1Ulpianus, 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. 1They 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. 2Moreover, this law refers to such cognate relationship as is not servile, for any cognation can hardly be considered servile. 3Again, 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. 4Adoption 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. 5Moreover, 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. 6It 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. 7Hence, 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. 8If 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. 9If 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. 10Moreover, cognates are permitted to obtain prætorian possession in regular gradation, so that those who belong to the first degree are all admitted at once. 11If 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.

2Gaius, 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.

3Julianus, 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.

4Ulpianus, 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.

5Pomponius, 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.

6Ulpianus, On the Edict, Book XLV. Where cognates accuse one another of crime, such an accusation offers no obstacle to succession to their estates.

7Modestinus, Rules, Book VI. Anyone who has become a slave in any way whatsoever can, under no circumstances, regain his rights of cognation by manumission.

8The 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.

9Papinianus, 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. 1A 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.

10Scævola, 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.