1Modestinus, 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. 1Prætorian 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. 2Prætorian 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.

2Ad Dig. 38,15,2Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. I, § 104, Note 7.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. 1It 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. 2With 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. 3If 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. 4When 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. 5Pomponius 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.

3Paulus, 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.

4Julianus, 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. 1A 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.

5Marcellus, 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. 1It 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? 2If 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.