Ad senatus consultum Tertullianum et Orphitianum
(On the Tertullian and Orphitian Decrees of the Senate.)
1 Ulpianus libro duodecimo ad Sabinum. Sive ingenua sive libertina mater est, admitti possunt liberi ad hereditatem eius ex senatus consulto Orphitiano. 1Si ea sit mater, de cuius statu dubitatur, utrum mater familias sit an filia familias, ut puta quoniam pater eius ab hostibus captus sit: si certum esse coeperit matrem familias esse, liberi admittentur. unde tractari potest, an medio tempore, dum status pendet, succurri eis per praetorem debeat, ne, si medio tempore decesserint, nihil ad heredem transmittant: et magis est, ut subveniatur, ut in multis casibus placuit. 2Sed et vulgo quaesiti admittuntur ad matris legitimam hereditatem. 3Interdum et in servitute quaesito erit concedenda hereditas legitima, veluti si post moram fideicommissariae libertati matris suae factam natus sit. certe si post manumissionem matris fuerit natus, licet in servitute conceptus, ad legitimam eius hereditatem admittetur. sed et si apud hostes conceptus a captiva procreatus cum ea rediit, secundum rescriptum imperatoris nostri et divi patris eius ad Ovinium Tertullum poterit ex hoc senatus consulto admitti quasi vulgo quaesitus. 4Filio, qui mortis tempore matris civis Romanus fuit, si ante aditam hereditatem in servitutem deducatur, legitima hereditas non defertur nec si postea liber factus sit, nisi forte servus poenae effectus beneficio principis sit restitutus. 5Sed si matris exsecto ventre filius editus sit, magis dicendum est hunc quoque ad legitimam hereditatem admitti: nam et institutus secundum tabulas et ab intestato unde cognati et multo magis unde legitimi bonorum possessionem petere potuit: argumento est, quod venter in possessionem ex omni parte edicti mittitur. 6Qui operas suas ut cum bestiis pugnaret locavit quive rei capitalis damnatus neque restitutus est, ex senatus consulto Orphitiano ad matris hereditatem non admittebatur: sed humana interpretatione placuit eum admitti. idem erit dicendum et si hic filius in eius sit potestate, qui in causa supra scripta sit, posse eum ex Orphitiano admitti. 7Sed si mater testamento facto filium heredem scripserit unum sub condicione, cum plures haberet, si condicione pendente possessionem petierit et postea condicio defecit, aequum est ceteris etiam filiis legitimam hereditatem non auferri: quod et Papinianus libro sexto decimo quaestionum scripsit. 8Capitis minutio salvo statu contingens liberis nihil nocet ad legitimam hereditatem: nam vetus sola hereditas, quae lege duodecim tabularum defertur, capitis minutione peremitur, novae vel ex lege vel ex senatus consultis delatae non peremuntur capitis deminutione. proinde sive quis ante delatam capite minuatur, ad legitimam hereditatem admittetur, nisi magna capitis deminutio interveniat, quae vel civitatem adimit, ut puta si deportetur. 9‘Si nemo filiorum eorumve, quibus simul legitima hereditas defertur, volet ad se eam hereditatem pertinere, ius antiquum esto’. hoc ideo dicitur, ut, quamdiu vel unus filius vult legitimam hereditatem ad se pertinere, ius vetus locum non habeat: itaque si ex duobus alter adierit, alter repudiaverit hereditatem, ei portio adcrescet. et si forte sit filius et patronus, repudiante filio patrono defertur. 10Si quis adita matris hereditate per in integrum restitutionem fuerit abstentus, an ius antiquum possit locum habere? verba admittunt, ut possit: ‘volet ad se’, inquit, ‘eam hereditatem pertinere’: nam et hic non vult, etsi aliquando voluit: et dico posse ius antiquum locum habere. 11Utrum autem ei defertur successio, qui tunc legitimus deprehenditur, an vero ei, qui tunc fuit, cum filio defertur? ut puta proponamus fuisse defunctae consanguineum eiusque filium, deliberante filio defunctae consanguineum obisse, mox filium repudiasse matris hereditatem: an consanguinei filius admitti possit? et Iulianus recte putat circa Tertullianum locum esse succedenti adgnato. 12Quod ait senatus: ‘quae iudicata transacta finitave sunt, rata maneant’, ita intellegendum est, ut ‘iudicata’ accipere debeamus ab eo cui iudicandi ius fuit, ‘transacta’ scilicet bona fide, ut valeat transactio, ‘finita’ vel consensu vel longo silentio sopita.
