surrender it, after having received the price which he paid.

We should not absolutely rescind the sale, as if the freedman had no right whatever to sell the property, to avoid causing the purchaser to lose the price which he paid, especially where no fraud is alleged on his part, but only where the fraud of the freedman is to be taken into consideration.

(13) If, however, a freedman should purchase property for the purpose of defrauding a patron, it must also be said that if he purchased it at too high a price, relief should be granted the patron on this account, and he should not be given the choice of annuling the sale, or not; but the vendor should be permitted either to surrender as much of the price as exceeded the true value of the property, or to recover what he sold, and return the price which he received.

We observe the same rule in the exchange, the hiring, and the leasing of property.

(14) If, however, the freedman sold the property in good faith, and without showing any partiality, but donated the price which he received to another, it must be considered whether he who purchased the property, or he who received the price as a gift, will be liable to the Favian Action.

Pomponius, in the Eighty-third Book of the Digest, very properly says that the purchaser should not be molested, for the fraud was committed against the patron with reference to the price, and therefore that he who received the price as a gift would be liable under the Favian Law.

(15) Let us, however, see if the patron should allege that, although the property was sold at a just price, it was to his interest, nevertheless, that it should not have been sold at all; and that the fraud consists in the fact that possession was alienated of something to which the patron was attached, either on account of its convenience, or its neighborhood, or the purity of the air, or because he was educated there, or his parents were buried therein, if he desires to have the sale revoked, whether he should be heard. He should not be heard in any case of this kind, for the fraud is understood to involve pecuniary loss.

(16) But if the property was sold for too low a price, and the purchase money should be donated to another, the Favian Action can be brought against both parties, that is to say, against the one who bought the property for less than its true value, and the one who received the price as a gift. If he who purchased it is willing to surrender it, he will not be compelled to do so, unless he receives the price which he paid. Then what must be done if the purchaser, having been delegated, should pay him to whom the freedman made the gift, would he still be entitled to recover the price? The better opinion is that he would be entitled to recover it, even though it may have come into the hands of a person who is insolvent. For if the freedman squandered the purchase money which he received, we should, nevertheless, hold that he who paid it can recover it, if he is willing to rescind the sale.

(17) Let us see whether the Favian Action will lie, in case a freedman should borrow a sum of money for the purpose of defrauding his patron, and what the remedy would be in this instance. If the freedman gave away the money which he received, the patron can sue the person to whom the freedman gave it, but if he received it and squandered it, he who lent it should not lose it, nor can he be blamed for having lent it.

(18) It is evident that there will be ground for the Favian Action, if the freedman did not receive the money, but entered into a stipulation with the person who was to lend it to him.

(19) Let us see whether the Favian Action will lie where a freedman becomes surety for me, or pledges his property to another in order to defraud his patron, and whether relief should not be granted to the patron at my expense. For the freedman did not give anything to me, if he became security for someone who was not solvent; and this is our practice. Therefore, the creditor cannot be sued by the Favian Action, but the debtor can be, as well as by the action on mandate. It is clear that if the action on mandate should fail for the reason that a donation had been made, there will be ground for the Favian Action.

(20) The same rule should be adopted where the freedman directs something to be done for the benefit of another.

(21) Although the Favian Action will only lie with reference to the share of the patron, still, where property cannot be divided, it will lie for the entire amount; as for instance, in the case of a servitude.

(22) If a freedman should give anything to my slave, or a son under my control, for the purpose of defrauding his patron, let us see whether the Favian Action can be brought against me. And it seems to me that it will be sufficient if the action is brought against me as a master or a father, and that when the judge renders his decision, not only that has been done for the benefit of my property, but also anything relating to the 'peculium should be taken into consideration.

(23) If, however, an agreement has been made with a son, by order of his father, the latter will certainly be liable.

(24) If a freedman should contract with a slave for the purpose of defrauding his patron, and the slave should be manumitted, the question arises whether he will be liable to the Favian Action. As we have already stated, it is only the fraud of the freedman which should be considered, and not that of him with whom he made the agreement; hence the said manumitted slave will not be liable to the Favian Action.

(25) It may also be asked if the manumitted slave should die, or be alienated, must the action be brought within a year? Pomponius says that it must be.

(26) This action is a personal and not a real one, and will lie against the heir and other successors, as well as in favor of the heir and other successors of the patron; and it does not form part of the estate, that is to say, of the property of the freedman; but belongs to the patron personally.

(27) If a freedman should give anything away for the purpose of defrauding his patron, and then the latter should die during the lifetime of the freedman, and the son of the patron should obtain prseto-rian possession of the estate of the freedman contrary to the provisions of the will, can the Favian Action be employed for the purpose of recovering the property which has been alienated? It is true, as Pomponius says in the Eighty-third Book, and Papinianus also, in the Fourteenth Book of Questions, that the Favian Action will lie in favor of the son, as it is sufficient if the act was committed for the purpose of evading the right of patronage; for we understand this to be done rather as a fraud against the property than against the person.

(28) The profits obtained after issue has been joined are also included in this action.

2. Marcianus, Rules, Book III.

It is very properly held that even the profits which have already been obtained are included in the Favian and Calvisian Actions, since it is the intention of the Prætor to annul every fraudulent act of a freedman.

3. Ulpianus, On the Edict, Book XLIV.

If a patron who has been appointed heir to the share of an estate to which he is entitled by law should accept the estate without being aware that the freedman had alienated any property with the intention of defrauding him, let us see whether he can be relieved on account of his ignorance, in order to prevent him from being deceived by the fraudulent conduct of his freedman. Papinianus, in the Fourteenth Book of Questions, gives it as his opinion that the property which was alienated remains in the same condition as before; and therefore the patron should blame himself for not having obtained prætorian possession contrary to the provisions of the will with reference to what was either alienated or donated mortis causa, when he could have done so.

(1) This action is granted perpetually, because its object is the recovery of property.

(2) The Prætor permits a patron who has been appointed heir to an entire estate to avail himself of the Favian Action, because it would be unjust for him to be excluded from the benefit of the action, when he did not voluntarily enter upon the estate, and did so only because he was unable to demand prætorian possession contrary to the provisions of the will.

(3) If a freedman should die intestate, the patron, by entering upon the estate can, by means of the Calvisian Action, revoke all alienations fraudulently made, by which, in accordance with the terms of the will, a smaller share of the estate of the freedman will come into the hands of the patron or his children.

This occurs whether prætorian possession of the estate is demanded by the patron on the ground of intestacy, or not.

(4) Where there are several patronesses and patrons, each of them can recover the share to which he or she is legally entitled, or they can bring the Calvisian Action for this purpose.

(5) When a freedman dies intestate, after leaving to his patron the share to which the latter is legally entitled, or something more, and also alienates some of his property, Papinianus, in the Fourteenth Book of Questions, states that none of his dispositions should be revoked. For he can leave something to anyone by his will, provided he bequeaths to the patron the share to which the latter is entitled, and by making any other donation he is not considered to have committed a fraud.

4. The Same, On the Edict, Book XLlll.

Everything which was fraudulently alienated by a freedman is revoked by the Favian Action.

(1) Where there are several patrons, each will have an equal share, but if some of them do not claim their shares, they will accrue to the others. What I have stated with reference to patrons also applies to the children of a patron; but they have no right to share at the same time, but only where the patrons are not in existence.

5. Paulus, On the Edict, Book XLH.

He also is liable to the Favian Action who himself receives a donation, rather than one who orders what is to be given to himself to be presented to another.

(1) In the Favian Action, if the property is not returned, judgment shall be rendered against the defendant for the amount which the plaintiff swears in court that it was worth.

6. Julianus, Digest, Book XXVI.

Where a freedman, with the intention of defrauding his patron, and in violation of the Decree of the Senate, lends money to a son under paternal control, the Favian Action will not be granted him; because, in this instance, the freedman should be understood to have rather donated the property for the purpose of defrauding his patron than to have left the money in violation of the Decree of the Senate.

7. Scævola, Questions, Book V.

Therefore, if the Decree of the Senate does not apply, neither will the Favian Action, as the property can be recovered by another proceeding.

8. Julianus, Digest, Book XXVI.

When, however, the freedman lends money to a son under paternal control, who is under twenty-five years of age, after proper cause has been shown relief should be granted to the patron.

9. The Same, Digest, Book LXIV.

A freedman can, during his lifetime, legally make donations to his friends who are entitled to them, but he cannot bequeath legacies to such friends, when, by so doing, he diminishes the share of his estate to which his patron is entitled.

10. Africanus, Questions, Book L

If the property which was fraudulently alienated by the freedman is no longer in existence, the patron cannot bring the action, just as if the freedman had thrown away the money in order to perpetrate a fraud; nor, even if he who obtained a donation mortis causa from the freedman should have sold the property, and a bona fide purchaser has acquired it by usucaption.

11. Paulus, On the Lex Ælia Sentia, Book HI.

A patron is not considered to be defrauded by an act to which he consents.¹ Hence, where his freedman makes a donation with the consent of his patron, it cannot be recovered by the Favian Action.

¹ "Nemo videtur fraudare eos, qui sciunt et consentiunt." — ED.

12. Javolenus, Epistles, Book III.

A freedman who desired to transfer a tract of land to Seius for the purpose of defrauding his patron took the following course. Seius directed Titius to receive the land in such a way that an obligation of mandate was contracted between Seius and Titius. I ask whether after the death of the freedman, the patron will only be entitled to an action against Seius, who gave the mandate, or against Titius who holds the property, or whether he can proceed against either of them whom he may select. The answer was that the action will be granted against the person who obtained the donation, provided the property came into his hands, since the entire transaction which was carried on with his consent should be embraced in the decision rendered against him.

It cannot be held that he should be forced to deliver property of which another has possession, as he can recover it by an action on mandate, so that he can either himself restore it to the patron, or he can compel him with whom he contracted the mandate to do so. But what shall we say if the party who intervened was in no way guilty of fraud ? We entertain no doubt that an action cannot be brought against him. For he must not be considered guilty of fraud who did a favor for his friend, by which he made an acquisition for another than himself, through the fraudulent act of the freedman.

13. Paulus, On the Lex Julia et Papia, Book X.

It is provided by a Constitution of the Divine Pius, which has reference to the adoption of minors under the age of puberty, that, out of the property which the adoptive father possessed at the time of his death, a fourth shall belong to the child who was adopted. The Emperor also ordered any property which he had obtained from his adoptive father to be given him, and if he should be emancipated after proper cause was shown, he will lose his fourth.

Therefore, where property has been alienated for the purpose of defrauding the child, it can be recovered by an action resembling the Calvisian or Favian Action.

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TITLE VI. WHERE NO WILL IS IN EXISTENCE BY WHICH CHILDREN MAY BE BENEFITED.

1. Ulpianus, On the Edict, Book XLIV.

The Prætor, after speaking of the possession of the property of those who execute wills, passes to intestate estates, following the same order adopted by the Law of the Twelve Tables; for it is usual to first treat of the wills of testators, and afterwards of intestate succession.

(1) The Prætor, however, divided intestate succession into four classes. Of the various degrees, the first he establishes is that of children, the second that of heirs at law, the third of cognates, and the fourth of husband and wife.

(2) Prætorian possession of an estate ab intestato can only be acquired where no one appears to demand possession in accordance with the provisions of the will, or in opposition thereto.

(3) It is clear that if the prescribed time for demanding prætorian possession of an estate in accordance with the terms of the will has not expired, but possession of the estate has been rejected, it must be said that prætorian possession of the same ab intestato may be demanded at once. For he who rejected the estate cannot demand prætorian possession after having done so, and the result will be that he can immediately make the claim for possession on the ground of intestacy.

(4) If, however, possession of an estate is granted under the Carbonian Edict, the better opinion is for us to hold that prætorian possession on the ground of intestacy can still be demanded, for, as we shall show in its proper place, prætorian possession under the Carbonian Edict does not interfere with that obtained by the Prætorian Edict.

(5) In the case of succession ab intestato, the Prætor very properly begins with the descendants; for, just as he grants them (before all others), possession contrary to the provisions of the will, so he calls them first to the succession in case of intestacy.

(6) Moreover, we must understand the term "descendants" to mean those whom we have stated to be entitled to prætorian possession contrary to the provisions of the will; that is to say, natural, as well as adopted children. We admit adopted children, however, only where they were under paternal control, at the time of their father's death. If, however, they were their own masters at that time, we do not permit them to obtain prætorian possession of the estate, because the rights of adoption are extinguished by emancipation.

(7) If anyone adopts his emancipated son, instead of his grandson, and then again emancipates him while he has a grandson by him, the question was raised by Marcellus whether, after the adoption was rescinded, this would be an obstacle to the grandson desiring to obtain prætorian possession on the ground of intestacy. But as the grandson is ordinarily joined with the emancipated father, cannot it be said that, though the latter was adopted and occupied the place of a son, still, he should not stand in the way of his own child? For the reason that he was under paternal control as an adopted, and not as a natural son.

(8) If an appointed heir cannot take advantage of the will, either because it has been erased or cancelled, or because the testator is shown to have changed his mind in some other way, and that he intended to die intestate, it must be said that those who obtain prætorian possession of the estate will be entitled to it on the ground of intestacy.

(9) Where an emancipated son is disinherited, and a son who was under paternal control is passed over in the will, the Prætor should protect the emancipated son who claims possession of the estate on the ground of intestacy under the provision unde liberi, so far as half of the estate is concerned, just as if the father had left no will.

2. Julianus, Digest, Book XXVII.

Where an emancipated son, who was passed over, does not demand prætorian possession of the estate contrary to the provisions of the will, and the appointed heirs enter upon the estate, he will lose his father's estate by his own fault, for although prætorian possession in accordance with the provisions of the will may not have been demanded, the Prætor still will not protect him so as to enable him to obtain prætorian possession as a descendant. The Prætor is not accustomed to protect a patron who has been passed over in the will against the appointed heirs, if he does not demand prætorian possession of the estate contrary to the provisions of the will, under that Section of the Edict which refers to heirs at law.

3. Ulpiamis, On Sabinus, Book VIII.

Prætorian possession of an estate can be demanded on the ground of intestacy, when it is certain that the will has not been signed by at least seven witnesses.

4. Paulus, On Sabinus, Book II.

Children, even those who have lost their civil rights, are called to the possession of an estate under the Edict of the Prætor, unless they have been adopted, for the latter lose the name of children after emancipation. If, however, they are natural children, and have been emancipated and adopted, and emancipated a second time, they retain their original character of natural children.

5. Pomponius, On Sabinus, Book IV.

Where one of those children to whom the Prætor promises the possession of an estate is not under the control of the parent whose property was in dispute at the time of his death, the possession of that share of the estate to which he would have been entitled if he had remained under paternal control is granted to him, and to his children who were under the control of the deceased, if the estate belonged to him in his own name and they were not specifically disinherited; so that he himself will only have half of said share, and the other half will be given to his children, and he can distribute his own property among them alone, without any restriction.

(1) If a father should emancipate his son and his grandson by the latter, the son alone will be entitled to the possession of his estate on the ground of intestacy, although the loss of civil rights would not be an obstacle to anyone in distributing the estate under the Edict. Moreover, those children who have never been under paternal control, and have not obtained the place of proper heirs, are called to the prætorian possession of the estate of their parents; for if an emancipated son should leave a grandson under the control of his grandfather, prætorian possession of the estate of the emancipated father shall be given to the child who remains under the control of his grandfather; and, if the latter should have been begotten after the emancipation of his father, prætorian possession of the estate of his grandfather will be given to him after his birth; provided the condition of his father offers no obstacle to this being done.

