the summing up, in a codified form, of a number of conclusions, tendencies, and practices, which the long tale of legislation by the Prætor, the senate, the legislative assemblies, and a succession of emperors, had slowly and progressively evolved. What had long been practically obsolete is boldly pruned away. What was gradually making head as an acknowledged improvement is finally adopted and universally recognized. Long cherished forms are no longer retained out of mere superstitious reverence for the familiar and the existing. The very sources of the law so long distributed between what was immemorial usage, what was equitable amendment of that usage, and what was statutory or imperial legislation, are traced to the one pure fountain of the will of the emperor. Whatever may have been the effect on society, there is no doubt of the gain to the legal profession and to the future harmony and logical exactness of the legal system, or,-what was more important in the actual condition of the world, of any future legal system which might hereafter embody it.

The system of distribution of the estate of intestates under the 118th Novell rested mainly on the decisive preference at all points of blood-relationship to civil relationship, and of the natural family to the artificial civil family. Thus, a man's proper heirs under the old civil law (sui heredes) are no longer heard of, nor are agnates, (or relations solely on the father's side) any longer pitted against the cognates (or relations on the father's or mother's side). Another principle of the new system was the equalization at every point of men and women.

Before enumerating the orders of succession, as prescribed by the new legislation, it will be convenient to notice some general principles which apply throughout.

The civil practice of adoption was so far recognized as that those adopted by ascendants (per adoptionem plenem) and those "arrogated" are ranged in all respects on a par with naturally born children. Cognates, to be reckoned such for purposes of succession, must, at the least, have been conceived at the time of the death. A woman and her

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cognates (including among the latter children not born in Nov. (lxxxix, wedlock as well as the offspring of incestuous. or adulterous unions, if not purporting to be formal marriages) mutually succeeded to each other's estates according to the general provisions of the law. Legitimated children succeeded on a par with naturally born children. If a deceased person left neither a legitimate wife nor children, his children born in concubinage and their mother took one-sixth part of the inheritance. In the case of adoption by one not an ascendant (minus plena adoptio), the adopted child, but not his cognates, succeeded to the adoptor's inheritance. Adoption and arrogation were no bar either way to a succession based on bloodrelationship.

There was no limit of degree to the persons who were called in successive order to the inheritance. The fact and degree of cognation were estimated with reference to the moment at which it became certain, either that the deceased had died without a Will, or that no heir would, in fact, succeed under what purported to be a Will.

The order of succession was four-fold, and may be arranged as follows

(a) Descendants.

(b) Ascendants and brothers and sisters of the whole blood, with their children.

(c) Brothers and sisters of the half-blood, with their children.

(d) Remaining cognates in successive grades.

(e) Husband and wife.

(f) The imperial treasury, or certain special classes of persons, as the members of the deceased's profession, town council, church, monastery, partnership-firm, and, more especially, an indigent widow.

(a) DESCENDANTS.

Children were called on equal terms, whether male or female, and irrespective of whose power they were under, at the time of the decease. Where children had died and

left children or grandchildren of their own, these took their parents' place and share. If all the sons and daughters had died, and only grandchildren survived, the inheritance was distributed equally among all the individual claimants (in capita). If some only of the deceased's children survived, the inheritance was distributed according to the number of the deceased's children (in stirpes). It was in this first rank that a mother's children, whether born in wedlock or not, succeeded to her inheritance.

(b) ASCENDANTS AND BROTHERS AND SISTERS OF THE WHOLE BLOOD, WITH THEIR CHILDREN.

Where several ascendants survived, the nearest grade of cognation was preferred to all the rest, and, as between the father's and mother's sides, the inheritance was distributed equally between them. Where there were brothers or sisters of the whole blood, each of them took a share of the inheritance equal to that of the nearest ascendants. Where a deceased brother had left children, they succeeded to their father's share. This was an amendment, introduced by the 127th Novell, on the rule of the 118th Novell which excluded the children of brothers and sisters Nov. (cxxvii. from this place in the succession.

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According to the letter of the law, these children could. not be admitted where none of their uncles survived, but this seems scarcely reasonable, and, therefore, the omission of the case of the deceased leaving only ascendants and nephews and nieces was probably accidental.

Where there were no ascendants, the brothers and sisters, or their children, if deceased, taking together their parent's presumable share, divided the inheritance equally. Where only nephews and nieces survived, it is left uncertain whether they succeeded by "heads or stocks." The analogy of the older law, which was never abandoned without reason, would favcur the division into L. 2, § 2, heads.

D.(xxxviii. 16)

(c) BROTHERS AND SISTERS OF THE HALF-BLOOD, WITH

THEIR CHILDREN.

In the third order, brothers and sisters of the half-blood were admitted on exactly the same terms as brothers and sisters of the whole blood in the previous order. Similarly, children represented their parent and together took his share. Some uncertainty prevails, when none but such nephews and nieces survived, as to whether the inheritance was distributed by heads or stocks.

(d) COGNATES GENERALLY.

In the fourth order, all the remaining cognates were admitted, a nearer grade being called before the next remoter one, and those in the same grade having the inheritance equally distributed among them.

(e) HUSBAND AND WIFE.

In the fifth order, husband and wife were admitted to each other's inheritance, according to the provisions of the older law.

(ƒ) THE IMPERIAL TREASURY AND CERTAIN SPECIAL CLAIMANTS.

Where the deceased left no surviving cognate or married partner, the imperial treasury claimed the inheritance; but a period of four years had to elapse within which a successor might be recognized. The treasury was not treated as an heir, but it was held bound to satisfy creditors and even to pay legacies left by codicil. The period of four years was calculated from the time that it was certain a Will was invalid, or, in case of an intestacy, L. 10, D. (xliv. from the time when the successive claimants had failed to avail themselves of the period allowed them to take up their rights.

3).

In place of the treasury, the privilege of succession was

conceded to certain special classes of persons, besides those briefly enumerated above. Among these were, any one who had voluntarily undertaken the care of the deceased-if the deceased had been insane and neglected by his natural relations. Such a person was admitted to the exclusion of all the cognates. Similarly, if a rich man left an indigent widow without a dower, she and her children were called together to a share in the inheritance. The question of wealth and poverty sufficient to bring this part of the law into application was one for the judge's discretion. If the husband left the wife property by legacy or otherwise, a proportional reduction took place; but the husband could not, by Will, deprive his wife of this portion. At one time, Justinian allowed an indigent husband in like circumstances to inherit a fourth part of a rich wife's estate, but in his later legislation Nov. (liii. 6). he repealed this law and disallowed the hus- Nov. (cxvii. 5). band's claim. By the eighteenth Novell Justinian had provided that when a deceased had brought up a family of illegitimate children, the mother of whom lived in his house, they should be entitled to a sixth part of the inheritance, the mother taking an equal share of the part with each child.

§ 2. Selection of Heir by the Will of the Deceased.

HISTORICAL ENUMERATION OF THE VARIOUS SORTS OF WILLS.

It is well known that in the earliest days of Rome, that is, at some time before the date of the XII. Tables, the conception of a Will in the modern sense had not arisen. The inheritance of a deceased person either went to a person or classes of persons generally designated by law, or had been formally transferred to another before his decease. It is out of this formal and public transfer that the gradual growth of the idea of a Will manifested itself. Up to the latest days of Justinian's legislation, the