1 Ulpianus, On Sabinus, Book XII. Under the Orphitian Decree of the Senate children can be admitted to the succession of their mother whether she is freeborn or manumitted. 1When any doubt exists with reference to the condition of the mother, namely, whether she is independent or subject to paternal control (as for instance, where her father is a captive in the hands of the enemy), whenever it is positively established that she was her own mistress when she died, her children will be entitled to her estate. Hence the question arose whether or not, during the intermediate time and while her condition was in suspense, relief should be granted to the children by the Prætor, for fear that if they should die in the interim they might not be able to transmit anything to their heirs. The better opinion is that relief should be granted them, as has been decided in many cases. 2Illegitimate children are also admitted to the succession of their mother as heirs at law. 3An estate is sometimes granted to a son born in slavery, as heir at law; for example, where he was born of a female slave while the heir was in default for not granting his mother freedom under the terms of a trust. It is certain that if he was born after the manumission of his mother, he will be entitled to her estate as heir at law, even though he was conceived in slavery; and even if he was conceived while his mother was in the hands of the enemy but was born in captivity, and returned with his, mother, he will have a right to her estate as heir at law, just as an illegitimate child; according to a Rescript of our Emperor and his Divine Father addressed to Ovinius Tertullus. 4The estate of a mother is not transmitted to her son as heir at law, who, at the time of her death, was a Roman citizen, and before the estate was entered upon was reduced to slavery; not even if he should afterwards become free, unless he had been made a penal slave and was subsequently restored to his civil rights by the indulgence of the Emperor. 5If, however, the son was born after a surgical operation had been performed upon his mother for that purpose, the better opinion is, that he will be entitled to her estate as heir at law. For he can demand prætorian possession, whether he was appointed heir, or his mother died intestate, as belonging to the class of cognates, and, still more, as one of the heirs at law. The proof of which is, that an unborn child is admitted to prætorian possession of the estate under every Section of the Edict. 6Anyone who hires his services for the purpose of fighting wild beasts, or who has been condemned for a capital crime and not restored to his civil rights, is not entitled to the estate of his mother under the Orphitian Decree of the Senate; but, on the ground of humanity, it has been held that he can obtain it. The same rule will apply where the son is under the control of him who is in the above-mentioned condition, for he can be admitted to the succession of his mother under the Orphitian Decree of the Senate. 7If a mother, having several children, should make a will and appoint one of them her heir under a condition, and the child should demand prætorian possession of the estate while the condition was still pending, and afterwards, the condition should not be fulfilled, it is but just that the other children should not be deprived of the estate as heirs at law. This Papinianus also stated in the Sixteenth Book of Questions. 8The forfeiture of civil rights which takes place in the case of children without affecting their legal position, does not, in any way, prejudice them as heirs at law; for it is only the ancient right of inheritance which passes by the Law of the Twelve Tables that is extinguished by the forfeiture of civil status, but those new rights which are established by special taws or by the decrees of the Senate are not lost under such circumstances. Hence, whether the civil rights of a child were lost before or after it was entitled to its mother’s estate, it will still be admitted to the succession as heir at law, unless the greater diminution of civil rights, which deprives a person of citizenship, as, for instance, where he is deported, has taken place. 9“Let the ancient law be observed, where none of the children, or none of those who are entitled to the estate as heir at law, desires to obtain the estate.” This clause was enacted in order that the ancient law might not apply as long as there was a single child who wished to obtain his mother’s estate as heir at law. Hence, if one of two children should accept the estate, and the other should reject it, the share of the latter will accrue to the former. And if the mother should leave a son and a patron, and the son should reject the estate, it will pass to the patron. 10If anyone, after having entered upon the estate of his mother, should then reject it and obtain complete restitution, must the ancient law be observed? The terms of the law admit that this can be done, as it says, “Desires to obtain the estate,” for, in this instance, he has not this desire, although he had it originally; therefore I hold that the ancient law will be applicable. 11Moreover, will the succession pass to him who was at the time the heir at law, or will it go to him who was the heir at law when the estate passed to the son? Suppose, for instance, that there was a blood-relative of the deceased, as well as her son, and that the said blood-relative died while the son was deliberating whether or not he would accept the estate of his mother, and he should then reject the estate; can the son of her blood-relative be admitted to the succession? Julianus very properly thinks that, by the Tertullian Decree of the Senate, there is ground for the admission of the nearest agnate. 12The enactment of the Senate says, “Whatever has been judicially decided is finally settled and terminated, and shall be valid,” must be understood to mean a decision rendered by someone who had the right to do so, whether reference is had to a transaction made in good faith, in order to render it valid; or it was ended by consent, or quieted by a long silence.