(2) If an emancipated son should not demand prætorian possession of an estate on the ground of intestacy, all of the rights of the grandsons will remain unimpaired, just as if there had been no son; and what the son would have been entitled to if he had demanded prætorian possession of the estate of his father on the ground of intestacy will accrue to the grandsons alone who are descendants of the said son, and not to any others.

6. Ulpianus, On the Edict, Book XXXIX.

If a father should emancipate his son, retaining his grandson under his control, and his son should afterwards die, both the equity of the case and the terms of the Edict by which it is provided that prætorian possession of the estate of a father shall be granted to his children, on the ground of intestacy, will have the effect of causing an account to be taken, and the possession of the estate of the intestate father to be delivered; so that the grandfather who will obtain the benefit of prætorian possession of the estate through his grandson will be compelled to make contribution to a sister who becomes her father's necessary heir; unless the grandfather should not wish to obtain any benefit from the property, and is ready to release his grandson from his control in order that, after his emancipation, he may obtain all the advantages of prætorian possession. Therefore, the sister, who becomes the heir of her father, cannot justly complain of being in this way excluded from the benefit of contribution; since, if her grandfather sliould die intestate, she will be entitled to share equally with her brother in his estate.

7. Papinianus, Questions, Book XXIX.

A disinherited son died while the testamentary heir was deliberating whether or not he would accept the estate, and he finally rejected it. The grandson, by the said disinherited son, will be the heir of his grandfather, nor will his father be considered as an obstacle to this, since it was after his death that the estate came to the grandson as heir at law. It cannot be said that the grandson is the heir, but not the direct heir, of his grandfather, because he was never in the first degree; as he himself was under the control of his grandfather, and his father did not precede him in the succession. And, besides, if he was not a direct heir, under what right will he be the heir, as there was no doubt that he was not an agnate? Moreover, even if the grandson should not be disinherited, the estate can be entered upon by the testamentary heir after the death of the son. Therefore, if the father was no obstacle to the son by the right of intestacy, he will be considered to have been an obstacle under the right conferred by the will.

(1) Parents are not entitled to the estates of their children in the same manner as children are entitled to the estates of their parents. It is only the consideration of compassion which entitles parents to the estates of their children, but children obtain those of their parents on account of the intention of nature, as well as that of their parents.

8. The Same, Opinions, Book VI.

A son under paternal control, with the consent of his father, took prætorian possession of an estate as the next of kin to the deceased. Although he should be excluded from the estate by the condition stated in the will, if he remained under the control of his father, still he must be considered to have obtained possession legally. He is not liable to the penalty of the Edict, as he did not obtain possession in accordance with the provisions of the will; as in that way he could not hold the.property, nor was it in his power to comply with the condition, as a father cannot easily be forced to emancipate his son.

9. Paulus, Opinions, Book XI.

If a son, after having been emancipated, demands prætorian possession of the estate of his father, and subsequently changes his condition, there is no reason why he should not retain what he has acquired. If, however, he had changed his condition beforehand, he cannot demand prætorian possession of the estate.

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TITLE VII. CONCERNING prætorian POSSESSION BY AGNATES.

1. Julianus, Digest, Book XXVII.

The following terms of the Edict, "If he who should have been the heir of the testator dies intestate," must be taken in their broadest sense, and understood to have reference to a certain period of time, not to the date of the testator's death, but to that when prætorian possession of his estate is demanded. Hence, if the heir-at-law has lost his civil rights, it is clear that he can be barred from obtaining this kind of prætorian possession of the estate.

2. Ulpianus, On the Edict, Book XLVI.

When the proper heirs reject possession of an estate ab intestato, we hold that they offer no obstacle to the heirs-at-law, that is to say, to those to whom the estate can legally pass. The reason for this is because, by rejecting the possession of the estate in the capacity of children, they begin to be entitled to it as heirs-at-law.¹

¹ There were several kinds of heirs at Civil Law. The sui heredes, proper, own, or direct heirs, were the children, whose claim to the estate was usually considered paramount, and whose designation can be traced to the imitas personae, the legal fiction by which a father and his son who was under his control were held to be but a single person in law, and hence, to a certain extent, jointly interested in the ownership of all property; a condition which naturally continued to exist after the death of the parent, as far as the inheritance was concerned. The sui heredes were sometimes also styled necessarii, as they could be compelled to accept an estate, even if it was known to be insolvent, under which circumstances they became liable for the indebtedness, as the representatives of and joint-owners with the testator; an injustice which was ordinarily remedied by the equitable intervention of the prætorian tribunal.

A slave to whom an estate was left, either by his own master or by someone else, was also called necessarius, as he could be required to enter upon it. This was an expedient frequently adopted by bankrupts, to avoid having their property sold by their creditors after their decease, a proceeding which branded their memory with disgrace. In a case of this kind, the ignominy attached to the slave as the heir, and the family of the testator were presumed to be free from all reproach. When a slave of the testator was" named as his successor, it was indisputable that a grant of freedom should accompany the appointment to render it valid.

Heredes extranei, or voluntarii, were persons not subject to the authority of the testator, and hence the acceptance of the estate by them was entirely optional.

Heredes legitimi, or heirs at law, as distinguished from liberi, included such as were entitled to the estate under the provisions of the Twelve Tables; that is, the nearest agnates among collateral descendants.

Foreigners were not capable of appointment as heirs, as they did not enjoy the privileges of Roman citizenship.

The ancient classification of heirs above mentioned is not recognized by the Common or statutory law of either England or America. — ED.

(1) Moreover, this kind of prætorian possession not only passes to males, but also to females, and not only to freeborn persons but also to freedmen; and therefore it is common to several. For women may have either blood relatives or agnates, and freedmen may also have patrons and patronesses.

(2) Not only can males obtain prætorian possession of this kind, but females likewise can do so.

(3) Where anyone dies, and it is uncertain whether he is the head of a household or a son under paternal control, for the reason that his father, who has been captured by the enemy, is still living, or because his civil status is in suspense for some other reason, the better opinion is that prætorian possession of his estate cannot be demanded, as it is not apparent that he has died intestate, and it is uncertain whether he can make a will or not. Therefore, when his condition is ascertained beyond a doubt, prætorian possession of his estate can be demanded; not from the time when it began to be positively known that he died intestate, but when it became certain that he was the head of a household when he died.

(4) Moreover, this kind of prætorian possession includes everyone who can succeed to the inheritance on the ground of intestacy, whether the provision of the Twelve Tables, or some other enactment, or a decree of the Senate constitutes him an heir at law. Finally the mother, who is entitled to the succession under the Tertullian Decree of the Senate, and also the children, who, under the Orphitian Decree of the Senate, are admitted to the succession of their mother as her heirs at law, can demand prætorian possession.

3. Paulus, On the Edict, Book XLIII.

Hence, generally speaking, it should be remembered that every time that a law or a Decree of the Senate grants an estate to anyone, prætorian possession of the same must be demanded under this Section of the Edict. If the law directs prætorian possession of an estate to be granted it can be demanded, and this can either be done under the Section of the Edict relating to special enactments, or under that Section which is the subject of discussion at present.

4. Julianus, Digest, Book XXVII.

If one of two brothers should die after having made a will in accordance with law, and then, while his heir was deliberating with reference to accepting the estate, the other brother should die intestate, and the appointed heir should reject the inheritance, the paternal uncle of the brothers will be entitled to it as heir at law; for that kind of prætorian possession which refers to him "who should be the heir" has reference to the time when the possession of an estate can first be claimed on the ground of intestacy.

5. Modestinus, Pandects, Book III.

There is this difference between agnates and cognates: cognates are included among agnates, but agnates are not included among cognates; for example, the brother of a father, that is, the paternal uncle, is both an agnate and a cognate, but the brother of a mother, that is to say, the maternal uncle, is an agnate, but not a cognate.

(1) As long as there is any hope that a deceased person will have a direct heir, there is no ground for the claim of blood relatives to the estate; for example, where the wife of the deceased is pregnant, or his son is in the hands of the enemy.

6. Hermogenianus, Epitomes of Law, Book III.

Children born after the death of their father, or after his captivity or banishment, as well as those who are under his control at the time when he was captured or banished, retain the right of consanguinity, even though they may not be the heirs of their father, just as is the case with children who are disinherited.

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TITLE VIII. CONCERNING THE prætorian POSSESSION GRANTED TO COGNATES.

1. Ulpianus, On the Edict, Book XLVI.

This kind of prætorian possession depends entirely upon the indulgence of the Prætor, and does not derive its origin from the Civil Law, for he calls those to the possession of an estate who, under the Civil Law, cannot be admitted to the succession, that is to say, cognates.

(1) They are called cognates on account of their having the same birth; or, as Labeo says, because they have a common origin, so far as their birth is concerned.

(2) Moreover, this law refers to such cognate relationship as is not servile, for any cognation can hardly be considered servile.

(3) Again, the prætorian possession which is granted by this Section of the Edict includes six degrees of cognates, and two persons in the seventh, that is, the children of a male or a female cousin.

(4) Adoption also constitutes cognation. For anyone who is adopted becomes the cognate of those persons of whom he becomes the agnate; since whenever the rights of agnates are taken into account, we understand that those who are made cognates by adoption are included. The result is, therefore, that where a person is given in adoption, he will still retain his rights of cognation in the family of his natural father, as well as those which he obtains in his adoptive family; but he will only obtain cognation in the adoptive family with reference to those persons of whom he becomes the agnate; and he will retain the rights of cognation with all the members of his natural family.

(5) Moreover, he who is alone will be understood to be the next of kin among the cognates; although, strictly speaking, the next of kin is referred to as one of several.

(6) It is proper for us to examine the rights of the next of kin among the cognates at the time when prætorian possession of an estate is granted.

(7) Hence, if the nearest cognate should die while the appointed heirs were deliberating whether to accept the estate or not, the next of kin in the succession will take his place; that is to say, whoever is ascertained to have a right to the next place.

(8) If there is any prospect that a cognate who will be the next of kin may be born, the condition is such that it must be said that he offers an obstacle to those who follow him in the line of descent. But if the child should not be born, we must admit to the succession the person who appears to be next of kin to the said unborn child. This rule, however, should only be adopted where the child who is said to be unborn was conceived during the lifetime of him the possession of whose estate is in question; for if he should have been conceived after the death of the latter, he will offer no obstacle to the other, nor will he himself be admitted to the succession; because he was not the cognate next of kin to him in whose lifetime the unborn child was not yet in existence.

(9) If a woman should die while pregnant, and an operation should afterwards be performed to deliver the child, the latter is in such a position that it can obtain prætorian possession of the estate of its mother, as the nearest cognate. Since the passage of the Orphitian Decree of the Senate, the child can demand possession of the estate as heir at law, because it was in its mother's womb at the time of her death.

(10) Moreover, cognates are permitted to obtain prætorian possession in regular gradation, so that those who belong to the first degree are all admitted at once.

(11) If a cognate should be in the hands of the enemy, at the time of the death of the person the prætorian possession of whose estate is in question, it must be said that prætorian possession of the same can be demanded by him.

2. Gaius, On the Provincial Edict, Book XVI.

In this Section of the Edict, the proconsul, actuated by sentiments of natural equity, promises prætorian possession to all cognates whom the tie of blood calls to the succession, even though they may not be entitled to it under the Civil Law. Therefore, even the illegitimate children of the mother, as well as the mother of such children, and brothers of this description, can demand prætorian possession of an estate from one another; for the reason that they are cognates, reciprocally.

This rule applies to the extent that where a female slave who was pregnant when she was manumitted has a child, the child subsequently born is the cognate of the mother, and the mother is the cognate of the child, and any children who are afterwards born to her are also cognates of one another.

3. Julianus, Digest, Book XXVII.

Rights of cognation acquired by adoption are extinguished by the loss of civil rights. Therefore, for example, if within a hundred days after the death of his adopted brother, an adopted son loses his civil rights, he cannot obtain prætorian possession of the estate of his brother, which would otherwise pass to him as being the next of kin. For it is clear that not only the time of the death, but also the time when possession of the estate was demanded, should be taken into consideration by the Prætor.

4. Ulpianus, Rules, Book VI.

If an illegitimate child should die intestate, his property will belong to no one by the right of consanguinity or cognation; because the rights of consanguinity, as well as those of cognation, are derived from the father. However, on the ground of being next of kin, his mother, or his brother by the same mother, can demand prætorian possession of his estate under the terms of the Edict.

5. Pomponius, On Sabinus, Book IV.

Prætorian possession based on the right of legal inheritance is not granted to such heirs at law as have lost their civil rights, because their position is not the same as that of children; but such heirs are then called to the succession as belonging to the degree of cognates.

6. Ulpianus, On the Edict, Book XLV.

Where cognates accuse one another of crime, such an accusation offers no obstacle to succession to their estates.

7. Modestinus, Rules, Book VI.

Anyone who has become a slave in any way whatsoever can, under no circumstances, regain his rights of cognation by manumission.

8. The Same, Opinions, Book XIV.

Modestinus stated that grandchildren, even though they are illegitimate, are not, for that reason, excluded from the intestate succession of their maternal grandmother.

9. Papinianus, Opinions, Book VI.

Prætorian possession can be obtained by an agnate of the eighth degree, as the heir-at-law, even if he would not have been the true heir, but it is not granted to a cognate who is next of kin, although he would have been the true heir.¹

¹ That is to say, entitled to the estate under the rules of the Civil Law. — ED.

(1) A nephew, who had been appointed heir to a part of his paternal uncle's estate, having alleged that his uncle was deaf, and therefore could not make a will, obtained possession of his estate as being the nearest cognate of the deceased. It was decided that the time should be reckoned from the day of his death, for the reason that it did not seem to be probable that anyone so closely related by blood to the deceased could not have been aware of his illness.

10. Scævola, Opinions, Book II.

A woman, dying intestate, left a sister, Septitia, the daughter of another father, and her mother pregnant by a second husband. I ask, if the mother should reject the estate while she is still pregnant, and should afterwards have a daughter named Sempronia, whether the said Sempronia can obtain prætorian possession of the estate of her sister Titia. The answer was that, according to the facts stated, if her mother was excluded from the estate, she who was subsequently born could obtain prætorian possession of the same.

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TITLE IX. CONCERNING THE SUCCESSORY EDICT.

1. Ulpianus, On the Edict, Book XLIX.

The Successory Edict was promulgated in order that estates might not remain too long without ownership, and the creditors suffer from too protracted a delay. Therefore, the Prætor thought that a limit should be prescribed for those to whom he granted prætorian possession, and to establish a succession among them, in order that the creditors might sooner ascertain to whom they must apply; whether the estate escheated to the Treasury for want of ownership, or whether they themselves should institute proceedings to obtain prætorian possession, just as if the deceased had died without leaving any successor.

(1) For even one can reject prætorian possession which is granted to himself, but he cannot reject that which is granted to another.

(2) Therefore, my agent cannot reject prætorian possession to which I am entitled, without obtaining my consent to do so.

(3) A master can reject prætorian possession to which he is entitled through a slave.

(4) Let us see whether a guardian can reject prætorian possession of an estate to which his ward is entitled. The better opinion is that he cannot do so, but the ward himself can reject it with the authority of his guardian.

(5) The curator of an insane person can, under no circumstances, reject prætorian possession of an estate to which the latter is entitled because the latter has not yet obtained it.

(6) Where a person has once refused to demand prætorian possession of an estate, he loses his right, even though the prescribed time for doing so had not yet expired; for, when he refused to accept it, possession of the estate had already begun to belong to others, or to escheat to the Treasury.

(7) Let us see whether prætorian possession of an estate authorized by a decree can be rejected. And, indeed, it may be terminated by lapse of time, but it is none the less true that it cannot be rejected, because it was not granted before the decree was issued.

