BOOK III.
TITLE I. OF THE DEVOLUTION OF INHERITANCES ON INTESTACY
A man is said to die intestate who either has made no will at all, or has made one which is invalid, or if one which has been duly executed has been subsequently revoked, or rescinded, or finally, if no one accepts as heir under the testament.
1 The inheritances of intestate persons go first, by the statute of the Twelve Tables, to family heirs;
2 and family heirs, as we said above, are those who were in the power of the deceased at the time of his death, such as a son or daughter, a grandchild by a son, or a greatgrandchild by such grandchild if a male, and this whether the relationship be natural or adoptive. Among them must also be reckoned children who, though not born in lawful wedlock, have been inscribed members of the curia according to the tenor of the imperial constitutions relating to them, and thus acquire the rights of family heirs, or who come within the terms of our constitutions by which we have enacted that, if any one shall cohabit with a woman whom he might have lawfully married, but for whom he did not at first feel marital affection, and shall after begetting children by her begin to feel such affection and formally marry her, and then have by her sons or daughters, not only shall those be lawful children and in their father's power who were born after the settlement of the dowry, but also those born before, to whom in reality the later born ones owed their legitimacy; and we have provided that this rule shall hold even though no children are born after the execution of the dowry deed, or if, having been born, they are dead. It is to be observed, however, that a grandchild or greatgrandchild is not a family heir, unless the person in the preceding degree has ceased to be in the power of the parent, either through having died, or by some other means, such as emancipation; for if at the time of a man's decease a son is in his power, a grandson by that son cannot be a family heir, and the case is exactly the same with more remote descendants. Children too who are born after the ancestor's death, and who would have been in his power had they been born during his lifetime, are family heirs.
3 Family heirs succeed even though ignorant of their title, and they can take upon an intestacy even though insane, because whenever the law vests property in a person, even when he is ignorant of his title, it equally vests it in him if insane. Thus, immediately on the parent's death, the ownership is as it were continued without any break, so that pupils who are family heirs do not require their guardian's sanction in order to succeed, for inheritances go to such heirs even though ignorant of their title; and similarly an insane family heir does not require his curator's consent in order to succeed, but takes by operation of law.
4 Sometimes, however, a family heir succeeds in this way to his parent, even though not in the latter's power at the time of his decease, as where a person returns from captivity after his father's death, this being the effect of the law of postliminium.
5 And sometimes conversely a man is not a family heir although in the power of the deceased at the time of his death, as where the latter after his death is adjudged to have been guilty of treason, and his memory is thereby branded with infamy: such a person is unable to have a family heir, for his property is confiscated to the treasury, though one who would otherwise have succeeded him may be said to have in law been a family heir, and ceased to be such.