2 Idem libro tertio decimo ad Sabinum. Sive ingenua sit mater sive libertina, habebit Tertullianum commodum. 1Filium autem vel filiam accipere debemus, sive iuste sint procreati vel vulgo quaesiti: idque in vulgo quaesitis et Iulianus libro quinquagensimo nono digestorum scripsit. 2Sed si filius vel filia libertini sint effecti, mater legitimam hereditatem vindicare non poterit, quoniam mater esse huiusmodi filiorum desiit: idque et Iulianus scripsit et constitutum est ab imperatore nostro. 3Sed si in servitute concepit filium et manumissa ediderit, ad legitimam eius hereditatem admittetur: idemque et si serva poenae concepit et restituta edidit: hoc idem et si libera concepit, edidit serva poenae, mox restituta est: sed et si libera concepit et in servitutem redacta edidit, mox manumissa est, ad legitimam hereditatem eius admittetur. item si adhuc praegnas manumissa est, dicendum erit prodesse. et in servitute editi filii ad legitimam hereditatem mater admittetur, ut puta si post moram factam in fideicommissa libertate peperit, vel apud hostes et cum eo rediit, vel si redempta edidit. 4Si mulier sit famosa, ad legitimam hereditatem liberorum admittetur. 5Impuberem, cui pater secundas tabulas fecit, tunc certum est intestatum decessisse, cum omiserint substituti hereditatem eius. quare et si impubes adrogatus sit, dicendum est matrem ad bona eius admitti, quae haberet, si intestatus decessisset. 6Liberi defuncti sui quidem obstabunt matri eius tam virilis sexus quam feminini, tam naturales quam adoptivi matremque excludunt, bonorum possessores vero etiam non sui et quidem soli naturales. adoptivi autem liberi post emancipationem ita admittuntur, si ex liberis naturalibus fuerint, ut puta nepos naturalis ab avo adoptatus: nam licet sit emancipatus, bonorum possessione accepta matri obstabit. 7Si vero apud hostes est filius vel nasci speratur, pendet ius matris, donec redierit vel nascatur. 8Sed si sint sui heredes, verum hereditas ad eos non pertineat, videamus, an mater admittatur, ut puta abstinuit se hereditate. Africanus et Publicius temptant dicere in casum, quo se abstinent sui, matrem venire, et tunc ei obstent, quotiens rem haberent, ne nudum nomen sui heredis noceat matri: quae sententia aequior est. 9Sed si quis decessisset relicta filia, quam in adoptionem legitime dederat, relicta et matre, divus Pius decrevit cessare senatus consultum Tertullianum et simul esse admittendas ad bonorum possessionem unde proximi cognati matrem et filiam. sed quod idem Iulianus scripsit matrem ex senatus consulto non posse admitti, si filia in bonorum possessione petenda cessaverit, verum non erit: succedit enim filiae. et ideo dicendum erit matrem, donec filia bonorum possessionem petere potest, bonorum possessionem accipere non posse, quoniam succedere quasi legitima speraretur. 10Si bonorum possessione accepta filius emancipatus abstinuerit se hereditate per in integrum restitutionem, verum est senatus consultum posse locum habere: sed si fuerit rursus immixtus, rursus debet mater abstinere. 11Si quis ex liberis, dum est in utero, in possessione missus sit, mox natus sit et ante bonorum possessionem acceptam decesserit, an matri noceat, videndum, quasi bonorum possessor. et puto non nocere, si non suus patri adgnascitur: neque enim sufficit mitti in possessionem, nisi natus quoque acceperit bonorum possessionem. igitur et si furioso decreto petita sit possessio et priusquam ipse mentis compos factus bonorum possessionem petierit, decesserit, matri non obstabit. 12Sed si quis, cum status controversiam pateretur, Carbonianam solam acceperit, an noceat matri bonorum possessio, quaesitum quidem est: sed cum haec tempore finiatur, dicendum est matri post tempus non nocere aut, si impubes decesserit, matrem posse admitti. 13Sed si infanti per tutorem petita sit possessio, licet statim decesserit, dicendum erit matri obstitisse: non enim similis est ei, quae furioso datur. 14Ita demum autem mater senatus consulti beneficio excludetur, si filius adiit legitimam hereditatem: ceterum si omiserit legitimam hereditatem, mater ex senatus consulto Tertulliano admittetur. sed si non sit solus iste filius legitimus heres, sed sint qui cum eo admittantur, nec in partem eorum mater ex senatus consulto erit vocanda. 15Obicitur matri pater in utriusque bonis tam filii quam filiae, sive heres sive bonorum possessor existat. sed neque avus neque proavus in Tertulliano matri nocent, quamvis fiduciam contraxerint. pater autem tantum naturalis, non etiam adoptivus matri nocet: verius est enim, cum pater esse desierit, a matre eum excludi: sed nec ad bonorum possessionem contra tabulas eum admitti, cum pater esse desierit. 16Undecumque autem acceperit bonorum possessionem pater naturalis, sive legitimus sive contra tabulas, ex quavis parte excludit matrem. 17Si sit adgnatus defuncti et naturalis pater sit in adoptiva familia, sit et mater, admittimus matrem, quoniam patrem adgnatus exclusit. 18Si sit consanguinea soror defuncti, sit et mater, sit et pater adoptatus vel emancipatus: si consanguinea velit habere hereditatem, matrem ex senatus consulto una cum ea venire, patrem excludi placet: si consanguinea repudiet, matrem ex senatus consulto propter patrem non venire: et quamvis alias non soleat mater exspectare consanguineam, velit nec ne adire hereditatem, nunc tamen exspectaturam: consanguinea enim est, quae patrem excludit. repudiante igitur consanguinea bonorum possessionem habebit mater cum patre quasi cognata, sed et in hac moram patietur nec ante accipiet bonorum possessionem quam pater petierit, quoniam omittente eo potest ex senatus consulto succedere. 19Sed et si ipsa mater eadem sit et soror consanguinea, ut puta quoniam pater matris nepotem suum ex filia adoptavit, sit praeterea et pater naturalis: haec mater si quidem quasi consanguinea veniat, excludet patrem: si ius consanguineae repudiavit vel capitis deminutione amisit, ex senatus consulto venire propter patrem non potest, repudiante vero patre rursum ex senatus consulto potest venire. 20Si mater hereditatem filii filiaeve non adierit ex senatus consulto Tertulliano, in bonorum possessione antiquum ius servandum est: cum enim esset praelatio matre omittente senatus consulti beneficium, ius succedit vetus. 