He dies intestate who either did not make any will at all, or did not make it legally, or when the one which he did make was broken or void, or when no one has become an heir under it.

(1) The inheritances of intestate persons, by law of the Twelve Tables, belong in the first place to their proper heirs.

(2) But as We have previously stated, those are considered proper heirs who are under the control of the decedent, as a son or a daughter, a grandson or a granddaughter by a son, or a great-grandson or a great-granddaughter derived from a grandson born of a son; nor does it make any difference whether the children are natural or adopted. With these must also be counted such as have not been born in lawful marriage, but, nevertheless, obtain the rights of proper heirs in conformity with the provisions of Imperial Constitutions promulgated with reference to such matters, by having been brought before the courts of their cities; and also those included in Our own Constitutions, by which We have ordered that when anyone has cohabited with a woman not originally intending to marry her — although she was one whom he could have married — and has had children by her, and afterwards, induced by affection, has entered into a nuptial agreement with her, and had sons or daughters by her; not only shall those children born after the marriage-gift has been given be legitimate and under the control of their father, but also those born previously, and who gave occasion to the bestowal of legitimacy upon those subsequently born.

This rule We have determined shall stand, even though no children should be born after the execution of the dotal instrument, or where those who have been born have died. Thus a grandson or a granddaughter and a great-grandson or a great-granddaughter are included in the number of proper heirs only when the person superior to them in degree has ceased to be under the control of his ascendant, whether this has occurred through death, or for some other cause as, for instance, through emancipation; for if, when a man dies, his son Is under his control, his grandson by him cannot be a proper heir; and this principle We understand to be established with reference to other classes of descendants who are further removed.

Posthumous children, also, who, if they had been born during the lifetime of their father, would have been under his control, are proper heirs.

(3) Proper heirs become such even when they are ignorant of the fact; and even though they are insane they can still be heirs, because when anything can be acquired by us without our knowledge, this can also be done by insane persons under the same circumstances. Moreover, ownership is, as it were, continued after the death of a parent, and therefore minors have no need for the consent of a guardian, since an estate can be acquired by proper heirs without their knowledge; nor is the consent of a curator necessary for the acquisition of property by an insane person, since it vests by operation of law.

(4) Sometimes, also, a child becomes the proper heir of his ascendant although he was not under his control at the time of his death, as, for example, where a person taken captive by the enemy returns after the death of his father; for the law of postliminium brings this about.

(5) On the other hand, it sometimes occurs that although a party may belong to the family of the deceased at the time of his death, he does not become a direct heir; as, for instance, if a father be convicted of treason after his death, and on this account his memory is rendered infamous; for then he cannot have a direct heir, because the Treasury becomes his successor; still it may be said that he is legally his heir, but that his right of succession has been lost.

(6) When a son or a daughter, or a grandson or a granddaughter by another son survive, they are together called to the inheritance, nor does the one who is nearest in degree exclude the one who is more remote; for it seems just that grandsons and granddaughters should succeed to the place of their father.

For the same reason, where there is a grandson or a granddaughter by a son, and a great-grandson and a great-granddaughter by a great-grandson, they succeed on equal terms. And because it has been settled that grandsons and granddaughters, as well as great-grandsons and great-granddaughters, should succeed to the place of their ascendant, it has appeared to be proper that the estate should be divided not per capita but per stirpes,-so that a son may receive half of the estate, and two or more grandsons by another son the other half; and also where there are grandsons by two sons, by one of them perhaps one or two, and by the other three or four, one half of the estate should belong to the one or two and the other half to the three or four.

(7) But when the question arises whether anyone can be a proper heir, We must, in making the investigation, ascertain the time when it was certain that the deceased died without making a will, and this takes place where there is a will which has been abandoned. In accordance with this rule, if a son is disinherited and a foreign heir appointed, and after the death of the son it became certain that the heir appointed under the will will not be the heir, either because he was unwilling, or could not accept, the grandson will become the proper heir of his grandfather, for the reason that at the time it becomes certain that the head of the family died intestate, the grandson alone is found; and this principle is thoroughly established.

