the death of the testator; accordingly, though rescripts have varied, it is now the rule that, if all the parties are present, three or five days is the interval within which the tablets must be opened; if they are absent, the same number of days after they are assembled; in order that heirs, legatees, manumitted slaves, and the military treasury (entitled, 3 § 125, to vicesima hereditatum, i. e. 5 per cent. on the value of Roman citizens' testamentary successions), may come into their rights without unnecessary delay.' In cases of urgency, when the will was opened in the absence of the attesting witnesses in the presence of respectable persons, it was afterwards forwarded to the witnesses for the verification of their seals, Dig. 29, 3, 7. Every one who desired it had the power of inspecting a will and taking a copy, Dig. 29, 3, 8. BOOK III. DE RERUM UNIVERSITATIBUS ET DE OBLIGATIONIBUS. DE HEREDITATIBUS QUAE AB INTESTATO DEferuntur. § 1. Intestatorum hereditates lege XII tabularum primum ad suos heredes pertinent. § 2. Sui autem heredes existimantur liberi qui in potestate morientis fuerint, veluti filius filiave, nepos neptisve ex filio, pronepos proneptisve ex nepote filio nato prognatus prognatave. nec interest utrum naturales sint liberi, an adoptivi. Ita demum tamen nepos neptisve et pronepos proneptisve suorum heredum numero sunt, si praecedens persona desierit in potestate parentis esse, sive morte id acciderit sive alia ratione, veluti emancipatione: nam si per id tempus quo quis moritur filius in potestate eius sit, nepos ex eo suus heres esse non potest. idem et in ceteris deinceps liberorum personis dictum intellegemus. § 3. Uxor quoque quae in manu est sua heres est, quia filiae loco est; item nurus quae in filii manu est, nam et haec neptis loco est. sed ita demum erit sua heres, si filius cuius in manu erit, cum pater moritur, in potestate eius non sit. idemque dicemus et de ea quae in nepotis § 1. Intestate successions by the law of the Twelve Tables devolve first to self-successors. § 2. Self-successors are children in the power of the deceased at the time of his death, such as a son or a daughter, a grandchild by a son, a great-grandchild by a grandson by a son, whether such children are natural or adoptive: subject, however, to this reservation, that a grandchild or great-grandchild is only self-successor when the person in the preceding degree has ceased to be in the power of the parent either by death or some other means, such as emancipation; for instance, if a son was in the power of the deceased at the time of his death, a grandson by that son cannot be a self-successor, and the same proviso applies to the subsequent degrees. § 3. A wife in the hand of the deceased is a self-successor, for she is a quasi daughter; also a son's wife in the hand of the son, for she is a quasi granddaughter; subject, however, to the proviso that she is not self-successor if her husband is in the power of his father at the manu matrimonii causa sit, quia time of his father's death. A wife proneptis loco est. in the hand of a grandson is a selfsuccessor, subject to the same proviso, because she is a quasi greatgranddaughter. § 4. After-born children, who, if born in the lifetime of the parent, would have been subject to his power, are self-successors. § 5. Also those in whose behalf the provisions of the lex Aelia Sentia (1 § 32) or the senatusconsult have been satisfied by proof of excusable error subsequently to the death of the parent, for if the error had been proved in the lifetime of the parent they would have been subject to his power. § 6. Also, a son, who has undergone a first or second mancipation and is manumitted after the death of the father, is a self-successor. § 7. Accordingly, a son or daughter and grandchildren by another son are called contemporaneously to the succession; nor does the nearer grade exclude the more remote, for justice seemed to dictate that grandchildren should succeed to their father's place and portion. Similarly, a grandchild by а son and a great-grandchild by a grandson by a son are called contemporaneously to the succession. § 8. And as it was deemed to be just that grandchildren and greatgrandchildren should succeed to their father's place, it seemed consistent that the number of stems, and not the number of individuals, should be the divisor of the succession; so that a son should take a moiety, and grandchildren by another son the other moiety; or if two sons left children, that a single grandchild or two grandchildren by one son should take one moiety, and three or four grandchildren by the other son the other moiety. § 1. The words 'testate' and 'intestate,' in the language of English lawyers, are only applicable, I believe, to a deceased person. The awkwardness of having no corresponding adjectives to couple with succession must be my apology for sometimes speaking of testate or intestate succession. For the meaning of suus heres, see commentary on 2 § 157 and 2 § 123. DE LEGITIMA AGNATORUM SUCCESSIONE. § 9. Si nullus sit suorum heredum, tunc hereditas pertinet ex eadem lege XII tabularum ad adgnatos. § 10. Vocantur autem adgnati qui legitima cognatione iuncti