21Sed si mater repudiaverit bonorum possessionem, de adeunda autem hereditate deliberet, dicendum erit adgnatum non succedere, quoniam nondum verum est non adisse matrem. 22Quod autem diximus ius antiquum servari matre non adeunte, cui personae deferatur hereditas, videndum, utrum ei, quae nunc proxima invenitur, cum mater repudiat, an ei quae fuit, cum intestato decessisse certum est? ut puta fuit patruus, cum intestato decederet, et patrui filius: cum mater repudiasset, patruo nondum delatam hereditatem atque ideo defuncto eo matre deliberante patrui filium vocari. 23Si mater non petierit tutores idoneos filiis suis vel prioribus excusatis reiectisve non confestim aliorum nomina ediderit, ius non habet vindicandorum sibi bonorum intestatorum filiorum. et quidem si non petit, incidit: ait enim ‘vel non petere’. sed a quo non petere? loquitur quidem de praetore constitutio: sed puto et in provinciis locum habere, etiamsi a magistratibus municipalibus non petat, quoniam et magistratibus municipalibus dandi necessitas iniungitur. 24Quid ergo, si petiit, sed admonita vel a libertis vel a cognatis, an incidat in senatus consultum? et puto eam incidere, si compulsa fecit, non si, cum petere non cunctaretur, admonita est. 25Quid si pater eis peti prohibuerat tutorem, quoniam per matrem rem eorum administrari voluit? incidet, si nec petat nec legitime tutelam administrat. 26Quod si penitus egenis filiis non petit, ignoscendum est ei. 27Sed si forte absens a libertis praeventa est vel ab aliis, dicendum est eam non excludi, nisi forte cum frustraretur, id contigit. 28Filiis autem non petendo punitur, utique et filiabus. quid si nepotibus? similiter non petendo punitur. 29Quid si curatores non petiit? verba rescripti deficiunt, sed dicendum est, si quidem impuberibus curatores non petiit, eandem esse rationem, si iam puberibus, cessare debere. 30Quid si cum praegnas esset, bonis non petiit curatorem? dico in sententiam incidere: nam et si apud hostes habuit impuberem, idem erit dicendum. 31Quid si furioso tutorem vel curatorem non petiit? magis est, ut incidat. 32Non solum autem quae non petiit coercetur, sed et quae defunctorie petiit, ut rescripto declaratur, vel privilegio munitum vel oneratum tribus puta tutelis, sed ita demum, si data opera hoc fecit. 33Quid ergo, si tales petiit et susceperunt nihilo minus vel detenti sunt? excusata erit mater. 34Quid si indignos, id est minus habiles ad tutelam petierit, quoniam sciebat praetorem eos non daturum? quid tamen si dedit eos praetor matris petitionem secutus? iam quidem praetoris delictum est, sed et matris punimus consilium. 35Igitur si forte excusati sint illi vel improbati, debet mater alios sine mora petere. 36Ergo sive non petierit sive idoneos non petierit, punietur, etiamsi dati fuerint minus idonei praetore errante. 37Idoneos autem utrum facultatibus an et moribus petere debeat, dubitationis esse potest. puto autem facile ei ignosci, si locupletes sint hi, quos petiit. 38Sed et si prioribus excusatis reiectisve non confestim aliorum nomina ediderit, punitur. 39Quid ergo, si non fuerint omnes excusati vel omnes reiecti? videndum, an ei imputetur, cur in locum excusati non petiit: et puto imputandum. 40Quid si decesserint quidam? puto, licet verba deficiant, sententiam constitutionis locum habere. 41Sed quod diximus ‘reiecti’ utrum sic accipimus ‘a praetore non dati’ an et si suspecti fuerint remoti vel ob neglegentiam vel ignaviam repulsi? etiam hos quis reiectos recte dicet. ergo et si latitent? sed longum est: nam nec hoc ei imputetur, cur suspectos non fecit: alioquin et si latitarent, potuit edicto desiderare ut eos praetor adesse iuberet et suspectos eos removet, si deessent. 42Quid si non compulit eos miscere se tutelae? et cum plenum officium a matre desideremus, et haec ei curanda sunt, ne in hereditate ei obstent. 43‘Confestim’ autem sic erit accipiendum ‘ubi primum potuit’, id est praetoris copiam habuit huic rei sedentis, nisi forte infirmitate impedita est vel alia magna causa, quae etiam mandare eam ad petendos tutores impediret: ita tamen, ut nullo modo annale tempus excederet. si enim mortalitate filii praeventa est, nihil matri imputetur. 44Tractari belle potest, si pupillo amplum legatum sub condicione sit relictum ‘si tutores non habuerit’ et propterea ei mater non petierit, ne condicione deficeretur, an constitutio cesset. et puto cessare, si damnum minus sit cumulo legati. quod et in magistratibus municipalibus tractatur apud Tertullianum: et putat dandam in eos actionem, quatenus plus esset in damno quam in legato. nisi forte quis putet condicionem hanc quasi utilitati publicae obpugnantem remittendam ut alias plerasque: aut verba cavillatus imputaverit matri, cur curatores non petierit. finge autem plenius condicionem conscriptam: nonne erit matri ignoscendum? aut hoc imputatur matri, cur non desideravit a principe condicionem remitti? et puto non esse imputandum. 45Ego etiam si mater ei, qui solvendo non erit, non petiit tutorem, puto ignoscendum: consuluit enim ei, ut minus inquietetur quasi indefensus. 46Et si forte quis uxorem communis filii matrem heredem scripsit rogavitque remissa etiam satisdatione, ut filio puberi facto restitueret hereditatem, nec mater ei petiit tutores, debet dici cessare constitutionem, cum patris voluntatem secuta sit et nihil habenti filio tutores non petierit. quod si ei remissa satisdatio non fuerit, contra erit, quoniam vel propter hoc debuit tutores habere. sed si forte impubes post matris cessationem fuerit adrogatus et impubes obierit, dicendum erit matri adversus adrogatorem non competere ex stipulatu actionem. 47Videndum est, matre prohibita ius suum vindicare utrum ceteros admittamus, atque si mater non esset, an ipsam heredem dicimus fieri vel aliud nomen successionis induere, sed denegamus ei actiones? et invenimus rescriptum ab imperatore nostro Antonino Augusto et divo patre eius Mammiae Maximinae pridie idus Apriles Plautiano iterum consule matre remota eos admitti, qui venirent, si mater non fuisset: ergo et adgnati ceterique succedent aut, si nemo sit, bona vacabunt.
