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.
TITLE III. OF THE SENATUSCONSULTUM TERTULLIANUM
So strict were the rules of the statute of the Twelve Tables in preferring the issue of males, and excluding those who traced their relationship through females, that they did not confer reciprocal rights of inheritance even on a mother and her children, though the praetors called them to succeed one another as next of kin by promising them the possession of goods in the class of cognates.
1 But this narrowness of the law was afterwards amended, the Emperor Claudius being the first to confer on a mother, as a consolation for the loss of her children, a statutory right to their inheritance,
2 and afterwards, very full provisions were made by the SC. Tertullianum, enacted in the time of the Emperor Hadrian, and relating to the melancholy succession of children by their mothers, though not by their grandmothers, whereby it was provided that a freeborn woman who had three or a freedwoman who had four children should be entitled to succeed to the goods of her children who died intestate, even though herself under paternal power; though, in this latter case, she cannot accept the inheritance except by the direction of the person in whose power she is.
3 Children of the deceased who are or who rank as family heirs, whether in the first or any other degree, are preferred to the mother, and even where the deceased is a woman her children by imperial constitutions have a prior claim to the mother, that is, to their own grandmother. Again, the father of the deceased is preferred to the mother, but not so the paternal grandfather or greatgrandfather, at least when it is between them only that the question arises who is entitled. A brother by the same father excluded the mother from the succession to both sons and daughters, but a sister by the same father came in equally with the mother; and where there were both a brother and a sister by the same father, as well as a mother who was entitled by number of children, the brother excluded the mother, and divided the inheritance in equal moieties with the sister.
4 By a constitution, however, which we have placed in the Code made illustrious by our name, we have deemed it right to afford relief to the mother, in consideration of natural justice, of the pains of childbirth, and of the danger and even death which mothers often incur in this manner; for which reason we have judged it a sin that they should be prejudiced by a circumstance which is entirely fortuitous. For if a freeborn woman had not borne three, or a freedwoman four children, she was undeservedly defrauded of the succession to her own offspring; and yet what fault had she committed in bearing few rather than many children? Accordingly, we have conferred on mothers a full statutory right of succession to their children, and even if they have had no other child than the one in question deceased.
5 The earlier constitutions, in their review of statutory rights of succession, were in some points favourable, in others unfavourable, to mothers; thus in some cases they did not call them to the whole inheritance of their children, but deducted a third in favour of certain other persons with a statutory title, while in others they did exactly the opposite. We, however, have determined to follow a straightforward and simple path, and, preferring the mother to all other persons with a statutory title, to give her the entire succession of her sons, without deduction in favour of any other persons except a brother or sister, whether by the same father as the deceased, or possessing rights of cognation only; so that, as we have preferred the mother to all with a statutory title, so we call to the inheritance, along with her, all brothers and sisters of the deceased, whether statutorily entitled or not: provided that, if the only surviving relatives of the deceased are sisters, agnatic or cognatic, and a mother, the latter shall have onehalf, and all the sisters together the other half of the inheritance; if a mother and a brother or brothers, with or without sisters agnatic or cognatic, the inheritance shall be divided among mother, brothers, and sisters in equal portions.