Again, after the decree has been issued, the rejection will be too late, as a right which has once been acquired cannot be rejected.

(8) If the relative first in degree should die within the prescribed hundred days, the one next in succession can immediately demand possession of the estate.

(9) What we have said with reference to demanding prætorian possession within a hundred days must be understood to mean that it can be demanded even on the hundredth day; just as where an act is to be performed within certain kalends, the kalends themselves are included.

The same rule applies where some act is to be performed within a hundred days.

(10) Where one of those to whom prætorian possession may be given under the terms of the Edict refuses, or neglects to demand it for himself within the specified time, the other heirs in the next degree can claim prætorian possession of the estate, just as if the one in the first degree had not been included in the number of those entitled to the same.

(11) However, it should be considered whether the one who is excluded in this way can also be admitted to share with the others; for instance, a son who is under paternal control, where possession of an estate ab intestato has been granted to him under the First Section of the Edict relating to children. He is excluded by lapse of time, or by rejection of the estate, and prætorian possession passes to the heirs next in degree. Will he himself succeed by virtue of this Section relating to succession? The better opinion is that he can do so; for he can demand possession of the estate as one of the heirs at law, and after them, in his own degree, under the Section where the cognates, who are next of kin, are called to the succession. This is our practice, so that the son is admitted to the succession in this manner, and therefore, he can succeed himself in accordance with the Second Section of the Edict.

This rule can also be said to apply with reference to prætorian possession in accordance with the provisions of the will; so that if he who can succeed to the prætorian succession on the ground of intestacy does not apply for it in accordance with the terms of the will, he can still in this way succeed himself.

(12) A longer time to demand prætorian possession of an estate is accorded to parents and children on account of the honor attaching to blood, because those who are, so to speak, coming into possession of their own property, should not be too closely restrained. It has, therefore, been determined that they shall be given a year, so that they may be afforded a reasonable time for demanding prætorian possession of the estate, and not be pressed to do so; and that, on the other hand, the property may not remain too long without an owner.

It is true that sometimes when they are interrogated in court by impatient creditors, they must state whether they will demand prætorian possession or not; so that, if they say that they intend to reject it, the creditors may know what they will have to do. If they say that they are still deliberating, they should not be hurried.

(13) When anyone is substituted by his father for his brother, who is under the age of puberty, he must demand prætorian possession of his estate, not within a year, but within a hundred days.

(14) This favor is granted to parents and children, not only where they are themselves directly in the line of succession, but also where a slave of one of the children or parents is appointed an heir; for in this case, prætorian possession can be demanded within a year. For it is the person who demands possession who is entitled to this benefit.

(15) If, however, the father of an emancipated son desires to obtain prætorian possession of his estate in opposition to the provisions of the will, it is settled that he has a year in which to do so.

(16) Julianus says that, generally speaking, prætorian possession can, under all circumstances, be demanded by parents and children within a year.

2. Papinianus, Opinions, Book VI.

A cognate of an inferior degree is not entitled to the benefit of the Successory Edict, when one in the first degree has obtained prætorian possession under his own Section of the Edict. Nor will it make any difference whether the cognate, first in degree, obtained the right of rejection on account of his age. Hence it was decided that the property is legally escheated to the Treasury as being without an owner.

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TITLE X. CONCERNING THE DEGREES OF RELATIONSHIP AND AFFINITY AND THEIR DIFFERENT NAMES.

1. Gaius, On the Provincial Edict, Book VIII.

The degrees of relationship are, some of them, in the ascending, and some of them in the descending line, or in the collateral line. Those in the direct ascending line are parents; those in the direct descending line are children; those in the collateral line are brothers and sisters and their children.

(1) Relationship in the direct ascending and descending lines begins with the first degree, but in the collateral line there is no first degree, and therefore it begins with the second. Hence cognates in the first degree of the direct ascending and descending lines can share equally with one another; but no one can do this in the collateral line in this degree, but in the second and third degrees, and in those which follow, the collateral heirs can share with one another, and sometimes even with those of a higher degree.

(2) We should, however, remember, whenever we consider the questions relating to inheritance or to the pratorian possession of an estate, that those who belong to the same degree do not always share equally with one another.

(3) Heirs who are first in the ascending line are the father and the mother; those first in the descending line are the son and the daughter.

(4) Those first in the second degree of the direct ascending line are the grandfather and the grandmother; those first in the direct descending line are the grandson and the grandfather; those first in the collateral line are the brother and the sister.

(5) Those first in the third degree in the direct ascending line are the great-grandfather and the great-grandmother; those first in the descending line are the great-grandson and the great-granddaughter; those first in the collateral line are the son and the daughter of the brother and the sister, and, next in order, the paternal uncle and the paternal aunt, the maternal uncle and the maternal aunt.

(6) In the fourth degree of the direct ascending line are the great-great-grandfather and the great-great-grandmother, in the direct descending line the great-great-grandson and the great-great-granddaughter; in the collateral line the grandson and the granddaughter of the brother and the sister, and, in their order, the great-paternal uncle and the great paternal aunt, that is to say, the brother and sister of the grandfather; the great maternal uncle and the great maternal aunt, that is to say, the brother and sister of the grandmother; likewise, the brothers and sisters of the great maternal uncle, that is to say, children both male and female descended from two brothers; also the children both male and female, born of two sisters; and children of both sexes, the issue of a brother and a sister. All of these are known under the common appellation of first cousins.

(7) In the fifth degree of the direct ascending line are the great-great-great-grandfather and the great-great-great-grandmother; in the direct descending line the great-great-great-grandson and the great-great-great-granddaughter; in the collateral line the great-grandson and the great-granddaughter of the brother and the sister; and, in the same order, the great-great paternal uncle and the great-great paternal aunt, that is to say, the brother and sister of the great-grandfather, and the great-great-maternal uncle and the great-great-maternal aunt, that is to say, the brother and sister of the great-grandmother; also the son and daughter of male cousins, and the son and daughter of female cousins, likewise other male and female cousins and the sons and daughters of the latter on both sides, and those of both sexes and are next to cousins in degree; these being the sons and daughters of the great paternal uncle and the great paternal aunt and the great maternal uncle and the great maternal aunt:

2. Ulpianus, On the Edict, Book XLVI.

That is to say the male and female cousins of the father of him whose relationship is in question, or the children of a father's brother.

3. Gaius, On the Provincial Edict, Book VIII.

In the sixth degree, in the direct ascending line, are the great-great-great-great-grandfather and the great-great-great-great-grandmother. In the direct descending line are the great-great-great-great-grandson and the great-great-great-great-granddaughter; and in the collateral line, the great-great-grandson and the great-great-granddaughter of the brother and sister; and in their order, the great-great-paternal uncle and the great-great-paternal aunt, that is to say, the brother and sister of the great-great-grandfather; and the great-great-maternal uncle and great-great-maternal aunt, that is to say, the brother and sister of the great-great-grandmother. Likewise, the grandson and the granddaughter of the great paternal uncle, and the great paternal aunt, and of the great maternal uncle and the great maternal aunt. Also, the grandson and the granddaughter of first cousins of both sexes, and the son and the daughter of the great-paternal uncle and the great-paternal aunt, and of the great-maternal uncle and the great maternal aunt; as well as the children of cousins on both sides who are properly called the issue of first cousins.

(1) It is sufficiently apparent, from what we have said, how many persons there can be in the seventh degree.

(2) We must also remember that the relatives in the ascending and descending lines must always be doubled; because we understand that there is a grandfather and a grandmother on the maternal as well as the paternal side, as well as grandchildren of both sexes, the children of sons as well as daughters; and this order must be followed in all degrees both ascending and descending.

4. Modestinus, Pandects, Book XII.

So far as our law is concerned, it is not easy to go beyond the seventh degree, when a question arises with reference to natural relationship, as nature hardly permits the existence of cognates to extend beyond that degree.

(1) The term "cognates" is thought to be derived from the fact that relatives are descended from one ancestor, or have a common origin or birth.

(2) Relationship among the Romans is understood to be two fold, for some connections are derived from the Civil and others from Natural Law, and sometimes both coincide, so that the relationship by the Natural and the Civil Law is united. And, indeed, a natural connection can be understood to exist without the civil one, and this applies to a woman who has illegitimate children. Civil relationship, however, which is said to be legal, arises through adoption without Natural Law. Relationship exists under both laws when a union is made by marriage lawfully contracted. Natural relationship is designated by the term cognation; but civil relationship, although it may very properly be designated by the same name, is more accurately styled agnation, which has reference to relationship derived through males.

(3) As certain special rights exist with reference to persons connected by affinity, it is not foreign to the subject to briefly discuss this connection. Persons related by affinity are the cognates of husband and wife, so called for the reason that two relationships, differing from one another, are joined by marriage, and one is transferred to the other. For affinity is derived from marriage.

(4) The following are the terms of affinity, father-in-law, mother-in-law, son-in-law, daughter-in-law, stepfather, stepmother, stepson, and stepdaughter.

(5) There are no degrees of affinity.'

(6) The father of the husband or the wife, is called the father-in-law, and the mother of either of them is called the mother-in-law. Among the Greeks the father of the husband was called IX^VP°* ^and the mother IX^VP* > the father of the wife was called KtvOepos and the mother mvdepa. The wife of the son is called the daughter-in-law, the husband of a daughter the son-in-law. A second wife is called the stepmother of children born of a former one; the husband of a mother having children by a former husband is called the stepfather, and children born of either of them are designated stepsons, and stepdaughters; a father-in-law may also be denned as the father of my wife, and I am his son-in-law. The grandfather of my wife is called my grandfather-in-law, and I am his grandson-in-law; on the other hand, my father is the father-in-law of my wife, and she is his daughter-in-law, and my grandfather is her grandfather-in-law, and she is his granddaughter-in-law; likewise, the grandmother of my wife is my grandmother-

in-law, and I am her grandson-in-law; and my mother is the mother-in-law of my wife, and she is her daughter-in-law; and my grandmother is her grandmother-in-law, and my wife is her granddaughter-in-law. The stepson of my wife is the son of her former husband, and I am his stepfather; on the other hand, my wife is said to be the stepmother of children whom I have by a former wife, and my children are her stepchildren. The brother of a husband is the brother-in-law of his wife, and is called by the Greeks Ba^_P, as is stated by Homer. The sister of the husband is a sister-in-law of the wife called by the Greeks yax^s- The wives of two brothers are called sisters-in-law, designated among the Greeks as «vaTep«, which Homer also mentions.

(7) It is wrong for such persons to contract marriage reciprocally for the reason that, on account of their affinity, they bear the relation of parents and children to one another.

(8) It must be remembered that neither cognation nor affinity can exist unless the marriage which gives rise to affinity is not forbidden by law.

(9) Freedmen and freedwomen can become connected with one another by affinity.

(10) A child given in adoption, or emancipated, retains all the relationship by cognation and affinity which he formerly possessed, but he loses the rights of agnation. But with reference to the family into which he came by adoption, no one is his cognate except his adoptive father, and those to whom he becomes the agnate. No one belonging to the adoptive family is related to him by affinity.

(11) Anyone who has been interdicted from fire and water, or has lost his civil rights in any way, so as to have forfeited his freedom and his citizenship, also loses all his connections of cognation and affinity which he previously had.

5. Paulus, On Plautius, Book VI.

If I emancipate my natural son and adopt another, they will not be brothers. Arrianus says that if, after the death of my son, I adopt Titius, he will be considered the brother of the deceased.

6. Ulpianus, On the Lex Julia et Papia, Book V.

Labeo says that the wife of my grandson, the son of my daughter, is my granddaughter.

(1) Persons who are betrothed are included in the terms son-in-law and daughter-in-law, likewise the parents of such persons are considered to be included in the terms father-in-law and mother-in-law.

7. Sc&vola, Rules, Book IV.

The illegitimate child of a woman whom I afterwards marry is also my stepson, just as is the case with one whose mother formerly lived in concubinage with some man, and was afterwards married to another.

8. Pomponius, Enchiridion, Book I.

Servius very properly says that the terms father-in-law and mother-in-law, son-in-law and daughter-in-law, are also derived from betrothal.

9. Paulus, Sentences, Book IV.

The direct line of relationship is divided into two parts, one of which is the ascending and the other the descending. Collateral lines are also derived from the ascending line as well as from the second degree. We have explained more fully in a special Book everything which has reference to all these.

10. The Same, On Degrees and Affinities and Their Different Names.

A person learned in the law should be familiar with the degrees of relationship and affinity, because, by the laws, it is customary for estates and guardianships to pass to the next of kin. The Prætor, however, by his Edict, grants the possession of an estate to the nearest cognate.

Moreover, under a law relating to criminal trials, we cannot be compelled, against our will, to give testimony against persons connected with us by affinity, and cognates.

(1) The term cognation appears to be derived from a Greek word, for the Greeks designated as Suyiei/ek, persons whom we call cognates.

(2) Those are cognates whom the Law of the Twelve Tables styles agnates, but the latter are really such from the same family through the father. Those to whom we are related through women, are only designated cognates.

(3) The next of kin among agnates are called "proper."

(4) The same difference exists between agnates and cognates as exists between genus and species. An agnate is also a cognate, but a cognate is not an agnate; for one of these is a civil, and the other a natural designation.

(5) We make use of this term, that is to say, cognates, even with reference to slaves. Therefore, we speak of the parents, the children, and the brothers of slaves; but cognation is not recognized by servile laws.

(6) The origin of cognation is derived from women alone, for he is a brother who was only born of the same mother; but where persons have the same father, but different mothers, they are agnates.

(7) Ascendants, as far as the great-great-great-great-grandfather, are indicated among the Romans by special names, relatives beyond that degree, who have no particular designation are called ancestors. Likewise, children as far back as the great-great-great-great-grandson have special names, and those who are beyond this degree are styled posterity.

(8) There are also cognates in the collateral degree, as brothers and sisters and their descendants, as well as paternal and maternal aunts.

(9) Whenever a question arises as to the degree of relationship existing between one person and another, we must begin with him whose relationship is in question; and if it is in the superior or inferior degree in the direct ascending or descending line, we can easily ascertain the relationship by following the line up or down, if we enumerate each one who is next of kin through the different degrees. For anyone who is the next of kin to a person who is in the next degree to me is in the second degree to me; and, in like manner, the number increases with each additional person.

The same course should be taken with reference to the degrees in the collateral line. Hence, a brother is in the second degree, as the father and mother from whom his relationship is derived is counted

first.

(10) Degrees are so called from their resemblance to ladders, or places which are sloping, so that we ascend by passing from one to the next, that is, we proceed to one who, as it were, originates from

another.

(11) Now let us consider each degree separately.

(12) In the first degree of relationship, in the ascending line, are two persons, the father and the mother; in the direct descending line there are also two, the son and the daughter, who may be several in number.

(13) In the second degree, twelve persons are included, namely, the grandfather, that is to say the father of the father and the mother, and the grandmother, both paternal and maternal. The brother is also understood to belong to one or the other of the parents, either only to the mother, or to the father, or to both. This does not increase the number, however, because there is no difference between him who has the same parents, and him who has only the same father, except that the former has the same paternal and maternal cognates.

Therefore, the result, so far as those who are born of different parents are concerned, is that the brother of my brother may not be my cognate. For suppose that I have a brother only by the same father, and he has one by the same mother, the two are brothers, but the other is not my cognate. The relation of sister is computed in the same way as that of a brother. The relation of grandson is also understood in two ways, for he is the son of a son, or the son of a daughter.