2 The Same, On Sabinus, Book XIII. A mother is entitled to the benefit of the Tertullian Decree of the Senate, whether she is freeborn, or has been manumitted. 1We should understand the law referring to the son or the daughter to apply to either such as are lawfully begotten or illegitimate. Julianus, in the Fifty-ninth Book of the Digest, adopts this opinion with reference to legitimate children. 2If the son or the daughter has been manumitted, the mother cannot claim his or her estate as heir at law, for she has ceased to be the mother of children of this kind. This was the opinion of Julianus, and it has also been decided by our Emperor. 3Where, however, a woman conceived a child while in slavery, and it was born after she was manumitted, it will be entitled to her estate as her heir at law. The same rule applies if the slave conceived while serving out a sentence, and the child was born after she was restored to her rights. This will also be the case where she was free when she conceived, but was serving out a sentence when the child was born, and afterwards was restored to her rights. If, however, she was free when she conceived, and the child was born after she had been reduced to slavery, and she was subsequently liberated, the child will be admitted to the succession as her heir at law. Likewise, it must be said that she will be entitled to the benefit of the law, if she was manumitted while pregnant. The mother will inherit the estate of her child born in slavery, as its heir at law; for instance, if it was born after the heir was in default in granting her her freedom, in compliance with a trust; or where it was born while she was in the hands of the enemy, and returned with her from captivity; or if it was born after she was ransomed. 4When a woman is of infamous reputation, she will, nevertheless, be entitled to the estate of her child as heir at law. 5A minor under the age of puberty, for whom his father made a pupillary substitution, certainly dies intestate when his substitutes reject the inheritance. Therefore, if the minor should be arrogated, it must be said that his mother is entitled to the property which he would have left if he had died intestate. 6The children of the deceased, whether they are of the male or female sex, or natural or adopted, if they are proper heirs, stand in the way of their mother, and exclude her from succession as heir at law; and those entitled to possession of the estate under the Prætorian Edict also exclude their mother, even if they are not proper heirs, provided they are natural children. Adopted children are also admitted to the succession, after their emancipation, if they belong to the number of natural children; as for instance, a natural grandson adopted by his grandfather; for, even though he may be emancipated, if he obtains prætorian possession, he will take precedence of his mother. 7Where, however, a son is in the hands of the enemy, or is yet unborn, the mother’s right remains in suspense until he returns from captivity, or is born. 8When there are proper heirs, who, however, are not entitled to the estate, let us see whether the mother can be admitted to the succession; for instance, when they reject the estate. Africanus and Publicius venture to hold that the mother will be admitted if the children do not accept the estate, and will take precedence of her whenever they are entitled to the property, in order that the mere name of proper heir may not prejudice the right of the mother; which opinion is the more equitable one. 9Where anyone dies, leaving a daughter whom he had legally given in adoption, and her mother, the Divine Pius decided that the Tertullian Decree of the Senate did not apply to such a case; and that the mother and daughter, as the next of kin, should be entitled to prætorian possession of the estate. Julianus, however, says that the mother cannot be admitted to the succession under the Decree of the Senate, if the daughter should fail to demand possession under the Prætorian Edict; but this is not true, for she succeeds her daughter, and hence it must be held that the other cannot obtain prætorian possession of the estate while the daughter has the right to demand it, as she has the expectation of succeeding as heir at law. 10If an emancipated son, after having acquired prætorian possession of the estate, should abstain from taking it, in order to obtain complete restitution, it is true that the Decree of the Senate will apply. If, however, he should again meddle with the estate, the mother must, a second time, refrain from applying for it. 11Where one of the children of the deceased, who is yet unborn, is placed in possession of the estate, and is afterwards born, and dies before obtaining actual prætorian possession, let us see whether the rights of the mother of the deceased will be prejudiced as prætorian possessor of the estate. I think that her rights will not be affected, provided the child was not born the proper heir of his father; for if it is not sufficient for him to formally be placed in possession, unless, after his birth, he obtained actual prætorian possession. Therefore, if possession is granted to an insane person by a decree of the Prætor, and he should die before he recovers his senses, and before actually acquiring prætorian possession, he will not interfere so as to exclude his mother. 12If a child, whose condition is in controversy, has only obtained Carbonian, prætorian possession, the question arises whether such possession will prejudice the rights of the mother. Under these circumstances, as possession of this description is terminated after a prescribed period, it must be said that, after this period has elapsed, the rights of the mother will not be prejudiced; or if the child should die under the age of puberty, the mother will be entitled to the estate. 13When, however, possession has been demanded for an infant by his guardian, even though he may die immediately, it must be said that his mother will be excluded, for this case is not similar to the one where prætorian possession is given to an insane person. 14Moreover, the mother is only excluded from the benefit of the Decree of the Senate, where her son enters upon the estate as the heir at law, but if he should fail to do so, his mother will be admitted to the inheritance under the Tertullian Decree. Where, however, this son is not the only heir at law, but there are others who can be admitted with him, the mother will not be called to the succession of their shares by the Decree of the Senate. 