any person entitled ab intestato by the Civil law, 2 § 149, and Ulpian, 23, 6. (3) He sometimes gave possession adverse to rights which the law had conferred on other persons, that is, he contradicted or corrected the law; e. g. he gave juxta-tabular possession to the devisee under a will invalid at Civil law, from want of mancipation or nuncupation, 2 § 149. He gave juxta-tabular possession to the afterborn stranger (postumus alienus), Inst. 3, 9, pr. who, as an uncertain person, could not be instituted by the Civil law, 2 § 242; and he gave contra-tabular possession to the emancipated child passed over in silence by a testator, 2 § 135. As in the two latter functions of supplementing and correcting the law, the praetor did what is elsewhere performed by courts of equity, we have sometimes translated the contrasted terms heres and bonorum possessor by the terms 'legal successor' and 'equitable successor.' The equitable or praetorian successor could not sue or be sued by the direct actions of the Civil law, but only by fictitious actions, 4 § 34. The claim of a succession founded on a title at Civil law was called hereditatis petitio; a claim founded on a purely praetorian title, e. g. cognation, was pursued by the Interdict Quorum bonorum, or, in the latest period, by possessoria hereditatis petitio, Dig. 5, 5, 1. Such at least is Savigny's view, who makes no essential difference between the Interdict Quorum bonorum and Possessoria hereditatis petitio. According to Vangerow, § 509, the Interdict was confined to the provisional purpose of obtaining Possession and Possessoria hereditatis petitio was the means of claiming the inheritance when a claimant (e. g. cognatus or emancipatus) had a merely praetorian title; as Hereditatis petitio was the means of claiming the civil inheritance. Accordingly the Interdict could not be brought, like Hereditatis petitio, against debtors to the inheritance; but only against possessors of corporeal hereditaments. Interdicto Quorum bonorum debitores hereditarii non tenentur, sed tantum corporum possessores, Dig. 4, 3, 2, 2. Debtors would be pursued by Possessoria hereditatis petitio, if they disputed the creditor's right of succession; by actiones fictitiae, 4 § 34, if this was admitted. § 33. The orders or grades or classes to whom the praetor successively granted bonorum possessio in intestacy were as follow: (1) Children (liberi), including not only sui heredes, but also emancipated children, § 26, on condition that the latter brought their goods into hotchpot (collatio bonorum), Dig. 37, 6. Children given in adoption were not admitted in this order, but in the third order of cognates, § 31. (2) Statutory heirs (legitimi), i. e. all who were entitled to inherit under any statute; e. g. agnates who were entitled under the Twelve Tables; mothers, who were entitled to succeed their children under the Sc. Tertullianum; children, who were entitled to succeed their mothers under the Sc. Orphitianum; and sui heredes who had repudiated or omitted to demand possession as members of the first order within the interval allowed, namely, a year. (3) Next of kin (proximi cognati) including those who had neglected to claim in the first or second order. (4) Husband and wife, when the wife is not in manu. A wife in manu would be quasi daughter and therefore sua heres and entitled to succeed with liberi in the first order. These various grades of title are called unde liberi, unde legitimi, unde cognati, unde vir et uxor, phrases which properly denote those articles of the edict in which these classes are summoned to the succession: ea pars edicti unde liberi vocantur, &c., but are used by Roman lawyers as epithets of intestate bonorum possessio. The degrees of cognation in a direct line are the number of generations that separate a descendant from an ascendant: to compute the degrees of collateral cognation we must add the degrees of direct cognation. Thus a man is one degree from his father, and therefore two from his brother and three from his nephew. He is two degrees from his grandfather, and therefore three from his uncle and four from his first cousin or cousin german (consobrinus). He is three degrees from his great-grandfather, and therefore four from his great-uncle and five from his great-uncle's son (propior sobrino) and six from his second cousin (sobrinus), that is, his great-uncle's grandson, for second cousins are the children of first cousins. He is seven degrees from his second cousin's children, and this is the only case in which the seventh degree of cognation was recognized as giving a title to succeed in intestacy, the law only recognizing in other lines the sixth degree of