Quis ordo in possessionibus servetur
(What order is to be observed in granting prætorian possession.)
1 Modestinus libro sexto pandectarum. Intestati hi gradus vocantur: primum sui heredes, secundo legitimi, tertio proximi cognati, deinde vir et uxor. 1Sive tabulae testamenti non exstent, sive exstent, si secundum eas vel contra eas bonorum possessionem nemo accepit, intestati detur bonorum possessio. 2Intestati patris liberis bonorum possessio datur non tantum his, qui in potestatem parentis usque in mortis tempus fuerunt, sed emancipatis.
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. 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.
2 Ulpianus libro quadragensimo nono ad edictum. Utile tempus est bonorum possessionum admittendarum: ita autem utile tempus est, ut singuli dies in eo utiles sint, scilicet ut per singulos dies et scierit et potuerit admittere: ceterum quacumque die nescierit aut non potuerit, nulla dubitatio est, quin dies ei non cedat. fieri autem potest, ut qui initio scierit vel potuerit bonorum possessionem admittere, hic incipiat nescire vel non posse admittere: scilicet si, cum initio cognovisset eum intestatum decessisse, postea quasi certiore nuntio allato dubitare coeperit, numquid testatus decesserit vel numquid vivat, quia hic rumor postea perrepserat. idem et in contrarium accipi potest, ut qui ignoravit initio, postea scire incipiat. 1Dies bonorum possessionis utiles esse palam est: sed non sessionum numerabuntur, si modo ea sit bonorum possessio, quae de plano peti potuit. quod si ea, quae causae cognitionem pro tribunali desiderat vel quae decretum exposcit, sessiones erunt nobis computandae, quibus sedit is quibusque per ipsum praetorem factum non est, quo minus daret bonorum possessionem. 2In bonorum possessione, quae pro tribunali datur, illud quaeritur, si sedit quidem praetor pro tribunali, sed postulationibus non dedit: potest dici tempus ad bonorum possessionem non cedere, cum praeses aliis rebus aut militaribus aut custodiis aut cognitionibus fuerit occupatus. 3Si praeses provinciae in proxima fuit civitate, accedere debet ad utilitatem temporis ratio itineris, scilicet numeratione viginti milium passuum facta: nec enim exspectare debemus, ut praeses provinciae veniat ad eum, qui bonorum possessionem petiturus est. 4Si venter in possessionem missus sit, bonorum possessionis tempus non cedere sequentibus nequaquam ambigendum est, nec tantum intra centensimum diem, verum etiam quamdiu nasci possit: nam et si natus fuerit, ante ei deferri bonorum possessionem sciendum est. 5Scientiam eam observandam Pomponius ait, non quae cadit in iuris prudentes, sed quam quis aut per se aut per alios adsequi potuit, scilicet consulendo prudentiores, ut diligentiorem patrem familias consulere dignum sit.
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. 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.
3 Paulus libro quadragensimo quarto ad edictum. Circa tempora bonorum possessionis patris scientia ignoranti filio non nocet.
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 Iulianus libro vicensimo octavo digestorum. Si coheredi tuo substitutus fuisses et bonorum possessionem acceperis, quandoque coheres tuus constituerit nolle petere bonorum possessionem, tibi data tota intellegitur, coheres tuus amplius petendae bonorum possessionis facultatem non habebit. 1Filius non solum si tamquam filius, sed et si tamquam adgnatus vel tamquam cognatus ad bonorum possessionem vocatur, annuum spatium habet: sicuti pater, qui filium manumisisset, quamvis ut manumissor bonorum possessionem accipiat, tamen ad bonorum possessionem accipiendam annuum spatium habet.
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. 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.
5 Marcellus libro nono digestorum. Cum filio familias bonorum possessio delata est, dies, quibus certiorare patrem non potest, ut vel iubeat adgnosci bonorum possessionem vel ratam habeat agnitionem bonorum possessionis, non cedunt. fingamus statim primo die, quo fuerit delata, adgnovisse eum bonorum possessionem, certiorare patrem, ut comprobet, non posse, non cedent dies centum: incipient autem cedere, cum certior fieri potuit. praeteritis autem centum diebus frustra ratum habebit. 1Quaeri potest, si, cum posset filius petere bonorum possessionem, patre ita absente, ut certiorare eum non possit, vel etiam furente, petere neglexerit, an peti amplius non possit. sed quid noceat non petitam bonorum possessionem, quae, si petita esset, tamen non ante adquireretur, quam pater comprobasset? 2Si servus alienus heres institutus venisset, quaeritur, an posteriori domino dies bonorum possessionis petendae imputari oporteret. et placet, quantum priori domino superfuerit, ei imputari.
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. 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.