The Law of the Twelve Tables defined the rule which gave preference to the offspring of male so strictly, and to such an extent excluded those related to one another through females, that they did not even admit the reciprocal right of taking an estate by a mother and son or daughter; although the Prætor called such persons to the succession according to their proximity of relationship as cognates, by the proceeding for the possession of property denominated unde cognati.

(1) These restraints of the law were afterwards modified, and the Divine Claudius was the first who granted a mother a lawful right to the estate of her children as a solace for having lost them.

(2) Subsequently, also, by the Tertullian Decree of the Senate passed in the time of the Divine Hadrian, thorough provision is made concerning this sad succession of a mother, but not of a grandmother; so that a freeborn mother having the right obtained from having three children, or a freedwoman having that obtained from having four, was admitted to the succession of sons or daughters who died intestate; even though she were under the control of a relative, provided of course that while she was under another's authority she should enter upon the estate by his order.

(3) The children of a deceased person who are proper heirs or hold the place of such, whether in the first or a more remote degree, are preferred to the mother, and by certain constitutions the son or daughter of a deceased daughter is preferred to the defunct's mother, that is to say, to their own grandmother.

Moreover, the father of either of these, but not the grandfather or great-grandfather, takes precedence of the mother; that is to say, when there is any contention with reference to the estate between them alone. The brother of a son or daughter of the same blood formerly excluded the mother, and the sister of the same blood also was admitted along with the mother; but where there was a brother and a sister of the same blood, and a mother who could be admitted to the succession through her children, the brother formerly excluded the mother, and the estate became the common inheritance of the brother and sister who shared it equally.

(4) But by a Constitution of Ours which We inserted under Our name in the Code, We have considered it proper that relief should be afforded the mother, taking into consideration her natural right as well as childbirth and the risk and frequent death resulting to her therefrom; so that We have thought it impious for an accidental circumstance to be admitted to her injury; for if a freeborn woman has not brought forth three children, or a freedwoman not brought forth four, she would be undeservably deprived of the succession of her children, for how has she done wrong in not having several children, but only a few? Therefore, We have conferred a full legal right upon mothers, whether they be freeborn or emancipated, even though they have not brought forth three or four children, but only one male or female child removed by death; so that even, where this condition exists they are entitled to the lawful succession to their children.

(5) And, as former constitutions treating of legal rights have, to some extent assisted the mother and to some extent oppressed her, and not given her the right to the whole estate; but have in certain instances, deprived her of the third part and bestowed it upon lawful heirs, and, in others, done the contrary; it has seemed to Us the proper and simplest way to give the mother superiority over all heirs-at-law, and to permit her to take the succession to her children without any diminution whatever; except in the case of a brother and sister, whether they are sprung from the same father, or have only the right of cognation; so that as We give her preference over all other heirs-at-law, so We grant succession to the estate at the same time to all brothers and sisters, whether they are heirs-at-law or not; with this limitation, however, that where there are only sisters who are either agnates or cognates, and the mother of the deceased man or woman survives, the mother shall have one half of the estate and all the sisters together the other half. But where any man or woman dies intestate, and a mother survives as well as a brother or brothers, or brothers along with sisters who have legal rights or only those arising from cognation, the estate of the deceased shall be divided among them per capita.

(6) But, inasmuch as We have considered the claims of mothers, We must also consider the claims of their offspring; and therefore they are notified that if they do not, within a year, ask for guardians for their children, or neglect to petition for another guardian, instead of one who has been removed or excused, they shall deservedly be excluded from the succession of their children who die without having reached the age of puberty.

(7) A mother can be admitted to the succession of the estate of a son or daughter by the Tertullian Decree of the Senate, even though the child be illegitimate.