no longer in their original gens. Thus community of name and pure extraction, without any taint of servile blood, are the essential characteristics of Roman gentility.1 In the revolutions that affected public institutions, the gentiles ceased to be called to the succession, and persons connected by the tie of blood were preferred. of these rules. Gaius has pointed out the harshness of the rules of intestate Harshness succession in the Twelve Tables. A son not under power from having been emancipated, or from any other cause, could not succeed, because he was not in the family and no longer among the sui heredes. So agnates who underwent a change of state lost agnation, and along with it the right of succession. Female agnates, other than sisters, could not succeed. Finally, cognates or relations by women were wholly excluded, so that even the mother, who was not in manu mariti, did not succeed to her son and daughter, and her son and daughter did not succeed to her.2 law. The second period of intestate succession before Justinian Prætorian comprises the innovations introduced by the prætors, who relaxed the severity of the decemviral law. They called to the succession, by the indirect plan of the possession of goods, all the children without distinction, whether emancipated or not, by the edict unde liberi; the wife not in manu and the husband by the edict unde vir et uxor; the more remote agnates, though emancipated, by the edict unde legitimi; the cognates by the edict unde cognati; and so forth. bonorum. When the prætor called emancipated children to the pos- Collatio session of goods by the edict unde liberi or contra tabulas, he obliged them to throw into the succession all the separate property which, if they had remained under power, would have belonged to the head of the family, so as to place them on an equal footing with their brothers who had not been emancipated. This was called collatio bonorum. The same principle was afterwards extended to a daughter even though not emancipated, who was bound to bring into account the marriage portion she received from the head of 1 Cicero, Topic, c. 6. Giraud, Dissertation sur la Gentilité Romaine. 2 Gai. 3. 18-24, Intestate succession under Justinian. General rules. the family in any accounting with the other children. The Emperor Leo extended this obligation to the donatio propter nuptias.1 Finally, Justinian ordained that all the children, without distinction, succeeding ab intestato to the property of ascendants, should be obliged to collate all those things which were imputable to legitim in a complaint of a testament as undutiful.2 Notwithstanding all the improvements introduced by the prætorian edicts, Justinian found it necessary, at the close of his reign, to remodel and simplify the rules of intestate succession, and establish a new system by the 118th Novel, which was published A.D. 543. To this an important addition was made by the 127th Novel. In the Roman law of succession not only is no distinction made between real and personal estates, but primogeniture is disregarded; and there is no preference of males over females. Consanguinity being the basis of Justinian's law, blood relations succeed ab intestato. Except in the instance of the surviving spouse of the intestate, affinity or relationship by marriage gives no right of succession.3 There is no difference between agnates and cognates; the nearer in degree in either excluding the more remote in either. Certain persons, however, unconnected with the deceased by blood, have the right of succession on special grounds. The following is the order in which relations succeed ab intestato under the law of the Novels: First, the succession is devolved on the descendants of the deceased. Secondly, failing descendants, the nearest ascendants are called; but if there be brothers and sisters, and the children of deceased brothers and sisters, they are entitled to succeed together along with ascendants in the same class. Thirdly, half brothers and sisters consanguinean and uterine, and the sons and daughters of such half brothers 1 De Fresquet, vol. ii. p. 18. Marezoll, § 218. 2 Ortolan, Institutes, § 1127-1130. 3 C. 6. 59. 7. and sisters as had predeceased the intestate, are called in the third class. Finally, in the fourth class are comprehended all other collateral relations, without distinguishing whether they are connected with the defunct on both sides or on one side only, but always according to the proximity in degree.1 1.