The right to the possession of an estate was introduced by the
Prætor for the purpose of amending the ancient law; and not only did the
Prætor amend the ancient law in this manner with respect to the
inheritances of intestates, as has previously been mentioned, but also
concerning parties who died after having made a will; for if a posthumous
stranger were appointed an heir, although, according to the Civil Law he could
not enter upon the estate because his appointment was void, he, nevertheless,
became the possessor of the property by honorary law, namely, through the aid
of the Prætor; but a person of this kind in accordance with one of Our
Constitutions is at present legally appointed an heir, this being, as it were,
not unknown even to the Civil Law.
(1) Occasionally, however, the Prætor promises possession of the
estate with the expectation of neither amending nor attacking the ancient law,
but rather of confirming it; for he also gives possession of property in accordance with testamentary provisions to those who have
been appointed heirs by a legally executed will. He also in case of intestacy
calls to the possession of the estate the proper heirs and agnates, although,
leaving possession of the property out of the question, the estate belongs to
them by the Civil Law.
(2) Those whom the Prætor calls to the succession do not, however,
become heirs merely by operation of law, as the Prætor cannot appoint an
heir; for heirs become such only by reason of a legal enactment or some similar
Constitution; as, for instance, by a Decree of the Senate and the Imperial
Constitutions, but when the Prætor gives them possession of the property,
they are placed in the position of heirs, and are called the possessors of the
estate.
The Prætor has also established many other degrees in granting
possession of estates, while contriving that no one shall die without a
successor; for in compliance with what is good and equitable, he has enlarged
the right of receiving estates, which, by the Law of the Twelve Tables has been
restricted to extremely narrow limits.
(3) These are the possessions of estates by will: first, that which is
given to children who have been passed over, and is called "contrary to the
provisions of the will"; second, that which the Prætor promises to all
legally appointed heirs, and, for this reason is called "in accordance with the
provisions of the will". And after having first treated of wills he proceeds to
the discussion of intestates; and, in the first place, gives possession of the
estate called unde liberi to the proper heirs and to those included
among the latter in accordance with his Edict; in the second place, to the
heirs created by law; and, in the third place, to the ten persons whom he
formerly preferred to a manumitted stranger. The ten persons are the following:
father and mother; grandfather, and grandmother, on both the paternal and the
maternal sides; son and daughter, grandson and granddaughter, whether by a son
or daughter; brother and sister, whether by the father's or the mother's side.
In the fourth place he gives possession to the cognates who are next of kin; in
the fifth, the members of the family most nearly related to the patron; in the
sixth, to the patron and the patroness and their children and ascendants; in
the seventh, to the husband and wife; in the eighth to the cognates of the
party who granted the manumission.
(4) These are the matters introduced by Prætorian jurisdiction.
None of them has been passed over by Us without attention, but, correcting all
matters by Our Constitution, We have admitted the possession of estates both
contrary to and in accordance with the provisions of the will and as being
established through necessity; and also the possession of estates unde
liberi, and unde legitimi, in case of intestacy. With good
intentions and in condensed terms, We have shown that possession which occupies
the fifth place in the Edict of the Prætor, that is to say, unde decem
personæ, to be superfluous; for as the possession of estates
previously mentioned gives priority to the ten persons over a stranger, the
Constitution which We have enacted with reference to the emancipation of
children has caused all ascendants to themselves become manumitters, by reason of the fiduciary agreement, so
that the manumission itself includes this privilege, and the aforesaid
possession of property becomes useless; and therefore having abrogated the
previously mentioned fifth possession of property, We have introduced what was
previously the sixth possession into its place, and established as the fifth
that which the Prætor promises to the cognates who are next of kin.
(5) And as there was formerly in the seventh place that possession of
property known as tum quem ex familia, and in the eighth the unde
liberi patroni patronæque et parentes eorum, We have entirely
abrogated both of these by the Constitution which We enacted concerning the
right of patronage.
For since We have established the succession of freedmen so as to
correspond with the succession of freeborn persons — though We have
restricted the former to the fifth degree only, that some distinction may exist
between those who are freeborn and those who are set free — the possession
of estates contrary to the provisions of the will, unde legitimi, and
unde cognati, suffice to permit persons to claim their rights, and the
entire complexity and inextricable confusion of these two kinds of possession
of property is finally disposed of.
(6) Another species of possession of estates styled unde vir et uxor,
and placed as ninth among the ancient possessions of property, which We
have retained in all its force, and assigned to a higher place, namely the
sixth; having entirely suppressed the tenth ancient possession of property,
that is the unde cognati manumissoris, for reasons already mentioned, so
that only six ordinary possessions now remain existing in full force.
(7) A seventh follows these, and this the Prætors introduced for
the best of reasons; for by their Edict the possession of an estate is promised
finally to those to whom it is provided by any law, decree of the Senate, or
Constitution that it shall be granted; and this the Prætor has not
derived from any fixed rule either with respect to the possession of estates
arising from intestacy, or with respect to those derived from a will; but has
established it as an ultimate and extraordinary measure to be applied as the
case requires; that is to say for the benefit of those who come in either by
will or intestacy, as authorized by laws or decrees of the Senate or in
compliance with the new rules laid down in Imperial Constitutions.
(8) Therefore, when the Prætor had introduced many varieties of
succession and disposed them in regular order, and as there are often persons
of different degrees in every kind of succession; lest the actions of creditors
might be delayed, and that there might be someone against whom they could have
recourse, and not be able to obtain possession of the estate of the deceased
too easily and in this way consult their own interests; the Prætor
appointed a certain time within which to demand possession of the estate, and
granted the term of one year to descendants and ascendants, both natural and
adoptive, for the purpose of demanding possession, and to all others the term
of a hundred days.
(9) And if anyone has not demanded possession of the estate within this
time, it accrues to other persons of the same degree; or, if there be none of
these, it is promised by the edict of succession to the other degrees in their
order, just as if the party who had precedence had not been included in that
class. Therefore, where anyone has rejected the possession of an estate offered
to him in this manner, there shall be no delay until the time fixed for that
possession to expire has passed, but the others are immediately admitted by the
same edict. Those days alone which are authorized by law shall be considered in
demanding possession of an estate.
(10) Former Emperors have judiciously made provisions for this
contingency, so that no one need exercise care in demanding possession of an
estate; but he shall have the entire benefit of it if in any way whatsoever he
discloses his intention of accepting it within the designated
time.(1)
FOOTNOTES
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