Unde cognati
(Concerning the prætorian possession granted to cognates.)
1 Ulpianus libro quadragensimo sexto ad edictum. Haec bonorum possessio nudam habet praetoris indulgentiam neque ex iure civili originem habet: nam eos invitat ad bonorum possessionem, qui iure civili ad successionem admitti non possunt, id est cognatos. 1Cognati autem appellati sunt quasi ex uno nati, aut, ut Labeo ait, quasi commune nascendi initium habuerint. 2Pertinet autem haec lex ad cognationes non serviles: nec enim facile ulla servilis videtur esse cognatio. 3Haec autem bonorum possessio, quae ex hac parte edicti datur, cognatorum gradus sex complectitur et ex septimo duas personas sobrino et sobrina natum et natam. 4Cognationem facit etiam adoptio: etenim quibus fiet adgnatus hic qui adoptatus est, isdem etiam cognatus fiet: nam ubicumque de cognatis agitur, ibi sic accipiemus, ut etiam adoptione cognati facti contineantur. evenit igitur, ut is qui in adoptionem datus est tam in familia naturalis patris iura cognationis retineat quam in familia adoptiva nanciscatur: sed eorum tantum cognationem in adoptiva familia nanciscetur, quibus fit adgnatus, in naturali autem omnium retinebit. 5Proximus autem accipietur etiam is qui solus est, quamvis proprie proximus ex pluribus dicitur. 6Proximum accipere nos oportet eo tempore, quo bonorum possessio defertur. 7Si quis igitur proximus cognatus, dum heredes scripti deliberant, diem suum obierit, sequens quasi proximus admittetur, hoc est quicumque fuerit tum deprehensus proximum locum optinens. 8Si quis proximior cognatus nasci speretur, in ea condicione est, ut dici debeat obstare eum sequentibus: sed ubi natus non est, admittemus eum, qui post ventrem proximus videbatur. sed hoc ita demum erit accipiendum, si hic qui in utero esse dicitur vivo eo de cuius bonorum possessione agitur fuit conceptus, nam si post mortem, neque obstabit alii neque ipse admittetur, quia non fuit proximus cognatus ei, quo vivo nondum animax fuerit. 9Si qua praegnas decesserit et utero exsecto partus sit editus, in ea condicione est partus iste, ut matris suae accipere bonorum possessionem possit ‘unde proximi cognati’. sed post senatus consultum Orphitianum et ‘unde legitimi’ petere poterit, quia mortis tempore in utero fuit. 10Gradatim autem admittuntur cognati ad bonorum possessionem: ut qui sunt primo gradu, omnes simul admittuntur. 11Si quis apud hostes fuerit mortis tempore eius, de cuius bonorum possessione quaeritur, dicendum est bonorum possessionem peti ab eo posse.
