TITLE II. OF THE STATUTORY SUCCESSION OF AGNATES
If there is no family heir, nor any of those persons called to the succession along with family heirs by the praetor or the imperial legislation, to take the inheritance in any way, it devolves, by the statute of the Twelve Tables, on the nearest agnate.
1 Agnates, as we have observed in the first book, are those cognates who trace their relationship through males, or, in other words, who are cognate through their respective fathers. Thus, brothers by the same father are agnates, whether by the same mother or not, and are called 'consanguinei'; an uncle is agnate to his brother's son, and vice versa; and the children of brothers by the same father, who are called 'consobrini, are one another's agnates, so that it is easy to arrive at various degrees of agnation. Children who are born after their father's decease acquire the rights of kinship exactly as if they had been born before that event. But the law does not give the inheritance to all the agnates, but only to those who were nearest in degree at the moment when it was first certain that the deceased died intestate.
2 The relation of agnation can also be established by adoption, for instance, between a man's own sons and those whom he has adopted, all of whom are properly called consanguinei in relation to one another. So, too, if your brother, or your paternal uncle, or even a more remote agnate, adopts any one, that person undoubtedly becomes one of your agnates.
3 Male agnates have reciprocal rights of succession, however remote the degree of relationship: but the rule as regards females, on the other hand, was that they could not succeed as agnates to any one more remotely related to them than a brother, while they themselves could be succeeded by their male agnates, however distant the connexion: thus you, if a male, could take the inheritance of a daughter either of your brother or of your paternal uncle, or of your paternal aunt, but she could not take yours; the reason of this distinction being the seeming expediency of successions devolving as much as possible on males. But as it was most unjust that such females should be as completely excluded as if they were strangers, the praetor admits them to the possession of goods promised in that part of the edict in which mere natural kinship is recognised as a title to succession, under which they take provided there is no agnate, or other cognate of a nearer degree of relationship. Now these distinctions were in no way due to the statute of the Twelve Tables, which, with the simplicity proper to all legislation, conferred reciprocal rights of succession on all agnates alike, whether males or females, and excluded no degree by reason merely of its remoteness, after the analogy of family heirs; but it was introduced by the jurists who came between the Twelve Tables and the imperial legislation, and who with their legal subtleties and refinements excluded females other than sisters altogether from agnatic succession. And no other scheme of succession was in those times heard of, until the praetors, by gradually mitigating to the best of their ability the harshness of the civil law, or by filling up voids in the old system, provided through their edicts a new one. Mere cognation was thus in its various degrees recognised as a title to succession, and the praetors gave relief to such females through the possession of goods, which they promised to them in that part of the edict by which cognates are called to the succession. We, however, have followed the Twelve Tables in this department of law, and adhered to their principles: and, while we commend the praetors for their sense of equity, we cannot hold that their remedy was adequate; for when the degree of natural relationship was the same, and when the civil title of agnation was conferred by the older law on males and females alike, why should males be allowed to succeed all their agnates, and women (except sisters) be debarred from succeeding any? Accordingly, we have restored the old rules in their integrity, and made the law on this subject an exact copy of the Twelve Tables, by enacting, in our constitution, that all 'statutory' successors, that is, persons tracing their descent from the deceased through males, shall be called alike to the succession as agnates on an intestacy, whether they be males or females, according to their proximity of degree; and that no females shall be excluded on the pretence that none but sisters have the right of succeeding by the title of kinship.
4 By an addition to the same enactment we have deemed it right to transfer one, though only one, degree of cognates into the ranks of those who succeed by a statutory title, in order that not only the children of a brother may be called, as we have just explained, to the succession of their paternal uncle, but that the children of a sister too, even though only of the half blood on either side (but not her more remote descendants), may share with the former the inheritance of their uncle; so that, on the decease of a man who is paternal uncle to his brother's children, and maternal uncle to those of his sister, the nephews and nieces on either side will now succeed him alike, provided, of course, that the brother and sister do not survive, exactly as if they all traced their relationship through males, and thus all had a statutory title. But if the deceased leaves brothers and sisters who accept the inheritance, the remoter degrees are altogether excluded, the division in this case being made individually, that is to say, by counting heads, not stocks.
5 If there are several degrees of agnates, the statute of the Twelve Tables clearly calls only the nearest, so that if, for instance, the deceased leaves a brother, and a nephew by another brother deceased, or a paternal uncle, the brother is preferred. And although that statute, in speaking of the nearest agnate, uses the singular number, there is no doubt that if there are several of the same degree they are all admitted: for though properly one can speak of 'the nearest degree' only when there are several, yet it is certain that even though all the agnates are in the same degree the inheritance belongs to them.
6 If a man dies without having made a will at all, the agnate who takes is the one who was nearest at the time of the death of the deceased. But when a man dies, having made a will, the agnate who takes (if one is to take at all) is the one who is nearest when first it becomes certain that no one will accept the inheritance under the testament; for until that moment the deceased cannot properly be said to have died intestate at all, and this period of uncertainty is sometimes a long one, so that it not unfrequently happens that through the death, during it, of a nearer agnate, another becomes nearest who was not so at the death of the testator.
7 In agnatic succession the established rule was that the right of accepting the inheritance could not pass from a nearer to a more remote degree; in other words, that if the nearest agnate, who, as we have described, is called to the inheritance, either refuses it or dies before acceptance, the agnates of the next grade have no claim to admittance under the Twelve Tables. This hard rule again the praetors did not leave entirely without correction, though their remedy, which consisted in the admission of such persons, since they were excluded from the rights of agnation, in the rank of cognates, was inadequate. But we, in our desire to have the law as complete as possible, have enacted in the constitution which in our clemency we have issued respecting the rights of patrons, that in agnatic succession the transference of the rights to accept from a nearer to a remoter degree shall not be refused: for it was most absurd that agnates should be denied a privilege which the praetor had conferred on cognates, especially as the burden of guardianship fell on the second degree of agnates if there was a failure of the first, the principle which we have now sanctioned being admitted so far as it imposed burdens, but rejected so far as it conferred a boon.
8 To statutory succession the ascendant too is none the less called who emancipates a child, grandchild, or remoter descendant under a fiduciary agreement, which by our constitution is now implied in every emancipation. Among the ancients the rule was different, for the parent acquired no rights of succession unless he had entered into a special agreement of trust to that effect prior to the emancipation.