(14) Thirty-two persons are included in the third degree. The term great-grandfather is understood in four different ways, for he is the father of the paternal grandfather or the maternal grandfather, or of the paternal grandmother or of the maternal grandmother; the term great-grandmother also includes four different persons, for she is the mother of either the maternal grandfather or the paternal grandmother, or the mother of the maternal grandfather or of the maternal grandmother.

The term paternal uncle (that is to say, the brother of the father) is also to be understood in a double sense; that is, whether he had the same father or the same mother. My paternal grandmother married your father, and gave birth to you; or your paternal grandmother married my father, and gave birth to me; I am, therefore, your paternal uncle, and you are mine. This happens where two women marry the son of one another, for the male children who are born of them are the paternal uncle of one another, and the female children are the maternal aunts of one another. If a man gives his son in marriage to a woman whose daughter he himself has married, the male children born to the father of the young man will call those born to the mother of the girl their nephews, and the latter will call the others their paternal uncles, and their paternal aunts. A maternal uncle is a brother of the mother, and the same can be said of her which we have stated with reference to the paternal uncle; for if two men should marry each other's daughters, the males born to them will be reciprocally maternal uncles, and the females will be reciprocally maternal aunts. And, under the same rule, if males are born by one marriage and females by another, the males will be the maternal uncles of the females, and the females will be the maternal aunts of the males. The paternal aunt is the sister of the father, and what has been above mentioned will apply to her. The maternal aunt is a sister of the mother, and likewise what has been previously stated will apply to her.

It must be remembered that, while the brothers and sisters of the father and the mother are called paternal uncles and aunts, and maternal uncles and aunts, the sons and daughters of brothers and sisters have no special name to designate their relationship, but they are merely referred to as the sons and daughters of brothers and sisters. It will hereafter be shown that this is also the case with their descendants. The terms great-grandson and great-granddaughter are also understood in four different ways, for they are either descended from a grandson by his son, or from a grandson by his daughter; or from a granddaughter by her son, or from a granddaughter by her daughter.

(15) Eighty persons are included in the fourth degree. Great-great-grandfather is a term which extends to eight persons, for he is either the father of the paternal great-grandfather, or of the maternal great-grandfather, whom we have stated should each be understood in a double sense; or he is the father of the paternal great-grandmother, or of the maternal great-grandmother, each of which names we also understand to be of twofold signification. The term great-great-grandmother also includes eight persons, for she is the mother of the paternal great-grandfather, or the maternal greatgrandfather; or the mother of the paternal great-grandmother, or of the maternal great-grandmother. The paternal great-uncle is the brother of the grandfather, and he can be understood to be both grandfather and brother in two ways, hence this term includes four persons; as he may be the brother of the paternal or the maternal grandfather, that is to say, he may be descended from the same father, namely, the great-grandfather, or only from the same mother, namely, the great-grandmother. Moreover, he who is my great uncle is the uncle of my father or mother. My paternal great-aunt is the sister of my grandfather, and the term grandfather, as well as that of sister (as we stated above) is interpreted in two different ways, and therefore, in this instance, we understand the term great-aunt to refer to four different persons. In like manner, she who is the paternal aunt of my father or my mother will be my paternal great-aunt. The maternal great-uncle is the brother of the grandmother, and under the same rule, there are four persons embraced in this appellation, and my maternal great-uncle is the maternal uncle of my father or my mother. The maternal great-aunt is the sister of the grandmother, and, in accordance with the same rule, this term is to be understood in four different ways; for she who is the maternal aunt of my father or my mother is my maternal great-aunt. There are also in this degree the children of brothers and sisters or first cousins of both sexes. They are children born to brothers or sisters, and whom certain authorities distinguish as follows: those who are born to brothers being designated paternal first cousins, and those born to a brother or a sister are called amitini and amitinse, and children of either sex born of two sisters are called cousins on account of their descent. According to Trebatius, many authorities call all of these children cousins. Sixteen different persons are included in this appellation; namely, the son and the daughter of a paternal uncle are designated in a twofold manner, as is stated above; for the brother of my father may, with him, be descended only from a common father, or a common mother. The son and daughter of a paternal aunt, and the son and daughter of a maternal uncle, is the son and daughter of a maternal uncle, and the son and daughter of a maternal aunt, as well as the terms paternal aunt, maternal uncle, and maternal aunt are to be understood as having double signification in accordance with this rule. The grandson and granddaughter of a brother and sister also belong to this degree. But as the terms brother, sister, grandson, and granddaughter are to be understood in a double sense, sixteen persons are included herein; namely, the grandson born to the son and the grandson born to the daughter of a brother, by the same father; the grandson born to the son and the grandson born to the daughter of the brother by the same mother, but by another father; the granddaughter born to a son and the granddaughter born to a daughter of a brother by the same father, and the granddaughter born to a son, or a daughter of a brother by the same mother, but by a different father. Under this rule there are eight persons and another eight will be added if we count the grandsons and the granddaughters born to the sister. Moreover, the grandson and the granddaughter of my brother and sister call me their great-uncle. The grandchildren of my brothers and sisters and my own call each other cousins. A great-great-grandson and a great-great-granddaughter are the son and the daughter of a great-grandson or a great-granddaughter; the grandson or the granddaughter of a grandson or a granddaughter, the great-grandson and the great-granddaughter of the grandson of a son or a daughter; it being understood that the grandson is such for the reason that he is the son of my own son or my daughter, and my granddaughter is such because she is the daughter of my son, or my daughter; so that we descend by a degree to each person as follows: the son, the grandson, the great-grandson, the great-great-grandson; the son, the grandson, the great-grandson, the great-great-granddaughter; the son, the grandson, the great-granddaughter, the great-great-grandson; the son, the grandson, the great-granddaughter, the great-great-granddaughter; the son, the granddaughter, the great-grandson, the great-great-grandson; the son, the granddaughter, the great-grandson, the great-great-granddaughter; the son, the granddaughter, the great-granddaughter, the great-great-grandson; the son, the granddaughter, the great-granddaughter and the great-great-granddaughter. In calculating the descent from the daughter the same persons are enumerated, and in this way they make sixteen.

(16) A hundred and eighty-four persons are included in the fifth degree, as follows, the great-great-great-grandfather, and the great-great-great-grandmother. The great-great-great-grandfather is the father of the great-great-grandfather, or the great-great-grandmother; the grandfather of the great-grandfather or the great-grandmother; the great-great-grandfather of the father or the mother. This appellation includes sixteen persons, the enumeration being made by males as well as females, in order that we may reach each one thus designated; namely, the father, the grandfather, the great-grandfather, the great-great-grandfather, the great-great-great-grandfather; the father, the grandfather, the great-grandfather, the great-great-grandmother, the great-great-great-grandfather; the father, the grandfather, the great-grandmother, the great-great-grandfather, the great-great-great-grandfather; the father, the grandfather, the great-grandmother, the great-great-grandmother, the great-great-great-grandfather; the father, the grandmother, the great-grandfather, the great-great-grandfather, the great-great-great-grandfather; the father, the grandmother, the great-grandfather, the great-great-grandmother, the great-great-great-grandfather; the father, the randmother, the great-grandmother, the great-great-grandmother, the great-great-great-grandfather; the father, the grandmother, the great-grandmother, the great-great-grandfather, the great-great-great-grandfather. The enumeration is made in like manner on the mother's side. The term great-great-great-grandmother, according to the same rule, includes the same number of persons, that is to say sixteen. The great-great-paternal uncle is the brother of the great-grandfather, or the great paternal uncle of the father or mother. Under this name eight persons enumerated as follows are included, the father, the grandfather, the great-grandfather, the great-great-grandfather, the brother of the great-grandfather; the father, the grandfather, the great-grandfather, the great-great-grandmother, the brother of the great-grandfather ; the father, the grandmother, the great-grandfather, the great-great-grandfather, the brother of the great-grandfather; the father, the grandmother, the great-grandfather, the great-great-grandmother, the brother of the great-grandfather.

There are the same number of persons in making the calculation from the mother to her great-grandfather. However, before mentioning the brother of the great-grandfather, we place before him the great-great-grandfather for the reason (as we stated above) that we cannot reach him whose relationship is in question, unless we pass through those from whom he has descended, the maternal great-great-uncle, that is the brother of the great-grandmother, maternal great-uncle of the father or mother. By the same method of calculation, we also, in this instance, compute eight persons except that, only with this change, the brother of the great-grandmother is introduced.

The paternal great-great-aunt is the sister of the great-grandfather and the great-aunt of the father or mother. In this case the same enumerations of persons are made as before, except that the sister of the great-grandfather is introduced last. The maternal great-great-aunt is the sister of the great-grandmother, and the maternal great-aunt of the father or mother. In this instance, the number of persons is the same, except that the sister of the great-grandmother is placed last. Certain authorities designate all those whom we have mentioned as descended from the paternal great-uncle as follows, paternal uncle, maternal uncle, paternal aunt, maternal aunt; those whom I designate as such call me the great-grandson of their brother or sister.

In this degree are also included the son and daughter of the paternal great-uncle, who are the son and daughter of the brother of the grandfather, the grandson and granddaughter of the great-grandson or the great-granddaughter by their sons or daughters, and the first cousin of the father or the mother. In this instance we also compute eight persons; for the reason that the grandfather and the brother (as has already been stated), can exist in this capacity in two ways, and therefore the character of son or daughter of a paternal great-aunt belongs to four persons; the son and the daughter of the paternal great-aunt are the son and the daughter of the sister of the grandfather, and the grandson or the granddaughter by the daughter of the great-grandfather, or the great-grandmother, and cousins of the father or mother; the number of the persons being the same as above stated. The son and the daughter of the maternal great-uncle are the son and daughter of the brother of the grandmother, or the grandson and granddaughter by the son, and the male and female cousins of the father or the mother; and the number is the same as that given above. The son and the daughter of the maternal great-aunt, that is to say, the children of a sister of the grandmother, the grandson and granddaughter by the daughter of the great-grandfather or great-grandmother, and the cousins of the father or mother according to the same computation.

The persons whom we have just enumerated from the son of the paternal great-uncle, concerning whose relationship a question may arise, are properly designated cousins, for, as Massurius says, a person whom anyone calls next in degree to his cousin, who is a cousin of his father or mother, is designated by him as the son or daughter of the cousin. The grandson and granddaughter of the paternal uncle are the great-grandson and the great-granddaughter of the paternal grandfather or the paternal grandmother, descended from a grandson or a granddaughter by a son, and are the children of cousins.

These include eight persons, that is four grandsons and four granddaughters, for the reason that the term paternal uncle is understood to be one of twofold meaning, and the grandson or the granddaughter are doubled, so far as the two kinds of uncles are concerned. The grandson or the granddaughter of the paternal aunt are the great-grandson and the great-granddaughter born to a grandson or a granddaughter of the paternal grandfather or grandmother, and are the sons and daughters of cousins; and the number is the same. The grandson and granddaughter of the maternal uncle are the great-grandson and great-granddaughter of the maternal grandfather or grandmother. The remainder are the same, as in the case of grandson or granddaughter of the paternal uncle (the grandson and granddaughter of the maternal aunt, that is to say, the great-grandson of the great-granddaughter, by a grandson or granddaughter of the maternal grandfather or grandmother; and the number of persons is the same).

All those whom we have just mentioned from the grandson of the paternal uncle, in the case where relationship is in question, are considered next in line to the cousin, for he is the cousin of the father or mother. The great-grandson and the great-granddaughter of a brother: in this degree sixteen persons are included, the term brother being understood in two ways, and the great-grandson and the great-granddaughter each being understood in four ways (as we previously mentioned). The degree of great-grandson and great-granddaughter of the sister likewise includes sixteen persons. The great-great-great-grandson and the great-great-great-granddaughter are the children of the great-great-grandson and the great-great-granddaughter, the grandson and granddaughter of the great-grandson or the great-granddaughter, the great-grandson and the great-granddaughter of the grandson or the granddaughter; the great-great-grandchildren of the son or the daughter. Thirty-two persons are included under this appellation, for the great-great-great-grandson includes sixteen, and the great-great-great-granddaughter the same number.

(17) Four hundred and forty-eight persons are included in the sixth degree, as follows: the great-great-great-great-grandfather, the great-great-great-grandfather of the father, or mother, the great-great-grandfather, the grandfather or grandmother, the great-grandfather of the great-grandfather or great-grandmother, the grandfather of the great-great-grandfather or the grandmother, and the grandfather of the great-great-grandfather or grandmother, and the father of the great-great-great-grandfather or the great-great-great-grandmother. He is called the grandfather in the third degree. Thirty-two persons are included in this class. For the number to which the great-great-great-grandfather belongs must be doubled, a change being made with reference to each person, so far as the relation of great-great-great-grandfather is concerned; so that there are sixteen

ways of being the father of the great-great-great-grandfather, and as many of being the father of the great-great-great-great-grandmother.

The term great-great-great-great-grandmother likewise includes thirty-two persons, the paternal great-great-uncle, that is to say the brother of the great-great-grandfather, the son of the great-great-great-grandfather and mother, the paternal great-great-uncle of the father or mother. The sixteen persons mentioned as included in the term are the following: the father, the grandfather, the great-grandfather, the great-great-grandfather, the great-great-great-grandfather, the brother of the great-great-grandfather; the father, the grandfather, the great-grandfather, the great-great-grandfather, the great-great-great-grandmother, the brother of the great-great-grandfather ; the father, the grandfather, the great-grandmother, the great-great-grandfather, the great-great-great-grandfather, the brother of the great-great-grandfather; the father, the grandfather, the great-grandmother, the great-great-grandfather, the great-great-great-grandmother, the brother of the great-great-grandfather; the father, the grandmother, the great-grandfather, the great-great-grandfather, the great-great-great-grandfather, the brother of the great-greatgrandfather; the father, the grandmother, the great-grandfather, the great - great - grandfather, the great - great - great - grandmother, the brother of the great-great-grandfather; the father, the grandmother, the great-grandmother, the great-great-grandfather, the great-great-great-grandfather, the brother of the great-great-grandfather; the father, the grandmother, the great-grandmother, the great-greatgrandfather, the great-great-great-grandmother, the brother of the great-great-grandfather.

The same number are included on the mother's side. The maternal great-great-uncle, that is to say the brother of the great-great-grand-mother, and the maternal great-uncle of the father or mother. The number in the order of the persons is the same as above mentioned; the only change being that the brother of the great-great-grandmother is introduced instead of the brother of the great-great-grandfather. The paternal great-great-aunt is the sister of the great-great-grandfather, and the maternal great-great-aunt of the mother; and the others proceed in regular order, as in the case of the paternal great-great-uncle, with the exception that the sister of the great-greatgrandfather is substituted instead of the brother of the great-greatgrandfather. The maternal great-great-aunt is the sister of the great-great-grandmother, and the great-aunt of the father or mother, and the other degrees proceed as above, except that, at the last, the sister of the great-great-grandmother is introduced instead of the brother of the great-great-grandmother.

