Praetorian intestate succession

To correct the deficiencies of the old civil intestate succession system, the praetor introduced several edicts, by means of which he offered possession of the estate to different members of a class within a certain time frame.

The second class, legitimi, consisted of the civil heirs, i.e., those who could inherit in accordance with the Twelve Tables: the praetor offered the estate to the family heirs again, as well as to the agnates. The patron and his descen­dants in the male line were also called in the case of succession of a freedman who died without family heirs.

In the absence of members of the above-mentioned groups, the praetor offered the possession of the estate to the blood-relatives of the deceased (cognati) up to the sixth degree. This group of cognati included children in an adoptive family with respect to the estate of their biological parents, and female agnates beyond the degree of sisters (Gaius 3.29-31). The relation between mother and child was recognized in this group. Illegitimate children were not regarded as blood relatives of the father, but they were considered blood relatives of the mother. In the case of freedmen, blood relatives were taken into consideration only when the family relationship had been created after manumission.

In the final class, vir et uxor, the praetor offered the estate to the surviving spouse.

During the Principate, two important senatorial resolutions improved the rights of succession between mother and children, both legitimate and illegi­timate. The so-called senatus consultum Tertullianum, passed during the reign of Hadrian, granted a mother with three children (ius liberorum) a right of intestacy succession to her children’s inheritance, along with the other agnates (after the proper heirs of a male child and the child’s father, and brothers of

The law of succession 169 the whole blood). The sisters and the mother forms one class. On the other hand, the so-called senatuus consultum Orficianum (178 ce) established that when a mother died intestate, her children would be the first to succeed her. Later legislation extended the right to grandchildren.

Collatio emancipati

The new praetorian order of succession incorporating emancipated children sometimes resulted in clear unfairness against the family heirs, who were not able to create their own estate. Suppose that Titius died leaving two sons, Caius and Sempronius. Caius remained under the paternal power until Titius’s death, while Sempronius had been emancipated ten years before his father’s death. Had Sempronius continued under the paternal power, as Caius did, all of Sempronius’s acquisitions would have become part of the inheri­tance, since all things purchased by a son under parental power belonged automatically to the father.

The praetor remedied this injustice with a new edict in which he denied possession of the estate to those emancipated children who did not promise to share their own property with the other family heirs. Emancipated children thus could either receive a diminished share of the inheritance or make some payments to the other possessors to compensate for the value of their own assets. Of course, if the emancipated children thought possession of the estate under these new circumstances disadvantageous for them, they could abstain from applying for a share in it.