15The father takes precedence of the mother in the succession of either a son or a daughter, whether he appears as the heir, or is entitled to prætorian possession of the estate. However, neither the grandfather nor the father exclude the mother, under the Tertullian Decree of the Senate, even though they may be charged with a trust. Only the natural, and not the adoptive father takes precedence of the mother, for the better opinion is that when the adoptive father ceases to be such, he will be excluded by the mother; since he is not entitled to prætorian possession of the estate contrary to the provisions of the will, because he is no longer the father. 16However, no matter in what way the natural father may have obtained prætorian possession, whether on the ground of intestacy, or in opposition to the terms of the will, in every instance, he excludes the mother. 17If an agnate of the deceased and his mother survive him, and his natural father belongs to an adoptive family, we admit the mother to the succession, as the agnate excludes the father. 18If a sister related by blood to the deceased survives him as well as his mother, his father having either been adopted or emancipated, and his sister desires to obtain the estate, it is settled by the Decree of the Senate that the mother can be admitted with the sister, and the father will be excluded. If the sister rejects the estate, the mother cannot be admitted under the Decree of the Senate, because of the father. Although, under other circumstances, the mother is not required to wait until the sister decides whether or not she will accept the estate; still, in this instance, she should wait, for it is the sister who excludes the father. Therefore, if the sister rejects the estate, the mother will be entitled to prætorian possession of the same, along with the father, in the capacity of cognates. In this case, she must suffer the delay, and cannot obtain prætorian possession of the estate before the father himself demands it; since if he fails to do so, she can then succeed under the Decree of the Senate. 19But if the mother herself is the sister by blood of the deceased (for example where the father of the mother adopted a grandson by the daughter) and there is also a natural father; the mother who is entitled to the succession as sister will exclude the father; if, however, she rejects the right derived from her sister, or loses it through alteration of her civil status, she cannot be admitted to the succession under the Decree of the Senate, on account of the father, but if he rejects the estate, she can still be admitted under the Decree of the Senate. 20If the mother of a son or a daughter does not enter upon the estate under the Tertullian Decree of the Senate, the ancient law with reference to the inheritance of their property must be observed; for the ancient law becomes operative when the preference granted to the mother no longer exists, as will be the case, if she neglects to take advantage of the Decree of the Senate. 21If the mother should reject the prætorian possession, and deliberate as to whether she will enter upon the estate under the provisions of the Civil Law, it must be said that the agnate will not succeed, as it has not yet been announced that the mother will not accept the estate. 22We, having said that the ancient law must be observed if the mother does not accept the estate, must consider to whom it will pass, whether to the next of kin at the time, or to the person who was next of kin when it was certain that the son died intestate. For instance, if there was a paternal uncle living at the time he died intestate, and a son of the said paternal uncle living at the time when the mother rejected the succession, the estate will not yet pass to the uncle; and therefore, if the latter should die while the mother is deliberating, his son will be called to the succession. 23If the mother did not demand solvent guardians for her children, or if the former ones having been excused or rejected, she did not immediately present the names of others, she will not have the right to claim for herself the property of her intestate children. And, indeed, if she does not apply for guardians, she will be liable to the penalty of the constitution, for it says, “Or not demand.” But of whom must this demand be made? The constitution, indeed, mentions the Prætor, but I think that it will also be applicable in the provinces, if she does not have recourse to the municipal magistrates, since the necessity of making the appointment imposes an obligation upon them. 24But what if she did make the demand, only after having been notified to do so by her freedman, or her relatives, would she be liable to the penalty of the Decree of the Senate? I think that she would be, if she allowed herself to be compelled to do so; but not if, after having been notified, she did not delay in making the demand. 25What course should be pursued if their father forbade the children to demand a guardian, as he desired their property to be administered by their mother? She will be liable to the penalty, if she does not make the demand, and does not administer the guardianship in a proper manner. 26She could be excused if she does not demand guardians for her children, when they are extremely poor. 27If, during her absence, she has been anticipated by her freedmen or by others, it must be said that she will not be excluded, unless this has happened after she had refused to make the demand. 28She will be punished for not demanding a guardian for her children; but what if she does not demand one for her grandchildren? If she does not demand one for them, she will also be punished. 29What if she should not demand curators for her children? The rescript is silent on this point, but it must be said that if she does not demand curators for such of them as are under the age of puberty, the same rule will apply; but this will not be the case where all of them have reached the age of puberty. 30But what if a woman, who is pregnant, does not demand a curator for the property of her unborn child? I say that she will be liable to the penalty, and also where she has a child under the age of puberty, who is in the hands of the enemy. 31What if she should not demand a guardian or a curator for her insane son? The better opinion is that she will be liable. 32Not only she who does not make the demand, but also she who has done so without using proper care, is punishable (as is set forth in the rescript), for instance, where a guardian is demanded who is exempt by reason of some privilege; or who is already charged with three guardianships; but in such a case she will only be liable to punishment where she has acted designedly. 