Dictionary of Greek and Roman antiquities. Ed. by William Smith. Illustrated by numerous engravings on wood.

600 HIIERES. HERES.
that time the property of another person, and not tate came to their agnati just as the inheritances
of the testator, he could not take the inheritance of males; but wonmen who were beyond the degree
without the consent of his master, for if he took it of consanguinei (a term which legally means brohis master became heres: if such slave was manu- thers and sisters) could not take hereditates ab
mitted before taking possession of the inheritance, intestato. Thus, a sister might take from a brother
he might accept it or refuse it as he pleased. or sister as legitima heres; but an aLnt or a
If an Ingenuus died intestate, either from not brother's daughter could not be a legitima heres.
having made a will, or having made a will but not The principle of Roman law which gave to those
in due form, or having made a will in due form who came into the potestas or manus the quality
which afterwards became inNvalid (s1'riuoz, is's-itunz), of children of the blood, was followed out in this
or if there was no heres under the will, the hIere- case also: a mother or a stepmother who had come
ditas, according to the law of the Twelve Tables, in manueest viri thereby obtained the status of a
came to the heredes sui, and was then called le- daughter; and, consequently, as to legitimate sucgitinza hsereditas. (Gaius, iii. 2.) The heredes sui cession, there were the same relations between such
were " liberi " in the power of the testator at the mother or stepmother and the husband's children,
time of his death; the term liberi comprehended as there were among the husband's children themnot only children, but the children of the testator's selves. By the Twelve Tables the hereditas of anl
male children, and the children of a son's son. intestate mother could not come to her children,
Adopted children were considered the same as because women have no sui heredes; but by a
other children. But grandchildren could not be SCtum Orphitianlum of M. AntoIlinus and Coilheredes sui, unless their father had ceased to be modus, the sons of a wife, not in manu, might take
in the power of the intestate, either by death or in as her legitimi heredes, to the exclusion of consanany other way, as by emancipation. A wife in giuinei and other agnati. (Ulp. Frag. xxvi. ~ 7;
manu being considered as a daughter, anld a comp. Inst. 3. tit. 4.)
daughter-in-law (nur'Zs) in mann filii being con- If a person died leaving no sui heredes, but only
sidered a granddanghter, were sui heredes; but a brother aind another brother's children, the brothe latter only when her husband was not in the ther took all as the nearest agnatus. If there was
power of the intestate at the time of his death. no brother surviving, and only children of brethren,
Posthumous children, who would have been in the the hereditas was divided among all the children
power of the intestate if he were living, were also in capita, that is, the whole was equally divided
sui heredes. The sui heredes took the hereditas aniong all the children.
in equal shares: If there was a son or daughter, If there were no agnati, the Twelve Tables gave
and children of a son deceased, the children of the the hereditas to the gentiles. [GENs.]
deceased son took the portion which their parent Gaius (iii. 18, &c.) briefly recapitulates the strict
would have tacen. But the distribution was in law of the Twelve Tables as to the hereditates of
stirpes, that is, among the stocks or stems sprung intestates:-emancipated children could claim nofrom the ancestor, and, not in ecapita, or amnong the thing, as they had ceased to be sui heredes: the
individuals: thus, if there were a son, and the sons same was the case if a man and his children were
of a deceased son, the son would take half of the at the same time made Roman citizens, unless the
hereditas, and the sons of the deceased son would imperator reduced the children into the power of
take the other half, in equal shares. the father: agnati who had sustained a capitis
If an intestate had no sui heredes, the Twelve diminutio were excluded, and consequently a soni
Tables gave the hereditas to the agnati. (Gaius, who had been given in adoption, and a daughter
iii. 9.) It is stated unlder CoGNATI, who are agnati. who was married and in manu viri: if the next
The hereditas did not belong to all the agnati, but agnlatus did not take possession, he who was next
only to those who were nearest at the time when in order could not for that reason make any claim:
it was ascertained that a person had died intestate. feminae agnatae who were beyond the degree of
If the nearest agnatus either neglected to take the consanguinei had no claim: cognati, whose kiininheritance or died before he had taken possession ship depended on a female, had no mutual rights
of it, in neither case did the next in succession, as as to their hereditates, anld consequently there were
agnatus, take the inheritance. He was the nearest no such mutual rights between a amother and her
agnatus who was nearest at the time when it was children, unless the mother had come in manuin
ascertained that a person lhad died intestate, and viri, and so the rights of consanguinity had been
not he who was nearest at the time of the death; established between them.
the reason of which appears to be that the heredi- Gains proceeds to show (iii. 25, &c.) how these
tas was in a sense the property of the intestate inequitable rules of the civil law were modified by
until his heir was ascertained, and his heir could the praetor's edict. As to the succession of cognati
not be ascertained until it was certain that he had under the Imperial legislation, see Inst. 3. tit. 5,
left no will; and as Gaius observes, if he had left De SCto Tertsuli.; Cod. 6. tit. 58; Nov. 118.
a will, still it might happen that no person would If a man had a son in his power, he was bound
be heres under that will; and accordingly it seemed either to make him heres, or to exheredate (exlaeebetter, as he observes, to look out for the nearest dare) him expressly (nominatimo). If he passed
agnatus at the time when it is ascertained that him over in silence (silentio praeterierit), the will
there is no heres under the will. If there were was altogether void (inCtile, n1on jzlue fiectzun).
several agnati in the same degree, and any one Some jurists were of opinion that even if the son,
refused to take his share or died before he had so passed over, died in the father's lifetime, there
assented to talke it, such share accrued (adcrevit) could be no heres under that will. (Gaius, ii. 123,
to those who consented to take the hereditas. &c.) Other liberi could be passed over, and the
In the case of women, there were some peculi- will would still be a valid will; but the liberi so
arities which arose from their legal condition passed over took a certain portion of the hereditas
(Gaius, iii. 14). The hereditates of women intes- ndcresCenzlo, as it was termed, or,jre adlcrescend~