cognation. In English law collateral relationship is a title to inheritance or succession without any limit. § 36. Originally the person entitled to the praetorian succession was required to address a formal demand to the magistrate: but Y under Justinian any signification of intention to accept the succession was sufficient without a demand. The interval allowed for this signification of intention (agnitio) to a parent or child of the defunct was a year, to other claimants a hundred days. If a person in a superior order or degree omitted to signify his acceptance in the interval allowed, the succession then devolved to the next order or degree. If the person who thus omitted to signify acceptance had only a praetorian title to the succession, his right was entirely forfeited by the omission; but if he was entitled at civil law he could evict the bonorum possessor, who accordingly was said to have only a nugatory or ineffective possession (sine re). un § 38. We have already seen that the devisee under an authorized will of a female, though he obtained juxta-tabular possession, might be evicted by the person entitled as agnate, 2 § 119, and that a devisee under a praetorian will might be evicted by a devisee under a prior civil will or by a person entitled as agnate, unless the sole informality of the praetorian will, which rendered it invalid as a civil will, was the omission of mancipation or nuncupation, 2 § 149. DE SUCCESSIONE LIBERTORUM CIVIUM ROMANORUM. § 39. Nunc de libertorum bonis videamus. § 40. Olim itaque licebat liberto patronum suum in testamento praeterire: nam ita demum lex XII tabularum ad hereditatem liberti vocabat patronum, si intestatus mortuus esset libertus nullo suo herede relicto. itaque intestato quoque mortuo liberto, si is suum heredem reliquerat, nihil in bonis eius patrono iuris erat. et si quidem ex naturalibus liberis aliquem suum heredem reliquisset, nulla videbatur esse querella; si vero vel adoptivus filius filiave, vel uxor quae in manu esset sua heres esset, aperte iniquum erat nihil iuris patrono superesse. § 41. Qua de causa postea Praetoris edicto haec iuris iniquitas emendata est. sive enim faciat testamentum libertus, iubetur ita tes $39. Succession to freedmen next demands our notice. § 40. Freedmen were originally allowed to pass over their patron in their testamentary dispositions. By the law of the Twelve Tables the inheritance of a freedman only devolved on his patron when he died intestate and without leaving a self-successor. If he died intestate but left a self-successor, the patron was excluded, and if the self-successor was a natural child, this was no grievance; but if the self-successor was an adoptive child or a wife in the hand, it was hard that they should bar all claim of the patron. § 41. Accordingly, at a later period, the praetor's edict corrected this injustice of the law. If a freedman makes a will, he is commanded tari, ut patrono suo partem dimidiam bonorum suorum relinquat; et si aut nihil aut minus quam partem dimidiam reliquerit, datur patrono contra tabulas testamenti partis dimidiae bonorum possessio. si vero intestatus moriatur, suo herede relicto adoptivo filio, vel uxore quae in manu ipsius esset, vel nuru quae in manu filii eius fuerit, datur aeque patrono adversus hos suos heredes partis dimidiae bonorum possessio. prosunt autem liberto ad excludendum patronum naturales liberi, non solum quos in potestate mortis tempore habet, sed etiam emancipati et in adoptionem dati, si modo aliqua ex parte heredes scripti sint, aut praeteriti contra tabulas testamenti bonorum possessionem ex edicto petierint: nam exheredati nullo modo repellunt patronum. § 42. Postea lege Papia aucta sunt iura patronorum quod ad locupletiores libertos pertinet. Cautum est enim ea lege, ut ex bonis eius qui sestertiorum nummorum centum milium plurisve patrimonium reliquerit, et pauciores quam tres liberos habebit, sive is testamento facto sive intestato mortuus erit, virilis pars patrono debeatur. itaque cum unum filium unamve filiam heredem reliquerit libertus, perinde pars dimidia patrono debetur, ac si sine ullo filio filiave moreretur; cum vero duos duasve heredes reliquerit, tertia pars debetur; si tres relinquat, repellitur patronus. [linea vacua.] § 43. In bonis libertinarum nullam iniuriam antiquo iure patiebantur patroni. cum enim hae in patronorum legitima tutela essent, non aliter scilicet testamentum facere poterant quam patrono auctore. itaque sive auctor ad testamentum faciendum factus erat, neque tantum, to leave a moiety of his fortune to his patron; and if he leaves him nothing, or less than a moiety, the patron can obtain contra-tabular possession of a moiety from