1 Ulpianus, On the Edict, Book XLVI. This kind of prætorian possession depends entirely upon the indulgence of the Prætor, and does not derive its origin from the Civil Law, for he calls those to the possession of an estate who, under the Civil Law, cannot be admitted to the succession, that is to say, cognates. 1They are called cognates on account of their having the same birth; or, as Labeo says, because they have a common origin, so far as their birth is concerned. 2Moreover, this law refers to such cognate relationship as is not servile, for any cognation can hardly be considered servile. 3Again, the prætorian possession which is granted by this Section of the Edict includes six degrees of cognates, and two persons in the seventh, that is, the children of a male or a female cousin. 4Adoption also constitutes cognation. For anyone who is adopted becomes the cognate of those persons of whom he becomes the agnate; since whenever the rights of agnates are taken into account, we understand that those who are made cognates by adoption are included. The result is, therefore, that where a person is given in adoption, he will still retain his rights of cognation in the family of his natural father, as well as those which he obtains in his adoptive family; but he will only obtain cognation in the adoptive family with reference to those persons of whom he becomes the agnate; and he will retain the rights of cognation with all the members of his natural family. 5Moreover, he who is alone will be understood to be the next of kin among the cognates; although, strictly speaking, the next of kin is referred to as one of several. 6It is proper for us to examine the rights of the next of kin among the cognates at the time when prætorian possession of an estate is granted. 7Hence, if the nearest cognate should die while the appointed heirs were deliberating whether to accept the estate or not, the next of kin in the succession will take his place; that is to say, whoever is ascertained to have a right to the next place. 8If there is any prospect that a cognate who will be the next of kin may be born, the condition is such that it must be said that he offers an obstacle to those who follow him in the line of descent. But if the child should not be born, we must admit to the succession the person who appears to be next of kin to the said unborn child. This rule, however, should only be adopted where the child who is said to be unborn was conceived during the lifetime of him the possession of whose estate is in question; for if he should have been conceived after the death of the latter, he will offer no obstacle to the other, nor will he himself be admitted to the succession; because he was not the cognate next of kin to him in whose lifetime the unborn child was not yet in existence. 9If a woman should die while pregnant, and an operation should afterwards be performed to deliver the child, the latter is in such a position that it can obtain prætorian possession of the estate of its mother, as the nearest cognate. Since the passage of the Orphitian Decree of the Senate, the child can demand possession of the estate as heir at law, because it was in its mother’s womb at the time of her death. 10Moreover, cognates are permitted to obtain prætorian possession in regular gradation, so that those who belong to the first degree are all admitted at once. 11If a cognate should be in the hands of the enemy, at the time of the death of the person the prætorian possession of whose estate is in question, it must be said that prætorian possession of the same can be demanded by him.
2 Gaius libro sexto decimo ad edictum provinciale. Hac parte proconsul naturali aequitate motus omnibus cognatis promittit bonorum possessionem, quos sanguinis ratio vocat ad hereditatem, licet iure civili deficiant. itaque etiam vulgo quaesiti liberi matris et mater talium liberorum, item ipsi fratres inter se ex hac parte bonorum possessionem petere possunt, quia sunt invicem sibi cognati, usque adeo ut praegnas quoque manumissa si pepererit, et is qui natus est matri et mater ipsi et inter se quoque qui nascuntur cognati sint.
2 Gaius, On the Provincial Edict, Book XVI. In this Section of the Edict, the Proconsul, actuated by sentiments of natural equity, promises prætorian possession to all cognates whom the tie of blood calls to the succession, even though they may not be entitled to it under the Civil Law. Therefore, even the illegitimate children of the mother, as well as the mother of such children, and brothers of this description, can demand prætorian possession of an estate from one another; for the reason that they are cognates, reciprocally. This rule applies to the extent that where a female slave who was pregnant when she was manumitted has a child, the child subsequently born is the cognate of the mother, and the mother is the cognate of the child, and any children who are afterwards born to her are also cognates of one another.
3 Iulianus libro vicensimo septimo digestorum. Capitis deminutione peremuntur cognationes, quae per adoptionem adquisitae sunt. igitur si post mortem verbi gratia fratris adoptivi intra centensimum diem adoptivus frater capite deminutus fuerit, bonorum possessionem accipere non poterit, quae proximitatis nomine fratris defertur: praetorem enim non solum mortis tempus, sed etiam id, quo bonorum possessio petitur, intueri palam est.
3 Julianus, Digest, Book XXVII. Rights of cognation acquired by adoption are extinguished by the loss of civil rights. Therefore, for example, if within a hundred days after the death of his adopted brother, an adopted son loses his civil rights, he cannot obtain prætorian possession of the estate of his brother, which would otherwise pass to him as being the next of kin. For it is clear that not only the time of the death, but also the time when possession of the estate was demanded, should be taken into consideration by the Prætor.
4 Ulpianus libro sexto regularum. Si spurius intestato decesserit, iure consanguinitatis aut adgnationis hereditas eius ad nullum pertinet, quia consanguinitatis itemque adgnationis iura a patre oriuntur: proximitatis autem nomine mater eius aut frater eadem matre natus bonorum possessionem eius ex edicto petere potest.
