De suis et legitimis heredibus
(Concerning Proper Heirs and Heirs at Law.)
1 Ulpianus libro duodecimo ad Sabinum. Intestati proprie appellantur, qui, cum possent testamentum facere, testati non sunt. sed et is, qui testamentum fecit, si eius hereditas adita non est vel ruptum vel irritum est testamentum, intestatus non improprie dicetur decessisse. plane qui testari non potuit proprie non est intestatus, puta impubes furiosus vel cui bonis interdictum est: sed hos quoque pro intestatis accipere debemus: eum quoque, qui ab hostibus captus est, quoniam per legem Corneliam successio his defertur, quibus deferretur, si in civitate decessisset: nam et eius hereditas fuisse creditur. 1Quaeri poterit, si ex ea, quae in fideicommissa libertate moram passa est, conceptus et natus sit, an suus patri existat. et cum placeat eum ingenuum nasci, ut est a divis Marco et vero et imperatore nostro Antonino Augusto rescriptum, cur non in totum pro manumissa haec habeatur, ut uxor ducta suum pariat? nec mirum sit, ex serva ingenuum nasci, cum et ex captiva rescriptum sit ingenuum nasci. quare ausim dicere, etsi pater huius pueri eiusdem sortis fuerit, cuius mater moram passa in libertate fideicommissa, ipseque moram passus est, suum eum patri nasci exemplo captivorum parentium, cum quibus rediit. ergo sive postea pater eius post moram manumittatur, recipiet eum in potestate, sive ante decesserit, definiendum erit suum existere. 2Suos heredes accipere debemus filios filias sive naturales sive adoptivos. 3Interdum etiam filius suus heres excluditur fisco praelato, ut puta si perduellionis fuerit damnatus pater post mortem suam, hoc quo, ut nec iura sepulchrorum hic filius habeat. 4Si filius suus heres esse desiit, in eiusdem partem succedunt omnes nepotes neptesque ex eo nati qui in potestate sunt: quod naturali aequitate contingit. filius autem suus heres esse desinit, si capitis deminutione vel magna vel minore exiit de potestate. quod si filius apud hostes sit, quamdiu vivit nepotes non succedunt. proinde etsi fuerit redemptus, nondum succedunt ante luitionem: sed si interim decesserit, cum placeat eum statu recepto decessisse, nepotibus obstabit. 5Sed si quis non desiit esse in potestate, sed numquam coepit, ut puta si filius meus vivo patre meo ab hostibus captus est, mox ibi me patre familias facto decesserit, nepotes in eius locum succedent. 6Non minus autem neptes quam nepotes succedent in locum parentium. 7Interdum licet parens alicuius in potestate esse non desierit, sed nec coeperit, tamen dicimus succedentes ei liberos suos existere: ut puta adrogavi eum, cuius filius ab hostibus erat captus, nepos autem in civitate: mortuo filio adrogato, mortuo et captivo apud hostes pronepos iste suus heres mihi erit. 8Sciendum est autem nepotes et deinceps interdum, etiamsi parentes eos mortis tempore praecesserunt, tamen posse suos heredes existere, quamvis successio in suis heredibus non sit. quod ita procedit. si pater familias testamento facto decesserit exheredato filio, mox deliberante herede instituto filius decessit, postea deinde repudiavit heres institutus: nepos poterit suus heres esse, ut et Marcellus libro decimo scripsit, quoniam nec delata est filio hereditas. idem erit dicendum et si filius ex asse sub condicione, quae fuit in arbitrio ipsius, vel nepos sub omni institutus non impleta condicione decesserint: nam dicendum erit suos posse succedere, si modo mortis testatoris tempore vel in rebus humanis vel saltem concepti fuerint: idque et Iuliano et Marcello placet. 9Post suos statim consanguinei vocantur. 10Consanguineos autem Cassius definit eos, qui sanguine inter se conexi sunt. et est verum eos esse consanguineos, etiamsi sui heredes non extiterunt patri, ut puta exheredatos: sed et si pater eorum deportatus fuerit, nihilo minus eos inter se esse consanguineos, licet patri sui heredes non extitissent: et qui numquam in potestate fuerunt, erunt sibi consanguinei, ut puta qui post captivitatem patris nascuntur vel qui post mortem. 11Non solum autem naturales, verum etiam adoptivi quoque iura consanguinitatis habebunt cum his qui sunt in familia vel in utero vel post mortem patris nati.
