A new kind of succession has arisen through a Constitution of the Divine Marcus; for if those who have received freedom from their masters by a will under which no entry is made upon the estate, wish the property to be delivered to them in order that their freedom may be preserved, they shall be heard.

(1) This is set forth in a Rescript of the Divine Marcus to Popilius Rufus, in the following words: "If the estate of Virginius Valens, who, by will, bestowed freedom upon certain slaves, is in such a condition that it is required to be sold, there being no successor to him by reason of intestacy, he who has jurisdiction of the same must attend to your request; so that delivery may be made to you of the said estate in order to preserve enfranchisements, not only such as are bequeathed directly, but also such as have been left in trust, if you provide sufficient security for the payment to creditors of the full amount to which each one is entitled. And those to whom liberty has been granted directly shall be free, just as if the estate had been entered upon, and those whom the heir has been asked to manumit shall obtain their freedom from you; provided also that if you do not desire the property to be delivered to you on any other condition, even those who have received their freedom directly shall become your freedmen; for We authorize this request of yours, if those whose condition is concerned consent. And in order that the advantage arising from this Our Rescript may not become unavailable for another reason, namely, through the Treasury wishing to claim the estate; those who have charge of Our affairs must remember that the cause of liberty takes precedence of Our pecuniary advantage, and that the estate must be seized in such a way that freedom shall be preserved for those who would have been able to obtain it if the estate had been entered upon in compliance with the terms of the will."

(2) Relief is granted by the said Rescript both to persons who are set free and to the deceased, so that the property of the latter is not seized and sold by creditors; for it is evident that if property is delivered for this reason the sale of it is hindered; as there is a defender of the deceased in existence and one who is indeed suitable, since he provides security for the payment of the full amount due to the creditors.

(3) The Rescript is applicable at once every time that freedom is granted by will. What then if a party dying intestate should bestow freedom by a codicil, and the estate not be entered upon because of intestacy? The advantage of the Constitution should here be applicable, for evidently if a man dies intestate and grants freedom by a codicil, no one can entertain a doubt that the grant is sufficient in law.

(4) The language shows that the Constitution applies when there is no successor by reason of intestacy; and, therefore, as long as it is uncertain whether there is one or not, the Constitution is not applicable, and as soon as it is evident that there will be none, the Constitution becomes operative.

(5) If he who is entitled to complete restitution rejects the estate, the Constitution can become operative and the transfer of property be made, even though the party may be entitled to full restitution. What then occurs, if complete restitution be made to him after the transfer for the purpose of preserving grants of freedom? Unquestionably it must be held that grants of freedom after they have once been bestowed shall not be revoked.

(6) This Constitution was introduced for the purpose of protecting grants of freedom; and therefore, if there are no grants of this description, the Constitution ceases to be applicable. What then, if a party in his lifetime bestows grants of freedom, or does so in anticipation of death, and the parties ask for a transfer of the estate to be made to themselves in order that no inquiry may be instituted as to whether this was, or was not done for the purpose of defrauding creditors; are they to be heard? It is preferable that they should be, although the terms of the Constitution are lacking on this point.

(7) But as We saw that there were many omissions in the aforesaid Constitution, another which is much more full has been enacted by Us, in which many cases are brought together, and the law of this kind of succession is thereby rendered perfectly complete; which anyone may ascertain from the perusal of the Constitution itself.