the praetor. If he die intestate, leaving as self-successor an adoptive son or a wife in his hand or a son's wife in the hand of his son, the patron can obtain even against these self-successors intestate possession of a moiety from the praetor. The freedman is enabled to exclude the patron if he leaves natural children, whether in his power at the time of his death or emancipated or given in adoption, provided he leaves them any portion of the succession, or that, being passed over in silence, they demand contra-tabular possession in pursuance of the edict; for, if they are disinherited, they do not avail to bar the patron. § 42. At a still later period the lex Papia Poppaea augmented the rights of the patron against the estate of more opulent freedmen. By the provisions of this law whenever a freedman leaves property of the value of a hundred thousand sesterces and upwards, and not so many as three children, whether he dies testate or intestate, a portion equal to that of a single child is due to the patron. Accordingly, if a single son or daughter survives, half the estate is claimable by the patron, just as if the freedman had died childless; if two children inherit, a third of the property belongs to the patron; if three children survive, the patron is excluded. : § 43. In successions to freedwomen no wrong could possibly be done the patron under the primitive law for, as the patron was statutory guardian of the freedwoman, her will was not valid without his authorization, so that, if he authorized a will under which he did not quantum vellet, testamento sibi relictum erat, de se queri debebat, qui id a liberta impetrare potuerat. si vero auctor ei factus non erat, etiam tutius hereditatem morte eius capiebat; nam neque suum heredem liberta relinquebat qui posset patronum a bonis eius vindicandis repellere. § 44. Sed postea lex Papia cum quattuor liberorum iure libertinas tutela patronorum liberaret et eo modo inferret, ut iam sine patroni tutoris auctoritate testari possent, prospexit, ut pro numero liberorum quos superstites liberta habuerit virilis pars patrono debeatur. . . bonis eius, quae omnia . . . . iuris [2 lin.] ad patronum pertinet. . ex § 45. Quae autem diximus de patrono, eadem intellegemus et de filio patroni, item de nepote ex filio, et de pronepote ex nepote filio nato prognato. § 46. Filia vero patroni, item neptis ex filio, et proneptis ex nepote filio nato prognata, quamvis idem ius habeant, quod lege XII tabularum patrono datum est, Praetor tamen vocat tantum masculini sexus patronorum liberos: sed filia, ut contra tabulas testamenti liberti vel ab intestato contra filium adoptivum vel uxorem nurumve dimidiae partis bonorum possessionem petat, trium liberorum iure lege Papia consequitur: aliter hoc ius non habet. § 47. Sed ut ex bonis libertae suae quattuor liberos habentis virilis pars ei deberetur, liberorum quidem iure non est comprehensum, ut quidam putant. sed tamen intestata liberta mortua, verba legis Papiae faciunt, ut ei virilis pars debeatur. si vero testamento facto mortua sit liberta, tale ius ei datur, quale datum take as much as he chose, he had only himself to blame, for he might have imposed his own terms on the woman; if he did not authorize a will, he was assured of the whole succession, for a woman could have no self-successor to bar the claim of the patron. $ 44. But when at a subsequent period, by the enactment of the lex Papia, four children were a title that released a freedwoman from the guardianship of her patron, so that his authorization ceased to be necessary to the validity of her will, the same law enacted that a portion of her estate equal to that of a single child should always be due to the patron. § 45. What has been said of the patron applies to a son of the patron, a grandson by a son, a great-grandson by a grandson by a son. § 46. Although a daughter of a patron, a granddaughter by a son, a great-granddaughter by a grandson by a son have identical rights under the statute of the Twelve Tables with the patron, the praetorian edict only calls the male issue to the succession: but a daughter of the patron can override a will or the intestate claim of an adoptive child, or a wife, or a son's wife, and demand contra-tabular or intestate possession of a moiety under the title of mother of three children by the provisions of the lex Papia; otherwise she has no title. § 47. In the succession to a freedwoman mother of four children, a patron's daughter is not always entitled as mother of three children to the portion of a child, as some suppose: but, if the freedwoman die intestate, the words of the lex Papia give her the portion of a child; if the freedwoman die |