33What must be done if she demanded persons of this kind, and they, nevertheless, accepted or were retained? The mother shall be excused. 34But what if she should demand, as guardians, persons who are incompetent, that is to say, not qualified for the guardianship, being perfectly aware that the Prætor would not appoint them? And what must be done if the Prætor should appoint them, in accordance with the demand of the mother? In this instance, the Prætor is guilty of the offence; but we also punish the design of the mother. 35Hence, if these guardians are either excused or rejected, the mother should apply for the appointment of others without delay. 36Therefore, she will be punished if she does not apply for guardians at all, or does not apply for such as are suitable, even if, through the fault of the Prætor, persons who are incompetent should be appointed. 37It may be a matter of doubt whether, by suitable guardians, it is meant that she should demand those who are solvent, or persons of good morals. I think that she can readily be excused if she applies for the appointment of such as are wealthy. 38The mother is also punished if, when the first guardians applied for have been either excused or rejected, she does not immediately present the names of others. 39But what if all of them should neither be excused nor rejected; for it must be considered whether she would be to blame for not having demanded the appointment of another, instead of one who was excused? I think that she would be to blame for not having done so. 40What if one of the guardians should die? I think that, although the law makes no provision on this point, the spirit of the constitution will apply. 41When we said “Rejected,” must we understand this to refer to those who were not appointed by the Prætor; or to such as have been removed, on account of being suspected; or to those who have been excluded because of negligence or ignorance? It is very properly held that the latter are included among those rejected. Will those who conceal themselves render her liable? This is difficult to decide, for she is not to blame for not having denounced them as suspicious. On the other hand, if they conceal themselves, she can, under the Edict, apply to the Prætor to order them to appear, and if they do not do so to remove them as being liable to suspicion. 42What must be done if she does not compel them to administer the guardianship? As we require the mother to discharge her entire duty, she must be careful to do so, lest something may arise to exclude her from the estate. 43The term “Without delay” must be understood to mean as soon as possible, that is to say, as soon as she has an opportunity to appear before the Prætor who has jurisdiction of the matter; unless she should be prevented by illness, or for any other good reason, which would hinder her from sending someone to apply for the appointment of guardians, provided that she does not exceed the term of a year in doing so. If, however, she should be prevented by the death of her son, she will not be at all responsible. 44The following point can very properly be discussed; namely, where a large legacy is left to a minor under the condition that he shall not have any guardians; and, for this reason his mother does not demand any for him, in order that the condition may not fail to be fulfilled; will the condition be applicable to such a case? I think that it will not, if the loss is less than the amount of the legacy. This question is treated by Tertullianus with reference to municipal magistrates, and he thinks that an action should be granted against them to the extent that the amount of the loss exceeds the value of the legacy, unless someone may think that this condition is, as it were, opposed to the public welfare; and should be remitted, as many other conditions are under different circumstances; or quibbling with reference to the words employed, he may censure the mother for not applying for the appointment of guardians. Suppose, however, that the condition was more clearly expressed, should the mother be excused? Or should she be held responsible for not having petitioned the.Emperor to remit the condition? I think that she ought not to be considered responsible. 45I also think that the mother should be excused when she does not apply for a guardian for her insolvent son, since she consults his interest, because, not being defended, he will be subject to less annoyance. 46If anyone should appoint his wife, who is the mother of their common son, his heir, and ask that she shall not be obliged to furnish security to transfer the estate to him when he reaches the age of puberty, and that his mother shall not be required to ask that guardians shall be appointed for him; it must be held that the constitution will not apply, as she has carried out the intention of the father, and did not demand guardians for her son, who had no property. If, however, she was not released from giving security, the contrary rule will apply, since, on this account, he should have guardians. But if a minor under the age of puberty should be arrogated after his mother had failed to apply for the appointment of guardians, and should die, it must be said that she will not be entitled to an action under the stipulation, against the arrogator of her son. 47When the mother is forbidden to claim her right under the Decree of the Senate, it should be considered whether we shall admit the other relatives, just as if there was no mother; or whether we may say that she herself can become the heir, or adopt any other means, in order to obtain the succession. We, however, refuse all actions to her under such circumstances, and we learn from a Rescript of our Emperor Antoninus Augustus and his Divine Father, addressed to Mammia Maximina, and dated the day before the Ides of April, during the second term of the Consulate of Plautianus, that if the mother is excluded, the other relatives will be admitted to the succession just as if there was no mother. Therefore, both the agnates and other relatives will succeed; or, if there are none, the estate will be without ownership.
3 Modestinus libro octavo regularum. Patrem adoptivum matri non obesse plerique probant.
3 Modestinus, Rules, Book VIII. Most authorities are of the opinion that an adoptive father does not exclude the mother.
4 Idem libro nono regularum. Matris intestatae defunctae hereditatem ad omnes eius liberos pertinere, etiamsi ex diversis matrimoniis nati fuerint, iuris est.
4 The Same, Rules, Book IX. It is a rule of law that the property of a mother dying intestate belongs to all the children, even if they are the issue of different marriages.
