The Institutes of Justinian

by Unknown

6 Where there is a son or daughter, and a grandchild by another son, these are called together to the inheritance, nor does the nearer in degree exclude the more remote, for it seems just that grandchildren should represent their father and take his place in the succession. Similarly a grandchild by a son, and a greatgrandchild by a grandson are called to the inheritance together. And as it was thought just that grandchildren and greatgrandchildren should represent their father, it seemed consistent that the inheritance should be divided by the number of stems, and not by the number of individuals, so that a son should take onehalf, and grandchildren by another son the other: or, if two sons left children, that a single grandchild, or two grandchildren by one son, should take onehalf, and three or four grandchildren by the other son the other.

7 In ascertaining whether, in any particular case, so and so is a family heir, one ought to regard only that moment of time at which it first was certain that the deceased died intestate, including hereunder the case of no one's accepting under the will. For instance, if a son be disinherited and a stranger instituted heir, and the son die after the decease of his father, but before it is certain that the heir instituted in the will either will not or cannot take the inheritance, a grandson will take as family heir to his grandfather, because he is the only descendant in existence when first it is certain that the ancestor died intestate; and of this there can be no doubt.

8 A grandson born after, though conceived before, his grandfather's death, whose father dies in the interval between the grandfather's decease and desertion of the latter's will through failure of the instituted heir to take, is family heir to his grandfather; though it is obvious that if (other circumstances remaining the same) he is conceived as well as born after the grandfather's decease, he is no family heir, because he was never connected with his grandfather by any tie of relationship; exactly as a person adopted by an emancipated son is not among the children of, and therefore cannot be family heir to, the latter's father. And such persons, not being children in relation to the inheritance, cannot apply either for possession of the goods of the deceased as next of kin. So much for family heirs.

9 As to emancipated children, they have, by the civil law, no rights to succeed to an intestate; for having ceased to be in the power of their parent, they are not family heirs, nor are they called by any other title in the statute of the Twelve Tables. The praetor, however, following natural equity, gives them possession of the goods of the deceased merely as children, exactly as if they had been in his power at the time of his death, and this whether they stand alone or whether there are family heirs as well. Consequently, if a man die leaving two children, one emancipated, and the other in his power at the time of his decease, the latter is sole heir by the civil law, as being the only family heir; but through the former's being admitted to part of the inheritance by the indulgence of the praetor, the family heir becomes heir to part of the inheritance only.

10 Emancipated children, however, who have given themselves in adoption are not thus admitted, under the title of children, to share the property of their natural father, if at the time of his decease they are in their adoptive family; though it is otherwise if they are emancipated during his lifetime by their adoptive father, for then they are admitted as if they had been emancipated by him and had never been in an adoptive family, while, conversely, as regards their adoptive father, they are henceforth regarded as strangers. If, however, they are emancipated by the adoptive after the death of the natural father, as regards the former they are strangers all the same, and yet do not acquire the rank of children as regards succession to the property of the latter; the reason of this rule being the injustice of putting it within the power of an adoptive father to determine to whom the property of the natural father shall belong, whether to his children or to his agnates.

11 Adoptive are thus not so well off as natural children in respect of rights of succession: for by the indulgence of the praetor the latter retain their rank as children even after emancipation, although they lose it by the civil law; while the former, if emancipated, are not assisted even by the praetor. And there is nothing wrong in their being thus differently treated, because civil changes can affect rights annexed to a civil title, but not rights annexed to a natural title, and natural descendants, though on emancipation they cease to be family heirs, cannot cease to be children or grandchildren; whereas on the other hand adoptive children are regarded as strangers after emancipation, because they lose the title and name of son or daughter, which they have acquired by a civil change, namely adoption, by another civil change, namely emancipation.

12 And the rule is the same in the possession of goods against the will which the praetor promises to children who are passed over in their parent's testament, that is to say, are neither instituted nor duly disinherited; for the praetor calls to this possession children who were in their parent's power at the time of his decease, or emancipated, but excludes those who at that time were in an adoptive family: still less does he here admit adoptive children emancipated by their adoptive father, for by emancipation they cease entirely to be children of his.

13 We should observe, however, that though children who are in an adoptive family, or who are emancipated by their adoptive after the decease of their natural father, are not admitted on the death of the latter intestate by that part of the edict by which children are called to the possession of goods, they are called by another part, namely that which admits the cognates of the deceased, who, however, come in only if there are no family heirs, emancipated children, or agnates to take before them: for the praetor prefers children, whether family heirs or emancipated, to all other claimants, ranking in the second degree statutory successors, and in the third cognates, or next of kin.

14 All these rules, however, which to our predecessors were sufficient, have received some emendation by the constitution which we have enacted relative to persons who have been given in adoption to others by their natural fathers; for we found cases in which sons by entering an adoptive family forfeited their right of succeeding their natural parents, and then, the tie of adoption being easily broken by emancipation, lost all title to succeed their adoptive parents as well. We have corrected this, in our usual manner, by a constitution which enacts that, when a natural father gives his son in adoption to another person, the son's rights shall remain the same in every particular as if he had continued in the power of his natural father, and the adoption had never taken place, except only that he shall be able to succeed his adoptive father should he die intestate. If, however, the latter makes a will, the son cannot obtain any part of the inheritance either by the civil or by the praetorian law, that is to say, either by impeaching the will as unduteous or by applying for possession against the will; for, being related by no tie of blood, the adoptive father is not bound either to institute him heir or to disinherit him, even though he has been adopted, in accordance with the SC. Afinianum, from among three brothers; for, even under these circumstances, he is not entitled to a fourth of what he might have taken on intestacy, nor has he any action for its recovery. We have, however, by our constitution excepted persons adopted by natural ascendants, for between them and their adopters there is the natural tie of blood as well as the civil tie of adoption, and therefore in this case we have preserved the older law, as also in that of an independent person giving himself in adrogation: all of which enactment can be gathered in its special details from the tenor of the aforesaid constitution.

15 By the ancient law too, which favoured the descent through males, those grandchildren only were called as family heirs, and preferred to agnates, who were related to the grandfather in this way: grandchildren by daughters, and greatgrandchildren by granddaughters, whom it regarded only as cognates, being called after the agnates in succession to their maternal grandfather or greatgrandfather, or their grandmother or greatgrandmother, whether paternal or maternal. But the Emperors would not allow so unnatural a wrong to endure without sufficient correction, and accordingly, as people are, and are called, grandchildren and greatgrandchildren of a person whether they trace their descent through males or through females, they placed them altogether in the same rank and order of succession. In order, however, to bestow some privilege on those who had in their favour the provisions of the ancient law as well as natural right, they determined that grandchildren, greatgrandchildren, and others who traced their descent through a female should have their portion of the inheritance diminished by receiving less by onethird than their mother or grandmother would have taken, or than their father or grandfather, paternal or maternal, when the deceased, whose inheritance was in question, was a woman; and they excluded the agnates, if such descendants claimed the inheritance, even though they stood alone. Thus, exactly as the statute of the Twelve Tables calls the grandchildren and greatgrandchildren to represent their deceased father in the succession to their grandfather, so the imperial legislation substitutes them for their deceased mother or grandmother, subject to the aforesaid deduction of a third part of the share which she personally would have taken.