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.

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. 18Ad Dig. 38,17,2,18Windscheid: Lehrbuch des Pandektenrechts, 7. Aufl. 1891, Bd. III, § 573, Note 5.If 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.

The Same, On Sabinus, Book XIII. He who returns from the enemy is considered always to have been in his own country previous to his return.