5 Paulus libro singulari ad senatus consultum Tertullianum. Aequissimum visum est omnes filios matri praeferri, etiamsi per adoptionem in familiam relicti essent. 1Sed et nepos ex adoptivo filio natus ex verbis senatus consulti matri obstabit. 2Si ex filio nepotem avus manumiserit isque patre et avo et matre superstitibus decesserit, potest quaeri, quis potior esse debeat. nam si mater excluserit avum manumissorem, qui patri anteponitur, edicto praetoris inducetur pater defuncti, quo admisso desinit senatus consulto locus esse et rursus avus vocabitur. itaque rectius est avo ius suum conservare, qui et contra scriptos heredes bonorum possessionem accipere solet.
5 Paulus, On the Tertullian Decree of the Senate. It is considered perfectly just for all the children of the deceased to be preferred to the mother, even if they should be members of another family by adoption. 1A grandson, born to an adopted son, will exclude his mother from the succession, according to the terms of the Decree of the Senate. 2If the grandfather manumits his grandson by his son, and the former should die leaving his father, his grandfather, and his mother, it may be asked which of these is entitled to the preference? For if the mother excludes the grandfather, who was the emancipator, and who takes precedence of the father, the father of the deceased will then be admitted to the succession, by the Edict of the Prætor. This being the case, the Decree of the Senate will no longer apply, and the grandfather will again be called to the succession. It will, therefore, be more equitable to preserve the right for the grandfather, who is ordinarily entitled to prætorian possession of an estate even against the appointed heir.
6 Idem libro singulari ad senatus consultum Orphitianum. Filii mater ex hoc senatus consulto, etiamsi in aliena potestate sit, ad hereditatem admittitur. 1Filius, qui se nolle adire hereditatem matris dixit, an potest mutata voluntate adire, antequam consanguineus vel adgnatus adierit, videndum propter haec verba ‘si nemo filiorum volet hereditatem suscipere’, quia extensiva sunt. et cum verba extensiva sint, paenitentia eius usque ad annum admittenda est, cum et ipsa filii bonorum possessio annalis est.
6 The Same, On the Orphitian Decree of the Senate. Under the terms of this Decree, the mother of the son is entitled to his estate, even if she is under the control of another. 1Let us see whether a son who has stated that he does not wish to accept the estate of his mother, can, by virtue of these words, “If none of them desires to accept the estate,” enter upon it after having changed his mind, before a blood-relative or an agnate does so; because these terms have a broader meaning. And, as they have a broad meaning, a year should be granted him in which to change his mind, as he has a year in which to accept prætorian possession of the estate.
7 Idem libro singulari ad senatus consultum Tertullianum et Orphitianum. Et orphit si quis intestatus decesserit relicta matre et fratre consanguineo vel sorore quamvis per adrogationem quaesitis, eadem iura in persona matris servantur, quae et naturalibus extantibus liberis.
7 The Same, On the Tertullian and Orphitian Decrees of the Senate. When anyone dies intestate, leaving a mother, and a brother, or a sister related by blood, although they are such from being arrogated, the same rights will be preserved, so far as the person of the mother is concerned, as in the case where natural children survive.
8 Gaius libro singulari ad senatus consultum Tertullianum. In suspenso est ius matris, si filius defuncti emancipatus deliberet de bonorum possessione petenda.
8 Gaius, On the Tertullian Decree of the Senate. The right of the mother will remain in suspense, if the emancipated son of the deceased deliberates as to whether he will demand prætorian possession of the estate, or not.
9 Idem libro singulari ad senatus consultum Orphitianum. Sacratissimi principis nostri oratione cavetur, ut matris intestatae hereditas ad liberos, tametsi in aliena potestate erunt, pertineat.
9 The Same, On the Orphitian Decree of the Senate. It is provided by a Decree of our Most Holy Emperor that the estate of a mother, dying intestate, belongs to her children, even though they may be under the control of another.
10 Pomponius libro secundo senatus consultorum. Si filius familias miles non sit testatus de his, quae in castris adquisierit, an ea ad matrem pertineant, videndum est. sed non puto: magis enim iudicio militum hoc beneficium concessum est, non ut omnimodo quasi patres familiarum in ea re sint. 1Quando in pendenti est, an quaedam personae possint obstare matri, et casus tulerit, ut non inducerentur, matris ius integrum erit, quod medio tempore appenderit: veluti si filio intestato mortuo postumus ei filius potuerit nasci nec natus sit aut mortuus editus, vel quod etiam filius qui in hostium potestate erat postliminio non sit reversus.
10 Pomponius, Decrees of the Senate, Book II. If a son under paternal control, who is a soldier, does not make a will disposing of the property which he acquired while in the service, let us see whether it will belong to his mother. I do not think that it will, for the privilege of disposing of property of this description is, in fact, granted by military law; and, under such circumstances, sons are, by no means, regarded as the heads of households, so far as such property is concerned. 1While the right of a mother remains in suspense, for the purpose of determining whether or not certain persons can exclude her from the succession, and the result is that they cannot do so, the right to which she was entitled during the intermediate time will be unimpaired; for instance, if a son should die intestate, and a posthumous child could have been born to him, but either was not born, or died at birth; or where a son, who was in the hands of the enemy, did not return, so as to take advantage of the law of postliminium.