(8) And, again, where a grandson is born after the death of his grandfather, still, if he was conceived while the latter was living, he will become his direct heir if his father was dead, and the will of his grandfather was afterwards abandoned. It is evident if he were both conceived and born after his grandfather's death, he cannot become a direct heir when his father was dead and his grandfather's will was subsequently abandoned; because he was connected with the father of his father by no bond of relationship. Nor is anyone whom an emancipated son has adopted considered as one of the descendants of the grandfather. Such persons, also, as they are not considered descendants so far as the right to inherit is concerned, cannot demand the possession of property as next of kin. So much with reference to proper heirs.

(9) Emancipated children have no right of succession by the Civil Law, for they are not proper heirs, for the reason that they have ceased to be under the control of their father; nor are they included by any other right under the law of the Twelve Tables. The Prætor, however, induced by natural equity, grants them possession of the property as descendants, just as if they had been under the control of their ancestor at the time of his death, whether they are alone, or are in concurrence with proper heirs. Therefore, where there are two children, one emancipated and the other under the control of his father at the time of his death, it is evident that he who is under his control is the sole heir by the Civil Law; that is to say, he is the sole proper heir; but as the one who was emancipated is entitled to a share in the estate by the indulgence of the Prætor, it happens that the proper heir has only a right to the remainder.

(10) But those who after having been emancipated by their father have allowed themselves to be adopted, are not admitted to share in the estate of their natural father as children, provided they were in the adoptive family at the time when he died; although if they had been emancipated by their adoptive father while their own father was living, they are clearly entitled to the property of their natural father as they have never been in an adoptive family; and, agreeably to this, they begin to be in the place of strangers, so far as relates to their adoptive father; but where they have been emancipated by their adoptive father after the death of their own father, they are, as far as he is concerned, also in the position of strangers, and so far as relates to the property of their natural father they do not any the more obtain the position of children; and this principle has been adopted for the reason that it would be unjust for an adoptive father to be able to determine to whom the estate of their natural father belonged, whether to his own children, or to his agnates.

(11) For this reason, adoptive children have fewer rights than natural children; for the latter who have been emancipated by the assistance of the Prætor, retain their position as children although they lose it by the Civil Law, but those who are adopted after having been emancipated not only lose their place as children by the Civil Law but are not aided by the Prætor; and this is only just, for a civil regulation cannot destroy a natural right, nor can sons and daughters, or grandsons or granddaughters cease to be such when they are no longer proper heirs; but adoptive children, after they have been emancipated, begin to occupy the position of strangers, because the right and title of son or daughter which they acquired by adoption they lose by another institution of the Civil Law, that is to say, by emancipation.

(12) These regulations are also observed in the possession of property which the Prætor promises in opposition to the provisions of the will of an ascendant to descendants who have been passed over, that is who have neither been appointed heirs, nor disinherited in conformity with law; for the Prætor calls to this possession of the estate both those who were under the control of their father at his death, and those who have been emancipated; but excludes those who were in an adoptive family at the time their natural parent died; and still less does he admit, on the ground of intestacy, adopted children who have been emancipated by their adoptive father, to share in his estate contrary to the provisions of the will, because they have ceased to be included in the number of his children.

(13) We must, however, remember that persons who belong to an adoptive family, or who have been emancipated by an adoptive father after the death of their natural father, where the latter died intestate, are not admitted to the succession by that part of the Edict under which children are called to the possession of their parent's property, but are nevertheless called by another part, that is to say, that by which cognates of the deceased are admitted. Under this part they are only admitted when no children, whether proper heirs or emancipated, stand in their way, and no other relatives on the father's side appear, for the Prætor first summons children who are proper heirs and those who are emancipated, then heirs-at-law, and then the nearest cognates.

