The Same, On the Edict, Book XLI. Whenever anyone becomes an heir ab intestato, in this instance also, an unborn child is permitted to obtain possession of the estate; that is to say, if it is such a child that when it is born, it will be entitled to prætorian possession; and in all the Sections of the Edict an unborn child is considered as a survivor. 1Sometimes, but not indiscriminately, an unborn child should not be placed in possession of the estate; but only after proper cause is shown, where anyone contests its right. This, however, merely has reference to an unborn child who, with other children of the deceased, can obtain possession. But if it should be placed in possession as the next of kin, or under any other Section of the Edict, it must be said that an investigation will not be necessary; for it is not just that the child should be supported by the property of another until it arrives at puberty, because the settlement of the controversy should be deferred until that time. It is established that all controversies relating to the condition of children must be postponed until they arrive at puberty; not that the child can remain in possession during the existence of the disputes, but that the delay should be without possession. 2Moreover, although the Prætor can place the unborn child in possession of the estate, along with those to whom he has already granted it; still, the unborn child alone may be permitted to hold possession of the property.

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.

Ad Dig. 38,11,1Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 570, Note 4.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. 1In 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.