Certain authorities designate by the following specific names all those whom we have traced from the paternal great-great-uncle, the maternal great-great-uncle, the paternal great-great-uncle, the paternal great-great-aunt, and the maternal great-great-aunt; therefore, we use these terms indiscriminately. Those whom I designate by these names call me the great-great-grandson of their brother or their sister. The son and the daughter of the paternal great-great-uncle are the son and daughter of the brother of the great-grandfather, and the grandson and granddaughter of the great-great-grandfather or great-great-grandmother, by the great-grandfather through his son. There are sixteen persons in this class, the enumeration being made in the same manner as was done in the fifth degree, when we explained the relation of the paternal great-great-uncle; only adding one more son or daughter, because it is necessary to include as many persons in this class, as in those of the paternal great-great-uncle, that is to say, eight. With reference to the person of the daughter, the number computed is the same as that mentioned above; the son and the daughter of the paternal great-great-aunt are the children of the sister of the great-grandfather, and the grandson and the granddaughter by the great-great-grandfather or the great-great-grandmother through the great-grandfather by a daughter. In this instance, we compute the persons according to the same rule. The son and daughter of the maternal great-great-uncle are the children of the great-grandfather and the great-grandmother, and the grandchildren of the great-great-great-grandfather, and the great-great-great-grandmother through the great-grandmother by a son. The enumeration, in this case, should be made just as in that of the son and daughter of the paternal great-great-uncle. The son and the daughter of the maternal great-great-aunt are the son and the daughter of the sister of the great-grandmother, and the grandson and granddaughter of the great-great-grandfather and the great-great-grandmother through the great-grandmother by a daughter, the number and definitions of the persons being the same as above.

All of those whom we have mentioned as descended from the son of the paternal great-great-uncle are cousins of the grandfather and grandmother, and the great-uncles and great-aunts of the person whose relationship is in question; and they are also distant cousins of the brothers and sisters of the father or mother on both sides. The grandson and the granddaughter of a paternal great-uncle and a paternal great-aunt, of a maternal great-uncle and a maternal great-aunt, each of which classes includes sixty-four persons. For as the person of the great-uncle has four different significations, that of the grandson has two, the number is doubled in speaking of the grandson, and he who is doubled is also quadrupled.

Where the granddaughter is concerned, the number is also doubled; and we will mention one of these enumerations, by way of example. The father, the grandfather, the great-grandfather, the brother of the grandfather, who is the paternal great-uncle, his son, and his grandson, by a son, and also his granddaughter; the father, the grandfather, the great-grandmother, the brother of the grandfather, who is the paternal great-uncle, his son, his grandson by his son, and his granddaughter; the father, the grandfather, the great-grandfather, the father of the grandfather who is the paternal great-uncle of his daughter, and his grandson by his daughter, likewise, his granddaughter; the father, the grandfather, the great-grandmother, the brother of the grandfather, who is the paternal great-uncle, his daughter, his grandson by his daughter, and also his granddaughter. Under the same rule, there are as many, beginning with the mother, that is to say if we compute the grandsons and granddaughters of the brother of the maternal grandfather. This also applies to the paternal great-aunt; that is to say, where we enumerate the grandchildren of the sister of the grandfather. The same rule also applies to the maternal great-uncle, that is to say, the brother of the grandmother. According to the same rule, the computation is made with reference to the maternal great-aunt, that is to say, the sister of the grandmother; from whom the entire number of sixty-four descendants is derived. All of these are the great-grandsons or great-granddaughters of the great-grandfather or great-grandmother of the person whose relationship is in question, the grandsons or granddaughters of the brother or sister of the same grandfather or grandmother.

And, on the other hand, the grandfather and grandmother, the paternal great-uncle and the paternal great-aunt, the maternal great-uncle and the maternal great-aunt of the same person. There are, in addition, the father and the mother of the same person, and the 'brothers and sisters of both of these in the degree above cousins, and he is their cousin, and they are his.

The great-grandson of the paternal uncle and his granddaughter include eight persons; for there are sixteen of both sexes; namely, the father, the grandfather, the paternal uncle, the son of the latter, his grandson by a son, his great-grandson through his son by a grandson, and his great-granddaughter; the father, the grandmother, the paternal uncle, the son of the paternal uncle, his grandson through his son, his great-grandson by a grandson through his son, and his great-granddaughter; the father, the grandfather, the paternal uncle, the daughter of the latter, his grandson by his daughter, his great-grandson by his grandson by his daughter's son, and his great-granddaughter; the father, the grandmother, the paternal uncle, the daughter of the paternal uncle, his grandson by his daughter, his great-grandson born to his grandson by his daughter, and his great-granddaughter; the father, the grandfather, the paternal uncle, the son of the paternal uncle, the granddaughter by the son of his daughter, the great-grandson born to the son of his daughter, and his great-granddaughter; the father, the grandmother, the great-uncle, the son of the great-uncle, his granddaughter by his son, his great-grandson born to his son through his granddaughter, and also his great-granddaughter; the father, the grandfather, the great-uncle, the daughter of the great-uncle, his granddaughter by his daughter, his great-grandson born to his granddaughter by his daughter, and his great-granddaughter ; the father, the grandmother, the paternal uncle, the daughter of the paternal uncle, his granddaughter by his daughter, his great-grandson by his granddaughter through his daughter, and his granddaughter, the great-grandson and the great-granddaughter of the paternal aunt. Under the same rule this class contains the same number of persons by substituting the paternal aunt for the paternal uncle. This also applies to the great-grandson and great-granddaughter of the maternal uncle, the latter being introduced instead of the paternal uncle. The great-grandson and great-granddaughter of the paternal aunt, and, in this instance, the maternal aunt is substituted instead of the paternal uncle, and we find the same number of persons. All of these are the grandsons or granddaughters of the cousins of him whose relationship is in question.

The great-great-grandson and the great-great-granddaughter of the brother and sister give rise to sixty-four persons, as appears from what is above stated. The great-great-great-grandson and great-great-great-granddaughter, the great-great-grandson or the great-great-granddaughter of the son of the daughter, and the great-great-grandson and the great-great-granddaughter of the great-grandson, and the great-granddaughter of the great-grandson, or the great-granddaughter of the great-grandson or the great-granddaughter, or the grandson and granddaughter of the great-great-grandson or the great-great-granddaughter, or the son of the daughter of the great-great-grandson or the great-great-granddaughter. These appellations include sixty-four persons, for the grandson in the third degree gives rise to thirty-two, and the granddaughter in the third degree to the same number. For from the great-great-grandson the number is quadrupled, making thirty-two, as the term grandson itself signifies two persons, the great-grandson four, the great-great-grandson eight, the great-great-great-grandson sixteen. To these are added the grandson and the granddaughter in the third degree, one of whom is born to the great-great-great-grandson, and the other to the great-great-great-granddaughter. Moreover, the same duplication is made in each individual degree, for the females are added to the males, from whom each one is derived in regular order, and they are enumerated as follows: the son, the grandson, the great-grandson, the great-great-grandson, the great-great-great-grandson, the great-great-great-great-grandson, and the great-great-great-great-granddaughter; the daughter, the grandson, the great-grandson, the great-great-grandson, the great-great-great-grandson, the great-great-great-great-grandson and the great-great-great-great-granddaughter; the daughter, the grandson, the great-grandson, the great-great-grandson, the great-great-great-grandson, the great-great-great-great-grandson and the great-great-great-great-granddaughter; the son, the granddaughter, the great-grandson, the great-great-grandson, the great-great-great-grandson, the great-great-great-great-grandson and the great-great-great-great-granddaughter; the daughter, the granddaughter, the great-grandson, the great-great-grandson, the great-great-great grandson, the great-great-great-great-grandson and the great-great-great-great-granddaughter; the son, the grandson, the great-grandson, the great-great-grandson, the great-great-great-grandson, the great-great-great-great grandson and the great-great-great-great-granddaughter; the daughter, the grand-son,the great-granddaughter,the great-great-grandson,the great-great-great-grandson, the great-great-great-great-grandson, and the great-great-great-great-granddaughter; the son, the granddaughter, the great-granddaughter, the great-great-grandson, the great-great-great-grandson, the great-great-great-great-grandson, and the great-great-great-great-granddaughter; the daughter, the granddaughter, the great-granddaughter, the great-great-grandson, the great-great-great-grandson, the great-great-great-great-grandson and the great-great-great-great-granddaughter; the son, the grandson, the great-grandson, the great-great-granddaughter, the great-great-great-grandson, the great-great-great-great-grandson, and the great-great-great-great-granddaughter; the daughter, the grandson, the great-grandson, the great-great-granddaughter, the great-great-great-grandson, the great-great-great-great-grandson and the great-great-great-great-granddaughter; the son, the grandson, the great-grandson, the great-granddaughter, the great-great-granddaughter, the great-great-great-grandson, the great-great-great-great-grandson, and the great-great-great-great-granddaughter; the daughter, the grandson, the great-granddaughter, the great-great-granddaughter, the great-great-great-grandson, the great-great-great-great-grandson, and the great-great-great-great-granddaughter; the son, the granddaughter, the great-grandson, the great-great-granddaughter, the great-great-great-grandson, the great-great-great-great-grandson, and the great-great-great-great-granddaughter; the daughter, the granddaughter, the great-grandson, the great-great-granddaughter, the great-great-great-grandson, the great-great-great-great-grandson, and the great-great-great-great-granddaughter; the son, the granddaughter, the great-granddaughter, the great-great-granddaughter, the great-great-great-grandson, the great-great-great-great-grandson, and the great-great-great-great-granddaughter; the daughter, the granddaughter, the great-granddaughter, the great-great-granddaughter, the great-great-great-grandson, the great-great-great-great grandson and the great-great-great-great-granddaughter; the son, the grandson, the great-grandson, the great-great-grandson, the great-great-great-granddaughter, and the great-great-great-great-grandson and the great-great-great-great-granddaughter; the daughter, the grandson, the great-grandson, the great-great-grandson, the great-great-great-granddaughter, the great-great-great-great-grandson and the great-great-great-great granddaughter; the son, the granddaughter, the great-grandson, the great-great-grandson, the great-great-great-granddaughter, the great-great-great-great-grandson, and the great-great-great-great-granddaughter; the son, the granddaughter, the great-grandson, the great-great-grandson, the great-great-great-granddaughter, the great-great-great-great-grandson and the great-great-great-great-granddaughter; the daughter, the granddaughter, the great-grandson, the great-great-grandson, the great-great-great-granddaughter, the great-great-great-great-grandson, and the great-great-great-great-granddaughter; the son, the grandson, the great-granddaughter, the great-great-grandson, the great-great-great-granddaughter, the great-great-great-great-grandson and the great-great-great-great-granddaughter; the daughter, the grandson, the great-granddaughter, the great-great-grandson, the great-great-great-granddaughter, the great-great-great-great-grandson and the great-great-great-great-granddaughter; the son, the granddaughter, the great-granddaughter, the great-great-grandson, the great-great-great-granddaughter, the great-great-great-great-grandson, and the great-great-great-great-granddaughter; the daughter, the granddaughter, the great-granddaughter, the great-great-grandson, the great-great-great-granddaughter, the great-great-great-great-grandson, and the great-great-great-great-granddaughter; the son, the grandson, the great-grandson, the great-great-granddaughter, the great-great-great-granddaughter, the great-great-great-great-grandson, and the great-great-great-great-granddaughter; the daughter, the grandson, the great-grandson, the great-great-granddaughter, the great-great-great-granddaughter, the great-great-great-great-grandson, and the great-great-great-great-granddaughter; the son, the grandson, the great-granddaughter, the great-great-granddaughter, the great-great-great-granddaughter, the great-great-great-great-grandson and the great-great-great-great-granddaughter; the daughter, the grandson, the great-granddaughter, the great-great-granddaughter, the great-great-great-granddaughter, the great-great-great-great-grandson, and the great-great-great-great-granddaughter; the son, the granddaughter, the great-grandson, the great-great-granddaughter, the great-great-great-granddaughter, the great-great-great-great-grandson and the great-great-great-great-granddaughter; the daughter, the granddaughter, the great-grandson, the great-great-granddaughter, the great-great-great-granddaughter, the great-great-great-great-grandson and the great-great-great-great-granddaughter; the son, the granddaughter, the great-granddaughter, the great-great-granddaughter, the great-great-great-granddaughter, the great-great-great-great-grandson and the great-great-great-great-granddaughter; the daughter, the granddaughter, the great-granddaughter, the great-great-granddaughter, the great-great-great-granddaughter, the great-great-great-great-grandson and the great-great-great-great-granddaughter.

(18) One hundred and twenty-four persons are included in the seventh degree, beginning with the father and the mother of the great-great-great-great-grandfather and the great-great-great-great-grandmother. These constitute in all a hundred and twenty-eight persons, for there are as many fathers and mothers of the great-great-great-great-grandfather as of the great-great-great-great-grandmother, and these make sixty-four. The brother and the sister of the great-great-great-grandfather and the great-great-great-grandmother are the son and daughter of the great-great-great-great-grandfather, the paternal and maternal uncle and the paternal and maternal aunt of the great-great-grandfather and the great-great-grandmother; the paternal great-uncle and the maternal great-uncle, the paternal great-aunt and the maternal great-aunt of the great-grandfather and the great-grandmother ; the paternal great-great-uncle, the maternal great-great-uncle, the paternal great-great-aunt, and the maternal great-great-aunt of the grandfather or grandmother; the paternal great-great-uncle, the maternal great-great-uncle, the paternal great-great-aunt and the maternal great-great aunt of the father or mother.

The persons connected with the brother of the great-great-greatgrandfather are thirty-two in number, for there are sixteen derived from the great-great-great-grandfather, and as many more are necessarily added on account of the duplication of the person of the brother. For sixteen brothers of the great-great-great-grandfather are computed as descending from his father, as well as sixteen from his mother. In like manner the sisters of the great-great-great-grandfather are thirty-two in number. This makes sixty-four in all, and as many for the brother and sister of the great-great-great-grandmother must be reckoned. The son and the daughter of the paternal great-great-uncle are the grandson of the great-great-great-grandfather and the granddaughter by his son, the son and daughter of the brother of the great-great-grandfather. The son and the daughter of the paternal great-great-aunt are the grandson of the great-great-great-grandfather and granddaughter by his daughter, the son and the daughter of the sister of the great-great-grandfather. The son and the daughter of the maternal great-great-uncle are the grandson of the great-great-great-great-grandfather and the granddaughter by his son, the son and the daughter of the brother of the great-great-grandmother. The son and the daughter of the maternal great-great-aunt are the grandson and the granddaughter of the great-great-great-grandfather, by his granddaughter by a daughter, the son and daughter of the sister of the great-great-grandmother.

All these persons whom we have mentioned as being descended from the son of the paternal great-great-uncle are the cousins of the greatgrandfather and the great-grandmother whose relationship is in question, one degree above the cousins of his grandfather and grandmother. Each one of these names includes sixteen persons, because when the paternal great-great-uncle gives rise to sixteen, his son and his daughter each gives rise to the enumeration of as many more; and from all those which we trace back to the son of the paternal great-great-uncle by multiplying eight by sixteen, we obtain one hundred and twenty-eight.

The term grandson of the paternal great-uncle includes sixteen persons. For he is the great-grandson of the great-great-grandfather and the great-great-grandmother, and as the great-great-grandfather is counted eight times, the grandsons being counted twice eight times, make up the above-mentioned number. The same rule applies to the granddaughter of the paternal great-uncle.

According to the same rule the grandson and granddaughter of the maternal great-great-uncle include thirty-two persons. The grandson and granddaughter of the paternal great-aunt under this classification includes the same number. This also applies to the grandson and the granddaughter of a maternal great-aunt, and hence, for all of these, a hundred and twenty-eight persons are obtained. The grandfather and grandmother of the person whose relationship is in question are related in the degree above cousins to the persons hereinbefore mentioned, namely, the father, the mother and the male and female cousins. He whose degree of relationship is in question is their cousin, but in an inferior degree, and, as Trebatius says, this is done to indicate that they are related; and he gives as the reason for this, that the last degrees of relationship are those of cousins. Therefore, the son of my cousin is very properly called my near relative; and he is also called the son of my cousin. Hence those who are born of cousins call one another near relatives, for they have no special name by which they may be designated.