1 Ulpianus, 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.
2 Idem libro tertio decimo ad Sabinum. Post consanguineos admittuntur adgnati, si consanguinei non sunt, merito. nam si sunt consanguinei, licet non adierint hereditatem, legitimis non defertur. sed hoc sic erit accipiendum, si nec sperantur esse: ceterum si vel nasci consanguineus vel de captivitate reverti potest, adgnati impediuntur. 1Adgnati autem sunt cognati virilis sexus ab eodem orti. nam post suos et consanguineos statim mihi proximus est consanguinei mei filius et ego ei: patris quoque frater, qui patruus appellatur: deincepsque ceteri, si qui sunt hinc orti, in infinitum. 2Haec hereditas proximo adgnato, id est ei, quem nemo antecedit, defertur, et, si plures sint eiusdem gradus, omnibus, in capita scilicet. ut puta duos fratres habui vel duos patruos, unus ex his unum filium, alius duos reliquit: hereditas mea in tres partes dividetur. 3Parvi autem refert, adgnatus hic nativitate an adoptione sit quaesitus: nam qui adoptatur isdem fit adgnatus, quibus pater ipsius fuit, et legitimam eorum hereditatem habebit vel ipsi eius. 4Legitima hereditas tantum proximo defertur. nec interest, unus solus sit an ex duobus prior pluribusve an duo pluresve ab eodem gradu venientes, qui vel ceteros antecedant vel soli sint: quia is est proximus quem nemo antecedit, et is ultimus quem nemo sequitur, et interdum idem primus postremusque, qui solus occurrit. 5Interdum ulteriorem adgnatum admittimus: ut puta fecit quis testamentum, cum haberet patruum et patrui filium, deliberante herede scripto patruus decessit, mox heres institutus repudiavit hereditatem: patrui filius admittetur: ergo et bonorum possessionem petere potest. 6Proximum non eum quaerimus, qui tunc fuit, cum moreretur pater familias, sed eum, qui tunc fuit, cum intestatum decessisse certum est. secundum quae et si suus erat qui praecedebat vel consanguineus, si nemo eorum, cum repudiatur hereditas, vivit, proximum eum accipimus, qui tunc, cum repudiatur hereditas, primus est. 7Unde belle quaeri potest, an etiam post repudiationem adhuc demus successionem. propone heredem scriptum rogatum restituere hereditatem repudiasse eam, cum nihilo minus compelli potuit adire hereditatem et restituere, ut divus Pius rescripsit: finge eum supervixisse centum diebus verbi gratia et interim proximum decessisse, mox et eum, qui erat rogatus restituere: dicendum posteriorem admitti cum onere fideicommissi.
2 The 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.
3 Idem libro quarto decimo ad Sabinum. Intestato liberto mortuo primum suis deferri hereditatem verum est: si hi non fuerint, tunc patrono. 1Libertum accipere debemus eum, quem quis ex servitute ad civitatem Romanam perduxit sive sponte sive necessitate, quoniam rogatus fuit eum manumittere: nam et ad huius legitimam hereditatem admittitur. 2Si dotalem quis servum manumisit, ipse patronus habetur et ad legitimam hereditatem admittetur. 3Is plane, quem hac lege emi, ut manumittam, etsi ex constitutione divi Marci pervenerit ad libertatem, tamen, ut eadem constitutione expressum est, meus libertus est et legitima eius hereditas mihi deferetur. 4Quid si necem domini detexit et ex senatus consulto libertatem meruerit? si quidem adsignavit praetor, cuius libertus sit, sine dubio eius erit et ei legitima hereditas deferetur: quod si non addidit, efficietur quidem civis Romanus, sed eius erit libertus, cuius proxime fuerit servus et ad legitimam hereditatem ipse admittetur, nisi sicubi quasi indigno deneganda fuerit hereditas. 5Si quis libertam sic iureiurando adegit ‘ne illicite nubat’, non debere incidere in legem Aeliam Sentiam. sed si ‘intra certum tempus ne ducat’ ‘neve aliam, quam de qua patronus consenserit’ vel ‘non nisi conlibertam’ aut ‘patroni cognatam’, dicendum est incidere eum in legem Aeliam Sentiam nec ad legitimam hereditatem admitti. 6Si municipes servum manumiserint, admittentur ad legitimam hereditatem in bonis liberti vel libertae intestatorum. 7Miles manumittendo servum peculiarem suum faciet libertum et ad legitimam hereditatem eius admittitur. 8Principem ad bona libertorum suorum admitti plus quam manifestum est. 9Utique et ex lege duodecim tabularum ad legitimam hereditatem is qui in utero fuit admittitur, si fuerit editus. inde solet remorari insequentes sibi adgnatos, quibus praefertur, si fuerit editus: inde et partem facit his qui pari gradu sunt, ut puta frater unus est et uterus, vel patrui filius unus natus et qui in utero est. 10Est autem tractatum, pro qua partem faciat, quia ex uno utero plures nasci possunt. et placuit, si in rerum natura certum sit hanc, quae se dicit praegnatem, praegnatem non esse, ex asse iam esse heredem hunc, qui iam natus est, quoniam et ignorans heres fit. quare si medio tempore decesserit, integram hereditatem ad heredem suum transmittit. 11Post decem menses mortis natus non admittetur ad legitimam hereditatem. 12De eo autem, qui centensimo octogensimo secundo die natus est, Hippocrates scripsit et divus Pius pontificibus rescripsit iusto tempore videri natum, nec videri in servitutem conceptum, cum mater ipsius ante centensimum octogensimum secundum diem esset manumissa.