4 Ulpianus, Rules, Book VI. If an illegitimate child should die intestate, his property will belong to no one by the right of consanguinity or cognation; because the rights of consanguinity, as well as those of cognation, are derived from the father. However, on the ground of being next of kin, his mother, or his brother by the same mother, can demand prætorian possession of his estate under the terms of the Edict.
5 Pomponius libro quarto ad Sabinum. Legitimis capite deminutis non datur bonorum possessio iure heredis legitimi, quia non eadem causa eorum est, quae liberorum: sed gradu cognatorum rursus vocantur.
5 Pomponius, On Sabinus, Book IV. Prætorian possession based on the right of legal inheritance is not granted to such heirs at law as have lost their civil rights, because their position is not the same as that of children; but such heirs are then called to the succession as belonging to the degree of cognates.
6 Ulpianus libro quadragensimo quinto ad edictum. Cognatis accusatio nihil obest ad successionem, si accusaverint cognatos suos.
6 Ulpianus, On the Edict, Book XLV. Where cognates accuse one another of crime, such an accusation offers no obstacle to succession to their estates.
7 Modestinus libro sexto regularum. Is, qui aliqua ratione servus factus est, manumissione nulla ratione recipit cognationem.
7 Modestinus, Rules, Book VI. Anyone who has become a slave in any way whatsoever can, under no circumstances, regain his rights of cognation by manumission.
8 Idem libro quarto decimo responsorum. Modestinus respondit non ideo minus ad aviae maternae bona ab intestato nepotes admitti, quod vulgo quaesiti proponuntur.
8 The Same, Opinions, Book XIV. Modestinus stated that grandchildren, even though they are illegitimate, are not, for that reason, excluded from the intestate succession of their maternal grandmother.
9 Papinianus libro sexto responsorum. Octavi gradus adgnato iure legitimi heredis, etsi non extiterit heres, possessio defertur: ut proximo autem cognato, quamvis extiterit heres, non defertur. 1Fratris filius pro parte heres institutus, cum patruum surdum esse contenderet atque ideo testamentum facere non potuisse, possessionem ut proximus cognatus accepit. ex die mortis temporis haberi rationem placuit, quia verisimile non videbatur tam coniunctum sanguine defuncti valetudinem ignorasse.
9 Papinianus, Opinions, Book VI. Prætorian possession can be obtained by an agnate of the eighth degree, as the heir-at-law, even if he would not have been the true heir, but it is not granted to a cognate who is next of kin, although he would have been the true heir. 1A nephew, who had been appointed heir to a part of his paternal uncle’s estate, having alleged that his uncle was deaf, and therefore could not make a will, obtained possession of his estate as being the nearest cognate of the deceased. It was decided that the time should be reckoned from the day of his death, for the reason that it did not seem to be probable that anyone so closely related by blood to the deceased could not have been aware of his illness.
10 Scaevola libro secundo responsorum. Intestata reliquit sororem Septiciam diverso patre natam et praegnatem matrem ex alio marito: quaero, si mater hereditatem repudiaverit, dum adhuc praegnas est, posteaque enixa fuerit Semproniam, an etiam Sempronia bonorum Titiae possessionem accipere possit. respondit, si mater hereditate exclusa est, eam quae, ut proponeretur, postea nata est, accipere posse.
10 Scævola, Opinions, Book II. A woman, dying intestate, left a sister, Septitia, the daughter of another father, and her mother pregnant by a second husband. I ask, if the mother should reject the estate while she is still pregnant, and should afterwards have a daughter named Sempronia, whether the said Sempronia can obtain prætorian possession of the estate of her sister Titia. The answer was that, according to the facts stated, if her mother was excluded from the estate, she who was subsequently born could obtain prætorian possession of the same.