The great-grandson and the great-granddaughter of the paternal great-uncle, the great-grandson and the great-granddaughter of the maternal great-uncle, the great-grandson and the granddaughter of the paternal great-aunt, the great-grandson and the great-granddaughter of the maternal great-aunt: from all these a hundred and twenty-eight persons are derived, because each of these appellations includes sixteen. For example, the term paternal great-uncle is understood in four different ways, the persons of each paternal great-uncle being quadrupled; the great-grandson and the great-granddaughter include thirty-two persons; and this number multiplied by four makes the entire number above mentioned. The fathers and mothers of these are the cousins of him whose degree of relationship is in question, and he is their cousin.

The great-great-grandson and the great-great-granddaughter of the paternal uncle, the great-great-grandson and the great-great-granddaughter of the maternal uncle, the great-great-grandson and the great-great-granddaughter of the paternal aunt, the great-great-grandson and the great-great-granddaughter of the maternal aunt: each of these terms includes sixteen persons; for example, the great-great-grandson of the paternal uncle is enumerated in such a way that his great-grandson and great-granddaughter shall be counted as four, and their children will amount to sixteen. The same rule applies to the daughter as to the others, and in this way the entire number is brought up to a hundred and twenty-eight. These are the great-grandson and the great-granddaughter of the cousins of him whose degree of relationship is in question; the sons and daughters of the paternal great-great-uncle, the maternal great-great-uncle, the paternal great-great-aunt, and the maternal great-great-aunt, of those whose degree of relationship is in question.

The same rule applies to the cousin of the great-grandfather and the great-grandmother. The great-great-great-grandson and the great-great-great-great-granddaughter of the brother or sister include one hundred and twenty-eight persons. The son and daughter of the great-great-great-great-grandson, and the son and daughter of the great-great-great-great-granddaughter : these also constitute a hundred and twenty-eight persons, because as the great-great-great-great-grandson and the great-great-great-great-granddaughter include sixty-four persons (as we have previously stated), their son and their daughter under the same enumeration will each include as many more.

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TITLE XI. CONCERNING prætorian POSSESSION WITH REFERENCE TO HUSBAND AND WIFE.

1. Ulpianus, On the Edict, Book XLVII.

In order that prætorian possession of an estate may be demanded in case of the intestacy of either the husband or the wife, there must be a lawful marriage. On the other hand, if the marriage is unlawful, prætorian possession of the estate cannot be demanded. In like manner, the estate cannot be entered upon under the will, nor can prætorian possession, in accordance with the terms of the will be claimed; for nothing can be acquired where a marriage is illegal.

(1) In order that prætorian possession of this kind may be obtained, the woman must be the wife of her husband at the time of his death. If a divorce has occurred, even though the marriage still exists according to law, this succession will not take place. This may happen in certain instances; for example, where a freedwoman is divorced without the consent of her patron; as the Lex Julia relating to the marriages of different orders still retains the woman in the matrimonial condition, and forbids her to marry another against the consent of her patron. The Lex Julia with reference to adultery renders a divorce void if it is not obtained in a certain way.

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TITLE XII. CONCERNING THE SUCCESSION OF VETERANS AND SOLDIERS.

1. Macer, On Military Affairs, Book II.

Paulus and Menander say that a soldier who deserves to suffer the punishment of death should be permitted to make a will; and if he should die intestate, after having been punished, his property will belong to his next of kin; provided he is punished for a military offence, and not for an ordinary crime.

2. Ulpianus, Opinions, Book XVI.

The castrensian property of a soldier who died intestate cannot be claimed by the Treasury, if he left a lawful heir, who is within the sixth degree; or one next of kin in the same degree demands prætorian possession within the prescribed time.

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TITLE XIII. CONCERNING THOSE WHO ARE NOT ENTITLED TO PRÆTORIAN POSSESSION OF AN ESTATE.

1. Julianus, Digest, Book XXVIII,

If my slave was appointed an heir, and I fraudulently prevented the testator from changing his will, and I afterwards manumitted the slave, the question arises whether actions to recover the estate should be refused to him. I answered, that this case is not included in the terms of the Edict; it is, however, but just, if the master was guilty of fraud, to prevent the will by which a slave was appointed heir from being changed; and he, even though he was manumitted, should accept the estate, the actions should be denied him, as an action is denied an emancipated son, where his father has committed fraud in order to prevent the testator from changing his will.

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TITLE XIV. CONCERNING prætorian POSSESSION OF PROPERTY GRANTED BY SPECIAL LAWS OR DECREES OF THE SENATE.

1. Ulpianus, On the Edict, Book XL1X.

The Prætor says: "I will grant the possession of property, whenever it must be given under the terms of any law or decree of the Senate."

(1) Prætorian possession of property, although obtained under some other Section of the Edict, does not interfere with possession of this kind.

(2) Where anyone is entitled to an estate by the Law of the Twelve Tables, he cannot demand it under this part of the Edict, but under another Section relating to necessary heirs; for, under this Section, prætorian possession is not granted unless a special law provides for it.

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TITLE XV. WHAT ORDER IS TO BE OBSERVED IN GRANTING prætorian POSSESSION.

1. Modestinus, Pandects, Book VI.

The following are the degrees of prætorian possession on the ground of intestacy: first, that of the proper heirs; second, that of the heirs at law; third, that of the next of kin; finally that of husband and wife.

(1) Prætorian possession on the ground of intestacy is granted where there is no will, or where there is one and no application is made for possession of the estate either in accordance with the provisions of the will, or in opposition to them.

(2) Prætorian possession of the estate of a father dying intestate is granted to his children; not only to such as were under his control at the time of his death, but also to those who have been emancipated.

2. Ulpianus, On the Edict, Book XLIX.

The time for claiming prætorian possession of the estate is an available one. It is designated available, because all the days of which it is composed can be taken advantage of; that is to say, all the days are included on which he who was entitled to the succession had knowledge of, and could have accepted it. There is no doubt, however, that the days on which he did not know of the succession, or could not have demanded it, are not included. Still, it may happen that where the person interested was aware of the facts, or could have claimed possession in the first place, was subsequently misinformed, or thought that he had no right to acquire possession; for instance, if he knew from the beginning that the owner of the property had died intestate, and afterwards doubted whether this was the case, or whether he died testate, or whether he was still living; because a rumor of this kind was afterwards circulated. On the other hand, it may also happen that a person who at first was ignorant that he had a right to the succession may afterwards ascertain that he was entitled to it.

(1) It is clear that while the days prescribed for demanding prætorian possession of an estate are available ones, those during which court is in session are not included, provided the prætorian possession is of such a nature that it can be demanded without ceremony.

But what if the possession is such that it requires an investigation by a tribunal, or a decree of the Prætor? In this instance, the days of the session of the tribunal during which the Prætor has rendered his decision, and on which nothing has been done by him to prevent possession of the estate from being granted, must be computed.

(2) With reference to the prætorian possession of an estate which is granted in court, inquiry is made whether the Prætor presided in his tribunal, and did not grant possession to the parties demanding it; for it must be said that the time for obtaining possession does not begin to run while the presiding magistrate is occupied with other matters, either those relating to military affairs, or the custody of prisoners, or special investigations.

(3) If the Governor of the province was in the neighboring town, the time required for making the journey must be added to that prescribed by law, that is to say, by allowing twenty thousand paces to a day; nor should we expect the Governor of the province to come to the home of him who claims possession of the estate.

(4) When an unborn child is placed in possession, there is no doubt that the prescribed time for demanding it should not run against those in the next degree, not only during the hundred days, but also for the time during which the child may be born; for it must be remembered that, even if he is born before this time, prætorian possession will be granted him.

(5) Pomponius says that the knowledge which is necessary is not such as is exacted from persons learned in the law, but is what anyone can acquire, either by himself or through others; that is to say, by taking the advice of persons learned in the law, as the diligent head of the household should do.

3. Paulus, On the Edict, Book XLIV.

The knowledge of the father with reference to prætorian possession will not prejudice the rights of a son in such a way as to make the prescribed time run against him, if he is not informed.

4. Julianus, Digest, Book XXVIII.

If you have been substituted for your co-heir, and you obtain possession of an estate, and your co-heir determines not to demand possession of the same, the entire possession will be understood to be given to you, and your co-heir will not even have the power of afterwards claiming possession.

(1) A son is entitled to the term of one year in which to demand possession, not only where he does so as a son, but where he demands it as an agnate, or a cognate; just as where a father manumits his son, and although he may demand possession of the estate, as having been manumitted, still, he will be entitled to a term of a year in which to do so.

5. Marcellus, Digest, Book IX.

Where prætorian possession of an estate is granted to a son under paternal control, the days on which he is unable to notify his father, so that the latter may either direct him to accept possession, or ratify the possession which has already taken place, will not run against him. Suppose that, on the first day when he knew that he was entitled to prætorian possession of the estate he had accepted it, and could not notify his father in order that he might approve of what he had done, the hundred days will not run against him. They will, however, begin to run from the date when his father could have been informed, but, after the hundred days have elapsed, the ratification will be void.

(1) It may be asked if, when a son was able to demand prætorian possession of an estate, his father was absent so that he could not notify him; or if he was insane, and the son should neglect to demand possession, whether he could do so afterwards. But how can it prejudice his rights, if the possession of the estate was not demanded, when, if this had been done, it could not have been obtained unless the father had ratified the act?

(2) If a slave belonging to another is appointed heir, and then is sold by his master, the question arises whether the days prescribed for demanding prætorian possession must be considered to run against the new master. It is settled that the time to which the former master was entitled will run against him.

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TITLE XVI. CONCERNING PROPER HEIRS AND HEIRS AT LAW.

1. Ulpianus, On Sabinus, Book XII.

Those are properly called intestates who, having testamentary capacity, did not exert it. Moreover, where a man has made a will and his estate has not been entered upon, or if his will is broken, or void, he is not improperly said to have died intestate. It is clear that anyone who cannot make a will is not correctly styled intestate, as, for example, a minor under the age of puberty, an insane person, or one who is forbidden to have charge of his own property; still, we should also understand such persons to be intestate. He also is regarded as intestate who has been captured by the enemy, since by the Cornelian Law his succession passes to those to whom it would go if he had died in his own country; for his estate is held to be transmitted to his heirs.

(1) It may be asked, if a child conceived by and born of a female slave who has suffered from delay in the execution of a trust granting her her freedom will be the proper heir of its father. And, as it has been established that it was born free, in accordance with a Rescript of the Divine Marcus and Verus, and Our Emperor Antoninus Augustus, why should not the said female slave be considered as absolutely manumitted, so that, after having been married, she may be able to bring forth a proper heir? It is not strange that a child can be born free whose mother is a female slave, as it has been stated in a rescript that a child born of a woman who is a captive is freeborn. Wherefore, I venture to say that if the father of the child was of the same condition as the mother, that is, if he suffered from the delay of the heir in granting his freedom under a trust, the child born to the father would be his heir, just as in the case where his parents are captives, and he returns with them. Therefore, if the father should manumit him, subsequent to the delay, he will receive him under his control. Or if he should die before being manumitted, the child will be born the proper heir.

(2) We understand proper heirs to be children of both sexes, and natural or adopted children.

(3) Sometimes a son who is a proper heir is excluded from the estate of his father, and the Treasury is preferred to him; for example, if his father should after his death be condemned for treason, what must be done in this case? In this case the son would be deprived of the rights of sepulture.

(4) When a son ceases to be a proper heir, all the grandsons and grandchildren born to him will succeed to his share of the estate, where they are under his control. This rule is based on the principles of natural equity. Again, a son ceases to be a proper heir if, through the entire or partial loss of civil rights, he leaves the control of his father. But if the son is in the hands of the enemy, the grandsons will not succeed him as long as he lives. Hence, if he is ransomed from captivity, they will not succeed him until he has reimbursed the person who ransomed him. If, however, in the meantime, he should die, as it is settled that at the time of his death he had recovered his former condition, he will be an obstacle to the succession of his grandchildren.

(5) If a child does not cease to be under the control of his father, because he has never begun to be under his control, as, for instance, if my son should be taken captive by the enemy during the lifetime of my father, and should die in captivity after I have become my own master, my grandson will be entitled to the succession in his place.

(6) Granddaughters, as well as grandsons, succeed to the place of their parents.

(7) Sometimes, although a father does not cease to be under paternal control, and, indeed, has never begun to be under such control, we, nevertheless, say that his children succeed to him as proper heirs; for instance, where I have arrogated a man whose son has been captured by the enemy, and whose grandson was at home, and the son who was arrogated having died, and the captive who was in the hands of the enemy having also died, the great-grandson of the latter will become my proper heir.

(8) It must, however, be remembered that grandsons and their successors, although their parents may precede them at the time of death, can still sometimes be proper heirs, although succession does not exist among proper heirs. This may take place where the head of a household, having made a will, dies after disinheriting his son, and while the appointed heir is deliberating whether or not he will accept the estate, the son dies, and the appointed heir afterwards rejects the estate. The grandson can then be the proper heir, as Marcellus, in the Tenth Book, also says, since the estate has never passed to the son.

The same rule will apply where the son is appointed heir to the entire estate, under a condition with which it was within his power to comply; or a grandson is appointed under any kind of a condition, and both of them die before it is complied with. For it must be held that those can succeed as proper heirs, provided they were either born, or even had been conceived at the time of the testator's death. This opinion is also adopted by Julianus and Marcellus.

(9) After the proper heirs, the heirs related by blood are called to the succession.

(10) Cassius defines heirs by blood to be those who are united with one another by the tie of consanguinity. It is true that these are heirs by blood, even if they are not the proper heirs of their father; as, for example, where they have been disinherited. But even if their father has been banished, they will, none the less, be related by blood, even though they should not be the proper heirs of their father. Those, also, who have never been under paternal control, will be related to one another by blood; as, for instance, those who are born after the captivity or death of their father.

(11) Moreover, not only natural children, but also those who have been adopted, will also enjoy the rights of consanguinity with such as belong to their family, even where they are yet unborn, or have been born after the death of their father.

2. The Same, On Sabinus, Book XIII.

Next in succession to blood-relatives, agnates are admitted, where there are no blood-relatives. This is reasonable, for where there are blood-relatives the estate does not pass to the heirs at law, even if the former do not accept the estate. This should be understood to be the case where no blood-relative is expected to come into existence. Moreover, if a blood-relative can be born, or can return from captivity, the agnates are prevented from claiming the succession.

(1) Again, agnates are cognates of the male sex, descended from the same person. For after my proper heirs and my blood-relatives, the son of my blood-relative is next of kin to me, as I am to him. The same rule applies to the brother of my father, who is called my paternal uncle, as well as to the others in succession, and all who are descended from the same source, ad infinitum.

(2) This inheritance passes to the agnate who is the next of kin, namely, him whom no one precedes, and where there are several in the same degree to all of them; that is to say per capita. For instance, if I had two brothers, or two paternal uncles, and one of them left one son, and the other two, my estate would be divided into three parts.

(3) It makes little difference, however, whether the agnate referred to acquired that character by birth or by adoption, for one who is adopted becomes the agnate of the same persons to whom his adopted father sustains the same relationship, and he will be entitled to their estates by law, just as they will be to his.

(4) An estate only passes by law to the next agnate. Nor does it make any difference whether there is only one, or several of which one stands first, or where there are two or more of the same degree who precede the others, or are alone; because he is next in succession whom no one precedes, and he is the last whom no one follows; and sometimes the same one is both first and last, for the reason that he happens to be the only one.

(5) Sometimes, we admit to the succession an agnate who is of a more distant degree; as, for instance, where someone, who has a paternal uncle, and that uncle a son, makes a will, and, while the appointed heir is deliberating whether or not he will accept the estate, the uncle dies, after which the appointed heir rejects the estate, then the son of the paternal uncle will be admitted to the succession. Hence he can also demand pratorian possession of the estate.