3 The 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.
4 Pomponius libro quarto ad Sabinum. Hi, quorum parens capite minutus est, legitimae hereditatis ius et in ceteris personis et inter se retinent et alii adversus eos.
4 Pomponius, 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.
5 Ulpianus libro quadragensimo sexto ad edictum. Si quis, cum haberet fratrem et patruum, decesserit testamento facto, deinde pendente condicione heredum scriptorum frater intestato decesserit, mox condicio defecerit: patruum posse utriusque adire legitimam hereditatem constat.
5 Ulpianus, 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.
6 Iulianus libro quinquagensimo nono digestorum. Titius exheredato filio extraneum heredem sub condicione instituit: quaesitum est, si post mortem patris pendente condicione filius uxorem duxisset et filium procreasset et decessisset, deinde condicio instituti heredis defecisset, an ad hunc postumum nepotem legitima hereditas avi pertineret. respondit: qui post mortem avi sui concipitur, is neque legitimam hereditatem eius tamquam suus heres neque bonorum possessionem tamquam cognatus accipere potest, quia lex duodecim tabularum eum vocat ad hereditatem, qui moriente eo, de cuius bonis quaeritur, in rerum natura fuerit,
6 Julianus, 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.
7 Celsus libro vicensimo octavo digestorum. vel si vivo eo conceptus est, quia conceptus quodammodo in rerum natura esse existimatur.
7 Celsus, 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.
8 Iulianus libro quinquagensimo nono digestorum. Item praetor edicto suo proximitatis nomine bonorum possessionem pollicetur his, qui defuncto mortis tempore cognati fuerint. nam quod in consuetudine nepotes cognati appellantur etiam eorum, post quorum mortem concepti sunt, non proprie, sed per abusionem vel potius ἀναφορικῶς accidit. 1Si quis praegnatem uxorem reliquisset et matrem et sororem, si viva uxore mater mortua fuisset, deinde uxor mortuum peperisset, ad sororem solam legitima hereditas pertinet, quia certum esset matrem eo tempore decessisse, quo legitima hereditas ad eam non pertinebat.
8 Julianus, 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.
9 Marcianus libro quinto institutionum. Si ex pluribus legitimis heredibus quidam omiserint adire hereditatem vel morte vel qua alia ratione impediti fuerint, quo minus adeant, reliquis, qui adierint, adcrescit illorum portio et licet decesserint, antequam adcresceret, hoc ius ad heredes eorum pertinet. alia causa est instituti heredis et coheredi substituti: huic enim vivo defertur ex substitutione hereditas, non etiam, si decesserit, heredem eius sequitur.
9 Marcianus, 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.
10 Modestinus libro sexto differentiarum. Si ad patrem manumissorem filii intestati legitima hereditas perveniat vel non manumissori bonorum possessio competat, mater defuncti summovetur.
10 Modestinus, 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.
11 Pomponius libro decimo ad Quintum Mucium. Capitis deminutione pereunt legitimae hereditates, quae ex lege duodecim tabularum veniunt, sive vivo aliquo sive antequam adeatur hereditas eius capitis minutio intercessit, quoniam desinit suus heres vel adgnatus recte dici: quae autem ex legibus novis aut ex senatus consultis, non utique.
11 Pomponius, 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.
12 Idem libro trigensimo ad Quintum Mucium. Filius patri adgnatus proximus est.
12 The Same, On Quintus Mucius, Book XXX. The son is the nearest agnate of his father.
13 Gaius libro decimo ad legem Iuliam et Papiam. Nulla femina aut habet suos heredes aut desinere habere potest propter capitis deminutionem.
13 Gaius, 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.
14 Idem libro tertio decimo ad legem Iuliam et Papiam. In suis heredibus aditio non est necessaria, quia statim ipso iure heredes existunt.
14 The 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.
15 Papinianus libro vicensimo nono quaestionum. Si pater apud hostes moriatur, defunctum iam in civitate filium credimus patrem familias decessisse, quamvis patria potestate, quamdiu vixerit, non fuerit in plenum liberatus: itaque heredem habiturus est iste non reverso patre. sed si postliminio redierit pater iam defuncto filio, quidquid medio tempore per eum quaesitum est, habebit: et non est mirum, si peculium quoque defuncti pridem filii defertur patri, cum ex eo natus potestatis ipsius fiat per suspensi iuris constitutionem.
15 Papinianus, 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.
16 Idem libro duodecimo responsorum. Pater instrumento dotali comprehendit filiam ita dotem accepisse, ne quid aliud ex hereditate patris speraret: eam scripturam ius successionis non mutasse constitit: privatorum enim cautiones legum auctoritate non censeri.
16 The 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.