1Julianus, Digest, Book XXVII. The following terms of the Edict, “If he who should have been the heir of the testator dies intestate,” must be taken in their broadest sense, and understood to have reference to a certain period of time, not to the date of the testator’s death, but to that when prætorian possession of his estate is demanded. Hence, if the heir-at-law has lost his civil rights, it is clear that he can be barred from obtaining this kind of prætorian possession of the estate.

2Ulpianus, On the Edict, Book XLVI. When the proper heirs reject possession of an estate ab intestato, we hold that they offer no obstacle to the heirs-at-law, that is to say, to those to whom the estate can legally pass. The reason for this is because, by rejecting the possession of the estate in the capacity of children, they begin to be entitled to it as heirs-at-law. 1Moreover, this kind of prætorian possession not only passes to males, but also to females, and not only to freeborn persons but also to freedmen; and therefore it is common to several. For women may have either blood relatives or agnates, and freedmen may also have patrons and patronesses. 2Not only can males obtain prætorian possession of this kind, but females likewise can do so. 3Where anyone dies, and it is uncertain whether he is the head of a household or a son under paternal control, for the reason that his father, who has been captured by the enemy, is still living, or because his civil status is in suspense for some other reason, the better opinion is that prætorian possession of his estate cannot be demanded, as it is not apparent that he has died intestate, and it is uncertain whether he can make a will or not. Therefore, when his condition is ascertained beyond a doubt, prætorian possession of his estate can be demanded; not from the time when it began to be positively known that he died intestate, but when it became certain that he was the head of a household when he died. 4Moreover, this kind of prætorian possession includes everyone who can succeed to the inheritance on the ground of intestacy, whether the provision of the Twelve Tables, or some other enactment, or a decree of the Senate constitutes him an heir at law. Finally the mother, who is entitled to the succession under the Tertullian Decree of the Senate, and also the children, who, under the Orphitian Decree of the Senate, are admitted to the succession of their mother as her heirs at law, can demand prætorian possession.

3Paulus, On the Edict, Book XLIII. Hence, generally speaking, it should be remembered that every time that a law or a Decree of the Senate grants an estate to anyone, prætorian possession of the same must be demanded under this Section of the Edict. If the law directs prætorian possession of an estate to be granted it can be demanded, and this can either be done under the Section of the Edict relating to special enactments, or under that Section which is the subject of discussion at present.

4Julianus, Digest, Book XXVII. If one of two brothers should die after having made a will in accordance with law, and then, while his heir was deliberating with reference to accepting the estate, the other brother should die intestate, and the appointed heir should reject the inheritance, the paternal uncle of the brothers will be entitled to it as heir at law; for that kind of prætorian possession which refers to him “who should be the heir” has reference to the time when the possession of an estate can first be claimed on the ground of intestacy.

5Modestinus, Pandects, Book III. There is this difference between agnates and cognates: cognates are included among agnates, but agnates are not included among cognates; for example, the brother of a father, that is, the paternal uncle, is both an agnate and a cognate, but the brother of a mother, that is to say, the maternal uncle, is an agnate, but not a cognate. 1As long as there is any hope that a deceased person will have a direct heir, there is no ground for the claim of blood relatives to the estate; for example, where the wife of the deceased is pregnant, or his son is in the hands of the enemy.

6Hermogenianus, Epitomes of Law, Book III. Children born after the death of their father, or after his captivity or banishment, as well as those who are under his control at the time when he was captured or banished, retain the right of consanguinity, even though they may not be the heirs of their father, just as is the case with children who are disinherited.