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.

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.

Ulpianus, On Sabinus, Book XII. Where the father, after he has been ransomed, dies before reimbursing the person who ransomed him, and his son tenders the amount of his ransom after his death, it must be said that he can be the proper heir of his father; unless someone may say with more subtlety that the father, when he died, recovered the right of postliminium, as it were by the release of a pledge, and died without any liability for his debt, so that he is entitled to have a proper heir. This opinion is not destitute of reason.