(6) We do not consider him to be the next of kin who was such at the time that the head of the household died, but he who was such at the time that it is certain that he died intestate. According to this, even if he who was entitled to precedence was the proper heir or a blood-relative, and neither of them was living at the time that the estate was rejected, we consider him to be the next heir who was first in succession at the time when the estate was rejected. Hence, it may be very fairly asked whether we can still grant the succession, even after the rejection of the estate. Suppose that the appointed heir was requested to transfer the estate, and rejected it; as the Divine Pius stated in a Rescript, he could, nevertheless, be compelled to accept and transfer the estate. Suppose, for example, that he had lived over the hundred days prescribed by law and that, in the meantime, the next heir had died, and that afterwards, he also, who was asked to transfer the estate died. It must be said that the heir in the next degree should be admitted to the succession with the charge of executing the trust.

3. The Same, On Sabinus, Book XIV.

When a freedman dies without making a will, it is certain that his estate first passes to his proper heirs, and, if there are none of these, then to his patron.

(1) We should understand a freedman to mean one whom any person has raised from servitude to the dignity of a Roman citizen, either voluntarily or through necessity, having been charged to manumit him, for his patron will also be admitted to the legal succession of the freedman.

(2) If anyone should manumit a dotal slave, he will be considered his patron, and will be entitled to his estate as the heir at law.

(3) It is clear that he whom I have purchased under the condition of manumitting him, even though he may obtain his freedom by the Constitution of the Divine Marcus, still (as is stated in the same Constitution) he will become my freedman, and his estate will pass to me as heir at law.

(4) Where a slave has deserved his freedom under the Decree of the Senate, for detecting the murder of his master, and the Prætor has assigned him to anyone to become his freedman, he will undoubtedly become such, and his estate will belong to his patron as his heir at law; but if the Prætor did not assign him to anyone, he will indeed become a Roman citizen, but he will be the freedman of him of whom he was recently the slave, and the former will be admitted to his succession as his heir at law, unless he should be excluded from his estate as being unworthy to receive it.

(5) Anyone who compels his freed woman to swear that she will not marry unlawfully does not come within the terms of the Lex Ælia Sentia. If, however, he should compel his freedman to swear that he will not marry within a certain time, or marry anyone without the consent of her patron, or her fellow-freedwoman, or a female relative of his patron, it must be said that he will be liable under the Lex Ælia Sentia, and cannot be admitted, as the heir at law, to the freedman's estate.

(6) If municipal magistrates should manumit a slave of either sex, and he or she should afterwards die intestate, he or she shall be admitted to the succession as heir at law.

(7) A soldier, by manumitting a slave constituting part of his peculium, will make him his freedman, and can be admitted to his estate as heir at law.

(8) It is perfectly evident that the Emperor can be admitted to the succession of the estates of his freedmen.

(9) It is also certain that an unborn child will be admitted, as heir at law, to an estate by a provision of the Twelve Tables, if he should afterwards be born; and hence the agnates next in succession to him, and over whom he has preference, must wait, in case he should be born. Hence, he shares with those who are in the same degree; for instance, where there is a brother of the deceased, and the unborn child; or a son of the paternal uncle, and the child who is yet unborn.

(10) Moreover, the question arose in what way a division should be made in this case, for the reason that several children might be born at a single birth. It was decided that if it was absolutely certain that the woman who alleged that she was pregnant was not in that condition, the child who was already born would be the heir to the entire estate, since he becomes the heir without his knowledge. Wherefore, if in the meantime he should die, he will transmit the estate unimpaired to his own heir.

(11) A child born after ten months is not admitted to the succession as heir at law.

(12) Hippocrates says, and the Divine Pius also stated in a Rescript addressed to the Pontiffs, that a child was considered to have been born within the time prescribed by law, and could not be held to have been conceived in slavery, if its mother had been manumitted before the one hundred and eighty-second day previous to delivery.

4. Pomponius, On Sabinus, Book IV.

Children, the civil status of whose father has been altered, retain the right of inheritance, both with reference to other persons and among themselves, and vice versa.

5. Ulpianus, On the Edict, Book XLV1.

Where anyone, having a brother and a paternal uncle, dies after having made a will, and the brother then dies intestate while a condition imposed upon the appointed heir is still pending, and the condition should not afterwards be complied with, it is settled that the paternal uncle can enter upon the estates of both the deceased brothers.

6. Julianus, Digest, Book LIX.

Titius, having disinherited his son, appointed a foreign heir under a condition. The question arose, if after the death of the father and while the condition was pending, the son should marry a wife and have a child, and then should die, and the condition imposed upon the appointed heir should not subsequently be complied with, whether the estate would belong by law to the posthumous grandson, or to the grandfather. The answer was, that a child conceived after the death of its grandfather cannot, as the proper heir, obtain his estate, or, as his cognate, acquire prætorian possession of the same; for the reason that the Law of the Twelve Tables calls to the succession him who was in existence at the time of the death of the person the disposition of whose estate is in question.

7. Celsus, Digest, Book XXVIIL

Or, if he had been conceived in his lifetime, because a child who has been conceived is, to a certain extent, considered as being in existence.

8. Julianus, Digest, Book LIX.

The Prætor, by his Edict also, on the ground of their being next of kin, promises the possession of an estate to those who were cognates of the deceased at the time of his death. For, although it is customary to call those cognates grandsons who were conceived after the death of their grandfather, this designation is not proper, but susceptible of abuse, as it is based on analogy.

(1) If anyone should leave his wife pregnant, and a mother and a sister, and the mother should die during the lifetime of his wife, and his wife should afterwards have a dead child, the estate will pass to the sister alone, as the heir at law; because it is certain that the mother died at a time when she could not lawfully have acquired the estate.

9. Marcianus, Institutes, Book V.

Where some of several heirs at law, having been prevented by death, or by some other cause fail to accept the estate, their shares will accrue to the others who do accept it; and even though the latter may die before this takes place, the right will still pass to their heirs. The case of an appointed heir is different where his co-heir has been substituted for him, as the estate will pass to the other, by virtue of the substitution, if he is living; but if he should die, it will not descend to his heir.

10. Modestinus, Differences, Book VI.

If the property of an intestate son passes to his father, who manumitted him, as the heir-at-law, or, if not having manumitted him, he should be entitled to prætorian possession of the same, the mother of the deceased will be excluded.

11. Pomponius, On Quintus Mucius, Book X.

The rights of succession by law are extinguished by forfeiture of civil rights, where these are derived from the Twelve Tables, and the forfeiture takes place during the lifetime of anyone entitled to the estate, or before she enters upon it, as he can no longer correctly be styled either the proper heir or an agnate. This rule, however, is by no means applicable to successions regulated by new enactments, or decrees of the Senate.

12. The Same, On Quintus Mucius, Book XXX.

The son is the nearest agnate of his father.

13. Gaius, On the Lex Julia et Papia, Book X.

No woman either has proper heirs, or can cease to have them, on account of her loss of civil rights.

14. The Same, On the Lex Julia et Papia, Book XIII.

Formal acceptance is not necessary for proper heirs, because they immediately become heirs by operation of law.

15. Papinianus, Questions, Book XXIX.

When a father dies in the hands of the enemy, we consider that his son, who has already died in his own country, was the head of the household at the time of his death; although, as long as he lived, he was not completely released from paternal authority. Therefore, this son can have an heir, if his father does not return from captivity. If, however, his father should return after the death of his son, he will, under the law of postliminium, be entitled to whatever property the former acquired in the meantime; and there is nothing extraordinary in the fact that, in this case, the peculium of the deceased son will pass to the father, as the former has always been under his control by the constitution which establishes that the right has only been in abeyance.

16. The Same, Opinions, Book XII.

A father inserted into the dotal contract executed at the time of his daughter's marriage that she should receive a dowry, with the understanding that she must expect nothing more from her father's estate. It Was decided that this clause did not change the right of succession, for the contracts of private individuals are not held to supersede the authority of the laws.

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TITLE XVII. ON THE TERTULLIAN AND ORPHITIAN DECREES OF THE SENATE.

1. Ulpianus, On Sabinus, Book XII.

Under the Orphitian Decree of the Senate children can be admitted to the succession of their mother whether she is freeborn or manumitted.

(1) When any doubt exists with reference to the condition of the mother, namely, whether she is independent or subject to paternal control (as for instance, where her father is a captive in the hands of the enemy), whenever it is positively established that she was her own mistress when she died, her children will be entitled to her estate. Hence the question arose whether or not, during the intermediate time and while her condition was in suspense, relief should be granted to the children by the Prætor, for fear that if they should die in the interim they might not be able to transmit anything to their heirs. The better opinion is that relief should be granted them, as has been decided in many cases.

(2) Illegitimate children are also admitted to the succession of their mother as heirs at law.

(3) An estate is sometimes granted to a son born in slavery, as heir at law; for example, where he was born of a female slave while the heir was in default for not granting his mother freedom under the terms of a trust. It is certain that if he was born after the manumission of his mother, he will be entitled to her estate as heir at law, even though he was conceived in slavery; and even if he was conceived while his mother was in the hands of the enemy but was born in captivity, and returned with his, mother, he will have a right to her estate as heir at law, just as an illegitimate child; according to a Rescript of our Emperor and his Divine Father addressed to Ovinius Tertullus.

(4) The estate of a mother is not transmitted to her son as heir at law, who, at the time of her death, was a Roman citizen, and before the estate was entered upon was reduced to slavery; not even if he should afterwards become free, unless he had been made a penal slave and was subsequently restored to his civil rights by the indulgence of the Emperor.

(5) If, however, the son was born after a surgical operation had been performed upon his mother for that purpose, the better opinion is, that he will be entitled to her estate as heir at law. For he can demand pratorian possession, whether he was appointed heir, or his mother died intestate, as belonging to the class of cognates, and, still more, as one of the heirs at law. The proof of which is, that an unborn child is admitted to prætorian possession of the estate under every Section of the Edict.

(6) Anyone who hires his services for the purpose of fighting wild beasts, or who has been condemned for a capital crime and not restored to his civil rights, is not entitled to the estate of his mother under the Orphitian Decree of the Senate; but, on the ground of humanity, it has been held that he can obtain it.

The same rule will apply where the son is under the control of him who is in the above-mentioned condition, for he can be admitted to the succession of his mother under the Orphitian Decree of the Senate.¹

¹ The Orphitian Decree of the Senate conferred upon children the same right to inherit from their mother that she had to inherit from them under the Tertullian Decree. Therefore, the offspring of a woman by one or several husbands, or lovers, whether freeborn or manumitted, independent or subject to parental authority, legitimate or bastard, under certain circumstances, took precedence of all other blood-relatives on either side, as far as the intestate succession to her estate was concerned. A child, however, who had been enslaved, even if subsequently emancipated, did not enjoy this privilege; for the reason that, at Civil Law, neither slaves nor freedmen were considered to have a maternal ancestor. It was essential that the child should be entitled to Roman citizenship, as the law did not include foreigners. The right of accrual was vested in the survivors of other heirs, who were also granted the usual time for deliberation as to acceptance of the estate.

This reciprocal right of inheritance was amplified by subsequent legislation. — ED.

(7) If a mother, having several children, should make a will and appoint one of them her heir under a condition, and the child should demand pratorian possession of the estate while the condition was still pending, and afterwards, the condition should not be fulfilled, it is but just that the other children should not be deprived of the estate as heirs at law. This Papinianus also stated in the Sixteenth Book of Questions.

(8) The forfeiture of civil rights which takes place in the case of children without affecting their legal position, does not, in any way, prejudice them as heirs at law; for it is only the ancient right of inheritance which passes by the Law of the Twelve Tables that is extinguished by the forfeiture of civil status, but those new rights which are established by special taws or by the decrees of the Senate are not lost under such circumstances. Hence, whether the civil rights of a child were lost before or after it was entitled to its mother's estate, it will still be admitted to the succession as heir at law, unless the greater diminution of civil rights, which deprives a person of citizenship, as, for instance, where he is deported, has taken place.

(9) "Let the ancient law be observed, where none of the children, or none of those who are entitled to the estate as heir at law, desires to obtain the estate." This clause was enacted in order that the ancient law might not apply as long as there was a single child who wished to obtain his mother's estate as heir at law. Hence, if one of two children should accept the estate, and the other should reject it, the share of the latter will accrue to the former. And if the mother should leave a son and a patron, and the son should reject the estate, it will pass to the patron.

(10) If anyone, after having entered upon the estate of his mother, should then reject it and obtain complete restitution, must the ancient law be observed? The terms of the law admit that this can be done, as it says, "Desires to obtain the estate," for, in this instance, he has not this desire, although he had it originally; therefore I hold that the ancient law will be applicable.

(11) Moreover, will the succession pass to him who was at the time the heir at law, or will it go to him who was the heir at law when the estate passed to the son? Suppose, for instance, that there was a blood-relative of the deceased, as well as her son, and that the said blood-relative died while the son was deliberating whether or not he would accept the estate of his mother, and he should then reject the estate; can the son of her blood-relative be admitted to the succession? Julianus very properly thinks that, by the Tertullian Decree of the Senate, there is ground for the admission of the nearest agnate.

(12) The enactment of the Senate says, "Whatever has been judicially decided is finally settled and terminated, and shall be valid," must be understood to mean a decision rendered by someone who had the right to do so, whether reference is had to a transaction made in good faith, in order to render it valid; or it was ended by consent, or quieted by a long silence.

2. The Same, On Sabinus, Book XIII.

A mother is entitled to the benefit of the Tertullian Decree of the Senate, whether she is freeborn, or has been manumitted.

(1) We should understand the law referring to the son or the daughter to apply to either such as are lawfully begotten or illegitimate. Julianus, in the Fifty-ninth Book of the Digest, adopts this opinion with reference to legitimate children.

(2) If the son or the daughter has been manumitted, the mother cannot claim his or her estate as heir at law, for she has ceased to be the mother of children of this kind. This was the opinion of Julianus, and it has also been decided by our Emperor.

(3) Where, however, a woman conceived a child while in slavery, and it was born after she was manumitted, it will be entitled to her estate as her heir at law.

The same rule applies if the slave conceived while serving out a sentence, and the child was born after she was restored to her rights.

This will also be the case where she was free when she conceived, but was serving out a sentence when the child was born, and afterwards was restored to her rights. If, however, she was free when she conceived, and the child was born after she had been reduced to slavery, and she was subsequently liberated, the child will be admitted to the succession as her heir at law. Likewise, it must be said that she will be entitled to the benefit of the law, if she was manumitted while pregnant.

The mother will inherit the estate of her child born in slavery, as its heir at law; for instance, if it was born after the heir was in default in granting her her freedom, in compliance with a trust; or where it was born while she was in the hands of the enemy, and returned with her from captivity; or if it was born after she was ransomed.

(4) When a woman is of infamous reputation, she will, nevertheless, be entitled to the estate of her child as heir at law.

(5) A minor under the age of puberty, for whom his father made a pupillary substitution, certainly dies intestate when his substitutes reject the inheritance. Therefore, if the minor should be arrogated, it must be said that his mother is entitled to the property which he would have left if he had died intestate.

(6) The children of the deceased, whether they are of the male or female sex, or natural or adopted, if they are proper heirs, stand in the way of their mother, and exclude her from succession as heir at law; and those entitled to possession of the estate under the Prætorian Edict also exclude their mother, even if they are not proper heirs, provided they are natural children. Adopted children are also admitted to the succession, after their emancipation, if they belong to the number of natural children; as for instance, a natural grandson adopted by his grandfather; for, even though he may be emancipated, if he obtains prætorian possession, he will take precedence of his mother.