-DESCENDANTS. If a person dies intestate leaving lawful children, they all First class. succeed to him by equal portions without distinction of sex, and if there is only one child, he takes the whole estate. A descendant of either sex, or any degree, is preferred to all ascendants and collaterals. tion. In the direct descending line the right of representation Representatakes place in infinitum. The effect of this is, that the descendants of a son or daughter who has predeceased, take the same place and share of the succession that their parent would have done had he been alive. This right is admitted when the children of the intestate in the first degree co-exist with the descendants of a son and daughter in whatever degree they may happen to be. Thus the children of the intestate succeed to equal shares per capita, while the grandchildren by a son deceased succeed only per stirpes to the share which their parent would have had if he had been alive. Even when grandchildren by different sons or daughters When stand alone, though they are all equally near in degree to the grandchildren take intestate, they take by representation, so that if they happen alone. to be unequal in their numbers as derived from different stocks, the succession is divided among them, not by the head in equal portions, but per stirpes, the descendants of each son or daughter having no more among them all than the portion which their father or mother would have taken if alive. In England a different and more equitable rule is 1 Marezoll, § 206. Mackeldey, § art. 3. Dr Harris, Justinian's Inst. 3. 1. 6, p. 186, note. 649-653. 2 Domat, part 2, b. 2, tit. 1, § 2, followed. For if all the children are dead and only grandchildren exist, they all take, not by families, but per capita, that is, equal shares in their own right as next of kin.1 Second class. Ascendants alone. Ascendants along with sisters. II. ASCENDANTS WITH OR WITHOUT COLLATERALS. If there are no descendants, the father and mother and other ascendants exclude all collaterals from the succession, except brothers and sisters of the whole blood and the children of deceased brothers and sisters, who may succeed concurrently with ascendants in the manner to be immediately explained.2 Three cases may possibly occur affecting succession in the ascending line:-First, the succession of ascendants alone, where there are no collaterals falling within the favoured category; secondly, the concurrence of ascendants with brothers and sisters of the whole blood; and, thirdly, the concurrence of ascendants with brothers and sisters of the whole blood and also with the children of deceased brothers and sisters. 1. When ascendants stand alone, the father and mother succeed in equal portions, and if only one of them survives, he or she succeeds to the whole estate. There is no representation among ascendants, and the nearest in degree excludes the more remote, so that the father alone, or the mother alone, will exclude grandparents. When several ascendants concur in the same degree, some on the father's side and some on the mother's side, the succession is divided into two equal parts, one of which is given to the paternal ascendants and the other to the maternal ascendants per lineas, though the number of individuals should be less on one side than on the other. 2. If there be brothers and sisters of the whole blood, they brothers and are called to the succession along with the father and mother or other ascendants, and the estate is divided among them in capita, that is, according to the number of persons. So where 1 Williams's Exec., p. 1348, 1349. N. 118, ch. 2. N. 127, ch. 1. the deceased leaves a father and mother, and a brother and sister, each is entitled to a fourth of the succession. Voet was of opinion that under the 118th Novel, ch. 2, only the father and mother could succeed along with the brother of the intestate, and consequently that the brother excluded the grandfather.1 This principle was recognised in the law of England in the case of Evelyn, decided by Lord Chancellor Hardwick in 1754;2 but Domat and other eminent civilians have rejected the opinion of Voet. They say he has given an erroneous version of a passage in the Greek Novel 118, ch. 2, by the words "si aut pater aut mater fuerint," while the clause should be translated, as it is by Warnkoenig, " etsi pater aut mater sint," the true meaning of the law being that brothers and sisters are called to the succession along with ascendants, even although these ascendants should be a father and mother.3 with chil 3. By the 118th Novel the children of a deceased brother And also or sister german were not admitted to the succession along dren of dewith ascendants or surviving brothers and sisters; on the ceased brother or contrary, they were excluded by ascendants. This was cor- sister. rected by the 127th Novel, ch. 1, which allowed those children to succeed along with ascendants and surviving brothers or sisters, so as to take by representation the share which would have fallen to their parent had he or she been alive. Whether these nephews are entitled to succeed along with ascendants alone, when there are no surviving brothers of the deceased, is a doubtful question, which has led to much controversy. By the 118th Novel these nephews are excluded by ascendants and by the 127th Novel they are only expressly called when brothers succeed along with ascendants, from which it is inferred that they are not admitted with ascendants alone. This is the conclusion to which Cujas has 1 Voet, Com. ad Pand., tom. ii. p. 588. 1. Muhlenbruch, Doctrina Pandec- 2 Evelyn v. Evelyn, 3 Atkyns, § 510. Dr Irving, Introduction to |