1Ulpianus, 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. 1It 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. 2We understand proper heirs to be children of both sexes, and natural or adopted children. 3Sometimes 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. 4When 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. 5If 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. 6Granddaughters, as well as grandsons, succeed to the place of their parents. 7Sometimes, 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. 8It 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. 9After the proper heirs, the heirs related by blood are called to the succession. 10Cassius 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. 11Moreover, 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.

2The 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. 1Again, 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. 2This 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. 3It 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. 4An 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. 5Sometimes, 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 prætorian possession of the estate. 6We 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. 7Hence, 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.

3The 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. 1We 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. 2If anyone should manumit a dotal slave, he will be considered his patron, and will be entitled to his estate as the heir at law. 3It 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. 4Where 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 Eoman 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. 5Anyone 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. 6If 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. 7A 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. 8It is perfectly evident that the Emperor can be admitted to the succession of the estates of his freedmen. 9It 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. 10Moreover, 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. 11A child born after ten months is not admitted to the succession as heir at law. 12Hippocrates 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.

4Pomponius, 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.

5Ulpianus, On the Edict, Book XLVI. 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.

6Julianus, 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.

7Celsus, Digest, Book XXVIII. 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.

8Julianus, 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. 1If 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.

9Marcianus, 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.

10Modestinus, 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.

11Pomponius, 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.

12The Same, On Quintus Mucius, Book XXX. The son is the nearest agnate of his father.

13Gaius, 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.

14The 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.

15Papinianus, 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.

16The 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.