(7) Where, however, a son is in the hands of the enemy, or is yet unborn, the mother's right remains in suspense until he returns from captivity, or is born.

(8) When there are proper heirs, who, however, are not entitled to the estate, let us see whether the mother can be admitted to the succession ; for instance, when they reject the estate. Africanus and Pub-licius venture to hold that the mother will be admitted if the children do not accept the estate, and will take precedence of her whenever they are entitled to the property, in order that the mere name of proper heir may not prejudice the right of the mother; which opinion is the more equitable one.

(9) Where anyone dies, leaving a daughter whom he had legally given in adoption, and her mother, the Divine Pius decided that the Tertullian Decree of the Senate did not apply to such a case; and that the mother and daughter, as the next of kin, should be entitled to prætorian possession of the estate. Julianus, however, says that the mother cannot be admitted to the succession under the Decree of the Senate, if the daughter should fail to demand possession under the prætorian Edict; but this is not true, for she succeeds her daughter, and hence it must be held that the other cannot obtain prætorian possession of the estate while the daughter has the right to demand it, as she has the expectation of succeeding as heir at law.

(10) If an emancipated son, after having acquired prætorian possession of the estate, should abstain from taking it, in order to obtain complete restitution, it is true that the Decree of the Senate will apply. If, however, he should again meddle with the estate, the mother must, a second time, refrain from applying for it.

(11) Where one of the children of the deceased, who is yet unborn, is placed in possession of the estate, and is afterwards born, and dies before obtaining actual prætorian possession, let us see whether the rights of the mother of the deceased will be prejudiced as prætorian possessor of the estate. I think that her rights will not be affected, provided the child was not born the proper heir of his father; for if it is not sufficient for him to formally be placed in possession, unless, after his birth, he obtained actual prætorian possession. Therefore, if possession is granted to an insane person by a decree of the Prætor, and he should die before he recovers his senses, and before actually acquiring prætorian possession, he will not interfere so as to exclude his mother.

(12) If a child, whose condition is in controversy, has only obtained Carbonian, prætorian possession, the question arises whether such possession will prejudice the rights of the mother. Under these circumstances, as possession of this description is terminated after a prescribed period, it must be said that, after this period has elapsed, the rights of the mother will not be prejudiced; or if the child should die under the age of puberty, the mother will be entitled to the estate.

(13) When, however, possession has been demanded for an infant by his guardian, even though he may die immediately, it must be said that his mother will be excluded, for this case is not similar to the one where prætorian possession is given to an insane person.

(14) Moreover, the mother is only excluded from the benefit of the Decree of the Senate, where her son enters upon the estate as the heir at law, but if he should fail to do so, his mother will be admitted to the inheritance under the Tertullian Decree. Where, however, this son is not the only heir at law, but there are others who can be admitted with him, the mother will not be called to the succession of their shares by the Decree of the Senate.

(15) The father takes precedence of the mother in the succession of either a son or a daughter, whether he appears as the heir, or is entitled to prætorian possession of the estate. However, neither the grandfather nor the father exclude the mother, under the Tertullian Decree of the Senate, even though they may be charged with a trust. Only the natural, and not the adoptive father takes precedence of the mother, for the better opinion is that when the adoptive father ceases to be such, he will be excluded by the mother; since he is not entitled to prætorian possession of the estate contrary to the provisions of the will, because he is no longer the father.

(16) However, no matter in what way the natural father may have obtained prætorian possession, whether on the ground of intestacy, or in opposition to the terms of the will, in every instance, he excludes the mother.

(17) If an agnate of the deceased and his mother survive him, and his natural father belongs to an adoptive family, we admit the mother to the succession, as the agnate excludes the father.

(18) If a sister related by blood to the deceased survives him as well as his mother, his father having either been adopted or emancipated, and his sister desires to obtain the estate, it is settled by the Decree of the Senate that the mother can be admitted with the sister, and the father will be excluded. If the sister rejects the estate, the mother cannot be admitted under the Decree of the Senate, because of the father.

Although, under other circumstances, the mother is not required to wait until the sister decides whether or not she will accept the estate; still, in this instance, she should wait, for it is the sister who excludes the father. Therefore, if the sister rejects the estate, the mother will be entitled to prætorian possession of the same, along with the father, in the capacity of cognates. In this case, she must suffer the delay, and cannot obtain prætorian possession of the estate before the father himself demands it; since if he fails to do so, she can then succeed under the Decree of the Senate.

(19) But if the mother herself is the sister by blood of the deceased (for example where the father of the mother adopted a grandson by the daughter) and there is also a natural father; the mother who is entitled to the succession as sister will exclude the father; if, however, she rejects the right derived from her sister, or loses it through alteration of her civil status, she cannot be admitted to the succession under the Decree of the Senate, on account of the father, but if he rejects the estate, she can still be admitted under the Decree of the Senate.

(20) If the mother of a son or a daughter does not enter upon the estate under the Tertullian Decree of the Senate, the ancient law with reference to the inheritance of their property must be observed; for the ancient law becomes operative when the preference granted to the mother no longer exists, as will be the case, if she neglects to take advantage of the Decree of the Senate.

(21) If the mother should reject the prætorian possession, and deliberate as to whether she will enter upon the estate under the provisions of the Civil Law, it must be said that the agnate will not succeed, as it has not yet been announced that the mother will not accept the estate.

(22) We, having said that the ancient law must be observed if the mother does not accept the estate, must consider to whom it will pass, whether to the next of kin at the time, or to the person who was next of kin when it was certain that the son died intestate. For instance, if there was a paternal uncle living at the time he died intestate, and a son of the said paternal uncle living at the time when the mother rejected the succession, the estate will not yet pass to the uncle; and therefore, if the latter should die while the mother is deliberating, his son will be called to the succession.

(23) If the mother did not demand solvent guardians for her children, or if the former ones having been excused or rejected, she did not immediately present the names of others, she will not have the right to claim for herself the property of her intestate children. And, indeed, if she does not apply for guardians, she will be liable to the penalty of the constitution, for it says, "Or not demand." But of whom must this demand be made? The constitution, indeed, mentions the Prætor, but I think that it will also be applicable in the provinces, if she does not have recourse to the municipal magistrates, since the necessity of making the appointment imposes an obligation upon them.

(24) But what if she did make the demand, only after having been notified to do so by her freedman, or her relatives, would she be liable to the penalty of the Decree of the Senate? I think that she would be, if she allowed herself to be compelled to do so; but not if, after having been notified, she did not delay in making the demand.

(25) What course should be pursued if their father forbade the children to demand a guardian, as he desired their property to be administered by their mother? She will be liable to the penalty, if she does not make the demand, and does not administer the guardianship in a proper manner.

(26) She could be excused if she does not demand guardians for her children, when they are extremely poor.

(27) If, during her absence, she has been anticipated by her freedmen or by others, it must be said that she will not be excluded, unless this has happened after she had refused to make the demand.

(28) She will be punished for not demanding a guardian for her children; but what if she does not demand one for her grandchildren? If she does not demand one for them, she will also be punished.

(29) What if she should not demand curators for .her children? The rescript is silent on this point, but it must be said that if she does not demand curators for such of them as are under the age of puberty, the same rule will apply; but this will not be the case where all of them have reached the age of puberty.

(30) But what if a woman, who is pregnant, does not demand a curator for the property of her unborn child? I say that she will be liable to the penalty, and also where she has a child under the age of puberty, who is in the hands of the enemy.

(31) What if she should not demand a guardian or a curator for her insane son? The better opinion is that she will be liable.

(32) Not only she who does not make the demand, but also she who has done so without using proper care, is punishable (as is set forth in the rescript), for instance, where a guardian is demanded who is exempt by reason of some privilege; or who is already charged with three guardianships; but in such a case she will only be liable to punishment where she has acted designedly.

(33) What must be done if she demanded persons of this kind, and they, nevertheless, accepted or were retained? The mother shall be excused.

(34) But what if she should demand, as guardians, persons who are incompetent, that is to say, not qualified for the guardianship, being perfectly aware that the Prætor would not appoint them? And what must be done if the Prætor should appoint them, in accordance with the demand of the mother? In this instance, the Prætor is guilty of the offence; but we also punish the design of the mother.

(35) Hence, if these guardians are either excused or rejected, the mother should apply for the appointment of others without delay.

(36) Therefore, she will be punished if she does not apply for guardians at all, or does not apply for such as are suitable, even if, through the fault of the Prætor, persons who are incompetent should be appointed.

(37) It may be a matter of doubt whether, by suitable guardians, it is meant that she should demand those who are solvent, or persons of good morals. I think that she can readily be excused if she applies for the appointment of such as are wealthy.

(38) The mother is also punished if, when the first guardians applied for have been either excused or rejected, she does not immediately present the names of others.

(39) But what if all of them should neither be excused nor rejected; for it must be considered whether she would be to blame for not having demanded the appointment of another, instead of one who was excused ? I think that she would be to blame for not having done so.

(40) What if one of the guardians should die? I think that, although the law makes no provision on this point, the spirit of the constitution will apply.

(41) When we said "Rejected," must we understand this to refer to those who were not appointed by the Prætor; or to such as have been removed, on account of being suspected; or to those who have been excluded because of negligence or ignorance? It is very properly held that the latter are included among those rejected. Will those who conceal themselves render her liable? This is difficult to decide, for she is not to blame for not having denounced them as suspicious. On the other hand, if they conceal themselves, she can, under the Edict, apply to the Prætor to order them to appear, and if they do not do so to remove them as being liable to suspicion.

(42) What must be done if she does not compel them to administer the guardianship? As we require the mother to discharge her entire duty, she must be careful to do so, lest something may arise to exclude her from the estate.

(43) The term "Without delay" must be understood to mean as soon as possible, that is to say, as soon as she has an opportunity to appear before the Prætor who has jurisdiction of the matter; unless she should be prevented by illness, or for any other good reason, which would hinder her from sending someone to apply for the appointment of guardians, provided that she does not exceed the term of a year in doing so. If, however, she should be prevented by the death of her son, she will not be at all responsible.

(44) The following point can very properly be discussed; namely, where a large legacy is left to a minor under the condition that he shall not have any guardians; and, for this reason his mother does not demand any for him, in order that the condition may not fail to be fulfilled; will the condition be applicable to such a case? I think that it will not, if the loss is less than the amount of the legacy.

This question is treated by Tertullianus with reference to municipal magistrates, and he thinks that an action should be granted against them to the extent that the amount of the loss exceeds the value of the legacy, unless someone may think that this condition is, as it were, opposed to the public welfare; and should be remitted, as many other conditions are under different circumstances; or quibbling with reference to the words employed, he may censure the mother for not applying for the appointment of guardians. Suppose, however, that the condition was more clearly expressed, should the mother be excused? Or should she be held responsible for not having petitioned the Emperor to remit the condition? I think that she ought not to be considered responsible.

(45) I also think that the mother should be excused when she does not apply for a guardian for her insolvent son, since she consults his interest, because, not being defended, he will be subject to less annoyance.

(46) If anyone should appoint his wife, who is the mother of their common son, his heir, and ask that she shall not be obliged to furnish security to transfer the estate to him when he reaches the age of puberty, and that his mother shall not be required to ask that guardians shall be appointed for him; it must be held that the constitution will not apply, as she has carried out the intention of the father, and did not demand guardians for her son, who had no property. If, however, she was not released from giving security, the contrary rule will apply, since, on this account, he should have guardians.

But if a minor under the age of puberty should be arrogated after his mother had failed to apply for the appointment of guardians, and should die, it must be said that she will not be entitled to an action under the stipulation, against the arrogator of her son.

(47) When the mother is forbidden to claim her right under the Decree of the Senate, it should be considered whether we shall admit the other relatives, just as if there was no mother; or whether we may say that she herself can become the heir, or adopt any other means, in order to obtain the succession. We, however, refuse all actions to her under such circumstances, and we learn from a Rescript of our Emperor Antoninus Augustus and his Divine Father, addressed to Mammia Maximina, and dated the day before the Ides of April, during the second term of the Consulate of Plautianus, that if the mother is excluded, the other relatives will be admitted to the succession just as if there was no mother. Therefore, both the agnates and other relatives will succeed; or, if there are none, the estate will be without ownership.

3. Modestinus, Rules, Book VIII.

Most authorities are of the opinion that an adoptive father does not exclude the mother.

4. The Same, Rules, Book IX.

It is a rule of law that the property of a mother dying intestate belongs to all the children, even if they are the issue of different marriages.

5. Paulus, On the Tertullian Decree of the Senate.

It is considered perfectly just for all the children of the deceased to be preferred to the mother, even if they should be members of another family by adoption.

(1) A grandson, born to an adopted son, will exclude his mother from the succession, according to the terms of the Decree of the Senate.

(2) If the grandfather manumits his grandson by his son, and the former should die leaving his father, his grandfather, and his mother, it may be asked which of these is entitled to the preference? For if the mother excludes the grandfather, who was the emancipator, and who takes precedence of the father, the father of the deceased will then be admitted to the succession, by the Edict of the Prætor. This being the case, the Decree of the Senate will no longer apply, and the grandfather will again be called to the succession. It will, therefore, be more equitable to preserve the right for the grandfather, who is ordinarily entitled to prætorian possession of an estate even against the appointed heir.

6. The Same, On the Orphitian Decree of the Senate.

Under the terms of this Decree, the mother of the son is entitled to his estate, even if she is under the control of another.

(1) Let us see whether a son who has stated that he does not wish to accept the estate of his mother, can, by virtue of these words, "If none of them desires to accept the estate," enter upon it after having changed his mind, before a blood-relative or an agnate does so; because these terms have a broader meaning. And, as they have a broad meaning, a year should be granted him in which to change his mind, as he has a year in which to accept prætorian possession of the estate.

7. The Same, On the Tertullian and Orphitian Decrees of the Senate.

When anyone dies intestate, leaving a mother, and a brother, or a sister related by blood, although they are such from being arrogated, the same rights will be preserved, so far as the person of the mother is concerned, as in the case where natural children survive.

8. Gaius, On the Tertullian Decree of the Senate.

The right of the mother will remain in suspense, if the emancipated son of the deceased deliberates as to whether he will demand prætorian possession of the estate, or not.

9. The Same, On the Orphitian Decree of the Senate.

It is provided by a Decree of our Most Holy Emperor that the estate of a mother, dying intestate, belongs to her children, even though they may be under the control of another.

10. Pomponius, Decrees of the Senate, Book II.

If a son under paternal control, who is a soldier, does not make a will disposing of the property which he acquired while in the service, let us see whether it will belong to his mother. I do not think that it will, for the privilege of disposing of property of this description is, in fact, granted by military law; and, under such circumstances, sons are, by no means, regarded as the heads of households, so far as such property is concerned.¹

¹ The old Hindu law, to a certain extent, recognized the right of primogeniture, and gave the eldest brother the control of the household and the estate.

"The eldest brother may take entire possession of the patrimony; and the others may live under him, as they lived under their father, unless they chuse to be separated.

"Let the eldest have a double share, and the next born, a share and a half, if they clearly surpass the rest in virtue and learning; the younger son must have each a share; if all be equal in good qualities, they must all take share and share alike." (Sir Wm. Jones, The Laws of Menu, Pages 346, 351.) — ED.

(1) While the right of a mother remains in suspense, for the purpose of determining whether or not certain persons can exclude her from the succession, and the result is that they cannot do so, the right to which she was entitled during the intermediate time will be unimpaired; for instance, if a son should die intestate, and a posthumous child could have been born to him, but either was not born, or died at birth; or where a son, who was in the hands of the enemy, did not return, so as to take advantage of the law of postliminium.

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