sunt: legitima autem cognatio est ea quae per virilis sexus personas coniungitur. itaque eodem patre nati fratres agnati sibi sunt, qui etiam consanguinei vocantur, nec requiritur an etiam matrem eandem habuerint. item patruus fratris filio et invicem is illi agnatus est. eodem numero sunt fratres patrueles inter se, id est qui ex duobus fratribus progenerati sunt, quos plerique etiam consobrinos vocant. qua ratione scilicet etiam ad plures gradus agnationis pervenire poterimus. § 11. Non tamen omnibus simul agnatis dat lex XII tabularum hereditatem, sed his qui tunc, cum certum est aliquem intestato decessisse, proximo gradu sunt. § 12. Nec in eo iure successio est ideoque si agnatus proximus hereditatem omiserit, vel antequam adierit, decesserit, sequentibus nihil iuris ex lege competit. § 13. Ideo autem non mortis tempore, quis proximus sit requirimus, sed eo tempore quo certum fuerit aliquem intestatum decessisse, quia si quis testamento facto deces § 9. If there is no self-successor, the succession devolves by the same law of the Twelve Tables to the agnates. § 10. Agnates are statutory cognates. Statutory cognates are kindred related through males. Thus brothers by the same father are agnates, though by different mothers, and are called consanguineous; and a father's consanguineous brother is agnate to the nephew, and vice versâ; and the sons of consanguineous brothers, who are called consobrini, are mutual agnates; so that there are various degrees of agnation. § 11. Agnates are not called all contemporaneously to the succession by the Law of the Twelve Tables, but only those of the nearest degree at the moment when it is certain that the deceased is intestate. § 12. And in title by agnation there is no advancement of grades; that is to say, if an agnate of the nearest grade decline the succession, or die before acceptance, the agnates of the next grade do not become entitled under the statute. 13. The date for determining the nearest agnate is not the moment of death, but the moment when intestacy is certain, because it seemed better, when a will is left, serit, melius esse visum est tunc ex iis requiri proximum, cum certum esse coeperit neminem ex eo testamento fore heredem. § 14. Quod ad feminas tamen attinet, in hoc iure aliud in ipsarum hereditatibus capiendis placuit, aliud in ceterorum bonis ab his capiendis. nam feminarum hereditates perinde ad nos agnationis iure redeunt atque masculorum : nostrae vero hereditates ad feminas ultra consanguineorum gradum non pertinent. itaque soror fratri sororive legitima heres est; amita vero et fratris filia legitima heres esse non potest. sororis autem nobis loco est etiam mater aut noverca quae per in manum conventionem aput patrem nostrum iura filiae consecuta est. § 15. Si ei qui defunctus erit sit frater et alterius fratris filius, sicut ex superioribus intellegitur, frater prior est, quia gradu praecedit. sed alia facta est iuris interpretatio inter suos heredes. § 16. Quodsi defuncti nullus frater extet, sed sint liberi fratrum, ad omnes quidem hereditas pertinet: sed quaesitum est, si dispari forte numero sint nati, ut ex uno unus .vel duo, ex altero tres vel quattuor, utrum in stirpes dividenda sit hereditas, sicut inter suos heredes iuris est an potius in capita. iamdudum tamen placuit in capita dividendam esse hereditatem. itaque quotquot erunt ab utraque parte personae, in tot portiones hereditas dividetur, ita ut singuli singulas portiones ferant. § 17. Si nullus agnatus sit, eadem lex XII tabularum gentiles ad here to take the nearest agnate at the moment when it is ascertained that there will be no testamentary suc cessor. § 14. As to females, the rules of title by descent are not the same in respect of the successions which they leave and in respect of the successions which they take. An inheritance left by a female is acquired by a male by the same title of agnation as an inheritance left by a male, but an inheritance left by a male does not devolve to females beyond sisters born of the same father. Thus a sister succeeds to a sister or brother by the same father, but the sister of a father and daughter of a brother have no statutory title by descent. The rights of quasi sister belong to a mother or stepmother who passes into the hand of a father by marriage and acquires the position of a quasi daughter. § 15. If the deceased leaves a brother and another brother's son, as observed above (§ 11), the brother has priority, because he is nearer in degree, which differs from the rule applied to self-successors. § 16. If the deceased leaves no brother, but children of more than one brother, they are all entitled to the succession; and it was once a question, in case the brothers left an unequal number of children, whether the number of stems was to be the divisor of the inheritance, as among self-successors, or the number of individuals; however, it has long been settled that the divisor is the number of individuals. Accordingly, the total number of persons determines the number of parts into which the inheritance must be divided, and each individual takes an equal portion. § 17. In the absence of agnates the same law of the Twelve Tables calls |