(14) All these regulations were indeed approved of by the ancients, and have been somewhat amended by one of Our Constitutions, which We enacted concerning those persons who have been given in adoption to others by their own parents, for We have found some cases in which sons have lost by adoption the succession to their natural parents; but, as adoption is easily removed by emancipation, they have been called to the succession of neither of their father's. Having corrected this in Our ordinary manner, We have drawn up a Constitution in which We have stated that when a natural parent has given his son to be adopted by another, all the said son's rights shall be preserved intact, just as if he had remained under the control of his own father, and absolutely no adoption had taken place, except only in this instance, namely, that he may succeed to his adoptive father when the latter dies intestate.

But where he makes a will, the adopted son can, neither by the Civil nor the Prætorian Law, obtain any portion of his estate, either by demanding possession of it contrary to the provisions of the will, or by bringing a complaint of inofficiousness; for the reason that no obligation is imposed upon his adoptive father either to appoint him his heir, or to disinherit him, since he is not joined to him by any natural tie, not even where one out of three male children has been adopted in accordance with the Sabinian Decree of the Senate; and even in this instance, the fourth of the estate is not preserved for him, nor does any action lie to enable him to recover the same. He, however, whom a natural parent has taken to be adopted is excepted from the operation of Our Constitution, for, both rights, the natural as well as the legal, being united in this person, We have retained the former regulations in this species of adoption, just as in the case where the father of a family gives himself to be arrogated; and these rules may be collected specially and separately from the terms of the aforesaid Constitution.

(15) Again, antiquity being partial to male descendants, called to the succession as proper heirs only those grandsons and granddaughters who are descended in the male line, and gave them the preference in rank over agnates; but computing grandsons born of daughters and great-grandsons born of granddaughters among cognates, placed them after the line of agnates, both with respect to the succession to their maternal grandfather or great-grandfather, and to that of their grandmother or great-grandmother either on the paternal or maternal side. The Emperors, however, could not suffer such an injury to nature to exist without providing a suitable remedy; and as the name of grandson and great-grandson is common to both descendants proceeding from the male as well as the female line so they, for this reason, granted them the same degree and rank in the succession.

But, that some benefit might be enjoyed by those who are sustained not only by the approval of nature but also by that of the ancient law, they were of the opinion that the share of the grandsons, grand-. daughters, and other descendants further removed whom We have enumerated above, should be diminished to a certain trifling extent; so that they might receive a third part less than their mother or grandmother would have received, or that their father or paternal grandfather would have obtained where the person for whose estate a demand is made is a woman; and where parties of this kind entered upon the estate, although they may have done so alone, the relatives on the father's side were not called. And likewise as a law of the Twelve Tables, where a son dies, calls the grandsons or granddaughters, great-grandsons or great-granddaughters in the place of the father to the succession of the estate of the grandfather; so the Imperial regulation summons them to take the place of their mother or their grandmother, when the deduction of the third part of the estate has been made as above set forth.

(16) But as there still remained a matter of dispute between the agnates and the grandchildren previously mentioned, the said father's agnates demanding for themselves a fourth part of the estate of the deceased by virtue of a certain Constitution, We have omitted this constitution from Our Code, and have not permitted it to be inserted therein from the Code of Theodosius. Moreover, in a Constitution which We have promulgated, We have entirely abrogated this rule, and have decreed that agnates cannot claim any part in the succession of a person who is deceased, in case such grandchildren by a daughter, or great-grandchildren by a granddaughter, or other descendants further removed, are still living; lest those who are related in the collateral degrees may have the preference over those descended in the direct line.

This Constitution of Ours We do now also decree shall be enforced in accordance with its scope and time; in such a way, nevertheless that, as the ancient law declared an estate shall be divided between sons and grandsons not per capita but per stirpes, so, likewise, We order a distribution to be made between sons and grandsons by a daughter, or between grandsons and granddaughters by a daughter and other descendants further removed, so that the respective offspring shall obtain the share of their mother, father, grandmother or grandfather without any diminution; and if there should happen to be one or two on one side and three or four on the other, the former shall be entitled to half of the estate, and the latter to the other half.